Muslims, gender protection under the law, and Bostock v. Georgia

From the RFI brief in Bostock v. Georgia: "The purpose of the brief is to set forth orthodox Sunni Islam's position that sex is biologically determined upon conception, and that to interpret "sex" to mean gender identity would have applications that impinge on Muslims' religious rights." Some things that have been bugging me about this whole debate are 1) the meaning of 'biologically determined' to an 'orthodox Sunni Muslim' who does not believe in biological evolution, 2) the legal meaning of 'sin' under US civil rights law, and 3) the idea of a specific protection for 'religion', when there is no objective determination of what a religion is and religions frequently deems other religions as inherently sinful or misguided. Biology is a human science that today holds that all life on earth came into being through natural selection, aka without a creator. So when orthodox Sunni Muslims reference 'biological science' as an authority to interpret the meaning of sex and gender in the laws, it would seem that in order to avoid the charge of cherry picking, they would have to also believe in the authority of biological science to interpret the origins of human beings through evolution. If they don't, then this claim that gender protections impinge on a Muslim's right to believe in biology is nothing more than a private religious matter that religious claimants are seeking to impose on the public square with thinly veiled 'public reason' sentiments. By the logic of 'sin' presented in the brief, the fact that Muslims have to accomodate Catholics atheists, polytheists and other 'loathsome' beliefs in American life is given surprisingly short shrift. Surely the authors know of robust historical and contemporary debate among Muslims about whether or not it is even PERMISSIBLE to live outside of the sovereignty of a Muslim ruler. According to a number of orthodox Sunni Muslim authorities from the past and present, it is sinful to live in a non-Muslim state and Muslims have an obligation to emigrate. THAT contradiction in Muslim American life was once much greater than the sex/gender issue, and acknowledging that would seem to undermine their case that the 'sex/gender' issue is some kind of Muslim 'rubicon'. Finally, notice, that the Muslim Bar Association filed a separate amicus brief in this case, opposing the RFI brief. This represents to me the thorniest part of the case: how are secular courts supposed to offer accommodation for a 'religious' point of view, when it means adjudicating internal disagreements over non-creedal issues like this? It is an impossible task. In fact, 'religious' protection as a category is on even shakier conceptual grounds than sex/gender protection. There are two basic biological sexes (and a handful of intersex and gender identity expressions). With religions, no 'religious' group can totally agree with any other religious group as to what a 'religion' is and is not. In fact, many religions have beliefs that logically entail that another group's religious beliefs are 'sinful'; thus a protection of one religion's rights can entail 'sin' for another group. I'm not a lawyer. My main point is that I think this issue is blown waaay out of proportion by the average person's ignorance about intersex issues and the relationship between sex and gender. In that confusion, reactionary organizations like the RFI can position themselves as 'standing up' for Muslim rights by opposing protections for others. Recall how this case started: "Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare services coordinator in 2003. During his ten-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.” (https://www.oyez.org/cases/2019/17-1618) My own opinion, from reading about the case, is that in addition to the inconsistencies I listed above regarding justifications for specific religious exemptions from the 14th Amendment, Muslims in America who are filing briefs like this are actually arguing for the right of Bostock's employer to fire him, simply for being gay in public. In doing so, they are demonstrating a callous shortsightedness (probably also motivated by fear of losing control over their institutions), which will come back to haunt them.

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Anti-abortion Muslims and the Christian Right in America under Trump

Relatively minor in the grand scheme of things, but the thing that vexes me about this emerging Muslim right wing partnership with Never-Trump Catholics on abortion is not so much that Muslims are allying with people who hate them. Actually many Catholics respect Islam for both what it has that Catholicism has, and also what is has that they feel Catholics have lost (Jeremy McLellan made a career out of it). No, what I dislike about such efforts to overturn Roe v. Wade are their quixotic nature.

I understand and respect those who feel abortion is wrong. But Roe v. Wade wasn't about mandating abortion, and the point of making abortion legal wasn't to criminalize unborn babies, but to reduce suffering in the world by giving the mother final and absolute say in ending her pregnancy. This is not the place to get into all the ethical complexities of the why of that decision. It is a guaranteed right, according to the Supreme Court. With respect to the priorities of Muslim Americans, unlike abortion, alcohol is explicitly haram in the Quran. Why doesn't one see Muslim Americans joining a prohibition bandwagon, or creating one? Why are some Muslim Americans jumping on the ethical bandwagon of extreme Catholics?

