Mindful of these anxieties and pragmatic in its approach, the Muslim Brotherhood’s Freedom and Justice Party (FJP) has backed away from earlier calls for an “Islamic state.” Its 2011 election platform opts instead to promote the sharia as a “frame of reference. ” Working hard to assuage anxieties both at home and abroad, the Party explicitly calls for a “civil state” and repeatedly stresses the importance of equality of citizenship among Muslims and Christians:

Egyptians, Muslims and Christians, are integral parts of the fabric of the one homeland, with equal rights and duties, and without distinction or discrimination, and all together they must remove the injustice inflicted upon them.

Yet the FJP operationalizes this commitment to equal citizenship and religious freedom by declaring further that, “the basis of citizenship is full equality before the Constitution and the law and fully sharing all rights and duties, with the exemption of personal status matters where ‘each has his own rules’” (emphasis added). Elsewhere in the FJP platform, the party reiterates its position that “non-Muslims have the right to refer to their own rules and laws in the fields of family and religious affairs.”

As benign as this aspect of the FJP platform may sound, provisions guaranteeing “special rights” for different religious communities often carry illiberal implications when codified as state law. But the presumed alternative—banishing religious law through strict secularism—is also not an unqualified good. It imposes restrictions on “religious freedom” in another way, by disempowering citizens from entering into legal arrangements inspired by their own religious commitments. This paradox of religious freedom—the difficulty of reconciling the individual’s right from religion, while providing for the right to religious law is a paradox rooted in the modern state’s capacity and proclivity to codify and monopolize law. And, ironically, it is not modern state law but the Islamic legal tradition itself that may point the way out of this impasse.

It is important to note that the codification and implementation of religious law as state law is not only troubling from a “Western” liberal rights perspective, but also from the standpoint of the Islamic legal tradition. The core epistemology of Islamic jurisprudence dictates that Islamic legal doctrine is unavoidably pluralistic. Sharia is believed to be the perfect Law of God, but Muslim jurists have always insisted that it is impossible for fallible human beings to know that Law with certainty. Thus, the legal rules they extrapolated from scripture were treated as only “probable” articulations of sharia, all equally valid because there is no way to know for sure which jurist is correct (and no Muslim “church” to designate favorites). The legal doctrine they crafted is called “fiqh” (literally, “understanding”), and it eventually formed into schools of law that disagreed with each other, sometimes in significant ways. For Muslims, then, there is one Law of God, but there are many schools of fiqh articulating that Law on earth. That simple fact is what makes discussing sharia so challenging in the West, where it is assumed by many to be exact, uniform, and uncontestable by believers.

Fiqh pluralism allows Islamic law to be tangible enough for everyday use, but still flexible enough to accommodate evolution and personal choice. This pluralism is lost with state codification. Because sharia doesn’t exist as one code of law but rather as multiple fiqh schools, any state “legislation of sharia” is purely an exercise of state power, selecting one (humanly-created and fallible) fiqh rule out of several equally valid choices and enforcing it as state law, often in the guise of divine law. State codification of fiqh rules (and calling them “sharia”) undermines the dynamism of Islamic jurisprudence and the organic relationship with society that these jurisprudential traditions have had in the past. It freezes certain rules from a past time, anachronistically applying them in today’s different social, political, and technological contexts.

This is seen most clearly in the field of family law. A growing body of scholarship suggests that the codification of Islamic family law in Egypt and most other Muslim-majority countries was selective and partial. Far from advancing the status of women, the codification of Islamic family law actually narrowed the range of rights that women could claim in the diverse doctrines of multiple fiqh schools. Thus, the limited (and antiquated) laws of divorce that are applied today to Muslims in Egypt are dictated by contemporary politics, not by sharia.

All of this means that, from the perspective of both secularists and religious Muslims, collective rights for specific religious communities will stand in tension with the individual rights of citizenship as long as religious law remains wedded to state law. Moreover, this situation begs a perennial question of religious authority—that is, who has the right to define the rules of a religious community. In their current mold, the governments of most Muslim-majority countries essentially claim to be both authors and enforcers of sharia. The theocratic dangers of this arrangement should offend not only secularists who feel that state law should be separated from religion but also Muslims because it disrespects fiqh pluralism and allows the state to claim control over what used to be left to the autonomy of independent fiqh scholars. For both sides of the “religious-secular” divide, if “religious freedom” is to have any meaning, this paradox needs to be addressed.

