Abduh An-Na'im, I am proud to say, is my colleague. (See the previous post). So too, I am proud to say, is the unconscionably prolific John Witte--who, as many of you know, directs Emory's Center for the Study of Law and Religion, and whose op-ed on polygamy will appear in this Sunday's Atlanta Journal-Constitution:
The Legal Challenges of Religious Polygamy
John Witte, Jr.
A century and a half ago, a group
of Mormons made national headlines by claiming a First Amendment right to
practice polygamy, despite criminal laws against it. In four cases from 1879-1890, the United
States Supreme Court firmly rejected their claim, and threatened to dissolve
the Mormon church if it persisted. Part
of the Court’s argument was historical: the common law has always defined
marriage as monogamous, and to change those rules “would be a return to
barbarism.” Part of the Court’s argument
was prudential: religious liberty can never become a license to violate general
criminal laws, “else chaos will ensue.” And part of the Court’s argument was sociological: monogamous marriage “is
the cornerstone of civilization,” and it cannot be moved without upending our whole
culture. These old cases are still the
law of the land, and most Mormons renounced polygamy after 1890. The question of religious polygamy is
back in the headlines – this time involving a fundamentalist Mormon group on a Texas ranch that has retained the church’s traditional polygamist practices. Many of the legal questions raised by this group
are easy. Under-aged and coerced
marriages, statutory rape, and child abuse are all serious crimes. Those adults on the ranch who have committed
these crimes, or intentionally aided and abetted them, are going to jail. They have no claim of religious freedom that
will excuse them, and no claim of privacy that will protect them. Dealing with the children, ensuring proper
procedures, sorting out the evidence, and the like are all practically messy and
emotionally charged questions, but not legally hard.
The harder legal question is whether
criminalizing polygamy is still constitutional. Texas and other every state still have these laws on these books. Can these criminal laws withstand a challenge
that they violates an individual’s constitutional rights to private liberty,
equal protection, and religious liberty. In the nineteenth century, none of these rights claims was
available. Now they are, and they
protect every adult person’s rights to consensual sex, marriage, procreation, contraception,
cohabitation, sodomy, and many other aspects of sexual privacy and
autonomy. May a state prohibit
polygamists from these same rights, particularly if they are inspired by
religious convictions? What rationales
for criminalizing polygamy are so compelling that they can overcome these strong
constitutional objections?
Theologians cite the Bible which says
that “two” -- not three or four – parties join in “one flesh” to form a marriage.
Others remind us that the early biblical
polygamists did not fare so well. Think
of the problems confronted by Abraham with Sarah and Hagar, or Jacob with
Rachel and Leah. Or think of King
Solomon with his thousand wives; their children ended up killing each other. This may be a strong foundation for a church or
synagogue to prohibit polygamy among its voluntary members, but can arguments straight
from the Bible prevail in a pluralistic nation that prohibits the establishment
of religion?
Feminists pose equal protection
arguments: Why should the state permit one man to have several wives, but not one
woman to have several husbands? After
getting past the jokes about which husband would click the remote or which
woman would be so crazy, does this equal protection argument sound any stronger
than that of polygamists who just want the same right of private association as
everyone else?
Public health experts raise
concerns about communicable diseases among children within the extended
household, and transmittable sexual diseases within the rotating marital bed. But what about all those other group
gatherings -- from schools and churches to malls and dorms -- that children
occupy: must they be closed, too, for fear of contagion? And isn’t self-contained polygamous sex much safer
than casual sex with multiple partners which is constitutionally protected?
Political scientists raise worries
about administrative inefficiency. After all, so much of our law presupposes a
single definition of marriage and family life. What would we do if the man dies, or one of the wives files for
divorce? There are no guidelines about how
to allocate the marital property, military benefits, life insurance, and the
like. But we have found a way to do this
for the vast numbers of single, mixed parent, and multiple generation
households that collectively far outnumber families with two parents and their
natural children. This is
administratively doable.
