America’s Unique Constitutional Framework and the Fit of Islam

The impetus for this conference came about because there are serious and dangerous issues in our traditional American religious communities that are not receiving adequate intellectual attention and discussion. The issues have many components, as almost all religious issues do, and our nonstop news cycle and social media have had an adverse effect on reflective, informed, sober discussion. The subject is sometimes called “Islamophobia,”¹ which means, “a strong fear or dislike” of Islam. In fact, if you were to go to almost any thesaurus, you will find synonyms including “terror, horror, dread, paranoia,” and “anxiety.”²

These are incredibly strong words, and their current usage in the United States has been magnified by the lack of knowledge and education about Islam and its traditions, particularly in the way it is portrayed to us and our fellow Americans in the media. We cannot hide the fact that there are 1.57 billion global adherents to Islam, slightly more than 23 percent of the world’s population. According to the Pew Research Center this year there are 50 Muslim-majority countries.³

The simple fact for Americans is that our nation has been, is, and will continue to be deeply involved in the Middle East and the Levant, a troubled part of the world where Islam is being exploited by fanatics who are trying to relive historic wars and by those charged with religious leadership of Islam—the ayatollahs. Many of these religious and political leaders have positions similar to, but more pervasive in their impact, than rabbis in the Jewish religion, and pastors, preachers and priests in Christianity. This is difficult for many Americans to comprehend because Islam, in its most orthodox form as set forth in the Quran, is an all-encompassing way-of-life.⁴ An essential fact is that its fundamentalist adherents practice Islam in its strictest form as they interpret it and follow its teachings without regard to modernity.

Bernard Lewis, a highly respected scholar of Islam, notes that the separation of church and state is a Western phenomenon, not often accepted by Muslims. Lewis concludes, “In the Islamic context, the independence and initiative of the civil society may best be measured not in relation to the state, but in relation to religion, of which, in the Muslim perception, the state itself is a manifestation and an instrument.”⁵

To rationally discuss what some consider an irrational notion—call it faith, religion, or belief—is especially difficult, and the role of religion in various societies, including our own, is why this conference is important. It is especially important when we look at these and related issues about religion and the law in the context of the special, unique place we call the United States of America.

This amazing place for which we often use shorthand, “America,” is perhaps the one major nation on earth that was founded by our forefathers to provide a refuge from religious intolerance.⁶ Practitioners of a religion who could not follow their convictions where they lived founded Our America. Our religious history goes back to 1620 when 102 individuals landed at Plymouth Rock in what is today Massachusetts.⁷

There is, as my colleague Doug Johnston noted in his book, Religion, Terror and Error, a parallel to today’s Muslims and yesterday’s Pilgrims:

It could be said that the first American colonies in New England were founded by the Christian equivalent of Salafis (Muslims who seek to live their lives according to the literal teaching of Islam as manifested in the behavior of the Prophet): in other words, Christian believers who sought to live a life as close to the apostolic example of the followers of Jesus as humanly possible, guided only by Holy Scripture, to create ‘a shining city on a hill’ bound not by regulations and laws but by ‘love in the heart.’ Just as for Muslims today, John Winthrop drew no distinction between Church and State.⁸

This analogy highlights that America’s religious history is complex and ever changing. Recently, and unfortunately, the media, politicians and many others, including some from Christian pulpits, have painted Muslims with the broad brush of intolerance.⁹

Trained as a lawyer, I often find it necessary and helpful to look to history and to the documents of any argument, especially when they are important to our understanding of issues.

In these situations and in these difficult moments in our history, we have fanatics, Radical Islamists, who are heavily armed and are recruiting misguided individuals to lives that require significant psychiatric care. We have dedicated, fanatic individuals using today’s most modern technologies to highjack one of the three Abrahamic faiths for actions and behaviors inconsistent with any civilized purpose.

