I. Imposing Limitations on Religious Activism
Every citizen of the West is threatened by political Islam, which seeks to impose Islamic law over the entire world.1 Orthodox Jews feel the threat even more intensely by virtue of the number of Jewish institutions and individuals that have been subject to attempted acts of terrorism in Europe and South America.
Political Islam, or Islamism, poses unique threats to Torah Jews qua Torah Jews. Recognition that private Islamic schools and places of worship are breeding grounds for terrorists may well lead to greater government regulation of private religious schools.
Moreover, Muslims’ separatism and refusal to integrate into their host cultures causes them to be perceived as threats to national cohesion and to democracy. That critique can be easily expanded to encompass every insular religious community, especially where those communities often dress in ways at variance with the dominant culture and maintain their own language(s).
Devaluation of insular religious communities could have an impact on the way that religious liberty claims are treated by the courts in the United States and elsewhere. Such claims typically pit the state interest in the enforcement of a statute that is neutral on its face against the burden imposed on the religious believer, either by forbidding performance of a positive religious commandment or by coercing the violation of a negative commandment.
When respect for religion runs high, sensitivity to the cruelty of forcing, or indirectly pressuring, a person to act in contravention of his religious conscience will be great. But when religion itself becomes suspect, and religious communities are viewed as undermining national unity and strength, less weight will be given to the religious liberty claims and greater weight to the state's interest in uniform enforcement of the statute in question.2
Finally, Islamic fundamentalism has helped bring religious belief in general into disrepute, and provided fuel to those who charge that most of mankind's problems can be traced to religious fanaticism. Within one week of 9/11, for instance, the New York Times’ Thomas Friedman already described the great threat confronting the West not as Islamic fundamentalism but as religious fundamentalism in general, including Christian and Jewish. Thus did Orthodox Jews find themselves uncomfortably linked with Islamic terrorists under the convenient rubric "fundamentalists."
The past year has witnessed a plethora of screeds – several of them best-sellers -- against religious belief: Richard Dawkins' The God Delusion, Daniel Dennett's Breaking the Spell, and Sam Harris's The End of Faith and Letter to a Christian Nation. These works are characterized not by their arguments, none of which are new, but their level invective and in their general attitude towards religious belief as something beneath contempt and incapable of defense by any intelligent person.
Though 9/11 and ongoing Islamic fanaticism helped create an audience for such works, they by no means focus their attack on Islamic fanaticism. Sam Schulman points out in the January 5 Wall Street Journal, "The atheists focus their peevishness not on Muslim extremists (who advertise their hatred and violent intentions) but on the old-time Christian religion. . . . They conclude: God is not necessary, God is impossible and God is not permissible if our society – or even our species – is to survive."
II. Acknowledging the Threat
The concerns raised by the threat of Islamism can in no way be dismissed. Indeed, as citizens of the West, we should all be grateful that the nature of the threat posed is finally registering with societal elites. The internal Islamist threat is greatest in Europe. A combination of well below replacement birthrates among Europeans, high Moslem birthrates and Moslem immigration have paved the road for a Moslem majority in Europe within two or three generations.
Most of the approximately 20 million Muslims living in Europe today have not integrated into their host societies. In a recent poll in Britain, 40-60% of Moslems said that they would prefer to live under Sharia, Islamic law. British security forces consider at least 14,000 British Muslims to be security threats, and keep 1,000 under active surveillance. Tens of thousands of British citizens of Pakistani descent visit their ancestral homeland each year, and many of those are indoctrinated by Islamist groups while there.
Nor has the threat remained theoretical, as demonstrated by the July 7 2005 suicide bombings on the London Underground, which claimed 52 lives, and the uncovering last August of a plot by British Muslims to blow up ten transatlantic airliners. At least 13 students at British universities have been convicted of terrorism and four became suicide bombers.
Increasingly, mosques and Islamist religious institutions are fostering Moslem separatism. A recent British TV documentary featured preachers at numerous mosques, including those allegedly dedicated to moderation and interfaith dialogue, condemning integration into British society, democracy, preaching hatred for Jews and Christians, and celebrating the killing of British soldiers in Iraq and Afghanistan.
The October-November 2004 rioting in the "cities of darkness" ringing Paris and other major French cities revealed the extent of alienation of young, mostly second generation Muslims in France. Social critic Theodore Dalrymple describes how the "sweet dream of universal cultural compatibility has been replaced by the nightmare of permanent conflict," in France and numerous other European cities, in which police and firefighters do not dare venture into Muslim areas, and where copycat riots followed those in France: "A kind of anti-society has grown up in [these cities of darkness] – a population that derives the meaning of its life from the hatred it bears for the other 'official' society . . . . This alienation . . . is written on the faces of the young men, most of them permanently unemployed, who hang out in the pocked and potholed open spaces between their dwellings. When you approach to speak to them, their immobile faces betray not a flicker of recognition of your shared humanity. . . . " 3
Europe was not quick to acknowledge the extent of the threat within from radical Islam and disaffected Muslims. Not one prosecution has yet been brought in Britain under statutes enacted after 7/7 outlawing the celebration of terrorism, despite numerous instances of Muslim preachers inciting to violence and even murder. Highly secularized European elites have lost the ability to comprehend religious fanaticism, preferring to believe that Moslem violence directed at their host societies is simply a matter of grievances and that when those grievances are removed – e.g., the British presence in Iraq – the violence will abate.
And in part, societal elites find it politically incorrect to identify the problem with Islam in any form. Thus, after the discovery of the plot to blow up 10 transatlantic airliners, London Police Commissioner Paul Stephenson refused to acknowledge that the plot had to do with particular "communities", even though all the plotters were Muslims, most of them Pakistani. He insisted it was no different than any other criminal conspiracy. In a similar manner, a Canadian police spokesman described those plotting to blow up parliament as drawn from a broad cross-section of the community, while neglecting to mention that they were overwhelmingly named Mohammed and Ahmad.
There are signs, however, that elite European opinion is beginning to catch up with that of the man in the street. Mosques and Muslim groups in France are under heavy surveillance from French police and security services. And last September, British Home Secretary John Reid urged Muslim parents in East London to supervise their children and to make sure that they are not being initiated into a death cult in their local mosque or Muslim school.
When a heckler shouted at him that he had no business coming to a Moslem area, Reid sharply rejected the suggestion that there is any area in Britain that is off-limits to Her Majesty's government. And he denounced the attempt to Balkanize Britain into semi-autonomous communities, each with its own values.
In Reid's reply, we hear the growing apprehension that extreme multiculturalism threatens the unity and strength of the nation-state. That fear is well-taken. Citizens of democratic societies feel a greater stake in the country and a greater identification with one another. Yet where citizens do not identify with the state or a common set of national values, but rather view themselves only as members of insular sub-communities, that national strength is lost. Opponents of bi-lingual education make the same point: loss of a common national language weakens a country.
III. Of Exemptions and Loopholes
The recognition that Moslem schools attempt to create a Moslem identity that prevents integration into the larger society and that certain mosques, like London's Finsbury Park Mosque, are turning out terrorists on an assembly line, has engendered a response. And that response has important implications for Jewish institutions as well.
In England, Lord Kenneth Baker submitted a bill to parliament, believed to have the support of the Minister of Education, which would have required all newly opened religious schools to set aside at least 30% of its places for children of different religions. Lord Baker noted that his concern was with Islamic schools that "seek to create a total Muslim personality." Under Baker’s bill requirements such as familiarity with the Koran would have been forbidden since the effect of the requirement would have been to eliminate all non-Moslems together.
Though Baker’s bill was ultimately withdrawn, the mere fact that such legislation could be introduced and supported by the Minister of Education gives cause for concern. The implications of such a piece of legislation for the Jewish community would have been immense. Orthodox education also seeks to create a total "Torah personality." The presence of 30% of non-Jews in a school would make that goal unobtainable. So would forcing Jewish school to drop requirements for admission that would exclude all or most non-Jewish students – e.g., familiarity with davening, chagim, and Chumash.
The statute may have been written with Moslem extremism in mind, but it would be naive to think that it would therefore apply to only to Moslem schools and not Jewish ones. Legislators prefer to couch statutes in neutral terms that do not single out any particular religious group for special regulation.
Most Orthodox Jews would undoubtedly be shocked at finding themselves linked to Islamic extremists. And they would be right to object. The most salient distinction, of course, is that there are no Torah Jews blowing themselves up on the London Tube or plotting to explode 10 transatlantic airlines. But it remains unlikely that courts would carve out an exemption for Jewish schools based on the generally upstanding citizenship of their graduates.
