Monday, February 18, 2008

Acorns and Oaks

During the 1988 presidential campaign, Democratic nominee Michael Dukakis brought the phrase "a fish rots from the head first" into the American political lexicon as he laid the blame for a fraud scandal involving the Pentagon at the feet (or head) of President Reagan and Vice-President Bush. As we juxtapose all that we now know about the Episcopal Church (ECUSA) with recent comments from the Archbishop of Canterbury regarding the need for British jurisprudence to accommodate Islamic sharia law, it is not surprising that the U.S. church has had its own difficulties as of late; Dukakis' turn of phrase may have more applicability than he originally intended.

The Church of England is apparently aware that it kicked a hornet's nest, as they have issued several "clarifications" of William's remarks (see here and here.) Gentle reader, I will plead your indulgence in advance. Rather than rely on press reports from The Independent and The Telegraph, or the aforementioned PR elucidations, I have liberally excerpted from the lecture given by Archbishop Rowan Williams, leader of the worldwide Anglican Communion, of which the ECUSA is an integral part. This lecture was presented at the Royal Courts of Justice approximately a fortnight ago. (In some sections of the text, emphasis has been added.)

If the law of the land takes no account of what might be for certain agents a proper rationale for [behavior] – for protest against certain unforeseen professional requirements, for instance, which would compromise religious discipline or belief – it fails in a significant way to communicate with someone involved in the legal process (or indeed to receive their communication), and so, on at least one kind of legal theory... fails in one of its purposes.

The implications are twofold. There is a plain procedural question... about how existing courts function... But there is a larger theoretical and practical issue about what it is to live under more than one jurisdiction., which takes us back to the question we began with – the role of sharia... in relation to the routine jurisdiction of the British courts. In general, when there is a robust affirmation that the law of the land should protect individuals on the grounds of their corporate religious identity and secure their freedom to [fulfill] religious duties, a number of queries are regularly raised... They relate both to the question of whether there should be a higher level of attention to religious identity and communal rights in the practice of the law, and to the larger issue I mentioned of something like a delegation of certain legal functions to the religious courts of a community.
Williams' expressed concern for the rights of Orthodox Jews notwithstanding, I cannot imagine him expressing a like solicitude for the interests of, let's say, Southern Baptists or devout Roman Catholics - either in the U.S. or in England. Beyond the powers such groups can accrete by way of electoral or economic influence, Western cultures (and the Left-leaning churches of Europe and elsewhere) sense little compunction to adjust to the needs of those outside the progressive religious "mainstream."

Williams goes on to speak on the "unique" demands of pluralistic societies.
Societies that are in fact ethnically, culturally and religiously diverse are societies in which identity is formed... by different modes and contexts of belonging, 'multiple affiliation'. The danger is in acting as if the authority that managed the abstract level of equal citizenship represented a sovereign order which then allowed other levels to exist. But if the reality of society is plural... this is a damagingly inadequate account of common life, in which certain kinds of affiliation are [marginalized] or [privatized] to the extent that what is produced is a [ghettoized] pattern of social life, in which particular sorts of interest and of reasoning are tolerated as private matters but never granted legitimacy in public as part of a continuing debate about shared goods and priorities.
Williams then goes on to spell out his concerns over "mutually exclusive monopolies" of judicial authority.

At the moment... one of the most frequently noted problems in the law in this area is the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups... [C]learly the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right. The point has been granted in respect of medical professionals who may be asked to perform or co-operate in performing abortions – a perfectly reasonable example of the law doing what I earlier defined as its job, securing space for those aspects of human motivation and [behavior] that cannot be finally determined by any corporate or social system. It is difficult to see quite why the principle cannot be extended in other areas.

... it might be possible to think in terms of... 'transformative accommodation': a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that 'power-holders are forced to compete for the loyalty of their shared constituents.' This may include aspects of marital law, the regulation of financial transactions and [authorized] structures of mediation and conflict resolution.

In such schemes, both jurisdictional stakeholders may need to examine the way they operate; a communal/religious nomos... has to think through the risks of alienating its people by inflexible or over-restrictive applications of traditional law, and a universalist Enlightenment system has to weigh the possible consequences of [ghettoizing] and effectively disenfranchising a minority, at real cost to overall social cohesion and creativity. Hence 'transformative accommodation': both jurisdictional parties may be changed by their encounter over time, and we avoid the sterility of mutually exclusive monopolies.
As I have contemplated William's utterances, I found the thoughts of Dinesh D'Souza a source of much-needed clarity. With little preamble, D'Souza drills down to the genesis of Williams' thinking.
Now if this sounds absurd to you, and a little dangerous to boot, ask yourself: where have I heard this before? What we are getting from Williams is not religious craziness but liberal craziness, not theological error but multicultural reductio ad absurdum. The multicultural premise is that classical liberal rules that apply equally to everyone nevertheless discriminate against racial and cultural minorities that don't want to play by those rules. Consequently equality of rights for individuals must give way to equality of consideration for groups. Otherwise minorities will feel disenfranchised even in a society where there is equal treatment for individuals under the law.
D'Souza reminds us that Williams' line of reasoning has precedent in liberalism more generally. And so does the behavior of the ECUSA - specifically, the appointment of an openly gay man in a committed relationship as a bishop, in direct violation of the church canon that Williams himself is duty-bound to uphold - also appears to find its exemplar. Perhaps the Episcopal Church and the Anglican Communion can settle their differences in a sharia court.

No comments: