Quick Thoughts on Obergefell

Jul 07

I finally got a chance to read Obergefell.  The majority’s reliance on the due process clause and not equal protection is a bit of surprise to me (indeed, according to the Roberts’ dissent, even the Solicitor General disclaimed the due process argument), but perhaps is justified by what might be the sheer volume of litigation that would have resulted if the majority rested its decision on equal protection grounds rather than due process: had it held on equal protection without also finding a violation of due process, that would mean that each instance of a law according a benefit to an opposite-sex couple would have to be challenged from the perspective of the proper standard of constitutional review, i.e., rational basis — intermediate scrutiny — strict scrutiny.  By simply declaring that the right to marry another person, regardless of that person’s sex, is an inherent part of liberty, there is simply no need now to challenge the rationality of gender-based restrictions found throughout the law to determine whether they satisfy constitutional demands of rationality.  This clean solution to what might otherwise have been a rather large practical problem in implementing a commitment to marriage equality, however, raises problems of conceptual clarity insofar as it seems to recognize a fundamental positive liberty to marry.  I don’t know whether in the case of US constitutional law, there are any other commitments to positive liberty, but there now seems to be a conception of liberty that requires the states to recognize marriage, and since this is now an inalienable kind of liberty, states must organize laws of marriage on a basis that does not discriminate on the basis of gender.  I wonder, however, whether this positive liberty to marry also carries in its wake other positive liberties associated with families, like the right to pass on an estate to heirs?  I also doubt the majority that endorsed a positive liberty to marry is likely to find a positive liberty to economic rights, e.g., a living wage for example.  In  any case, the chance that states could exit the marriage business, as some liberals hope for, seems to be extremely implausible in light of the majority’s language describing marriage as a freedom that is a necessary condition for individuals to obtain a host of goods that are required to live a good life.  It does not seem to contemplate the possibility that a state could simply choose not to recognize the importance of these relationships — whatever called — because it is only by virtue of the public recognition of those relationships that it becomes possible to secure those other goods.  Private ordering, it seems, cannot do the same job in securing these ends, at least according to the majority’s reasoning.

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2015 Noel Coulson Memorial Lecture, SOAS School of Law

Mar 26

It was my distinct honor to have been invited to give the 2015 Noel Coulson Memorial Lecture at the SOAS School of Law.  Noel Coulson was one of the most prominent British scholars of Islamic law in the 20th century, and he was a canonical author for those of us who studied Islamic law in the west.  As I mentioned in the introduction to my lecture, much of my own work in Islamic law — despite my numerous differences with Coulson in specifics — is motivated by similar concerns: how to reconcile fidelity to revealed law with the legitimate needs of human society, without giving in to either utopian textualism or secular absolutism.  The topic of my talk was “Islamic Reform: Democracy or Reinterpretation?

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Majnun Layla’s (Qays b. Mulawwih) Lesson in Patriotism for Egypt

Mar 14

Qays b. Mulawwih was an early Islamic Arab poet who gained fame for his absolute, unqualified, and all-consuming love for Layla.  So complete was his obsession with her that people assumed he was mad, thus earning him the sobriquet in the poetic literature of Majnun (the madman) of Layla (Majnun Layla).

Two of Majnun’s more famous lines about his love for Layla go like this:

أمر على الديــــــار ديار ليـلى … أقبل ذا الـــــــجدار وذا الجـدارا
وما حب الديار شـــــغفن قلبي … ولكن حب من ســـــــكن الديارا

“I pass through the lands of Laila, kissing this wall and that one;
it is not the love of the land that has filled my heart, but love for the one who dwelt there.”

Many people in Egypt today speak of patriotism, but it is a false patriotism, a patriotism not devoted to the love of the people of Egypt, with all their virtues, and vices, but for an abstract idea of Egypt that is little more than a reflection of their own fantasies, nightmares, or both. The great president Sisi, for example, recently accused the Muslim Brotherhood of wanting to empty Egypt of its Pharaonic heritage by destroying the pyramids and destroying ancient temples. Aside from the sheer absurdity of the statement, this is from the spokesman of a regime that has, from a practical perspective, been a complete failure in preserving Egypt’s cultural heritage, even allowing the Great Pyramids, through years of neglect, to turn into an urban slum.

Like Qays b. Mulawwih, we Egyptians should reject the false patriotism which is based on love of an abstract place — perhaps best exemplified in the absurd plans announced yesterday for the construction of a new capital — for the complete, absolute and unconditional love of the people, embracing them completely, even with their faults. That is what democracy is about: letting the people govern themselves, knowing that in the long run, they will get things right. This kind of patriotic love for the people — not the contempt for them which is the only thing that unites Egypt’s elites — might lead us out of this dark tunnel. But, for many reasons, I doubt any one will listen to Qays b. Mulawwih. After all, he was crazy.

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Fight Bill C-51! It’s About You!

Feb 19

Fight Bill C-51! It’s about you, not terrorism!

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Establishment of the Council of Wise Muslims

Sep 26

One of the interesting fall outs of the Arab Spring has been a renaissance of traditional Sunni quietism and support of authoritarianism as the proper response to political conflict.  As reported by CNN Arabic Service, the UAE (who else?) is now patronizing a group of Sunni scholars under the not so modest name of “The Council of Wise Muslims (Majlis Hukama’ al-Muslimin).” One of its goals, according to this article, is to revive basic doctrines of Sunnism, including, “obedience to the ruler” (ta’at uli’l-amr). The article also states that the wise ones are cautioning Muslims that democracy is not a good desired for itself, but rather, justice and stability are the aims, and these can be achieved, apparently, without democracy.  Indeed, if democracy is pursued in circumstances that are not appropriate, e.g., the Arab world, it will only lead to civil war.  What the wise ones have failed to explain, however, is why oligarchical rulers would be interested in pursuing, among other things, distributive justice.  Just sayin’.

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Religious Arguments, Non-Religious Arguments and Public Reason: the Special Case of Transitional Societies

Jul 06

My friend Andrew March recently published an interesting article on the use of religious arguments for public justification and their relationship to public reason.   The article is well-worth reading in its entirety for its interesting taxonomy of the different kinds of religious arguments that might be presented in political life, and crucially, how such arguments interact with different registers of political concern.  In short March argues that a much more sophisticated approach to religious argument and its relationship to a civic life in a politically liberal state is required that goes beyond the binary choice of either never admitting the legitimacy of religious arguments or always admitting them.

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