In at least one case, the United States Supreme Court did carve out a religious exemption to a neutrally drawn statute on the basis of the good citizenship of those asserting the religious claim. Thus in Wisconsin v. Yoder, the Court exempted Amish children who had completed elementary school from the requirement of attending high school until age 16. The Court cited the low rates of criminality among the Amish and the fact that they rarely, if ever, receive state welfare payments. Those were deemed sufficient reason to allow Amish parents to educate their children themselves from 9th grade on.
In a similar way, if a particular statute was drafted to prevent private religious schools from being breeding grounds for terrorists, the lack of Orthodox terrorists might be cited in support of an exemption for Torah schools from the statute’s application. In all likelihood, however, courts would be reticent to extend the Wisconsin precedent in such a way that Moslem schools alone would be singled out for a particular statutory regulation.
IV. A Curriculum to Limit Torah’s Authority
In addition, many regulations drafted with Moslem schools in mind are designed not just to protect against the training of terrorists of the future, but also with the goal of preventing those schools from fostering an identity completely at odds with the dominant national culture. The French ban on the wearing of any religious head-covering in school would be an example of the second kind of legislation, and it applied with equal force to yarmulkes and the hijab worn by some Moslem women.4
Again religious Jews might argue for a religious exemption from legislation or regulations designed to ensure that students in private religious schools develop an attachment to the dominant national ethos and prove capable of integrating into the larger society. They could point to their patriotism – e.g., the American flags waving on car antennas and from front porches after 9/11 – and the success of the graduates of Torah schools in all areas of national life – business, the professions, and in government.
Yet it remains true that Torah Jews, like many Muslims, do wear distinctive garb, profess an allegiance to G-d that transcends any allegiance to the secular state, and reject many of the values of contemporary society. Unlike many Muslims, however, Torah Jews recognize the legitimacy of a secular legal system and acknowledge the duty to obey the laws of the land – dina d’malchusa dina – and nowhere seek to impose Torah law on the secular state.5
The latter distinction, however, would not likely proof sufficient to secure an exemption for Torah schools from a curriculum like that scheduled to go into effect in 2008 in a province of a Western state with a large Jewish population.6 That curriculum is designed, inter alia, to foster religious tolerance, and is apparently to be imposed on both private and parochial schools.
One thing is clear: the proposed curriculum would undercut in countless ways the view that the Torah is sole, or even primary, source of authority with respect to morals or ethical decision-making. The curriculum is explicitly juxtaposed to "confessional religious education," in which the precepts and views of a particular religion are taken as a given. One of the goals of the curriculum is to enable students "to position themselves after due consideration with respect to religions and new religious movements." In other words, students are to be taught that it is ultimately up to them to evaluate the teachings of their own religion, or any other, and to decide whether they wish to be bound by those teachings.
The religious curriculum will introduce students to a variety of different religions, and seek to imbue them with an attitude of tolerance to all of them, including those which according to halachah constitute idol worship. In addition, students will learn that many people derive their ethical moral beliefs from sources other than revealed religion. The message is the same that anti-religious writers are forever proclaiming: One need not be religious in order to be a moral person, and indeed religious people are no more moral than others.
The authors of the curriculum emphasize that some values are growing stronger in the contemporary world and other traditional values waning. They make clear that their preferences rest on the side of the contemporary over the received values of the past. But the very description of such value changes contradicts the view of Torah as the source of eternal values binding on the Jewish people forever.
Underlying the proposed curriculum is a strong emphasis on tolerance that derives, at least in part, from the fear of the Islamic intolerance and even violence. The emphasis on the moral autonomy of each person and the need to recognize multiple sources of ethical values betray a bias against revealed religion in general.
It is hard to imagine any Torah Jew allowing his children being subjected to a curriculum in which Torah is just one among many options. But the question we must ask ourselves is whether any political entity might nevertheless mandate such curriculum.
In the United States the right of parents to provide their children with a parochial education was settled by the Supreme Court almost a century ago.7 If anything that right has even become more firmly entrenched with the rapid growth of the home-schooling movement. At the same time, the state’s substantial interest in the regulation of private education has long been recognized. If a curriculum like the proposed curriculum described is introduced in any American state, it will largely be in response to the legitimate concerns that Islamist education raises among Western policymakers.