As rational, educated believers in a single God we must dedicate ourselves to understanding this phenomenon and to dealing with it without falling into any of the many traps that our adversaries may be setting for us. And make no mistake, those of Al-Quaeda, ISIS, and similar enterprises are now America’s adversaries. But we also must remember that these fanatic Muslim Radicals are a minority of the followers of Islam. In percentage terms, few Muslims follow these fanatics and certainly only a very tiny percentage of Muslims are our adversaries. This is one of the essential facts that we need to incorporate into our thinking and into our behavior.

Others writing for this special edition of the Journal know far more than I about their individual faiths and religions, but a short legal and historic contextual framework for our efforts as we confront a dangerous world and the growing phenomenon, Islamophobia, may be helpful.

I do this only after having immersed myself in a short quest to understand the fundamental tenets of one of my first questions: “What is an Evangelical?” To place Evangelicals and Islam in the context of the Constitution of the United States and our unique political system requires an undistorted understanding of both.

In this effort I want to acknowledge the guidance given me by Dr. Rick Love, a colleague along with Dr. Douglas Johnston in putting together this Conference. I thank them for their help especially since my own Judaism did not give me much experience with Evangelicals. For instance, Evangelicals have an obligation to share their faiths and proselytize for new adherents and Judaism does not. However, the dramatic changes in American Judaism during the last 75 years does help with respect to Islam because there are very significant adjustments that are required when one lives in a society where one’s religion is the majority religion and where it is a minority religion. Jews have had considerable practice as a minority in many Diaspora communities.¹⁰

Rick sent me to a few texts, one of which is Leon Morris’s “What Do We Mean By Evangelical?” And relying on readings of the New Testament I now have a better understanding of the deep and abiding faith of an Evangelical, their relationships to the “gospel,” and the centrality of their belief to everyday life and to the pervasiveness of Christ to their thinking. Indeed, the core of an Evangelical begins with Christ’s death for our sins, his burial, and his rising up on the third day.

Resurrection is a beautiful concept and while scholars have debated it, as they debate almost everything, the essence of it is mentioned in old Jewish writings:

“Oh, let your dead revive! Let corpses arise! Awake and shout for joy, You who dwell in the dust!—For your dew is like the dew on fresh growth; You make the land of the shades come to life. (Isaiah 26:19).”

Indeed, when Jews celebrate Rosh Hashanah and Yom Kippur, they recite prayers that give meaning to resurrection and the Jewish belief from which Jesus emerges is believed by many to be an essential lesson of the story of Jonah.¹¹

Thus, I note for my purposes the thinking of British historian David Bebbington and others that there are four essential truths for an Evangelic:¹²

• First, Biblicism, the Bible is the fundamental, essential authority on religious matters.
• Crucicentrism, the belief in Christ’s redeeming work, that he died for our sins, and that it is the way to any individual’s salvation.
• Conversionism, the acceptance that an Evangelical has undergone a “new birth,” and that is a life changing experience with G-d.
• Activism, the requirement that an Evangelic has a responsibility to share the faith.

When looking at the three Abrahamic faiths we should note that the requirement of Activism or “the call to mission” is common to all branches of Christianity and is a central component of Islam, but is not a calling of Judaism.

And so, we of the Abrahamic Faiths, not only find references to a Messiah in Judaism, but we also find references to Christ in the Quran,¹³ although there is the denial of Christ’s resurrection in both Islam and Judaism.¹⁴

And with this basic understanding of the elements of Evangelicals, and a recognition that all three Abrahamic faiths believe in a Monotheistic
God, we now confront the issue of how we are obligated to do our work, the Lord’s work, as Americans.

As Americans, we are bound by the governing document of our Nation, the Constitution of the United States, and the document that gave birth to the Nation with that sacred text, the Declaration of Independence.¹⁵

Our Constitution is both complicated and simple, especially as it is applied to life in the 21^st century. Our Constitution, only 4,440 words, is the oldest and the shortest written constitution of any major government in the world. But one of our greatest presidents, Abraham Lincoln, in his memorable Address dedicating the National Cemetery at Gettysburg on November 19, 1863, (America’s first national cemetery) another short document of only 272 words spoken in about three minutes, essentially picked the intellectual pocket of the Constitution and tucked into it Mr. Jefferson’s Declaration. In essence, he inserted the Declaration, a document justifying our Revolution, and inserted it into the Constitution, a conservative document of compromise and governance that in the beginning countenanced slavery for what today is a trans-continental nation with global responsibilities. As historian Gary Wills said:

“By implicitly doing this, he [Lincoln] performed one of the most daring acts of open-air sleight-of-hand ever witnessed by the unsuspecting. Everyone in that vast throng of thousands was having his or her intellectual pocket picked.”

