Good Practice Example

Moving Toward Pluralism in Israel

Israel defines itself as a Jewish State, but it does have some protections for freedom of religion. Freedom of religion and rights for women clashed in an interesting way recently when a group of Jewish women were arrested for praying aloud while wearing prayer shawls at the Western Wall—an important holy site for Jews in Jerusalem.

A particular Jewish sect given authority over the Western Wall had prescribed that women at the Western Wall be segregated from men and pray only in silence without prayer shawls or other traditional Jewish religious items. A group named the Women at the Wall have protested this limitation for years as being against both their religious freedom and their humans rights as women to be treated equally and with dignity.

The women in this particular instance were arrested for violating local custom and causing a public disturbance. Their case, State of Israel v. Ras, reached the Supreme Court of Israel. The Supreme Court was thus faced with the decision of how to protect religious freedom for all and in particular the rights of religious women to practice their own particular religious beliefs without restriction based on their gender.

One of the pivotal points of decision for Israel’s Supreme Court was how to interpret “local custom.” The Court decided not to limit interpretation of local custom to the Ultra Orthodox Jewish viewpoint but to recognize the diversity of thought in the population and the way customs and culture change and develop over time. With this pluralistic view of the law and religious freedom, the women were found not to be in violation of the law. Thus the Court decided not to favor the traditions of one religious sect over other types of religious expression by people holding different sincere beliefs.

While the controversy is by no means over, the action of Israel’s Supreme Court moves toward respect for women and for diverse religious expression.

Negative Practice Example

Consequences of Contempt in India

A contrasting example can be found in Indian history in a decades-old case concerning a woman’s rights in divorce. The handling of the Shah Bano Begum case in the Supreme Court of India illustrates how precarious the balance of dignities can be. A Muslim woman divorced by her husband of over 40 years sued for maintenance under the Indian civil code and won. However, the judge, in writing the opinion, indulged in language harshly criticizing Islam in general and Islamic marriage and divorce practices in particular. The judge characterized Islam as regressive and damaging to women, perhaps in a well-meaning attempt to champion women’s rights.

However, the backlash from the Indian Muslim community was strong, and notably, likely avoidable. Many women before Shah Bano Begum, including Muslim women, had used the civil code to win maintenance before. Many may have supported Shah Bano Begum as well if the court opinion had not harshly treated their religious beliefs.

But, feeling their religion had been attacked and perhaps fearing the Court’s decision announced a willingness to circumscribe the ability of Muslims to live by their faith, the Muslim community pressured the government to pass a law that exempted Muslim men from paying maintenance to ex-wives. This was injurious to Muslim women and, in addition, was felt by men of other religions to give unfair special treatment to Muslim men.

Many years later, the Court of India has taken steps to redress the concerns that arose from the Shah Bano Begum case. This time, the Court was more careful to be respectful of religious beliefs while addressing concerns regarding women’s rights. The panel of judges included judges of different religions, representing the most populous religious groups in India (Hindus, Muslims, Sikhs, Christians, and Zoroastrians). But the controversy remains far from over.

Good Practice Example

The Utah Compromise

Utah is a generally conservative and religious state known for having a high percentage of members of the Church of Jesus Christ of Latter-day Saints. The Church’s headquarters are located in Salt Lake City.

The Church of Jesus Christ of Latter-day Saints has taught that marriage sanctified by God is limited to that between a man and a woman and has held firm to this teaching. Many SOGI minorities in Utah have felt hurt by Church teachings that condemn sexual behavior outside of opposite-sex marriage. In the meantime, many members of the faith have felt threatened by LGBTQ+ activism, perceiving it as a threat to their continued ability to practice their religion and stay true to their convictions in the face of changing social norms and the increasing acceptance of SOGI minorities. In this way, Utah illustrates many possible tensions between religious adherents and SOGI minorities.

Therefore, there was some surprise in 2015 when Utah passed cooperative state legislation addressing both protections for SOGI minorities and preservation of religious freedom. This legislation came to be known as “The Utah Compromise.” The bill prohibited discrimination against SOGI minorities in housing and employment. At the same time it carved out exemptions for private religious institutions, allowing them to hire those who agree with and live by their shared religious principles.

