Freedom from Religion: Rights and National Security

by Amos Guiora

Society has historically —unjustifiably and blindly—granted religion immunity. That immunity has been expanded to include religious extremism; doing so, presents an imminent danger to civil society. In many ways the failure to adequately protect society falls squarely on the shoulders of society; the refusal to directly address religious extremists is purely self-imposed. Religious extremists manipulate society’s sensitivities which, in large part, results in unjustifiable acquiescence. As one reader of the book commented “we gotta stop this “kill the infidel” bullcr*p.”

Religious extremism is when the actor believes his or her tenets and principles are infallible and that any action, even violence, taken on behalf of those beliefs is justifed. The action can be directed both at people of other faiths (or those of no faith), as well as members of the same religion who have violated the extremist’s understanding of how their religion is to be practiced. Religious extremists are  fundamentally, philosophically and existentially different from secular terrorists  for they claim to be acting in the name of the divine.

Disagreement regarding how to respond is welcomed and inevitable; critical is acknowledgment of the threat. Prof Nadine Strossen, in  commenting on the book, correctly noted that the fundamental question is “whether legal protections for religious speech and conduct should be reduced in order to counter the threat posed by religiously motivated terrorists.” I am convinced that the answer must be a resounding ‘yes’. While freedom of speech and freedom of religion are sacred, the right to life is similarly sacred.

A short ‘laundry list’ demonstrates the extraordinary danger posed by religious extremism and religious extremists: the attack on American military personnel in FT Hood, Texas by Major Nidal Malik Hasan; Umar Faisal Shahzad’s 42nd Street bombing; Comedy Central’s self-censorship of a South Park episode referencing the Prophet Mohammed in the face of threats by a radical Islamic group; child endangerment (child brides) and abandonment (‘lost boys’) in the Fundamental Church of Latter Day Saints (FLDS)  and the burning of mosques in the West Bank by Jewish extremists.  Essential to these acts is the role of faith leaders. Their words—and the potentially tragic impact of their carefully chosen, oft-repeated, mantra-like interpretation of religious texts—pose a danger to society..

Whether and how  we directly, proactively and fairly,  restrict their words is a critical challenge facing the public and decision makers. Religious extremist speech that, articulated by extremist faith leaders in Houses of Worship, incites followers to violence should enjoy a lower standard of protection than other speech. Punishing speakers violence after violence has occurred is both ineffective and does not deter other religious extremists. Therefore, in known cases of religious extremist speech, government—in order to protect larger society (external community) and vulnerable members of an internal community—must act proactively seeking to prevent harm to potential targets of religious extremism.

On the other hand, over-reach is equally dangerous. With respect to religious symbols nowhere is that over-reach more telling than how various European government stumble their way through the veil and burkha issue. While religious extremism justifies proactive measures by government, it is important to avoid over-reaction. The continued debate in Europe with respect to the head-scarf symbolizes over-reaction; the scarf—unlike speech—does not pose a danger to civil society. Legislative efforts in Belgium and France to ban the scarf and burkha would not meet American constitutional law  tests regarding void for vagueness and over-breadth. While a cogent and compelling public safety test can be articulated for banning the burkha on public transportation and other public venues, an all-encompassing ban both on the scarf and burkha does not meet rational based balancing tests.

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