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Are American Muslims Entitled to the Same Free Exercise Rights as Other Americans?

05/31/2011 11:30 am ET | Updated Jul 26, 2011

Are American Muslims entitled to the same free exercise rights as other Americans? In a recently published essay, John Witte, Director of Emory University's Centre for the Study of Law and Religion, and Joel Nichols, Associate Professor of Law at the University of St. Thomas Law School, give an unsettling answer: not yet.

Witte and Nichols' conclusion stems from their claim that accommodations for religious practice are privileges that religious communities have to "earn" or "win" by demonstrating good faith and their willingness to respect our laws and customs. As a matter of history, their account has much merit: Catholics were long denied accommodations, or even denied the right to educate their own children, because their Church was seen a foreign menace, seeking to "fasten its everlasting fangs" into our nation's youth. Likewise, as Witte and Nichols recognize, "it is only in the past two generations" that America has "accommodate[d] core Jewish laws and practices."

So, if Catholics and Jews had to wait for generations before our laws accommodated their religious practices, what's wrong with telling American Muslims they must expect the same? First, this approach is unnecessary: protecting our society against radical change does not require keeping American Muslims at arm's length by denying them accommodations granted others. Secondly, and more importantly, this "wait and see" attitude fails to recognize our conviction that free exercise is not a privilege to be earned; it is a fundamental, inalienable right.

As an initial matter, it is not necessary to subject American Muslims to some probationary period because our Constitution and laws already prevent religious liberty from being used as a license to ride roughshod on the rights of other. As Witte and Nichols remind us, "The guarantee of religious freedom is not a license to engage in a crime." Just as a pious desire to reenact the story of Abraham and Isaac would not allow a father to kill his son, so our laws already limit the ability of American Muslims to implement aspects of sharia that violate criminal laws or due process.

Our courts treat decrees from sharia tribunals no differently from those of other religious courts, or any other private arbitration. As my colleague Luke Goodrich has explained elsewhere, courts will enforce the judgment of any private arbitrator (religious or otherwise) provided they are satisfied that appropriate procedural safeguards have been followed. Those safeguards require, among other things, that out-of-court arrangements not be the result of force, fraud or coercion; that the decisionmaker is not biased for or against one party; and that the decision is neither "unconscionable" nor "against public policy." These procedural rules might affect a decree from a sharia tribunal differently than one from a rabbinical court, but any disparity would not reflect, as Witte and Nichols seem to suggest, "deep suspicion" toward Islam. It would merely be because one defendant showed that the procedural safeguards were met, while the other defendant did not.

Second, Witte and Nichols' essay is troublesome because it suggests that the free exercise of religion is something less than a fundamental -- even inalienable -- right. To maintain that Muslims "need to earn" accommodations for their religions convictions implies that free exercise is merely a reward for good behavior. Even worse, the observation that "Muslims simply do not yet have the same history of persecution that the Jews have faced in the West," suggests that we provide kosher food to Jewish prisoners only out of guilt, not as a matter of principle.

The growing Muslim community in America gives us an opportunity to show we have learned from the sins of our past, to prove that we are not doomed to repeat them. Before Catholics "earned" their accommodations, the New York Constitution banned them from public office and Philadelphia mobs burned down their churches. Before Mormons "won" our respect, Missouri's Governor Boggs ordered that the emerging sect "be exterminated or driven from the state if necessary for the public peace." We can, and must, do better. To withhold accommodations from American Muslims until they prove they are "good Americans" not only humiliates them, it also dilutes our commitment to this most fundamental of human rights.

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