The Utah Compromise does not necessarily do everything that both sides would want—that is why it is a compromise. It does show willingness on the part of both sides to respect the views of the other. It is an example of coming together to show respect for each other’s viewpoints in tricky clash of ideals and working for a solution that protects everyone’s human dignity.         

Negative Practice Example

Indiana’s RFRA

In contrast, the state of Indiana ran into trouble when they adopted a bill designed to protect religious freedom, called the Religious Freedom Restoration Act (RFRA). Indiana’s state RFRA was modelled after a federal law by the same name, but it became very controversial. The law stated that the government could not burden a person’s exercise of religion unless there was a compelling government interest and curtailing religious exercise was the least restrictive means of furthering the interest. Importantly, the law expressly extended that same religious protection to businesses, corporations, and other organizations.

Indiana state leaders did not speak with or consider the views of leaders in the LGBTQ+ community. In fact, the law was a reaction against the nationwide legalization of same-sex marriage. The governor signed the bill into law in a closed ceremony surrounded by religious leaders. Because this was not an effort at compromise, and there was no reaching out to the other side, SOGI minorities felt attacked and targeted by the bill.

The governor stated after the fact that the bill was not intended to cause or protect discrimination against SOGI minorities, but some in the community appeared to take it as permission. A pizza parlor in Indianapolis announced that it would refuse to cater same-sex weddings, citing the law as protecting that decision. The LGBTQ+ community also read the law as discriminatory.

Indiana faced a strong backlash after the law was passed. Businesses announced they would not expand or would not hold conferences in Indiana. Some states and cities banned publicly funded travel to Indiana. Indiana is famous for a love of basketball, and the NBA and WNBA both commented with concern on the law. Interestingly, Muslim groups also expressed concern that the bill, although intended to protect religious freedom, might allow discrimination against religious minorities as well as SOGI minorities in the name of religious freedom.

Soon after the law was passed, the governor signed an addendum meant to “fix” the law. The addition granted protections to SOGI minorities. But a lot of damage was done, especially to the trust between the two sides of the debate, by the failure to include both sides from the beginning.

Good Practice Example

International Court of Justice Rejects Justifications for Apartheid

Apartheid was a system of harsh segregation policies implemented in South Africa. The word “apartheid” literally means “apartness” in Afrikaans. Apartheid policies were designed to keep the races separate and ensure the dominance of white South Africans, who were a minority of the population.

South Africa took control of present-day Namibia (then called South West Africa) after World War I. South Africa’s apartheid policies were then extended into Namibia as well.

In 1971, South African rule over Namibia and the implementation of apartheid there were challenged in the International Court of Justice (ICJ). The representatives for South Africa wanted to argue that the apartheid system was implemented in good faith and worked to the ultimate benefit of the nation and its people.  However, the ICJ refused to even hear evidence concerning such justifications for apartheid policies. The court instead decided that it was a matter of law that no positive motives or intentions for positive outcomes could justify the apartheid system. This forestalled the possibility of the South African government arguing that the religious freedom of white Afrikaners would be infringed if apartheid was not allowed. The system of apartheid was so rooted in Afrikaner religious beliefs that scholar Gwashi Manavhela described the word “apartheid” as a “politico-religious term.”

Although the ICJ decision certainly did not end the racial struggles in Namibia or South Africa, its refusal to consider justification for racial discrimination was important. The actions of the ICJ signaled that the dignity of all humans forbids discrimination on the basis of race and that the international community values human dignity to the extent that no justification, even religious motivation, can overcome that important value.

Negative Practice Example

Apartheid in South Africa

The system of Apartheid in South Africa was propped up and perpetuated by teachings that the Dutch white settlers in Africa were a chosen people with a divine mission to rule over the native peoples of Africa.

This belief led to the extreme segregation of apartheid and a system in which wealth, power, land, and opportunity were reserved for whites. Black South Africans were not allowed even to move freely about the country, but had to be prepared to present papers.

As the system became more and more entrenched, it became such that it could be termed “an expression of sincerely held religious beliefs” on the part of the white settlers. However, the human dignity of all the people of South Africa was brutally violated by the practices of apartheid. Respect for religious freedom cannot condone such a result.

 The support of government and power structures led to the injustices of Apartheid being perpetuated for a long time and only being addressed by great struggle. However, apartheid was eventually overthrown, although its effects will likely be felt for some time to come. The international community must recognize that such systems offend human dignity, even if religious justifications are presented for them.