Those few Muslim Americans salivating about overturning Roe v. Wade havn’t paid attention to the larger history of how abortion was established as a right in the first place in America, and who accomplished it. Abortion wasn’t legalized through the fiat of a corrupt ruler. The last seventy years have seen popular movements completely transform the legal and social landscape with regard to gender, sexuality and civil rights. These transformations were painful, they came from below and they were an extension of the Black civil rights insurgency of the 1960s. Now a small group of right wing Muslims comes along and wants to ally with arch-Catholics to roll back these protections. Both groups don’t seem to realize that many of those they are allying with don’t want to stop with abortion or LGBT, but will continue onto the 14th Amendment, the Voting Rights Act, labor laws etc. Jumping on the anti-abortion bandwagon in the current political climate is the height of foolish naiveté.

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A Different Take on American Muslim Progressivism and Identity Politics

A response to a Medium post, "On American Muslim Progressivism and Identity Politics", by Mobeen Vaid: 

This is a thought provoking piece that I disagree with. By way of opening up a line of critique, consider this short passage from the author: "This recalibrated politics represents a radical departure from the American Muslim community of yesterday that spoke with pride of Malcolm X and Muhammad Ali, not as cultural symbols who shared an overlapping “identity” with themselves, but as people who contributed in positive ways to society, lived admirably, and embodied the ethics, morals, and values that — and here lies the crucial difference — emerge from a life informed by God’s instruction."

Now I have no doubt that many American Muslims did just that. But to reduce of the history of the 'American Muslim community'-- replete with personality disputes, insane theological hair-splitting, cult-like thinking, ethnic/racial tensions, and a number of prominent spiritually abusive figures-- to a simple group of united pious folks, and to then contrast that putative piety of the past in such a way that subtly communicates that today's activist and progressive Muslims don't seek to live a life informed by God's instruction, is not an argument grounded in actually existing histories. It is a form of cultural anxiety dressed up in the clothes of nostalgia.

It is worth noting in passing that today's focus on sexual autonomy as the far boundary point between 'what Islam believes' and the alleged degeneracy of modern culture, sometimes obscures a useful fact to remember: that Muslim communities of the past argued just as passionately, with plenty of Quranic justification, over issues Muslims today view as relatively minor. In all likelihood in a hundred years or less, controversial issues we now consider pressing will have been definitively resolved and the consensus will be incorporated into religious discourse, through strategic forgetting.

The author asks: "Will we stand by idly and preside over the effective secularization of American Muslims and the reduction of “Muslim” to a mere social identity marker?"

Assuming for a moment that this reduction is what is actually happening, what would *not* idly standing by look like? The author provides some clues about how he thinks about these things in another essay (https://medium.com/…/on-gender-wars-metoo-and-building-a-pr…):

"Muslims need to speak forthrightly about the sex-specific obligations of the Shari’a, even when they are inegalitarian. Obedience to one’s husband in matters of good is necessary for a healthy household (with due recognition to the typical machinations of household disagreement, of course). Non-maḥram men and women must maintain reasonable separation within parameters established in the Shari’a, and both should lower their gaze with the other, particularly when shahwa is felt. Khalwa is impermissible and should not be disregarded absent dire circumstances. Men must retain their responsibility as qawwām over women — providing financially, guiding spiritually, and protecting socially (even — and especially — against those malefactors in our midst)"

These are confident assertions of the necessity of patriarchal control. But unless Muslims are in a position of majoritarian political power, most of these ideas cannot be practically implemented without causing massive social chaos and fitna. The answer often given in response individualizes the response; Muslims 'should want' to implement these things in their own life to protect their piety. There ought to be space for such patriarchal piety to exist; you cannot legislate it out of existence as it forms a deeply held part of the psyche of millions of people. But let us imagine the implications of implementing some version of this vision in a public sphere.

Mobeen Vaid, like many neo-traditionalists, is relatively naive to the pitfalls of that implementation. In the current political climate, most of these proposals would mean instantiating a millet-like form of internal religious government in which 'Muslims' as a bloc govern themselves as Jews did in the Ottoman empire or as Copts do in modern Egypt. Is Vaid prepared for what this entails: the abandonment of the struggle for equal civil rights in a secular public sphere? Vaid completely ignores that many religious people have confidently balanced a set of private conservative beliefs with commitment to a more robustly liberal public sphere. In Vaid's model, it appears that, unless patriarchal piety is publically implemented in the Muslim community, it does not deserve the name of Islam. He quotes Dr. Sherman Jackson, but does not engage with Jackson's concept of the "Islamic secular".

