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November 27, 2006
A House Built Upon Sand
Stanley Fish is deeply concerned. He argues that the right to religious freedom is not being protected in America:
In the first stage of a preliminary hearing called to determine whether Warren Jeffs, the leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints, should stand trial for the crime of accomplice to rape, the state’s key witness declared that she had entered into marriage at the age of 14 against her will and at the command of Mr. Jeffs and other church officials. Mr. Jeffs’s side will get a chance to present its case on Dec. 14, but we already know from his lawyers that the defense will make two arguments: first, that Mr. Jeffs did not abet rape, but merely conducted a marriage ceremony, and second, that he is the victim of religious persecution. In moving to prosecute him, said attorney Walter F. Bugden Jr., the state is continuing “165 years of intolerance for a people who engage in a different cultural and religious practice.”
The Davidson-Kahn Distinguished University Professor's considered opinion is that this is not what the Framers intended:
There is no doubt that Mr. Jeffs’s actions, both as an individual and as a church leader, are religiously motivated. Plural marriage is a central tenet of his religion, and according to testimony given on Nov. 21, he told the young girl that her salvation was at stake and that in commanding her to marry he was passing on “a revelation from God.” The question is, how can the state live up to its duty to protect free exercise if it criminalizes the activity of someone who was only following the dictates of his religion as they had been revealed to him by the deity?The dilemma cannot be resolved by denying the centrality of plural or church-ordered marriages to Mr. Jeffs’s religion or questioning the authenticity of what he claims as a revelation, for as Justice Antonin Scalia put it in another case (Employment Division v. Smith, 1990), what authority or principle “can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?” The answer, of course, is none (an answer ignored by those who presume to tell fundamentalist Muslims that they are mistaken about the actions their faith requires). And it would seem that the court presiding over Mr. Jeffs’s case is faced with the choice of either violating the First Amendment by restricting his right of free exercise or leaving him free to arrange marriages and practice polygamy as his religion dictates he should.
All of this may be true. It is also beside the point. Fish cites a 1878 polygamy decision which, he says, "privatized" the exercise of religion in America:
The court accepted the sincerity of Mr. Reynolds’s religious convictions and assumed the authority of the free exercise clause, but asked, what exactly “is the religious freedom which has been guaranteed?”The answer it gave (with help from James Madison and Thomas Jefferson) was that the freedom being guaranteed was the freedom to believe or think something, not the freedom to do something: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief, they may with practices.” You can believe or say anything you like – including that God wants you to have plural wives – but you can’t act on it. That is to say, free exercise stops at the brain and the mouth.
Put that way, it sounds odd. What kind of freedom is it that can be abrogated the moment the state decides it doesn’t like what you’re doing? But the notion of a religious freedom that places restrictions on religiously motivated behavior makes perfect sense if religion is defined as an assent to certain propositions (Jesus redeemed us on the cross; God brought the chosen people out of Egypt and into the promised land) rather than as the performance of certain acts. When Jefferson called it an “error” to think that “the operations of the mind, as well as the acts of the body, are subject to the coercion of the laws” (in “Notes on the State of Virginia”), he limited the freedom he celebrated to thoughts and ceded to the law jurisdiction over everything bodily, even over things done in the name of those very same thoughts. If, as he said, “the legitimate powers of government extend to such acts only as are injurious to others,” the state has the right both to say what those acts are and to regulate them, even if they flow from a religious conviction. If the exercise of religion must be internalized – made a personal relationship between a man and his faith – in order to protect it from state interference, the price of that protection is the exclusion of religiously inspired actions from the public political sphere.
"What kind of freedom is it that can be abrogated the moment the state decides it doesn’t like what you’re doing?" Pretty much any freedom, as it turns out. Few rights, despite Fish's rhetoric, are absolute and inviolable; rather, individual freedoms are always balanced against the rights of others and the interests of society at large. It should not surprise us, then, that absent from Mr. Fish's learned rhetoric is any discussion of the rights of the girl in question or how the acts, religiously motivated or not, of Mr. Jeffs affect another living, breathing human being who likewise has legal rights under the laws of the United States.
Also curiously absent is any recognition that individual freedom to act is limited all the time by government for all sorts of reasons. In a matter involving the health, safety, or welfare of a minor the religious freedom of an adult fails to present a compelling competing interest.
No one forced Mr. Jeffs to live in America, a nation founded on the idea of a social contract in which human beings voluntarily surrender some freedoms in return for the protection afforded for certain other rights by government. This is not an a la carte arrangement. Participants do not get to pick and choose which laws they will obey, and if there is some degree of arbitrariness in those restrictions placed upon the free exercise of religion it can be said with equal justice that there is some arbitrariness in the restrictions the State chooses to place on other individual liberties: sexual freedom, for instance; or the "right" to marry.