Child experts raise serious concerns
about the development of children of polygamy. Won’t these children be confused by the mixed parental signals and
attachments, and by the inevitable rivalries and rancor with their half siblings? And won’t these children be stigmatized by
their peers for being different? These
arguments have some bite. But how different
is the polygamous lifestyle in our current pluralistic culture? Children are raised by live-in grandparents,
nannies, and day care centers. They live
in large blended families and boarding schools. Their parents may be gay and
lesbian couples, or their families may have religious dress codes that set them
apart from their peers. Are children of
polygamy so differently positioned?
The strongest argument against
polygamy is the argument from moral repugnance. Polygamy is inherently wrong -- “just gross” as my law students will say,
“malum in se” as we law professors
put it. Many states legislate against a
lot of activities -- slavery, indentured servitude, gambling, prostitution, obscenity,
bestiality, incest, sex with minors, self-mutilation, organ-selling, and more
-- just because those activities are wrong or they inevitably foster wrongdoing. That someone wants to engage in these
activities voluntarily for reasons of religion, bravery, custom, or autonomy makes
no difference. That other cultures or continents allow such activities also
makes no difference. For nearly two
millennia, the Western tradition has included polygamy among the crimes that
are inherently wrong. Not just because
polygamy is unbiblical, unusual, unsafe, or unsavory. But also because polygamy routinizes
patriarchy, jeopardizes consent, fractures fidelity, divides loyalty, dilutes
devotion, fosters inequity, promotes rivalry, foments lust, condones adultery,
confuses children, and more. Not in
every case, to be sure, but in enough cases to make the practice of polygamy too
risky to condone.
Furthermore, allowing religious
polygamy as an exception to the rules is even more dangerous, because it will
make some churches and mosques a law unto themselves. Again, some religious communities and their
members might well thrive with the freedom to practice polygamy. But inevitably closed repressive regimes like
the Texas ranch compound will also emerge -- with under-aged girls duped or
coerced into sex and marriages with older men, with women and children trapped
in sectarian communities with no realistic access to help or protection from
the state and no real legal recourse against a church or mosque that is just
following its own rules. We prize liberty,
equality, and consent in this country too highly to court such a risk. If you’re not sure, just ask some of those
moms and kids on the Texas ranch.
And not because Abduh is my colleague!
USNews
Why Islamic States Would Be Bad for Muslims
Two scholars, despite their differences, say that defining 'sharia' is
crucial to finding a healthy place for religion in Muslim nations
Posted May 1, 2008
Maybe it's an only-in-America sort of irony: A prominent scholar who happens
to be Jewish makes the case for more Islamic sharia law in
Muslim-majority states, while another distinguished legal scholar, a devout
Muslim, argues that the best thing for those states, and for sharia, is
to keep them separate.
But beyond the little irony, there is much at stake in the difference of
opinion that emerges from their respective books: Noah Feldman's The Fall
and Rise of the Islamic State and Abdullah Ahmed An-Na'im's Islam and
the Secular State: Negotiating the Future of Shari'a. That difference is of
such crucial importance, in fact, that its wise resolution should be of great
concern to all who claim to be interested in the cause of promoting democracy in
the predominantly Muslim parts of the world.
Both authors are distinguished scholars in their field. Feldman, a prolific
writer (What We Owe Iraq, Divided by God) and professor at Harvard Law
School, served as an adviser to the Iraqi Governing Council when it was drafting
an interim constitution for the post-Saddam Hussein state. He once notably
testified before a U.S. Senate committee that efforts to keep sharia
entirely out of Iraq's Constitution would probably guarantee that Iraq would
have no constitution at all.
An-Na'im's credentials are equally impressive. A professor of law at Emory
University, he was a prominent voice in the Islamic reform movement in his
native Sudan until the growing political power of religious fundamentalists
forced him out of the country in 1985. At Emory and in his earlier work at Human
Rights Watch, An-Na'im has devoted himself to reviving and advancing methods of
interpreting sharia to reveal what he believes is its basic consistency
with international standards of human rights....
