The 2011 Santa Clara Journal of International Law Symposium
Religion and International Law
was held on
Friday, Feb. 18 and Saturday, Feb 19, 2011
California Mission Room, Benson Center, Santa Clara University
HOSTED BY:
Santa Clara University School of Law
Santa Clara Journal of International Law
Center for Global Law & Policy
Read a blog post on the symposium by panelist Haider Hamoudi
Keynote Speaker
Speaker Bios
Schedule
Conference Papers
Keynote Speaker
Keynote Speaker: Robert A. Seiple
Ambassador, global leader, educator, Bob Seiple has spent the last three decades fashioning humanitarian solutions that endure. His international travels have been as extensive as the experiences and contacts developed through years of global involvement. Vulnerable lives, lived out in difficult places, have provided the personal challenge for Seiple’s work.
Prior to taking the position of President and CEO of the Council for America’s First Freedom, Seiple founded the Institute for Global Engagement (IGE), a “think tank with legs,” to develop sustainable environments for religious freedom worldwide, and to inspire and equip emerging leaders with faith-based methodologies of engagement. Seiple spent the previous two years in the State Department as the first ever U.S. Ambassador-at-Large for International Religious Freedom. This position, created by the International Religious Freedom Act of 1998, was charged with promoting religious freedom worldwide, promoting reconciliation in those areas where conflict had been implemented along religious lines, and making sure that this issue was woven into the fabric of the U.S. foreign policy.
Seiple spent the previous 11 years as President of World Vision, Inc., the largest privately funded relief and development agency in the world. In that capacity, he increased the annual income base of the organization from $145 million to over $350 million per year. Additionally, Seiple guided the organization towards an expanded involvement in advocacy in the worldwide struggle against poverty and hunger. At his leaving, World Vision was administering help to more than 70 million beneficiaries in over 100 countries of the world.
Seiple received an AB degree in American Literature from Brown University in 1965. From 1966-69, he served in the U.S. Marine Corps attaining the rank of Captain. He flew 300 combat missions in Vietnam and was awarded five Battle Stars, the Navy Commendation Award with Combat ‘V,’ 28 Air Medals and the Distinguished Flying Cross. This experience motivated him to become an outspoken advocate for the healing of Vietnam’s relations with the United States.
Returning to his alma mater in 1971, Seiple held a number of administrative positions, including Director of Athletics and Vice President for Development. In his last position during a twelve year tenure, he successfully directed the Campaign for Brown, the largest fund-raising campaign ever attempted at the University at that time. Seiple was President of Eastern College and Eastern Baptist Theological Seminary from 1983 to 1987.
In 1994, Seiple was named, “Churchman of the Year” by Religious Heritage America. In 1996, he received World Relief’s “Helping Hands” award. In 2004, he was awarded the “Good Samaritan Award” by Advocates International. He is the recipient of the National Award from First Freedom Center as well as the Religious Freedom Award from the International Religious Liberty Association, both received in 2005. That same year, Seiple also received the Brown University “Distinguished Alumni Award” given by the Ivy League Football Association. In April 2006 Seiple received The Abraham Kuyper Prize and Lecture at Princeton Theological Seminary. He also received the Distinguished Service Award from the International Center for Law and Religion at BYU in 2006. He is the recipient of eight honorary degrees as well as the Secretary of State’s Distinguished Public Service Award.
Seiple is vice president of the International Religious Liberty Association and is Honorary Chair of First Step Forum, two groups active in religious freedom issues. In 2005, he joined the Board of Denver Seminary.
Click here for more information on Robert Seiple
Speaker Bios
Lama Abu-Odeh is Professor of Law at Georgetown University School of Law. She received an LL.B from the University of Jordan, LL.M from the University of Bristol, and MA from the Univesrity of York. Prof. Abu-Odeh was a consulting assistant professor at Stanford Law School, where she taught Islamic Law, Comparative Family Law, Criminal Law, and a seminar entitled “Nations, Races, and Religion.”
Professor Karima Bennoune graduated from a joint program in law and Middle Eastern and North African studies at the University of Michigan, earning a J.D. cum laude from the law school and an M.A. from the Rackham Graduate School, as well as a Graduate Certificate in Women’s Studies. In 1995 she served as a Center for Women’s Global Leadership delegate to the NGO Forum at the Fourth World Conference on Women in Beijing. From 1995 until 1999, she was based in London as a legal adviser at Amnesty International.