The crowd departed with a new thing in its ideological luggage, that new constitution Lincoln had substituted for the one they brought there with them. They walked off, from those curving graves on the hillside, under a hanged sky, into a different America. Lincoln had revolutionized the Revolution, giving people a new past to live with that would change their future indefinitely.”¹⁶

It is not an accident that in his opening sentence Lincoln changes the traditional dating of our Nation from 1787, when the Constitution was ratified, to 1776, the year of the Declaration.

And we cannot get to the essentials of Lincoln’s reconstituted Constitution without remembering some of the reasons of why we are all here– to enable men and women to practice their faiths and religions without interference from the Government, AND without interference by others.

Thus, “WE hold these Truths to be self-evident, that all Men (and women [19^th Amendment] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

And so, when anyone claims that our Founding Fathers, and especially Thomas Jefferson, did not believe in a Supreme Being, let them start with the simple fact that one of our two fundamental documents notes that unalienable Rights come from our Creator. And let them further note that in the preceding paragraph, the very first paragraph, notes that when we assumed “the Powers of the Earth,” our Declaration refers to their entitlement from “the Laws of Nature and of Nature’s God.”¹⁷

And with that in the hearts and minds of our Founding Fathers, thirteen years later they wrote our Constitution and two years later, on December 15, 1791, the States adopted the Bill of Rights.

And the very first Amendment, in its first words, made clear one of our most cherished Rights… “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; . . ..”

And then with the ratification of the Fourteenth Amendment, Section 1, one of the great Civil War Amendments, this right was protected from infringement by any State constitution or law.¹⁸

Let us recognize that these educated and thoughtful men had a marvelous capability to put first things first. It is not by accident that the first right in the First Amendment protected the free exercise of religion and prohibited the Congress from establishing a national religion. It also was no accident that Section 1 of the Fourteenth Amendment prevented any State from abridging the privileges and immunities of citizens of the United States.

Yes, in years past Americans had their priorities in order.

And, yes, Islam was a recognized religion at the time. It is generally accepted by Muslims of all beliefs that the Quran was revealed to Muhammad through Gabriel, the angel, by God over more than twenty years, ending with Muhammad’s death in 632.¹⁹ The chief of the Manuscript Division of our Library of Congress, James H. Hutson, notes “The Founders of this nation explicitly included Islam in their vision of the future of the republic. Freedom of religion, as they conceived it, encompassed it.”²⁰ Jefferson owned a copy of the Quran.

So, Islam was a well-established religion when the Constitution was written, and, therefore, is protected by the First Amendment. For the purposes of our review and our dialogue during this conference we need to establish certain basic points of agreement, and that is one of them.

While most discussions about the Constitution and religion focus on First Amendment rights, it is relevant to observe that the Founding Fathers also made a bold statement in the Constitution about religion and public office. In Article VI, Section [3], there is very important language:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and ²¹all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” (Emphasis added).

It also is pertinent to our thinking that we notice that there was deference given to Quakers and other religions that did not allow Oaths. In law there is no legal difference between an Oath and an Affirmation. For some there are serious religious components to an Oath and the American Constitution allows taking an office with either a sworn oath or an affirmation. The other issues often discussed simultaneously with the Oath/Affirmation issues are the words “so help me God.”²²

But we are not today nor at any time at this conference talking only about laws and Constitutional protections and the role of law in our society. Nor will we get into the complex and long line of Supreme Court decisions interpreting the First Amendment.