1. Mary Habeck of the School of Advanced International Studies of Johns Hopkins University describes the goals of political Islam: "Jihadis . . . neither recognize national boundaries within Islamic lands nor do they believe that the coming Islamic state, when it is created, should have permanent borders with the unbelievers. The recognition of such boundaries would end the expansion of Islam and stop offensive jihad, both of which are transgressions against [Divine] law that commands jihad to last until Judgment Day or until the entire earth is under the rule of Islamic law."
2. Let us say, for instance, that a state fair housing statute prohibits discrimination in the rental of housing on the basis of marital status or sexual orientation. How will a court respond to the claim of a religious homeowner that it violates his religious beliefs to rent his premises to those who will, in his view, be using them for immoral purposes? Note that here the homeowner is not be forced to violate his religious beliefs. He can always withhold the premises from the rental market. But he will pay a heavy price for doing so. As state regulation comes to encroach into every area of life, the number of such conflicts between religious belief and state regulation grows exponentially.
3. To date, the United States has experienced nothing like the 7/7 Tube bombing in London or the Madrid train blasts. And Muslims in America appear to have integrated more successfully than in European countries. The median average income of American Muslims is approximately the same as American whites, and their educational levels are higher. From the beginning, America has conceived itself as a melting-pot of immigrants from many different countries; national identity is not assumed to be based on descent from some group of ethnically homogenous ancestors, as in European countries. Further the deep religiosity of America and the fact religion that there was never a national church in America, but rather a multitude of sects and religions, have made it easier for Moslems to maintain their religious identity and assume their place in the rich tapestry of American religious pluralism. (American religiosity and the lack of a national church stand in stark contrast to Europe.)
Nevertheless, fanatic forms of Islam have found a receptive audience among black inmates in prisons. Anti-terrorist expert Daniel Pipes has repeatedly warned of radical Islamic groups in the United States as well, a warning given more credence by the January expulsion from the United States of an Ohio imam on charges stemming from his fundraising for Islamic Jihad. The plot of 17 Canadian Moslems to blow up the Canadian parliament and behead the prime minister further suggests that the United States should not consider itself immune from homegrown Islamists.]
4. Some have argued that there is no religious liberty argument in the wearing of a hijab because Islamic law does not require it. In support they cite the fact that at least two Moslem countries – Turkey and Tunisia – ban the wearing of a veil altogether, and that it has not been traditional dress in many Moslem societies.
That is not an argument that Torah Jews should be eager to embrace. We would not want a secular court to inquire whether wearing a yarmulke indoors is religiously required, or consider evidence that some Orthodox Jews do not wear a yarmulke at work. A secular court oversteps itself when in acts as a religious authority. The only relevant question in this regard is whether the person asserting the religious liberty claim truly believes that he is religiously required or forbidden to something.
Even where the answer is affirmative, however, that does not mean that the religious liberty claim should always prevail. One of Britain’s most dangerous terrorists recently escaped from the country by disguising himself as a Moslem woman in a full-length garment that revealed only his eyes as he went through passport control. That is just one example of where security concerns might well warrant limiting the religious claim of the right to wear a particular modest garment.
5. Muslims show a much greater propensity for imposing their religious beliefs on others. In one case that attracted a great deal of notoriety, Muslim taxi drivers in Minneapolis have been refusing to take passengers carrying pork or liquor products. The airport authority was initially inclined to accommodate the Moslem drivers until columnist and scholar Daniel Pipes aroused a national uproar, at which point the drivers were told that they would have to take all passengers or forfeit their license.
Here the claim of the airport authority seems particularly strong. Taxi licenses are a limited public resource, and the state has a clear interest in ensuring that holders of those licenses use them to best serve the public. (It is hard to imagine an Orthodox taxi driver refusing to transport a passenger carrying pork products, even if the passenger were Jewish.)
6. I am being deliberately vague about the location of the government body that has issued the proposed curriculum so as not to prejudice ongoing negotiations.
7. Even though Pierce v. Society of Sisters was decided under long discarded doctrines of "substantive due process," the decision has been frequently and approvingly cited by the Supreme Court, often in cases involving the "right to privacy," originally discovered by Justice Douglas in various penumbras of the Constitution.