Her publications have appeared in many leading academic journals, including the American Journal of International Law, the Columbia Journal of Transnational Law, the European Journal of International Law, and the Michigan Journal of International Law. They have been widely cited, including on Slate, in the Nation magazine, the Dallas Morning News, and the Christian Science Monitor, as well as by the UN Special Rapporteur on violence against women and the UN Special Rapporteur on protecting human rights while countering terrorism.
In 2007, Professor Bennoune became the first Arab-American to win the Derrick Bell Award from the Association of American Law Schools Section on Minority Groups. She has served as a member of the executive council of the American Society of International Law and on the board of directors of Amnesty International USA. Currently, she sits on the board of trustees of the Center for Constitutional Rights and on the Council of the Network of Women Living Under Muslim Laws. Bennoune has also been a consultant on human rights issues for the International Council on Human Rights Policy, the Soros Foundation, the Coalition to Stop the Use of Child Soldiers, and for the United Nations Educational, Scientific and Cultural Organization (UNESCO). Her human rights field missions have included Afghanistan, Bangladesh, Lebanon, Pakistan, South Korea, southern Thailand, and Tunisia. In 2009-2010 she was one of a group of international experts assembled by Leiden University, under the auspices of the Dutch Foreign Ministry, to develop a new set of policy recommendations on counter-terrorism and international law.
Peter Danchin is Associate Professor of Law and Director of the International and Comparative Law Program at the University of Maryland School of Law. He earned his B.A. and LL.B. with First Class Honors from Melbourne University where he was Editor-in-Chief of the Melbourne University Law Review, and his LL.M. and J.S.D. from Columbia Law School where he was a Bretzfelder International Law Fellow. Before joining the faculty at Maryland, he was lecturer and director of the human rights program at Columbia University’s School of International and Public Affairs. In 1999, he served as a foreign law clerk to Chief Justice Arthur Chaskalson of the Constitutional Court of South Africa. He teaches international law, international human rights, South African constitutional law, and comparative public policy and law reform.
Professor Danchin’s scholarship is focused in two areas. The first involves competing conceptions of the right to freedom of religion and belief in international law and, in particular, tensions between liberal and value pluralist approaches. Professor Danchin’s second area of scholarship has focused on the role of human rights in international legal theory and on critical approaches to human rights discourse in particular.
Professor Hamoudi received his B.Sc. from the Massachusetts Institute of Technology in 1993, with a double major in Physics and Humanities with a Near Eastern Studies Concentration. He was both a member of the Physics Honor Society, Sigma Pi Sigma, and a Burchard Scholar for Excellence in the Humanities and Social Sciences. In 1996, Professor Hamoudi received his J.D. from Columbia Law School, where he was a Harlan Fiske Stone Scholar. After graduating, he served as a law clerk to the Honorable Constance Baker Motley in the Southern District of New York and then worked as an Associate at the law firm of Debevoise & Plimpton until 2003.
Professor Hamoudi’s scholarship focuses on Middle Eastern and Islamic Law, particularly, but not exclusively, as it pertains to matters of commerce. He has called for a reassessment of the manner in which law in the Muslim world is understood and approached, with less reliance on medieval texts and more emphasis on the positive law of the nation states of the Muslim world and on the political, social, economic and ideological influences that influence its interpretation. He has written for numerous law reviews, spoken at conferences sponsored by the MacMillan Center at Yale University, the American Association of Law Schools and the New York City Bar Association, and given interviews to various news organizations including The New York Times, Forbes.com, Slate.com, the McNeil-Lehrer News Hour Online and the New York Law Journal. In 2009, Professor Hamoudi was awarded the Hessel Yntema prize, awarded by the American Society of Comparative Law for the best article produced in the American Journal of Comparative Law the previous year by an author under the age of 40.
Professor Hamoudi is currently writing a book on the Iraqi constitution, after having spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi legislature, responsible for developing critical amendments to the Iraq Constitution deemed necessary for Iraqi national reconciliation, on behalf of the United States Embassy in Baghdad. He also acted as a legal consultant to legislative committees in the Iraqi legislature responsible for preparing other key pieces of commercial legislation, including a hydrocarbons law, a revenue management law, and an antitrust law. In 2003 and 2004, Professor Hamoudi served as a legal advisor to the Finance Committee of the Iraq Governing Council, as well as a Program Manager for a project managed by the International Human Rights Law Institute of DePaul University School of Law to improve legal education in Iraq.