Today, we are talking about things that are especially important in our daily work-a-day lives. We are talking about what goes on in every day society.  We are talking about our communities, we are talking about our cultures, we are talking about our traditions, and we are, most importantly for the next two days, talking about our roles as leaders– leaders at a very difficult time dealing with very difficult issues.

Many of you who have come here today are Evangelical Christians. And because it is important for me, someone who is not an Evangelical Christian, but rather someone of the older faith, indeed a Jew whose founding father, Abraham, gave birth to monotheism.²³ In addition to an all too short course in the beliefs of an Evangelical, I studied issues of Islam and read parts of the Quran.²⁴ In this regard, I consulted two of my board colleagues at the Dialogue Institute, Professor Leonard Swidler, a Roman Catholic, Professor of Religion at Temple, and founder of the DI, and Majid Alsayegh, a Sunni Muslim who now is chairman of the DI. Both will be here and I urge you to visit with each of them and engage in dialogue with them. They are wonderful colleagues and have become good friends.

There are very fundamental conflicting views among our religions, especially as to the belief in Jesus Christ, how we can find “grace,” and the degree to which we proselytize to convert others to our beliefs.

However, among the most essential melding of our religious beliefs in our civil society must be the practice and preaching of those beliefs and the basic practices of our lives, including birth, family, marriage, death, dietary practices, etc.

The only time that these issues do not come into conflict is when members of a faith live in a community that allows only one faith, often characterized as “the true faith” and has governmental practices that exclude, or even punish, those who do not practice or proclaim “the true faith.” In our modern day, we have places that come close to this definition, and they proclaim that in the name of their nation. Several nations that call themselves republics have an adjective because these nations are ruled by Islamic Laws, often to the exclusion of other religious beliefs and practices. Several come to mind:

• The Islamic Republic of Iran,
• The Islamic Republic of Afghanistan,
• The Islamic Republic of Pakistan.

In many of these, and in countries that don’t have Islam in their formal name, such as

The Kingdom of Saudi Arabia, the Quran is essentially their constitution.

The discernible facts are, however, that history fools us because there is no one Islam.

Indeed, the reading of American newspapers, or newspapers of many other countries, often, perhaps daily, has stories of believers of Shia Islam killing believers of Sunni Islam.

At odds with Islam are the beliefs of Christians, especially proselytizing Evangelical Christians. My limited study indicates that acceptance of Jesus Christ in your lives, belief in the Bible, not just my Hebrew or Jewish Bible, what Christians call the Old Testament, but also the New Testament, the essential reaching out and teaching of Christ’s message, and the essential acceptance of being “born again” to receive salvation are cornerstones of Evangelical Christianity, especially as refined in our American religious cultures.

Judaism also is divided into sub-categories ranging from Ultra-Orthodox, Orthodox, Conservative, Reform, to Reconstructionist. Each of these has substantially different levels of religious practices and beliefs.

Christianity too has its divisions, and some of them are argued with intellectual vigor. However, in a diverse America a constitutionally required degree of peace is observed so that each sect or sub-set can follow its practices and beliefs.

In America, Christians, Muslims, Jews, and practitioners of all faiths and religions, including those who decide to not adhere or identify with any religion, have come to terms with a single essential fact, and that is that the practice of religion in the United States and everywhere on God’s earth must be done peacefully, and that we will not impose our beliefs upon anyone by violence or force. We surely have foregone murder in the name of our faith, and we accept the legal system in which we have chosen to live.

And thus we come to why in the United States of America we must accept diversity of religious beliefs, faiths, and practices. As we do so, we should keep in mind the religious practices of our Founding Fathers.²⁵

All of us, no matter what our religion must fit the practice of our faith into the context of a constitutional Republic with a hard earned culture of tolerance of all religions. We are too big, have a prohibition in our most fundamental laws, and too diverse to have a single governing religion, and we have an acceptance of fundamental personal freedoms to allow even those who have no traditional religion or faith to live with the protections of law in our society.

