McGINLEY: A look to the future

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By David P. McGinley

OP-ED:

Washington, D.C., June 26, 2017: The Supreme Court today, in a 6-3 decision, found that government funding of an "Islamic studies" charter school not only was not unconstitutional but was well within the scope of the state's authority to promote the compelling public purpose of diversity.

The school in question is the Sabri Khalil al-Banna Academy, named for the Palestinian freedom fighter. The school is housed in the former Dupont Circle Episcopal Church building adjacent to the Muslim Brotherhood's D.C. headquarters and across the street from the National Mosque. The school's daily program includes Salah (prayer facing toward Mecca), ritual washing in specially designed bathrooms, halal food preparation, intense Arabic study, Koran memorization and recitation, Middle East history, as well as other basic staples of U.N.-sanctioned education.

The suit was brought by a group of citizens who had sought to open a "Christian studies" charter school but were denied a permit to do so. And, although it was not at issue in the case, the court's majority decision opined that government funding for a "Christian studies" school would be unconstitutional.

In crafting its decision, the court's majority introduced the concept of "religious and cultural inextricability" when determining the proper interrelationship between government and religion. The court stated that "the more intertwined a discrete minority group's culture is with its religious adherence, the greater the need for government support and protection." Additionally, the court went on to further establish that "through the natural evolution of our multicultural society, it is the state's compelling interest to promote diversity by ensuring additional protections and freedoms to those disfavored religious groups, whose faith is defined by their cultural norms."

In applying its new "religious and cultural inextricability" doctrine to the case at bar, the court focused its attention on the myriad of customs attendant to daily Muslim life. Dress, diet, rules of gender interaction, prayer five times daily, patriarchal familial structure, pronounced gender roles, lending and usury rules, spousal discipline, and other routine mandates of Shariah were cited by the court in making its determination that "Islam is a religion with an utmost cultural underpinning," thereby finding that "its religious and cultural aspects were inextricable." The court therefore held that "the Constitution's fundamental basis that all cultures are inherently valuable and the authentic preservation of such is paramount to a truly egalitarian society, funding of an Islamic studies school is well within the scope of the state's authority to promote the compelling public purpose of diversity."

In what analysts have said was an attempt by the court to stem the filing of future church-and-state claims, it sua sponte applied its analysis to government funding for schools with primarily Christian and Jewish curriculums. It stated that religious and cultural inextricability of Christianity was minimal at best and pointed to the mass secularization of Western Europe to bolster its claim. The court also stated "the absence of dietary standards, dress codes, and routine forms of comprehensive daily worship evinced a personal belief system, separate from cultural constructs." And, although the court did find these factors present in certain sects of Orthodox Judaism, nevertheless, it held that Judaic law "in its totality," as evidenced by the vast majority of Jewish-Americans, was not strictly adhered to and that the "impact of Jewish-Americans was felt more in secularized pursuits, than in that of the sacred."

The court's decision further removes its "Equal Protection Clause" jurisprudence from the anachronistic interpretation of government neutrality and now incorporates the "Establishment Clause" within the confines of its newly revealed "discrete cultural preservation doctrine." That doctrine is based on the 14th Amendment's clear intimation of the inherent equality of all cultures and the compelling state interest to ensure the survival of each.

The ACLU and People United for the Separation of Church and State, two organizations that fought for years against government entanglement with religion, stayed on the sidelines for this case. When asked to comment on the case, ACLU President Muhammad Smyth said, "The ACLU respects the Supreme Court's wisdom in this complicated matter and agrees that Muslim culture warrants government support and protection."

The response of Christian organizations has been muted as most are reticent to comment on anything concerning Islam since the court recently narrowed free speech rights to exclude "speech that subjects identifiable minority groups to hatred and contempt." One Christian leader speaking on the condition of anonymity said, "I do not recognize my country anymore."

Justice Thomas, writing for the minority, inappropriately excoriated the court's decision with this one-word dissent, "Nuts!"

David P. McGinley is a Virginia trial lawyer and graduate of Regent University.