Professor Hamoudi is the author of a blog on Islamic Law entitled Islamic Law in Our Times.
Anissa Hélie is an Assistant Professor in John Jay College. Raised in Algiers, Anissa Hélie has advanced degrees from France and the Netherlands and obtained her doctorate in the history of 19th-20th century French colonization. Anissa Hélie was Coordinator of Women Living Under Muslim Laws’ London office (2000-2005). She held research and teaching positions at Amherst and surrounding colleges (2005-2008). Anissa Hélie speaks internationally on issues of wars and conflicts, religious fundamentalisms and politics of gender and sexuality. Publications include: Holy Hatred – Penalties for Homosexuality in Muslim Countries and Communities (2000), and Documenting Women’s Rights Violations by Non-State Actors (2006). Board memberships include: the Urgent Action Fund for Women’s Human Rights and Reproductive Health Matters Journal.
Areas of Expertise: Colonial History and Decolonization Processes; Politics of Islam and Gender; Gender, Women and Sexualities in Muslim contexts; Religious fundamentalisms, Violent Conflict and Women.
H.A. Hellyer is Fellow at the Centre for Research in Ethnic Relations at the University of Warwick (UK) and Director of the research consortium, the Visionary Consultants Group (VCG) (with consultants in Europe, North America, the Middle East and Southeast Asia). Formerly Ford Fellow of the Brookings Institution (USA), Dr Hellyer is a United Nations ‘Global Expert’ on counter-terrorism in the West & the Middle East. Nominated as Deputy Convenor of the UK Government’s Home Office working group in the aftermath of the July 7th bombings in London, he was also Economic and Social Research Council Placement Fellow at the UK’s Foreign and Commonwealth Office. He is regularly invited to give advice and evidence to the Department of Communities and Local Government, the Foreign & Commonwealth Office, the Home Office, the House of Commons (UK), the Department of Homeland Security, and the State Department (USA).
Educated at Hill House, London, Dr Hellyer received a Law degree and a Masters degree in International Political Economy from the University of Sheffield. He received his PhD from the University of Warwick, and was also recently appointed as Senior Outreach Manager and Senior Academic Advisor at Soliya, a UN Alliance of Civilisations implementation organisation that seeks to improve global relations through new media.
Member of the International Institute of Strategic Studies (London, Washington, Singapore) and Fellow of the Young Foundation (UK), Dr. Hellyer was previously Visiting Professor at the Law Department at the American University in Cairo (Egypt), and Visiting Fellow at the Institute of Strategic and International Studies (ISIS Malaysia). He is a regular commentator in mediums such as the Guardian (UK), the Washington Post (USA), the National (UAE) and the Prospect Magazine (UK), Reuters, the Daily Beast (USA) and speaks to forums such as the Organisation for Security and Co-operation in Europe (OSCE) and the Royal United Services Institute (RUSI), and has been asked to address audiences on a variety of media outlets including the BBC. He writes extensively on public policy affairs and counter-terrorism, which has resulted in several books, articles, journal pieces and book chapters.
Saira Mohamed
Saira Mohamed’s primary interests are in the areas of international law, human rights, and international criminal law. Her research focuses on the function of international law in situations of violent conflict or atrocity. Prior to joining Berkeley Law, she was the James Milligan Fellow at Columbia Law School.
Mohamed previously served as Senior Advisor in the Office of the U.S. Special Envoy for Sudan, where she counseled government officials on legal and policy issues regarding the work of the International Criminal Court in Darfur, the resolution of the civil war in Sudan, and U.S. and multilateral sanctions. She also was an Attorney-Adviser for human rights and refugees in the State Department’s Office of the Legal Adviser, where her portfolio included asylum cases and human rights litigation in U.S. courts. Mohamed represented the United States in negotiations of the Third Committee of the U.N. General Assembly and received the State Department’s Superior Honor Award for her participation in drafting a U.N. resolution condemning the use of rape as an instrument to achieve political objectives.