We, in what historians often call “Western Civilization,” have values and cultures that separate religion and civil life and government. While we rejoice in our diversity, we have a right to require that all those who choose to live here must recognize that we will not sacrifice those values or that culture. We Americans are, in fact, obligated to retain and protect our civilization—a civilization founded on the rule of law.²⁶

For many who are involved in these discussions, we observe, sometimes with an inability to understand, that many Muslims, especially those with demographic roots in the Middle East and the Levant, do not accept Muslims that have a different understanding and belief of their faith. The violent history of Sunni and Shia Muslims in the Middle East and the Levant has been front-page news to Americans for more than twenty years.

Muslim religious and political leaders in many of those countries believe that religion and politics are one, and they do not accept religious tolerance as an article of what we in the West would call “civilized society.” They fight for a state of one faith, and for ISIS one state is a broader historical religious concept, one that is not bounded by the lines that define the modern nation states of the Middle East and the Levant. This decision to have one faith is at the core of many of the issues about which we read on a daily basis.

For the growing numbers of Muslims in America,²⁷ they have a very different set of concerns, and this appears to be especially disconcerting to those who come from nations that have a majority of co-religionist Muslims, and who accept a view of the Quran that imposes upon them an intolerance for those who are “non-believers.”²⁸

Thus, there are communities of Muslims who want to practice a pure Sharia law in all aspects of their lives. For those who are supremely devout and accept all aspects of the Quran, they will either have to accept restrictions on those practices in the United States or find another nation in which to live. In the United States we are not going to allow multiple wives or ritual murders for deviation from family practices, such as adultery, to go unpunished.

Religious leaders of all faiths must find it in their Americanized traditions, rituals, and practices to accept and support such restrictions. When their religious leaders are authorized by the State to conduct certain basic activities, such as marriage, non-physically dangerous practices to signify adulthood, acceptance into the faith of babies, funerals, etc., such permissions carry responsibilities, and these responsibilities cannot be ignored. In the law, we have the shorthand rule– You don’t get the benefits without the burdens.

Evangelicals, Catholics, Mormons, Jehovah’s Witnesses, and others have the freedom to practice their faiths and indeed to proselytize in our communities. But there are boundaries to all freedoms, and they must be observed or the power of the government will be asserted. And when asserted, thankfully, they will be exercised within the boundaries of due process of law, and with restrictions on the use of force.

And so it is our good fortune that no matter how much we care about these issues of religion and faith, we must continue our glorious American history of reconciliation with civil law. A history where we are bound together by common, basic values, a degree of civility in arguing our differences, and the most basic acceptance of religious tolerance founded on our multiplicity of thoughts about the All Mighty, and the directive of our Founding Fathers—no religion is to be favored, and no religion is to be condemned.

We are a nation of American citizens, not a nation of any particular religion.

As I have said in my law and management classes for over thirty years, we must continuously think seriously about serious issues, and act on them seriously. Tonight, tomorrow, and Thursday we will have a rare opportunity in our fast-paced society to do that thinking, and to do it among talented, learned men and women colleagues, and we will do it with that all too rare commodity—quiet time and space at a great university in Philadelphia. This is the city where our Founding Fathers thought, argued, decided, and ultimately relying upon a God about whom they had various views gave us this exceptional nation when they wrote, “with a firm Reliance on the Protection of divine Providence, we pledge to each other our Lives, our Fortunes, and our sacred Honor.”

In ending this short paper, I do so with the word “Amen,” a word which itself should give us pause. Traditional Jews say Aw Men at the end of many of their prayers, and it is a word that is found both in Torah and in the New Testament. Many Christians say Amen at the end of various prayers and hymns.

And Muslims often say Ameen at the end of their prayers of supplication, even though the word does not appear in the Quran.

And in colloquial American usage, Amen has come to be accepted as a word of agreement, as in “Amen to that.” The word is believed to have developed from a Semitic word expressing agreement with God’s truth.

So without regard to whether you pronounce it Ah Men or Ay Men or Ameen, and while we are not at a time of pledging our Lives, Fortunes, or Sacred Honor, we are at a special time of dialogue and reflection here at Temple University, one of the most diverse American universities. So as we undertake the work at our societal tasks, hopefully with the experiences that we each have at our command, I say, Amen.