One of the many factors that have contributed to America’s success is its ability to accommodate people with different religious beliefs and cultural practices. This has been an important factor in attracting the world’s best and brightest to our shores, thus keeping us ahead in an increasingly globalized and competitive world economy. To be sure, while accommodating diversity, we also require a broad consensus on the need to respect the rights of others and the separation between the private and public spheres. But within that broad consensus, people worship as they chose, celebrate the holidays and festivals of their choice, and abide by the behavioral norms of their choice. Debates have occurred throughout our history about where the boundary between the public and private spheres should be, but our success resides, in part, in our agreement to leave many very important issues to the private sphere. I have commented on this issue a number of times but there are several recent examples that bring to the fore again the debate over the proper dividing line between public and private spheres.
Our religious and cultural preferences are biases. They are beliefs we hold for whatever reason or choices that we make about values we chose to adopt because we believe them to be superior or at least the most appropriate for guiding our own actions. Muslims, Jews, and Catholics, chose to cluster together with their own kind on Fridays, Saturdays and Sundays respectively without the rest of us being much bothered. It would be foolish for Catholics to extend this clubiness to which restaurants and shops they patronize, but if that is their choice, what is the harm compared with the harm of restricting their freedom to choose? For better or worse a preference (bias) for “our own kind” is part of our human nature. The social costs of forcing a Catholic to shop in a Jewish or Muslim owned shop would be enormous and would strike American’s as ridiculous. Fortunately, the free market itself discourages such biased and economically irrational behavior because the indulgence in such biases comes with a cost. Limiting your shopping and dinning (or employment) to your own kind, limits choice (be definition) and competition and thus almost always increases the cost you must pay to indulge your biases.
Social acceptance of the right of people to indulge their personal biases in broad areas of our lives, allows people with different beliefs can live peaceably together. It is when we try to force our own beliefs and rules on others beyond the truly essential values needed to live together that series strains and social turmoil can result. Here are some recent examples.
Afghanistan just passed a law that moved the boundary between public and private spheres far too far in favor of public religion. “The law, which was approved by parliament and signed by President Hamid Karzai [in March], codifies proper behavior for Shiite couples and families in the most intimate detail. It requires women to seek their husband’s permission to leave home, except for "culturally legitimate" purposes such as work or weddings, and to submit to their sexual demands unless ill or menstruating.
“Initially seen as a political gesture to the country’s Shiites, who make up 20 percent of the population and have long sought legal recognition of their religious beliefs, the law has become a political nightmare for a government struggling to balance conflicting pressures from traditional and modernizing forces at home and abroad…. I could not keep silent any longer," said Foreign Minister Rangin Dadfar Spanta…. The Shiite law, he said, had a ‘totalitarian orientation that does not accept the difference between what is private and public. It identifies some Afghan citizens not as human beings but as slaves.’
“‘The law… was supposed to be an achievement: to recognize Shias’ legal rights so Hanafi [Sunni] laws would not be imposed on them,’ said Sima Samar, a Shiite woman who chairs the Afghan Independent Human Rights Commission. ‘But it was also used by a few leaders who want to put chains around half the population. It is good to have rules for marriage and divorce, but if I want my wife to wear pink lipstick and she wants to wear red, why should that be a matter of law?’”
Islamic states or Islamic dominated states differ dramatically over the issue of whether to separate church and state. In Turkey and Indonesia they are separate and in Iran they are not. The Islamic Republics (Afghanistan, Iran, Mauritania, and Pakistan) may offer a purer choice for Muslims but are bound to pay the price of bias discussed above. Contrast Afghanistan’s approach to that taken by British Archbishop of Canterbury, Dr Rowan Williams, in which he argued that British law should accommodate Islamic practice for those wanting to adhere to it (rather than incorporating it into the law as was done in Afghanistan). His comment precipitated a laud public debate and illustrates how difficult it is to reconcile some of these issues.
As I mentioned in an earlier note American Muslims who could afford it are able to effectively achieve by contract the rights and obligations of second, third and fourth wives as permitted by Islam while observing the American limit to one wife (at a time). The observance of the practice in some Islamic countries of subordination of wives to the practices just adopted into law in Afghanistan would require the voluntary agreement of the wife in the U.S. Some conflicts in values and practices are simply not resolvable within America’s legal system, but the number of conflicts can and generally are minimized by leaving many things to custom and contract. Oxford University Islamic scholar Professor Tariq Ramadan stated that: “I really think we, as Muslims, need to come up with something that we abide by the common law and within these latitudes there are possibilities for us to be faithful to Islamic principles.”
Our founding fathers did not come here to establish a religious state (at least the wiser of them did not). They came here to escape religious states that did not allow them to worship according to their own beliefs. They came here to be free to worship as they wished and that required that they allow others to worship as others wished. Thus they wrote the separation of church as state into our constitution leaving religion to the private sphere. Those who wish to brake down that barrier are doing a dangerous thing.
There are also some alarming recent examples in which private citizens are being forced by law to comply with preferences of others. Laws that command actions are generally more invasive and repulsive than those that prohibit them. A month ago it was reported that: “President Barack Obama will rescind a Bush Administration rule that granted protection to doctors, nurses, pharmacists, and other health care workers who refuse to perform or assist in abortions, sterilizations, and other contraceptive procedures on moral grounds. The rule was issued by the Department of Health and Human Services late in Bush’s term, and applied to any hospital or clinic receiving federal funds.” This would be a bad move. "’I will do nothing against my conscience in the practice of medicine ever regardless of what any law is at any time,’ Sen. Tom Coburn told FOX News” and rightly so.
The Washington Post recently reported a number of court cases in which the rights of individuals were violated for one or another “social interest:”
“– A Christian photographer was forced by the New Mexico Civil Rights Commission to pay $6,637 in attorney’s costs after she refused to photograph a gay couple’s commitment ceremony.
— A psychologist in Georgia was fired after she declined for religious reasons to counsel a lesbian about her relationship.
— Christian fertility doctors in California who refused to artificially inseminate a lesbian patient were barred by the state Supreme Court from invoking their religious beliefs in refusing treatment.
— A Christian student group was not recognized at a University of California law school because it denies membership to anyone practicing sex outside of traditional marriage.”
These are dangerous (to public harmony) trends. Gay and Lesbian Americans deserve to have every right enjoyed by any other American (marriage, adoption, inheritance, etc.). But I don’t think I should have the right to demand that you work for me in whatever capacity whether you want to or not. Why in the world would a lesbian want to hire a psychologist to council her on her relationship whose unloving and misguided religion thought lesbians were evil? I can’t imagine that a reluctant shrink would be worth the money.
Let’s keep the public private boundary more in favor of the private sector. Let’s prohibit only that behavior that truly harms us (stealing our property, harming our person, etc) and not force others to do what we want them to do. Address “bad” behavior with education and the market cost of bias. There will always be difficult boundary issues but the less the state interferes in matters that can and should be left to individual briefs and customs the richer, healthier, and more peaceful we will all be.
 Jacqueline L. Salmon, "Faith Groups Increasingly Loss Gay Rights Fights" The Washington Post, April 10, 2009, Page A04.