Without doubt, Homaidan Al-Turki feels his religious rights are being infringed upon as well, but such is life when one brushes shoulders with the Great Shaitan:
Blaming anti-Muslim sentiment and denying wrongdoing, a Saudi Arabian citizen was sentenced Thursday to 28 years to life in prison after he was convicted of sexually assaulting an Indonesian housekeeper and keeping her as a virtual slave for four years."Your honor, I am not here to apologize, for I cannot apologize for things I did not do and for crimes I did not commit," Homaidan Al-Turki told the judge in a voice choked with emotion. "Attacking traditional Muslim behaviors was the focal point of the prosecution."
Prosecutors and FBI agents said Al-Turki and his wife, Sarah Khonaizan, brought the woman to Colorado to care for their five children and to cook and clean for the family. An affidavit said she spent four years with the family in the suburban Aurora home, sleeping on a mattress on the basement floor and getting paid less than $2 a day.
The Saudi man was convicted of repeatedly raping his Indonesian maidservant, who came to live with his family when she was only 17 and spoke no English. He claims the prosecution was religiously motivated and he was only treating her as any Muslim family would treat a daughter.
Perhaps Mr. Fish wishes to see a world in which societal norms such as the apparently outre ideas that seventeen year old girls ought not to be imprisoned and repeatedly raped, nor fourteen year old girls forced into marriages they do not agree to, are set aside in the name of religious freedom. Then again, this seems just another over-learned misapplication of Enlightenment Thought to prove a point better not ventured:
John Locke, who was almost everyone’s favorite political philosopher at the time of the founding of our nation, was a very tolerant man. In his 1689 “Letter Concerning Toleration,” he advocated a policy of live and let live for believers in many faiths, even heretics. But he drew the line at atheists. He wrote: “Lastly, those are not at all to be tolerated who deny the being of God. Promises, covenants and oaths, which are the bonds of human societies, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all.”
After all, even Christ recognized earthly authority and it is not God, nor Allah, but man who seeks to justify rapine of the innocent. And if a largely secular society refuses even to recognize the law, to what are we as humans bound?
Posted by Cassandra at November 27, 2006 05:08 PM
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Comments
So what are the laws governing statutory rape in Utah? And at what age can the parents sign for the girl to be married?
I am not condoning this, just asking the question. Aside from the fact that it is just plain wrong to marry an underage girl, polygamy
was outlawed in 1875...then Wilford Woodruff issued the Manifesto, banning the practice in the church.
Posted by: Cricket at November 27, 2006 08:42 PM
It amazes me, it does...that we still have rights in Bush's Gulag and that this man was not
surrounded by BATF agents and flamed.
Posted by: Cricket at November 27, 2006 09:46 PM
Satisfaction
Came in a chain reaction (Do you hear?)
I couldn't get enough,
so I had to self destruct,
The heat was on,
rising to the top
Everybody's goin' strong
That is when my spark got hot
I heard somebody say...
Disco inferno!
Posted by: Burn, Baby Burn... at November 27, 2006 09:54 PM
Well, I still say it is better to marry than to burn.
Posted by: Wilford Woodruff at November 27, 2006 09:55 PM
That really burns us up....
Posted by: The Flaming Lips at November 27, 2006 09:57 PM
Case study in religious liberty:
At one time, in my home state, compulsory attendance law held that all children aged 6 years to 16 years had to attend at a public (or non-public, a.k.a. private) school. No provision was made in law for education outside of an organized school setting.
When some parents began teaching their children at home in a setting that appeared to violate this law, state truant officers and lawyers descended on them.
There was much argumentation about whether the State's compelling interest in the education of children trumped religious convictions about the education of children.
In the resulting court case(s), it was decided by the State Supreme Court that parents were exempt from sending children to an organized school if they taught at home due to a Strong Religious Belief.
(Later, State lawmakers decided to alter the compulsory-attendance laws to allow for children being taught at home by their parents.)
Schools don't grab headlines the way that statutory-rape cases do. However, they raise similar questions.
But when I analyze the separate cases, the question boils down to a simple one: does the religiously-motivated behavior produce a direct detriment to the health and well-being of the child? Does it directly break laws concerning health and well-being of children?
Posted by: karrde at November 27, 2006 11:15 PM
I wish people would separate the concepts of "polygamy" and "sex with underage participants". I think Jeffs is slime, but that is because he was involving a 14 year old, not because he had more than one wife.
