Americans for Prosperity v. Rodriquez presents an opportunity to recover the original, formative understanding of free association.
The question of Islam’s compatibility with classical liberalism is contentious. Pierre Manent’s essay republished by Law & Liberty discusses this controversy regarding Muslim integration in France. French secularism’s (Laïcité) struggle with Islam is well known. Whether banning headscarves or attempting to prohibit Islamically inspired swimwear, France’s laws often conflict with Islamic practices. With radicalism in the banlieues stubbornly persistent, Islam also seems at odds with Laïcité.
Considering this, Manent deserves credit for advancing beyond simple dichotomies and pessimism about an inevitable clash of civilizations. He observes that the conflict between Islam and Laïcité is not rooted in inherent incompatibility but is contextual. The American context, where disestablishment rather than Laïcité dominates, underscores Islam’s compatibility with liberal society. Islam in the United States, contrary to certain narratives, promotes civil society and liberal values.
Two Approaches to Religion and Civil Society
The difference in political imagination between disestablishment and Laïcité is a primary driver of this divergence. As Manent observes, Laïcité is structured on the division between public and private spheres. It assumes a neat distribution of social activities along this dichotomy. Social phenomena, however, are not so discretely categorizable. For example, it is unclear whether a student wearing a veil in school adorns her body, a private act, or promotes her religion in a government facility, a public one. Given this ambiguity, Laïcité creates line-drawing controversies where conflict becomes inevitable, especially when a minority group is more religious than the whole.
The relationship between religion, government, and civil society is different in the United States. Rather than controlling or containing religion, American political thought holds religion as a positive public good, one the government should allow to flourish. Thus, American disestablishment does not seek to purge religion from public space. Instead, it allows religion to thrive, promoting the free intercourse of peoples from all faiths. Disestablishment thus avoids Laïcité‘s line-drawing problems and its subsequent discriminatory laws.
Despite many Americans’ discomfort with new religions, American civil and political society’s embrace of religion allows religious minorities and newcomers to adapt readily to their new context, not only strengthening the minority’s position within American society but also reinforcing liberal American civic traditions.
For several years, I have conducted research on Sharia’s role in America’s Islamic communities. What has impressed me most is American Muslims’ dedication to the principles of constitutional liberty. They understand the secret that has long guaranteed our freedom and rights: only mutual respect and self-organization under the law ensures that individuals enjoy liberty. They also know the best way to realize these goals is by building civil society.
As Weber observed more than a century ago, churches have been preeminent institutions in American civil society. Today, Islamic Centers and mosques function similarly for America’s Muslims. Just as churches help individuals advertise businesses, find partners in marriage, and build community, so too does the mosque create networks of halal butchers, business groups, and matrimonial banquets.
Where Christian mediators provide amicable alternatives to adversarial legal wrangling, so too do Sharia committees. These bodies use contracts endorsing arbitration and other instruments to make their decisions enforceable in court (American law permitting) just like Christian counterparts. Far from threatening civic law, Sharia in America actually promotes it.
This message might seem surprising given Islamic radicalism, a threat Manent rightly identifies as an obstacle to Muslims’ integration. Islam in America is far less radical than in France, though. While statistics are murky, a review of the available data makes this clear. If we use Salafism as a proxy for extremism, France has a greater proportion of Salafist mosques: five percent compared to one. Comparing the number of nationals who joined ISIS from each country also confirms this. According to George Washington University’s Program on Extremism, about 900 French nationals joined extremist organizations in the Levant. Only around 300 Americans did so.
The difference between French and American Islam is not merely integration. American Muslims, in creating organizations and assuming leadership within their communities, contribute to general liberty. Muslims’ establishment of religious institutions as their primary social affiliation reinforces the United States’ identity as a religious nation guided by principles rooted in the dignity of human nature. In doing so, they help combat the empty conception of the human as dominated by physical needs, pleasure, wealth, and material satisfaction. By forming religious groups, they add to the number of citizens who vote and lead guided by the deeper sense of humanity that makes liberty dear.
During fieldwork, I constantly noted Muslim communities dedicated to advancing the same basic principles of human dignity expounded in churches and synagogues. While details may differ, all religions share values like family, personal and social dignity, and the resolution of disputes without recrimination or coercive authority when possible. They weave the fabric of American liberty.
Religious Law in America
Despite strong differences in conceptions of law between Islam and Christianity, religious law is no stranger to America. European thought, following Christian teaching, separates law and salvation. Perhaps the division between law and spirit is clearest in 1 Timothy 8-11 where Paul describes the law’s purpose as the controlling of evil, sinful acts rather than the redeeming of souls. Islam and Judaism lack this separation. There, law helps the worshipper develop a harmonious relationship with God and achieve salvation. As a result, while Christian Europe viewed law as a tool of political organization and submission, Judaism and Islam add spiritual efficacy to law’s labors.
