Citizenship, Faith, and Feminism: Jewish and Muslim Women Reclaim Their Rights

5 The United States

n 5`e Un¢ed States feminism meets multiculturalism Din ha Malchutah Din (the law of the land is the law). The Jewish diasporic legal principle is: ‘‘there can only be one law of the land.’’ n Rabbi Jonathan Sacks, chief rabbi of the United Hebrew Congregation of the Commonwealth∞ ‘‘There can only be one law of the land’’ n Abdullahi An-Na’im, Muslim scholar and law professor at Emory University≤ Jews characterize the United States as a ‘‘country of kindness.’’≥ Prominent American Muslim scholar and activist Muqtedar Khan calls the United States ‘‘dar-ul-amman (a house of peace [order])’’ The United States receives appreciation not so much because it provides religious choice but because it protects the right of the devout to associate and constitute themselves as communities in its midst. What is distinctive about the United States and other democracies when it comes to the relationship between civil citizens and religious law? Consider , for instance, that when an Istanbul University student, Leyla Sahin, sued her university in 1998, arguing that the ban against wearing her hijab on campus violated her religious rights, she lost in Turkish courts, which enforce a policy of strict secularism and gender equality in public institutions . In 2004 the European Court of Human Rights handed down an extraordinary unanimous decision backing the Turkish court’s ruling on grounds that Turkey has a legitimate right to promote a secular, pluralist, civil society. Ironically, after the ruling, Ms. Sahin took up residence in Vienna, where she can wear her hijab without interference.∂ Karl Marx noted ruefully in his essay On the Jewish Question that in polities such as the United States, where great pains had been taken to sep- 154 n Citizenship, Faith, & Feminism arate religion and politics, religion actually seemed to thrive all the more for it.∑ Minority religions such as Islam and Judaism benefit from the prohibition against religious establishment or even favoritism on the part of the state. Legal theorist, Kathleen Sullivan, contends that the neutrality of the state makes minorities the greatest beneficiaries of the contract (First Amendment establishment clause) that put an end to the war between religions that would have ended with the majority religion as the clear frontrunner, in a position to squelch other contenders. This chapter considers the implications of the American treatment of religious groups from the perspective of: (1) Religious subgroups that attempt use current principles of multicultural toleration and the free exercise clause to shore up their chances of survival in a liberal society. (2) Devout women who are caught between their loyalty to their religious communities and their desire for greater gender equality within their communities . They may encounter the state’s policy of toleration as an obstacle to their attempts at reform from within. (3) The state’s competing obligations to respect cultural diversity and religious freedom on the one hand and liberal norms and laws, such as gender equality, on the other. Our American commitment to competing norms of toleration, free exercise, anti-establishment, and gender equality create challenges and opportunities for religious feminists, for minority cultures, and for the state that hosts them. In the United States both Islam and Judaism are minority religions within a system that views conscience and belief as a private matter and regards religious groups as analogous to voluntary associations composed of autonomous individuals. Some accommodations for religious practice are justified under the free exercise clause, but are always assessed as to whether they run afoul of public order, child welfare, criminal law, and the establishment clause. The default presumption, however, is that where no coercion of members or violations of criminal law are present, religion is a private a√air. With respect to practices that are not congruent with public norms, such as gender equality, the court also assesses the centrality of the tenet or practice to the religion in question. For instance, the Catholic Church is allowed to determine who is eligible for the priesthood, and its exclusion of women from this role has not called forth any action on the part of the state in defense of gender equality. But there is no immunity from criminal prosecution for domestic abuse and the like. Devout Jewish and Muslim women may find themselves in a bind. united states: feminism meets multiculturalism n 155 When the state, in the name of free exercise, grants exemptions to religious groups from...