Mohamed is a graduate of Columbia Law School, where she was Executive Articles Editor of the Columbia Law Review and recipient of the David Berger Memorial Prize for international law. She also received a Master of International Affairs from Columbia’s School of International and Public Affairs. She clerked for Judge Kim McLane Wardlaw of the United States Court of Appeals for the Ninth Circuit.
Shadi Mokhtari is Assistant Professor at the School of International Service at American University. She has an extensive background in human rights and womenÕs rights issues in the Middle East and Muslim World, particularly Iran. She is the Editor in Chief of the Muslim World Journal of Human Rights and the author of After Abu Ghraib: Exploring Human Rights in America and the Middle East (Cambridge, 2009) which was selected as the co-winner of the 2010 American Political Science Association Human Rights Section Best Book Award. She has been involved in several human rights initiatives in the Middle East and the United States. From 2008-2010, she was the Managing Attorney of a Domestic Violence non-profit serving a large immigrant clientele in the Washington DC area. In 2006, she was selected as a "New Voices" panelist at the American Society of International Law annual conference and was awarded Honorable Mention for the John Peter Humphreys Fellowship from the Canadian Council on International Law.
Degrees: B.A., American University: MIA, Columbia University; JD, University of Texas; LLM and PhD, York University.
Asifa Quarishi is Assistant Professor of Law at the University of Wisconsin Law School. Her expertise rangers from U.S. law on federal court practice to constitutional legal theory, with a comparative focus on Islamic law. Professor Quaraishi received her B.A. in Legal Studies from the University of California-Berkeley in 1988. She received her law degree from the University of California-Davis where she served as Senior Research Editor for the UC Davis Law Review. She also earned an LL.M degree from Columbia Law School, and an S.J.D. from Harvard Law School. Her professional experience includes serving as a judicial law clerk with Judge Edward Dean Price on the U.S. District Court for the Eastern District of California and as the death penalty law clerk for the Ninth Circuit Court of Appeals.
Professor Quraishi made news in 2001 when she drafted a clemency appeal brief in the case of Bariya Ibrahim Magazu, who was sentenced to flogging for fornication in Zamfara, Nigeria. She is a founding member of the National Association of Muslim Lawyers (NAML) and the California group American Muslims Intent on Learning and Activism (AMILA).
Brett Scharffs is a law professor at Brigham Young University. He is the associate director of the International Center for Law and Religion Studies. His scholarly interests are law and religion, corporate law, international business law and philosophy of law. Professor Scharffs clerked for the Honorable B. Sentelle on the U.S. Court of Appeals, D.C. Circuit, and worked as a legal assistant to the Honorable George H. Aldrich at the Iran-U.S. Claims Tribunal in the Hague. He is currently serving as Chair of the Law and Religion section of the American Association of Law Schools.
Dr. Manisuli Ssenyonjo is Senior Lecturer in Law at Brunel University. He has been a Visiting Professor at a number of universities around the world, particularly in Africa and the United Kingdom, and is involved with several international human rights organisations and law firms. Prior to his appointment at Brunel, he taught at the Universities of UWE Bristol, Makerere and Nottingham. He has also taught (part-time) at the School of Oriental and African Studies (SOAS), University of London. He has varied research interests within the field of public international law and human rights law and he has written extensively and provided expert opinions in these areas. He has provided advice to governments, legal practitioners, corporations, international organisations, NGOs and peoples concerning international law and human rights issues in many different contexts nationally and internationally, including conducting intensive human rights courses. He studied Law at the University of Nottingham and Makerere University. He is currently working on a book on the African Regional Human Rights System.
Tad Stahnke is the Director of Policy and Programs at Human Rights First since January 2008. Prior to joining Human Rights First, Mr. Stahnke worked at the U.S. Commission on International Religious Freedom from 2000 to 2007, where he served as Deputy Executive Director for Policy, as well as Acting Executive Director in 2002 and 2007. Mr. Stahnke led the Commission’s effort to strengthen U.S. foreign policy to advance the right to freedom of religion and belief. He participated in fact-finding missions in Asia, the Middle East and Europe, and served on official U.S. delegations to human rights conferences of the Organization for Security and Cooperation in Europe and the United Nations. Mr. Stahnke has also served as an expert in international human rights law in training officials from the Departments of State, Justice, and Homeland Security.