An-Na'im's book goes more deeply into the meaning of sharia
than does Feldman's. And even though Feldman's book has a different
focus, its somewhat cursory treatment of the question raises concerns
about his thoughts on the desirability and even the possibility of
Islamic states. Na'im's closer examination strengthens his argument
that in our times, secular states—and certainly not Islamic
states—provide the only political conditions under which Muslims can
truly live in accordance with sharia.
[Read the rest, in USNews.]
Another informative, illuminating post by Bill Stuntz, here.
posted by
Rebecca Sager
“There is a thirst for two things in this country - a thirst for spirituality and a thirst for social justice”.
– Jim Wallis (2008)
When people hear the words “progressive” and “evangelical” together,
a sort of cognitive dissonance occurs. Meshing the notions of Jerry
Falwell and Pat Robertson with ideas of social justice is not something
most people easily understand. For the people inside this new movement,
however, being an evangelical and progressive is a natural fit.
This spring I went to a fundraiser for Tom Periello, a Democratic
candidate for Congress in Virginia. The small crowd was generally young
and professional, and after talking to them it was clear that this was
not just about raising money, it was about changing the dynamic between
religion and politics and creating a new progressive religious
movement. In the crowd were movement activists including members and
employees of Sojourners, Common Good Strategies (CGS), and Catholics in
Alliance for the Common Good (CACG), all organizations that are part of
a new social movement that is aligning Catholics, evangelicals, and
other Christians.
Members of this progressive religious movement see their work as
fundamentally different from other conservative religious activists. As
one founding member told me “How can you be a Christian and not care
about issues like poverty and health care?” Like the others I spoke
with, he told me the 2004 election was a turning point and call to
action, expressing concern for social justice, a hope for something
better in 2008, and an affirmation that faith has a new voice in
politics.
[Rread the rest of this interesting post, at The Immanent Frame.]
Monday, April 28, 2008
Thursday, April 24, 2008
[This, from theatlantic.com.]
Friday, 04.18.08
Photo by Mandel Ngan for AFP/Getty Images
In a surprise move, Pope Benedict XVI met with a group of victims of sexual abuse behind closed doors in Washington D.C.
It was a small but important step.
Pope John Paul II was famous for his public-relations savvy, his
ability to turn the media's fascination with the papal office to his
advantage, but in the sexual abuse scandal his successor has shown the
defter touch. In his waning years, the previous Pope seemed to lack an
appreciation for how deep the rot and outrage went, and the Vatican
behaved as though the scandal had more to do with American media
sensationalism than with the Catholic hierarchy's own sins. Whereas
both as Cardinal and now as Pope, the soft-spoken German-born Joseph
Ratzinger has been more forthright than his predecessor about the "filth" in the priesthood and more active
in response -- and now, in his first trip to the United States since
being elevated to the See of Peter, more willing to make the scandal a
touchstone for his ministry, both in public and in private.
But a meeting like yesterday's should
have happened much, much sooner, and that it did not speaks to a
fundamental problem facing the Catholic Church today -- the extent to
which the Vatican aspires to remain above the grubby, frenetic fray of
modern life, even as its local representatives adopt the worst habits
of modern business executives and politicians. At least part of Rome's
unresponsive response to the sex-abuse scandal should be understood in
the light of the Vatican's desire not to be perceived as a
brand-conscious corporation, with a CEO-Pope overseeing regional
managers -- or worse, an essentially political entity, obsessed with
keeping the Papal approval ratings sky-high and the media narrative in
its favor. But in this particular case, Rome's desire to preserve the
Church's essentially mystical role in world affairs -- to avoid being
sucked into the spin cycle of media sensationalism, and to maintain the
Pope's image as shepherd and teacher, rather than chief executive --
left the Vatican blind to the reality that the men running the American
Church weren't holding up their end of the bargain. They didn't need
direction or wise counsel or even fraternal correction: They needed to
be to be taken to the woodshed by an outraged, scandalized and engaged
Papacy, and the discipline needed to happen swiftly and above all
publicly. And because it didn't -- because in most cases bishops were
allowed to get away with sacrificing the Body of Christ's most innocent
members to protect, though of course only temporarily, their finances
and prerogatives and reputation -- the Roman Catholic Church ended up
looking like an institution prone to all of the evils of a modern
government or corporation, but with none of the accountability.