A self-governing Muslim community in the US under patriarchal law would basically look a lot like Mormonism. In fact, many Muslim communities have attempted to replicate the model of Mormons. Very few succeed in overcoming the inherently cult-like dynamic of that kind of formation. The further danger these strictures represent to faith can be understood by imagining what should happen when Muslim parents, like well meaning religious parents in many contexts, attempt to 'crack down' and 'enforce' this hyper-patriarchal model on their children. In societies where patriarchal piety is enshrined in law, private sexual morality is a matter of public anxiety and concern. More often than not, one can observe the spiritual rot this authoritarianism produces. In fact it is rebellion against the harshness of these strictures that is the main producer of atheism in religiously authoritarian states. Progressive Muslim culture, for all its foibles, acts as an invaluable safety valve for critical questioning of internal community dynamics. I want to ask Vaid if he think issues like the imam grooming underage girls in Texas, or Mawlana Saleem in Chicago would have come to light without a critical lens on patriarchal piety, by which to hold the community accountable and shine a light on its processes of governance? The anti-authoritarian impulse of progressivism gives a huge fillip to struggles against the abuse of this patriarchal model. Right now, there are a number of morally upright liberal/left alternatives in the American counterculture that don't come with the heavy baggage of patriarchal purity culture. Vaid would have you believe those are a liability to the Muslim community and an affront to the ummah's piety as a whole. I regard this as an immature view because it does not realistically address the implications of implementing patriarchal piety in governance and law, nor the positive aspects of having a spectrum of thought on social issues without resorting to false universalism.

The emphasis on reviving patriarchy as the route to reviving piety raises some interesting questions as to which of the many Muslim social issues should take precedence for the US-based ummah, for Vaid's is not the dominant model of public engagement. Modern Muslim social justice orgs in the US have rightfully given precedence to liberation theology as the entry point for Islam into the public sphere. But perhaps Muslims should focus more on sexual issues, as Vaid suggests. What about allying with right-wing evangelicals and Catholics on abortion? Or joining evangelical Christians in advocating for a reversal of same-sex marriage equality? This tactic has to be considered very carefully in a climate of Islamophobia. Do Muslims in the US have sufficient institutional power to wage these battles? And at what cost?

Finally, what about socio-religious issues where Muslims would stand alone? How much priority is it prudent to give to issues that were once an integral part of the tradition? Should the Muslim community advocate the government to have the right to punish apostates, as is mentioned in the tradition? Should Muslims advocate for all women who are unmarried to travel with a male companion? Should they endorse the Prophetic sunna of holding slaves and taking concubines? Vague resorts to imagined ideals of 'sacred activism', 'Quran and sunnah', 'ultimate commitments to God' are simply not cutting it. They will all ultimately fail to stem the tide. And in spite of the tone of that essay, not all of that tide is negative. Allowing people to think of themselves beyond and outside of Abrahamic religious identities, esp the globally hegemonic ones of Christianity and Islam, is a positive development overall for religious faith.

The anxiety that many people of faith, whether Christian, Muslim or Jewish, feel at modern statist liberalism is authentic and must be acknowledged and mitigated as much as possible. In many cases the deeply rooted beliefs of religious communities provide some of the best critiques of injustice, tyranny and greed. But religious commentators shouldn't just get a pass in the name of infusing the public square with piety. Instead, anyone within those traditions who is interested in critical thinking ought to scrutinize what is being offered as an alternative to overcome this anxiety. Most of the times the rhetoric of these alternatives far outruns the practical reality of their implementation. Many times there are extremely compelling reasons for rejecting these alternatives, and not all of them need to have some explicit scriptural justification. Some of them are pragmatic, others are deeply rooted in prophetic akhlaq, others in general understandings of the fragility of knowledge, others in a spiritual discipline against religious ressentiment.

postscript: It ought to be noted that this nexus of anxiety-nostalgia I describe also underlies a great deal of modern Hindutva discourse about liberalism. Although tempered in the US by Muslims being a minority, today's global neo-traditionalism shares some profound similarities with the Hindu right wing, in its nostalgia for an imagined social unity, its anxiety about changing forms of sexual autonomy for women, and its antagonistic relationship to modern science. Like the Hindu right, neo-traditionalists are wont to discuss Islam primarily as an aggrieved and victimized subject who has been betrayed by modern liberalism, even in societies where Muslims are an overwhelming majority.

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