Mr. Stahnke has authored and coauthored numerous scholarly publications, including "Religion-State Issues and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim States, "Religious persity in the European Union: an International Human Rights Perspective, "The Right to Engage in Religious Persuasion, and Religion and Human Rights: Basic Documents amongst others.
Mr. Stahnke holds a J.D. from Columbia Law School, a Masters in Urban Planning from New York University’s Wagner School of Public Service, and a B.A. in Metropolitan Studies from NYU. He has worked as a research fellow and lecturer at Columbia Law School and as an associate at Cleary, Gottlieb, Steen & Hamilton in New York. Mr. Stahnke was also a law clerk to Judge Wilfred Feinberg of the United States Court of Appeals for the 2nd Circuit.
Johan D. van der Vyver is a Professor of International Law and Human Rights at the Emory University School of Law. He is a former professor of law at the University of the Witwatersrand in Johannesburg, South Africa. He is an expert on human rights law and has been involved in the promotion of human rights in South Africa. In 1995, he was appointed the I.T. Cohen Professor of International Law and Human Rights at Emory. He also served as a fellow in the Human Rights Program of The Carter Center from 1995-1998.
He is the author of many books and more than two hundred law review articles, popular notes, chapters in books and book reviews on human rights and a variety of other subject matters. His areas of expertise are International Human Rights, Criminal Law, International Humanitarian Law, and Public International Law.
His educational background includes: BCom, 1954, LLB, 1956, Honns BA, 1965, Potchefstroom University for Christian Higher Education; Doctor Legum, University of Pretoria, 1974; Diploma of the International and Comparative Law of Human Rights of the International Institute of Human Rights (Strasbourg, France), 1986; Doctor Legum (honoris causa) (University of Zululand), 1993; Doctor Legum (honoris causa) (Potchefstroom University for Christian Higher Education), 2003.
Professor Yildirim joined the Whittier Law School faculty in 2005, following a year as Visiting Scholar at New York University’s Kevorkian Center for Near Eastern Studies. She served as the Director of Whittier’s Center for International and Comparative Law during the 2007-08 academic year.Professor Yildirim’s research focuses on secularism in comparative contexts, and issues of human dignity, specifically regarding minority religious and sexual identities. Her current research is centered on a critique of the ongoing legal and political changes in the post-9/11 world.
Professor Yildirim recently chaired the Islamic Law Committee of the American Branch of the International Law Association, and currently serves on the Executive Board of the Islamic Law Committee of the Association of American Law Schools.
Schedule
FRIDAY, FEBRUARY 18, 2011 – Venue: California Mission Room
8:30 to 9:00 AM: Breakfast
9:00 – 9:15 am: Welcome and Opening Remarks
David Sloss, Professor of Law and Director of the Center for Global Law and Policy
Greg Hawley, Editor-in-Chief of the Journal of International Law
Pearl Geronimo, Senior Symposium Editor of the Journal of International Law
9:15 to 10:45 AM: Panel One
Presenter: Manisuli Ssenyonjo
Paper topic: Jihad Re-examined: Islamic Law and International Law
Commentator: Saira Mohamed
Commentator: Hisham Hellyer
Moderator: W. David Ball
10:45 – 11:00 AM: Break
11:00 AM to 12:30 PM: Panel Two
Presenter: Seval Yildirim
Paper topic: Global Tangles: Laws, Headcoverings and Religious Identity
Commentator: Peter Danchin
Commentator: Anissa Helie
Moderator: Beth Van Schaack
12:30 to 2:00 PM: Lunch and Lunch time speaker: Dr. Hisham A. Hellyer –
Reflections from the Revolution: The Square of the People in Tahrir
(talk is from 1:30 – 2PM)
2:15 to 4:00 PM: Panel Three
Presenter: Brett Scharffs
Paper topic: The Implications of Anti-Discrimination Norms for Religious Autonomy
Commentator: Asifa Quraishi
Commentator: Johan Van der Vyver
Commentator: Tad Stahnke
Moderator: David deCosse
4:00 – 4:15 PM: Break
4:15 to 5:15 PM: Keynote Address
Ambassador Robert Seiple – Religion and International Law; Matching Vision to Mission
5:30 to 6:30 PM: Reception
SATURDAY, FEBRUARY 19, 2011 – Venue: California Mission Room
8:45 – 9:00 AM: Breakfast and Welcome Back Remarks
9:00 to 10:30 AM: Panel Four
Presenter: Lama Abu-Odeh
Paper topic: Notes on the Study of Islam, Muslims and the Islamic
Commentator: Haider Hamoudi
Commentator: Shadi Mokhtari
Moderator: David Sloss
10:30 – 10:45 AM: Break
10:45 – 12:15 PM: Roundtable Discussion