Be ye therefore wise as serpents, and innocent as doves,
Christ told his followers. But the Church during the sex scandals has
often seemed like a company of serpents -- the American bishops, and
the perverts they protected -- presided over by a company of
otherworldly, out-of-touch doves. The Pope's words and actions this
week are an important step toward changing that perception. But only a
step.
— Ross Douthat
Wednesday, April 23, 2008
[This is lifted from dotCommonweal--because it is soooo germane to us here at MOJ.]
April 23, 2008, 2:02 pm
The New Republic recently posted a Q&A
with Philippe Sands, the author of an important new book on the role of
lawyers in the Bush administration’s so-called coercive interrogation
techniques. A snippet:
One of the lawyers you focus on is Doug Feith–though
he makes clear in his interview with you that he was not functioning in
the Pentagon as a lawyer. The exchange you record with Feith suggests
he was distant from the decision process, and that he had a high
opinion of and supported application of the
Conventions. I remember speaking with military lawyers in 2003
repeatedly and hearing of their concern about Feith: his heavy hand,
his pressure tactics, and his contempt for the Conventions and anyone who attempted to stand up for their application. What’s your assessment of Feith and his claims?
In our system of modern democratic societies, lawyers have a key role
to play. They are the guardians–the gatekeepers–of legality. The rule
of law requires lawyers to exercise independent judgment, and to give
dispassionate, professional advice. That did not happen, at least in
the upper echelons of the administration, in the Departments of Justice
and Defense. Politically appointed lawyers–not the military, not the
career civil servants–could be relied upon by the politicians to do
what was needed, reflecting an unhappy convergence of ideology,
incompetence, and weakness. Doug Feith is a lawyer, although he was not
serving the administration in that capacity. He has a helpfully dodgy
memory. During our conversation he spoke with pride of his role in
ensuring that none of the Guantánamo detainees should be able to rely
on Geneva.
He also recalled only having become involved in the new interrogation
techniques late on, when Haynes’ memo reached Rumsfeld. I pointed out
to him that the memo itself said that its author had already
consulted Feith. His reaction? Merely to point out that I had
mispronounced his name. Following a lengthy conversation–which was
recorded and makes remarkable listening because of his well-developed
sense of self–my perception was clear: Doug Feith was deeply involved
in the decision-making process, fully supported it, and failed to
address the basic questions that one would have expected the Pentagon’s
head of policy to be preoccupied with.
It’s well worth reading in full, no matter what your preoccupations.
New York Times
April 23, 2008
Inmate Count in U.S. Dwarfs Other Nations’
By ADAM LIPTAK
The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.
Indeed, the United States leads
the world in producing prisoners, a reflection of a relatively recent
and now entirely distinctive American approach to crime and punishment.
Americans are locked up for crimes — from writing bad checks to using
drugs — that would rarely produce prison sentences in other countries.
And in particular they are kept incarcerated far longer than prisoners
in other nations.
Criminologists and legal scholars in other industrialized nations
say they are mystified and appalled by the number and length of
American prison sentences.
The United States has, for instance, 2.3 million criminals behind
bars, more than any other nation, according to data maintained by the
International Center for Prison Studies at King’s College London.
China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison. . . .
The United States comes in first, too, on a more meaningful list
from the prison studies center, the one ranked in order of the
incarceration rates. It has 751 people in prison or jail for every
100,000 in population. (If you count only adults, one in 100 Americans
is locked up.)
The only other major industrialized nation that even comes close is
Russia, with 627 prisoners for every 100,000 people. The others have
much lower rates. England’s rate is 151; Germany’s is 88; and Japan’s
is 63.
The median among all nations is about 125, roughly a sixth of the American rate.
[Read the whole piece, here.]
