Strengthening Constitutional Self-Government

No Left Turns


Locke Box of Religious Toleration

Religious toleration is a major tenet of American constitutionalism, but it presupposed other, more fundamental principles:  agreement on natural rights and the ensuing rule of law.  Richard Reeb elaborates the historical and philosophical context of religious toleration:

As Europe freed itself from the rule of theocratic regimes, dissenting religious denominations sought toleration from the domination of the most numerous or powerful sect, which generally was Roman Catholic in the south and Protestant in the north. [John] Locke's remarkable letter [on Toleration], which aimed at "mutual toleration of Christians in their different professions of religion," declares as a necessary condition "charity, meekness and good-will in general towards all mankind, even to those who are not Christian."

That is, all long as churches are "regulating... men's lives according to the rules of virtue and piety," religious tolerance is possible [emphasis added].  As difficult as it was for Christians at that time to admit it, Jews and Muslims can be tolerated as long as their loyalty is to the civil government under which they live, rather than to a foreign power. In Protestant countries, toleration of Roman Catholics seen as beholden to the Vatican was governed by the same principle....

In short, the necessary condition for Muslims' full participation in American citizenship is to renounce Sharia law. As long as any ambiguity or worse on this matter is tolerated, Muslims cannot be good citizens and they undermine American law. We can tolerate religious differences, but we cannot tolerate defiance of American law.

Categories > Religion

Discussions - 4 Comments

"In short, the necessary condition for Muslims' full participation in American citizenship is to renounce Sharia law."

That strikes me as a politically insensitive and misguided way of putting it, and thus in the final analysis non-Lockean, Un-Madisonian and unconstitutional.

I am 100% certain that this isn't required. Since Islam is a religion and freedom of religious belief is a fundamental right, the appropriate standard of review is strict scrutiny. A law saying that a necessary condition of participation in american citizenship is renunciation of sharia law in so far as this cannot be decoupled from Islam itself paints with too broad a brush to be narrowly tailored or the least restrictive means of achieving such an interest even presuming that in the aftermath of september 11th a compelling government interest could be found in national security and not violating the explicit equal protection rights of women.

While it is plausibly un-american to not enjoy bacon, muslims don't have to give up sharia law that dictates above and beyond american standards those foods which are clean or unclean. In terms of public education I should think that Muslims could arguably fall under the Amish exceptions, in so far as muslim/sharia law requires strict seperation from society and a modicum of control over the education of children.

Contract law and arbitration clauses allow parties to covenant and agree upon the the standards of arbitration. I don't see why you couldn't have a muslim or a christian insurance company that only agrees to insure the Orthodox who live strict and clean lives, I don't see why you couldn't have a muslim community or zoning board whose affirmative and restrictive covenants reflected sharia law, except that this might run afoul of disperate/adverse impact. If you could only sell the land to a muslim, odds are he/she would be arab, and sharia law might discriminate against property ownership by women which would run afoul of equal protection. Being muslim is facially neutral, since any race or sex can be muslim, but in practice this would violate a statistical significance test, so such covenants would probably not be enforceable(since this would require state action) or would not run with the land.

Also I think it is important to point out that sharia law would be possible at private schools, just as strict christian/baptist law is possible at Liberty University insofar as these are not state actors and thus not subject to the constitution.

Of course Liberty University can't stone you for having an R rated movie, but it can expell you for having one, which is a major difference between Liberty and a State University(which is a state actor).

Ashland University while being much more liberal than Liberty, is also free to impose Bretheren Law/code of conduct, because it isn't a state actor.

In terms of criminal law muslims, christians and other religious groups can forget about it. This is because Criminal Law is state action, and constitutional law applies. Christianity, Islam and the other world religions can and do have an influence in the ongoing conversation about the moral underpinnings of criminal law, but the chief ethical force is probably the Model Penal Code which completes Bentham's life ambition of creating a "Pannomion". Criminal law is state law however and if you elect the right sorts of representatives the model penal code can be discarded or supplemented for a more christian or muslim view of punishment, subject to constitutional restrictions involving cruel and unusual punishment, et al.

If by Sharia Law you mean the sorts of things practiced in Saudi Arabia such as stoning, flogging, or the finger test for rape then unequivocally muslims would have to renounce sharia law, but it would seem to me that the strenght and gist of Locke(and Madison) isn't to draw and sharpen the focus upon outliers and extreme prejudices, but rather to disestablish the church of england and pave the way for mild manered enlightenment atheists like Hume, while defending the baptist forefathers of Jerry Falwell. Madison even defended quakers despite the fact that his wife was expelled from the society of friends just for marrying him, thus he accepted and tolerated a freedom of association even while the various religious factions of the day sought exclude non-members(provided these are not state actors, thus he opposed Patrick Henry's desire to use the state to raise tithes for a church of choice.)

The last time a politician got it in his head to try to weed out a religious/ethnic group by painting with such an overbroad brush was when Republican Earl Warren was involved with Korematsu v. United States. No doubt the perils of doing so impacted his jurisprudence and thinking going foward, thus inshrining many of the constitutional principles we currently have today.

Korematsu remains good law--see Rehnquist's defense of it in his book, All the Laws But One?--and Oregon v Smith tells us that religion isn't an excuse for illegal behavior. Your Locke is not the tough Englishman he evinced.

John Lewis ,
It's not hard to weed things out when the weeds are so prominent. There are still more barbaric aspects, integral to sharia, which I did not mention and which no amount of lawyer-like avoidance can obscure. Nor will it serve any purpose to commit the very error you warn about, which is a failure to make distinctions. Nothing which is forbidden by the criminal law can become legal under some sort of religious cloak. Nor can an excessive amount of verbiage render less than serious the evil of importing barbaric practices wholly antithetic to American law. Failure to make those distinctions constitutes blindness.

Richard Reeb, very good.

While it is going to prove impossible for tolerance to shelter intolerance, legislating intolerance in the name of tolerance is not going to be easy as things are going. Somehow we have managed this in the "number of wives" problem in relation to religion. Here we call it bigamy and it is against the law. As we become more tolerant of varieties of marriage, that could go by by the way. The tide seems to be against passing judgment. Bizarrely, this seems to shelter things like Sharia.

I hope your way of reasoning this prevails.

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