12:15 – 12:30 PM: Closing Remarks
Conference Papers
Jihad Re-examined: Islamic Law and International Law
Manisuli Ssenyonjo
The Arabic term Jihad, which means striving, endeavouring, and struggling, has widely been conceptualised to include ‘armed struggle’ as the greatest form of Jihad. Jihad has been used by political leaders in some Islamic States or increasingly by non-State actors either to justify the use of force or to condemn the use of force as unlawful. Jihad has inspired many recent armed conflicts including that of the resistance to the US war against Afghanistan in 2001, the US-UK invasion and occupation of Iraq in 2003, the struggle for self-determination in Kashmir since 1947, the Palestinian struggle for reclaiming land from Israel since 1948 and the on-going armed conflict in Somalia. In recent times, the application of Jihad to justify the use of force or its condemnation has raised questions regarding the compatibility of the Jihad concept as conceptualised in Islamic law or by leaders of some Muslim groups with modern norms of international law as enunciated in the United Nations Charter. This paper seeks to examine the evolving concept of Jihad in Islamic law, its contemporary application and its compatibility with international law, in particular the relationship between Jihad, freedom of religion/belief, and the prohibition on the use of force. It is observed that the concept and nature of Jihad has evolved since the early developments of Islam in the seventh century, often reflecting the prevailing socio-political and economic realities. Historically, Jihad has been used in several contexts ranging from self-defence against aggression, pre-emptive self-defence, conquest, revolutionary and regime-change political violence to terrorism. It is concluded that the contemporary politicisation and manipulation of Jihad as a legitimising basis for political violence and terrorism is a threat to freedom of religion or belief, peace and security which is contrary to the object and purpose of Islamic law and modern international law. It is suggested that a contemporary doctrinal approach to Jihad involving the use of force is necessary to restrict Jihad to self-defence. This would be equivalent to the contemporary international law of self-defence subject to the limitations on the methods and means of warfare in accordance with contemporary international humanitarian law.
Global Tangles: Laws, Headcoverings and Religious Identity
Seval Yildirim
This paper is a critical analysis of the laws in various countries that prohibit Muslim women from covering their hair for religious purposes, as well as the recent jurisprudence of the European Court of Human Rights that has condoned the limitations placed on Muslim women’s religious freedoms.
First, I will argue that the headcovering-prohibitive laws should be viewed in the context of power dynamics that have been influential in various Muslim-majority contexts since the 19th century, whereby covered hair is associated with backwardness, lack of progress and religious extremism; and revealed hair is associated with Westernization, civilizational progress and modernity, as well as the international political developments since the 9/11/2001 attacks, and the subsequent utilization of international human rights rhetoric to justify political and military projects. I will argue that various discourses of modernity have accepted exposed female hair to be a symbol of political progress for individual and specifically for women’s rights within a liberal framework, while failing to recognize the possibility that gender egalitarianism can be achieved regardless of the visibility of a woman’s hair.
Second, I will argue that law has been the tool to ensure the dominance of the norm of exposed female hair. I will discuss case studies from Turkey and the United States particularly, in addition to the Sahin v. Turkey case from the European Court of Human Rights. Moreover, I will briefly survey the recent legislation from a few European countries that have banned full-body veils in public. Surprisingly, the reasoning put forth by the Turkish Constitutional Court, a U.S. Circuit Court and the ECHR will be rather similar: Muslim women’s headcovering can be prohibited to more effectively battle Islamic fundamentalism. The paper will conclude with a critique of this very reasoning. To the extent that international law has touched headcovering prohibitive laws and to the extent various national courts have addressed it, Muslim women’s hair and body remain at the center of various political and ideological battles in which she has not been the victor.
