Some interesting developments in the case of Rimsha Masih, the 13-year old mentally handicapped Pakistani girl currently under arrest for violating that country’s blasphemy law. Masih is in custody on charges that she burned pages from a Quran; as a result of threatened reprisals, 900 of her fellow Christians have fled their neighborhood outside the capital of Islamabad. Yesterday, Pakistani police arrested one of the Masih’s main accusers, a mullah named Hafiz Mohammed Khalid Chishti, on charges that he framed the girl by placing pages from a Quran in a trash bag she was carrying. Two of the mullah’s assistants have come forward to say that Chishti did this in order to drive Christians from the neighborhood, where Muslims wish to build a madrasa. Today, one of Pakistan’s senior Muslim clerics intervened in the controversy, condemning Chishiti and the plot to drive out Christians and personally guaranteeing the safety of Masih if she is released from prison. The Guardian (why is the American news media ignoring this story?) reports that the support for Masih “from the chairman of the All Pakistan Ulema Council, a grouping of Islamic clerics, is being seen as a remarkable turn of events in a country where individuals accused of insulting Islam are almost never helped by powerful public figures.” Last year, a regional governor and cabinet minister were assassinated after they publicly criticized the country’s blasphemy law.
Deringil, “Conversion and Apostasy in the Late Ottoman Empire”
Conversion is a problematic concept for Muslim-majority societies. Classical 
Islamic law makes conversion from Islam a capital offense, and many Muslim-majority countries today, even those that do not apply classical fiqh, fail to recognize a right to convert. Turkey’s current draft constitution for the first time grants such a right, although the right’s contours are uncertain. A forthcoming book by Turkish historian Selim Deringil, Conversion and Apostasy in the Late Ottoman Empire (Cambridge 2012) situates the subject historically, describing the pressures on Christians to convert in the nineteenth- century Ottoman Empire. These pressures coincided, ironically, with a secularization campaign known as the Tanzimat, which, as a formal matter, made religion irrelevant to Ottoman political identity. Deringil, a professor at Istanbul’s Bogazici University, no doubt deals with the ironies in his forthcoming book, which looks like a very worthwhile read. The publisher’s description follows:
The commonly accepted wisdom is that nationalism replaced religion in the age of modernity. In the nineteenth-century Ottoman Empire, the focus of Selim Deringil’s book, traditional religious structures crumbled as the empire itself began to fall apart. The state’s answer to schism was regulation and control, administered in the form of a number of edicts in the early part of the century. It is against this background that different religious communities and individuals negotiated survival by converting to Islam when their political interests or their lives were at stake. As the century progressed, however, and as this engaging study illustrates with examples from real-life cases, conversion was no longer sufficient to guarantee citizenship and property rights as the state became increasingly paranoid about its apostates and what it perceived as their “de-nationalization.” The book tells the story of the struggle for the bodies and the souls of people, waged between the Ottoman state, the Great Powers, and a multitude of evangelical organizations. Many of the stories shed light on current flash-points in the Arab world and the Balkans, offering alternative perspectives on national and religious identity and the interconnections between the two.
Muslim Students at Catholic Universities
Here is an interesting story about how many Muslim female students prefer university life on Catholic campuses. Though the story somehow still manages to snicker at Catholic higher education — would it be so intolerably wrong, one wonders, to require a single course in Catholic thought or history at a Catholic university? — it conveys the comfort of devout Muslim students within a Catholic university. Though the story does not mention it, President John Garvey of Catholic University once made similar statements about the religious life of Muslim students at Catholic University in response to a cooked-up, and subsequently discredited, controversy.
Federal Court Denies Preliminary Injunction Against County Legislative Prayer
Another skirmish in the legal contests about the constitutionality of legislative prayer — this time in a thoughtful district court decision. The plaintiff sued a local Tennessee County to stop it from beginning its regular meetings with a prayer. The stipulated facts indicated that prayers were given by members of various faiths through the years, but that “[s]ome of the invocations ‘referred to a deity in a way consistent with the Christian faith.'” Most recently, the Lord’s Prayer was recited, and several commissioners “stood and joined in the spoken recitation of the prayer.” After these incidents, the County adopted a policy indicating that its list of invocation-givers is drawn from a variety of religious traditions and is entirely voluntary, and that legislative prayer has been held by the Supreme Court in Marsh v. Chambers to be constitutional. The Freedom From Religion Foundation nevertheless sued, seeking a preliminary injunction to stop the County from conducting the prayers pursuant to the policy and alleging a violation of the Establishment Clause.
The United States District Court for the Eastern District of Tennessee denied the preliminary injunction. After remarking on the extremely murky status of the Lemon Test (and I loved this quote from a Sixth Circuit opinion: “[W]e remain in Establishment Clause purgatory.”), the court held that in the specific context of legislative prayer, the Lemon Test “simply does not apply.” Instead, Marsh v. Chambers is the standard, in which the Supreme Court engaged in a historical examination of the practice of legislative prayer, concluding that it is “deeply embedded in the history and tradition of the country.” The court quoted this specific language from Marsh:
Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination—Presbyterian—has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo–Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice.
The court recognized that Marsh’s holding had been qualified in City of Allegheny v. ACLU (a religious display case, not a legislative prayer case), where the Supreme Court had some limiting things to say about the force of history and tradition. But the Sixth Circuit has not (yet) decided a case specifically about the constitutionality of legislative prayer.
In light of the holding and dicta in Marsh, as well as the recent legislative prayer decisions in the Second Circuit (discussed here), Fourth Circuit (particularly Joyner v. Forsyth County), and the Eleventh Circuit (Pelphrey v. Cobb County), the court distilled several broad “themes” relating to the constitutionality of legislative prayer:
- “[L]egislative prayer has a unique and well-established history that, relative to the First Amendment, renders it unlike other types of government conduct. It presents a sui generis legal question[.]”
- “I]n large measure due to the unique historical place it occupies, legislative prayer is, in general, permissible . . . . Legislatures may call upon—or even employ—ordained ministers to invoke divine guidance on a group of elected officials . . . . [T]o the extent a clear message can be heard from Marsh, it is this: as a basic legal principle, the Establishment Clause is not offended if a legislature formally invokes divine blessings on its official business.
- “[D]espite its marked differences from other governmental involvement with the sacred, a legislature’s ability to call on the divine at public meetings is not limitless. Historical patterns, standing alone, cannot justify violations of constitutional guarantees, and the government may not express its allegiance to a particular sect or creed . . . . It is for that reason that the prayer opportunity cannot be used to proselytize listeners . . . . Likewise, such prayer practices may not be used to advance any one belief or to disparage any other . . . . Even when operating under a facially neutral policy, a legislature may not select invocational speakers based on impermissible motives or sectarian preferences.”
Applying these themes, the court held that the County’s policy did not, on its face, violate the Establishment Clause. The policy specifically states that it is not intended to proselytize or to promote any particular religion. It is inclusive in its scope, extending to all religious congregations with an established presence in the County and open to all that wished to be included. The court rejected as speculative and “unripe” FFRF’s allegation that the Policy is “a sham” and that, when applied, it will certainly be unconstitutional. Neither, however, does the County’s policy insulate it from further review down the road.
The case is Jones v. Hamilton County, 2012 WL 3763963 (E.D. Tenn. Aug. 29, 2012).
Conference: Revelation and Interpretation: Legal Interpretation of Religious Texts, at NYU
For those who are able to make it, the Journal of Law, Religion and the State (a project of the Tikvah Center for Law & Jewish Civilization) is putting on its third annual conference at NYU, entitled, Revelation and Interpretation: Legal Interpretation of Religious Texts. The conference will take place September 11-12. The speakers come from all over the world and the subjects under discussion look really terrific. More details here. (Thanks to my good friend Ittai Bar-Siman-Tov for the pointer)