Rights of the few - Rafia Zakaria - January 26, 2011

Source : www.dawn.com

ON Dec 13, 2010, the United States Department of Justice filed a lawsuit against the Berkeley School District in Illinois alleging that it had failed to make reasonable accommodation for the religious rights of a Muslim teacher named Safoorah Khan.

According to a press release issued by the department, Ms Khan had requested leave in 2008 so that she could perform the Hajj pilgrimage. Her request was denied because the purpose of her leave was found to be unrelated to her professional duties and she lost her job. The United States government, on behalf of Ms Khan, is asking the school district to adopt a policy that respects “the religious observances, practices and beliefs of employees and prospective employees”. Ms Khan is also seeking reinstatement to her position, compensatory damages and back pay.

Ms Khan’s case is notable for several reasons. The decision by the US Department of Justice, a federal body, to fight school authorities for the rights of a Muslim plaintiff reveals an emerging divide between Islamophobia at the state and local levels, and US constitutional commitments to religious equality and freedom. As soon as the Department of Justice issued its release on Ms Khan’s case, a tirade of headlines denouncing the decision and accusing the department of ‘enforcing Sharia law’ appeared on right-wing blogs and conservative talk shows. The ensuing outcry from the American far right was hardly an isolated incident; efforts to ban Sharia law have since popped up in several conservative states. Indiana, Texas and Louisiana are all expected to follow the lead of Oklahoma where a ballot initiative to ban Sharia law passed with a rousing majority last November.

Despite the volley of hate federal judges in the US court system have suddenly found themselves faced with, they must take up the task of enforcing constitutionally mandated religious freedoms against the mandate of electoral majorities. The most popular instance of this dynamic occurred in Oklahoma where in Nov 2010, voters voted to amend the Oklahoma state constitution and enable a ban on Sharia law.

On Nov 29, federal judge Vicki Miles-LaGrange in Oklahoma city issued an injunction that would prevent the Sharia ban from being enforced and also said that the proposition did not satisfy the demands of the United States Constitution. In her decision, Miles-LaGrange pointed out that the effort to ban the religious law of one particular group went against the Establishment Clause of the US Constitution, which prevents the federal government from favouring one faith over another. A targeted ban on a particular faith, she argued, would seem inherently and inevitably to violate this intention. The decision was issued in response to a case filed by an Oklahoma Muslim man who had alleged that his rights to religious freedom were being violated by the proposed ban.

Numerically, the US is a predominantly Protestant Christian country with over half of Americans identifying themselves as such. At the same time, the First Amendment of the US Constitution mandates a separation between church and state. The dynamics of this separation are defined by twin clauses that create a particular balance. The Establishment Clause prevents the government from favouring any one religion, even if it is the religion of the majority of its citizens. In effect, this means that public schools cannot have prayer, courthouses cannot post the Ten Commandments and government offices cannot display Christmas trees or Nativity scenes despite the fact that a vast majority of those accessing these venues are in fact Christian.

Where the Establishment Clause enforces a separation between state and faith, the Free Exercise Clause preserves the right of every individual to practice their faith and is, along with the Civil Rights Act, the basis for demands for accommodation such as the one made by Ms Khan, who asked for leave to perform Hajj. It is also the basis through which Muslim women cannot be forbidden from wearing the hijab or Sikhs from wearing the turban.

In a democracy, this dynamic between a legislature that is governed by the wishes and fears of the majority and a judiciary that must stand for the rights of those who can never win at the ballot box is crucial. Without the latter, any democracy, however old or young, can become a tyrannical system where fundamental rights are guaranteed only by those who form majorities and can control the ballot box. Mobs, whether they are in Pakistan or the United States, can easily be goaded into hating silent and scared minorities that can easily be forced to cower.

As both the Illinois and Oklahoma cases demonstrate, the judicial system of the United States has emerged as a venue where American Muslims, a numerically paltry minority, can claim their rights to freedom and equality in matters of faith.

American Muslims, being as they are a religious minority in a Christian nation, are a mirror image of non-Muslim minorities in countries such as Pakistan, Egypt and Saudi Arabia. Yet despite this parallel, few of those eagerly claiming their rights as American Muslims seem interested in speaking out about the necessity of similar respect for religious minorities within Islamic countries. While the American Muslim sphere is crowded with rights awareness programmes and the global ummah is a term familiar to all, not a single programme exists to push Muslim states to recognise and enforce minority rights.

In recent months, as Copts have been persecuted in Egypt and Christians and Ahmadis in Pakistan, few American Muslim scholars or organisations have directed their attention towards formulating theological arguments against such injustices. This silence paints American Muslims in particular and Muslims in general as opportunists who are quick to extol the virtues of tolerance only when they seek to reap its dividends, but abandon them when they wield the powers of a majority.

The writer is a US-based attorney teaching constitutional history and political philosophy.


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