Posted by: Fritz at November 28, 2006 12:34 AM
There have been some other cases where religious demands and the demands of the law come into conflict. Some of the more prominant examples:
A Native American tribe practices an annual ritual slaughter of endangered birds, which are legally protected. They went to court to fight for the right to carry out their ceremony, argueing that the law protecting those birds was an infringement on their freedom of religion, even if an unintentional one. They won, and the EPA now issues licences authorising the sacrifice of a small number each year.
An obscure and very small church sucessfully won an exception to drugs law because they required a tea made from an illegal hallucinogenic plant. They believe the tea opens their minds to God.
Quite frequently, state laws governing equal oppertunity employment conflict with church doctrine - some churches do not allow women to be clergy, while state law will often prohibit gender discrimination in employee selection. There have also been a smaller number of cases involving homosexual applicants. There were also some cases decades ago back when a few churches still prohibited black priests. A series of court ruleings have set a situation where churches are free to hire or fire the staff directly involved in religious activities (preachers, teachers) with no intervention from either state or federal law of any type, but may not extend this to non-religious staff such as maintinance people.
In a very similar case, a Catholic teacher was fired when the school discovered she had, years previously, undergone IVF treatment - which strict catholic doctrine (Stupid Stupid Paul IV) prohibits. She went to court over that, but I cant recall the eventual outcome.
One interesting thing to note is that none of these laws are intended to infringe religious freedom, or even impact religion in any way - its a purely incidential effect.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Im all for this seperation of church and state, but... is it going to far to turn religion into the big get-out-of-jail-free-card? Its become an excuse now. Dont like a law, just claim that your religion demands you ignore it.
Posted by: Suricou Raven at November 28, 2006 06:41 AM
I don't vaccinate my children. Oh, stop with the kvetching and bellyaching already. I don't on the grounds that my first three had adverse
reactions to their first shots. I didn't finish the series and was told to not vax the other two.
So the other two are not vaxed. HOWEVER, the doctors will not sign a waiver even though the evidence is there in the records. Because of the politics and controversy surrounding vaccines, the AMA and other assorted idiot associations
a written notice from a doctor for anything other than an allergy to egg yolks can be enough to put their butts on the line.
I have to avail myself of the religious or deeply held personal belief language in the
exemption laws that vary from state to state
and write the letter accordingly. Fortunately for me, Georgia allows that letter, once written, to be permanently on file during my child's school career.
That means he will be quarantined at home if there is an epidemic. No biggie for me.
As to Jeffs, his marriage to an underage child is NOT polygamy. It is rape. And to use the manipulation of damning her if she didn't marry
the creep doesn't make him a prophet. When Wilford Woodruff issued the Manifesto, he was the recognized prophet of the LDS church. That makes modern day polygamists outlaws in the eyes of the church.
Both my paternal grandparents were born into polygamy; my grandfather was 20 years old when Utah became a state. During the Territorial period, federal marshals were sent to hunt down men who practiced polygamy. I have first hand accounts of that time both in journals and what
my grandparents told their children and grandchildren.
Jeffs is NOT practicing polygamy.
Posted by: Cricket at November 28, 2006 08:38 AM
After 32 years of being married to one woman I cannot fathom having been married to two or more. One is more than enough for any man.
Posted by: ltcolusmcret at November 28, 2006 09:12 AM
Heh. Most men and women can't. That is as it should be. I am not defending Jeffs at all. I will defend the principle of polygamy as the early Mormon settlers practiced it, but it served a purpose and it is no longer done. As we have seen in Cass's able analysis, the system is prone to abuse even among religionists, and as such, needs to be pointed out.
I am not defending the Saudi businessman either.
At best, concubinage is the kindest thing we can call what he did to this Indonesian servant. I have a hard time with him stating that this was a normal Muslim behavior. I just don't think so, because polygamy as practiced by devout Muslims (not screeching suicidal murderous thugs)
only allows four wives and no concubines.
And the first wife has to give her consent.
Posted by: Cricket at November 28, 2006 09:22 AM
Oh, and as a post script to this, yes, they both fall under the rule of law in this country and as defined by state statute.
Posted by: Cricket at November 28, 2006 01:19 PM
Just a snide comment, but did you ever notice how G-d's commandments always seem to confer unusual benefits to the coduits of his orders?
What a surprise, G-d wants 60 year olds to have access to 14 year old (insert your euphemism of choice here).
Posted by: bud at November 29, 2006 03:17 PM