Mentioning Judaism is important because Jews and their law, Halakha, have a history in America. Jewish religious organizations predate the revolution. Consequently, while Sharia emerged in the United States in organized fashion after World War II (though Muslim immigration is longer), Halakha has a more enduring legacy. Jewish courts, or Beth Din, have operated formally on American soil for over a century and even longer informally. The rigor of intellectual and legal debate in Judaism contributed to many of America’s sharpest legal minds, most famously Benjamin Cardozo. Islamic intellectual institutions, including America’s first Islamic liberal arts university, Zaytuna College, make it likely that Islam, with a similar tradition of intellectual exchange, will make similar contributions. Already, Islamic institutions developed within American civil society, such as the International Institute of Islamic Thought, spread conceptions of Islamic law influenced by, if not rooted in, traditions of liberty throughout the world, returning a liberal version of the faith to often authoritarian or extremist homelands.
Radicalism is the primary concern over Sharia in the United States. While there are conservative Muslim groups in America, such as the Al-Maqasid community, disestablishment is a prophylaxis against extremism.
The French state controls religious groups, forcing social integration, through the 1901 law on associations. This compulsion builds tension anywhere religious practice varies from normative expectations. This tension increases concern about conservative groups threatening the social order because there are few ways they can integrate into Laïcité other than surrendering their religious practices. This forces conservatives into a false Hobson’s choice: either abandon religion or follow their conscience, oppose the state, and find common cause with extremists.
Disestablishment blunts this tendency. Our system allows conservative groups to practice with little government interference. Conservatives have every incentive to work within a system that promises them protection. Extremists become isolated in this world, finding few allies. Extremism lacks oxygen to survive and snuffs out before spreading. The numbers above regarding the lack of extremism in America compared with France bear this out.
Understanding Sharia underscores this point. Sharia is simply guidance on Islamic practice. It is not a different form of Islam or its radical branch. There are, therefore, varieties of interpretations of Sharia. While some are extreme, intellectuals like Shadi Hamid, Mustafa Akyol, Hamza Yusuf, and many others argue for a Sharia that emphasizes natural rights and liberal values.
While it is true that radical Islam uses Sharia to advance hegemonic agendas attacking liberalism, these strands are no different from the extremism that exists in any religion. Buddhism, for example, is almost never associated with violent extremism, yet Buddhist terrorists in Sri Lanka still occasionally attack Muslims. Buddhist extremists are responsible for violence in Burma. Any religion can incite violence in the right conditions.
The challenge for a liberal state like the United States is not eliminating Sharia. That would require eliminating Islam and is the cardinal error committed under Laïcité. Instead, America should encourage and promote interpretations of Sharia that harmonize and support liberty. These interpretations of Islamic thought, fortunately, dominate the discourse in both conservative and liberal strands of Islam in America. All the thinkers cited above are prominent Muslim intellectuals who are either American or spend considerable time working with American institutions.
The history of fundamentalist, revivalist, and conservative religious movements in the United States confirms America’s ability to absorb these elements without upsetting social stability. Perhaps the first minority fundamentalists to arrive in America were the Anabaptists (Amish and Mennonites) who conscientiously withdrew from the Quaker and Anglican society of Pennsylvania. These immigrants maintained their own language, religiously objected to participation in government, and as pacifists refused to military service. They were thus considered a threat to society, requiring defense by none other than Benjamin Franklin.
Mormons also formed religious communities self-circumscribed from (and occasionally mutually antagonistic to) mainstream American society. In fact, breakaway groups of fundamentalist Mormons still defy laws and social conventions, especially against polygamy. These fundamentalists do so without troubling the civic reliability of mainstream Mormons who fully engage mainstream America.
The United States hosts groups of fundamentalist Jews who fled European persecution. These groups, such as the Satmar, have a conservative interpretation of Halakha which precludes full involvement in American civic life. Despite being governed by an interpretation of religious law far more hegemonic than America’s Muslims, they are members of the polity whose political support is sought by prominent politicians.
We should never forget different circumstances produce different outcomes. This is true for nations and religions. Islam in France behaves differently than Islam in the United States, but in neither is the behavior of Muslims fixed. As residents and citizens, Muslims can either attack or uphold liberty. Which they choose depends as much on how society receives them as it does on who they are or their ideas. Manent reminds us that, even where Islam is hostilely received, integration is possible. The United States demonstrates this. The experience of Islam in America shows that if Muslims are given liberty, they behave responsibly and contribute to its growth. When this happens, they strengthen not only themselves, but also the nation they call home.