New Posts at Verdict for 11/25/2015

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Marci A. Hamilton
Nov 25, 2015

The Opposite of ISIS Is the First Amendment, And Its Members Are Extremist Islamic Terrorists


What is the opposite of ISIS? It’s not atheism or secularism. Rather, it’s the First Amendment, whose Religion and Speech Clauses require the state to be neutral toward religion and require believers to obey the neutral, generally applicable laws that apply to everyone else. In the United States, no one religion can be the government or control the government, and no religion may rid the rest of the country of apostates. Nor can any government imprison or execute someone for blasphemy of any sacred text or for believing or not believing anything. Nor can men enslave women and children simply because they do not share their faith. ISIS is the opposite of each and every one of these principles.


No principle of the First Amendment, however, requires us to pretend that a religiously motivated terrorist is not religious. Presidents Bush and Obama have struggled for political reasons with how to characterize the extremist Islamic terrorists attacking our very civilization. Bush was fond of saying the 9/11 terrorists weren’t “true Muslims,” because it is a faith of peace. So they were just terrorists or jihadists—no religious label. This is of course the height of wishful thinking. Sadly, there are plenty of religious actors who are bad actors and some of them indeed are Muslim. That does not imply every Muslim is a terrorist. Far from it.


President Obama and Democratic presidential candidate Hillary Clinton have followed that lead and declined to use the terms “Islamic” or “Muslim” when describing these religiously fanatical terrorists. One commentator has suggested that Obama and Clinton are on target in not referring to the “Muslim” or “Islamic” element of these terrorists, but I believe this is a serious mistake. Their description of “terrorists” is inaccurate and fraught with the perils of ignoring history, as I suggested to the president here.


Republican presidential candidate Donald Trump careened to the other side of the road when he suggested there be a Muslim registry. This use of “Muslim” aggressively misses the mark (and pits Trump against the First Amendment’s mandate of neutrality).


Though different, both the Democrats and Trump are engaging in misleading and ultimately dangerous rhetoric. Here is a suggestion: the truth will set us free, and the truth is that these enemies are extremist Islamic terrorists. They are extremists, they are Islamic, and they are terrorists. They are not ordinary Muslims, but they are also not secular terrorists.


Never Forget the Power of Religion to Fuel Passion for Good and for Bad


Faith stretches across a vast spectrum. Indeed, there are over 100,000 religious sects in the United States, and Americans understand that there are variations in religious groups that come from similar histories or that share a sacred text. There are many Protestants like the Presbyterians who are broken down into mainstream and fundamentalist segments, or the Baptists, which encompass Southern Baptist Convention and American Baptist Church members. Both Catholics and Protestants read the Bible. There are many flavors of Jewish faith from Reconstructionist, Conservative, Reform, and Modern Orthodox, to ultra-Orthodox, just to name some.


More to the point, Americans can grasp that the polygamist Fundamentalist Church of Jesus Christ of Latter-day Saints is decidedly not the same as the mainstream Church of Jesus Christ of Latter-day Saints. And there are plenty of extremist groups in the United States from neo-Nazis to Skinheads to our own homegrown religiously motivated terrorists.


That means Americans can get the difference between the millions of law-abiding Muslim believers and the extremist Islamic terrorists. And we actually need to make that distinction for the sake of the millions of good citizen Muslims. It does them no favors to pretend that this fanatical enemy is non-religious. They are a reminder that the Muslim faith does not inevitably require death to nonbelievers, but can thrive and contribute to a national common good.


At the same time, leaving out the “Muslim” or “Islamic” term in describing our enemy is an error, because there is no more authoritative force in many people’s lives than religion. The fact that these terrorists are mobilized by religion sends a message that their apocalyptic horizon is fervently and even feverishly embraced, and that it is not open to rational debate. These are terrorists who share a rigid religious dogma, and we have a long history showing us what religious entities can and will do when they decide to root out apostates. It is horrifying. Without the religious descriptor, it is too easy to treat them as political actors rather than the dogmatic, unbending fundamentalists that they are.


The Problem Is Not Religion Per Se But Rather Humans


This is also a moment in history to remind the globe that while religious liberty is deeply valuable, religious domination is often despotic. There is actually such a thing as too much liberty, which the founding generation understood through experience because so many fled religious tyranny in Europe. First Amendment framer James Madison’s Memorial and Remonstrance is often invoked in support of religious liberty, but he also pointed to the ways in which religious entities go off the rails. The problem is humans (even when they are Christian):


Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.


ISIS is undoubtedly off the rails, but it remains a religious entity with fanatically murderous intent and a self-destructive wish for the apocalypse. We must fight it with everything we have, and we need to start by calling it what it is and distinguishing it from what it is not.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts, www.RFRAperils.com, and statutes of limitations for child sex abuse, www.sol-reform.com. Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is hamilton02@aol.com.

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