Equality in Sheep’s Clothing:
The Implications of Anti-discrimination Norms for Religious Autonomy
Brett G. Scharffs
This paper examines some of the consequences of applying antidiscrimination norms to religiously affiliated organizations, focusing on recent issues and cases in the United States, Canada, and the European Court of Human Rights. In Massachusetts and the District of Columbia, Catholic adoption agencies have ceased to operate in the face of requirements that they facilitate adoptions by same-sex couples. In Canada, a Divisional Court in Ontario has recently held in Ontario Human Rights commission v. Christian Horizions, that a religiously affiliated organization that ministers to the developmentally disabled violated a lesbian’s rights when it fired her for violating the terms of her employment agreement that forbade adultery and homosexual relationships, on the grounds that it failed to prove that religious adherence is a reasonable and bona fide job qualification. And the European Court of Human Rights has currently pending a set of six German cases involving a variety of religious organizations that have fired or forced into retirement employees who have violated the faith and conduct clauses of their employment contracts, or have been viewed by the religious organization as having insurmountable differences with the religious group. As these cases illustrate, the application of nondiscrimination norms can have significant consequences for religious groups – sometimes unintended, sometimes intended.
How cases like these should be resolved will be determined largely by the prisms through which they are viewed. One way of looking at these cases is through the lens of equality. From this perspective, general and neutral nondiscrimination norms should apply to everyone in an even-handed manner, including religiously-affiliated organizations. Taken to its extreme, this view would deny the right of the Catholic Church to refuse to hire clergy who are not Catholic. Another way of looking at these cases is through the prism of conscientious objection. On this view, analogies to conscientious objection to military service, or of doctors objecting to being required to perform abortions, may provide guidance. Taken to an extreme, this view, in the worried words of the Supreme Court, would allow every person to become a law unto himself. Insights may also be gleaned by examining the consequences for religious groups of the principal civil rights movements of the past fifty years – racial and gender equality – and by questioning which of these precedents should be employed in dealing with contemporary equality claims, including those for same-sex marriage and other gay rights.
In this paper I will argue for a version of religious autonomy that attempts to be sensitive both to the claims of equality and conscientious objection.
Notes on the Study of Islam, Muslims and the Islamic
Lama Abu Odeh
My paper argues that knowledge produced on Islam, Muslims and the Islamic in the aftermath of September 11 can best be described as “fragmentary”. It is fragmentary in the sense that it partakes of piecemeal descriptions located in static empty time capturing mere partial truths. The failing of fragmentary knowledge is the failing of its methodological tools. Those tools are blind to the myriad relations of the phenomenon, the continuous reciprocal transformation of the elements within it and the struggle of its internal contradictions over time that spur the phenomenon into historic movement.
While fragmentary knowledge is failed knowledge it is nevertheless useful knowledge. It has ironically proven useful to both the American imperial project and to the defensive cultural-ist and terrorized “Muslim” reaction to it. It has proven useful for the purposes of military occupation, imperial administration and domestic surveillance. While the US has not been exactly successful in overcoming its adversary in any one of these contexts, fragmentary knowledge has nevertheless allowed it to partake of (ineffective) domination without feeling compelled to abandon the project altogether. Non-total, yet real, domination consumed fragmentary knowledge.
On the other side, fragmentary knowledge of Islam signified the contribution of Muslims entrapped in the US (and Europe) overwhelmed by the machinations of the forever expanding security state. Terrorized out of the political and pursuing a defensive strategy of “ducking down”, these Muslims halted the rich and complex movement of contemporary Islam in their snapshot of it hiding the film away. Their impoverished strategy could be summed up with “Islam is not violent!” With relation to imperial domination of Muslim land, they dissociated.
My paper argues that real and scientific understanding for the purposes of undoing domination requires replacing fragmentary knowledge with dynamic knowledge. I describe dynamic knowledge as knowledge that combines the snapshot with the movement of film, intent on capturing momentary tensions as well as long-term spiral movement. In the paper I describe three contexts in which dynamic knowledge can provide a better understanding of Islam, Muslims and the Islamic. The three contexts are those of a) contemporary Islamicization in the Arab world through the phenomenon of the veil, 2) the Muslims of France and 3) the Muslims of the US.
My attempt at methodological framing is preliminary. It is designed to give the reader an example of the complexity of what is being captured. Islam, not US empire, is the focus of my discussion. In so far as contemporary Islam finds itself in opposition to empire, I will attempt to uncover the movement of empire too.