One possible resolution is to examine the historical roots of the problem—to interrogate the codification and incorporation of Islamic family law as state law and to delink and reconfigure the relationship between religious law and the state. A first step would be to recognize that most political Islamist movements operate on an image of Islamic government that is a stark departure from the structure of nearly every pre-modern Muslim government, in which there was a separation of legal authority between fiqh scholars and government lawmakers. Rulers made and enforced laws ostensibly to serve public order (siyasa laws) but they did not make or codify fiqh law. Siyasa power was used to enforce judicial decisions of fiqh-based legal disputes, but fiqh did not need state enactment in order to be authoritative. And before “legal monism,” a term adapted by Sherman Jackson to denote the presumption that all law must emanate from a centralized state, siyasa enforcement of fiqh-based judicial decisions was generally done with respect for fiqh pluralism.

Today’s reigning assumption that a Muslim state may codify religious laws for an entire religious community undermines the legal pluralism that religious communities (Muslim and non-Muslim) used to enjoy in pre-modern systems. Before centralized nation-states, Muslim governments operated on a “to each his own” approach to religious law that included not just the many Muslim fiqh legal schools, but also the religious law of Christians, Jews, and others. It is this model of religious pluralism from the Islamic legal tradition that the Muslim Brotherhood ostensibly invokes in its 2011 election platform, but there is a key difference: individuals in pre-modern Muslim systems enjoyed official recognition of their preferred religious law without the state codifying it for them.

Contrary to the impression created by many contemporary Islamists’ focus on codification, “legislating sharia” is not what makes a country Islamic. Pre-modern Muslim rulers enjoyed sharia legitimacy for their lawmaking on the premise that they served the public good, not because they were selecting and enforcing a preferred interpretation of scripture. In fact, it was their early attempts to do the latter that led to the separation of fiqh and siyasa legal realms in the first place.

State codification of sharia also flies in the face of the core epistemology of Islamic jurisprudence: that no human can ever know God’s Law for sure. Codifying fiqh on the premise that “it is sharia” rejects the humility exhibited by centuries of fiqh scholars and implies that the state can declare what is the correct interpretation of divine law for their society. This is a radical and unprecedented move.

Unfortunately, many lay Muslims and Islamist political activists seem to unquestioningly assume a centralized state model, and this presumption bolsters the idea that an “Islamic” government should use the state apparatus to legislate and enforce its preferred interpretation of sharia upon the population. Few think of law in terms of the fiqh-siyasa bifurcation of legal authority that was built upon the hard-fought lessons of Muslim history. In fact, the average Muslim conception of sharia itself has largely mutated over the past century. Many are so unaware of fiqh pluralism that government assertions of “the” sharia rule are often blindly accepted as true, even when there are actually multiple fiqh opinions on the topic. Many Muslims even defend “sharia legislation” as if defending their very faith, fiercely opposing anyone challenging it as a perceived enemy of Islam.

All of this manifests in the familiar and seemingly endless war between secularists and Islamists discussed and analyzed by political commentators. Unfortunately, both inside and outside Muslim-majority countries, the focus is usually on whether one or the other side will win the latest battle. A better path is to explore creative alternatives to end the war.

The schoolteacher, Cheryl Perich, taught fourth grade in the Missouri Synod Lutheran Hosanna-Tabor School in Redford, Michigan. In the summer of 2004, after several years of teaching, she developed a serious illness that prevented her from working. Although she tried to return to work in January 2005, the school asked her to resign. She threatened to report the school’s treatment of her to the EEOC and was subsequently terminated. Perich claims that she was fired for exercising her ADA rights. The school says she was fired because she refused to conform to church discipline. Going to civil law is considered a serious breach of Missouri Synod doctrine.

When the EEOC did file suit in federal court, the Church successfully argued to the U.S. district court that the “ministerial exception,” a legal doctrine said to be based both in statutory exemptions for religious employers in Title VII and other civil rights legislation as well as to flow from the combined action of the free exercise, no establishment, and freedom of association provisions of the First Amendment to the U.S. Constitution, deprived the federal court from assuming jurisdiction over the case. In other words, as the lawyer for the Church asserted to the Justices in the high court, under U.S. law, even though most of her day was spent teaching secular subjects, because Ms. Perich was formally commissioned as a “called teacher,” or minister, under Missouri Synod Lutheran doctrine (the only way she could attain tenure), her only forum in which to make a claim for unjust treatment was the internal church dispute resolution process. By deciding to accept a position as a teacher in a church-related school that defined her job in ministerial terms she had given up her rights as an employee under federal and state employment discrimination laws. She had effectively left the jurisdiction, legally speaking, at least for some purposes. She had put herself beyond the reach of secular law. As Church’s lawyer argued to the Court last week, “she couldn’t go to civil court if she’s a minister. She could have gone to the synod.” Her remedy was in the church courts.

The ministerial exception is a doctrine developed in the lower federal courts—one that goes beyond the statutory exemption within the ADA itself that allows religious organizations to preferentially hire their own co-religionists to disable the courts from considering employment issues related to ministers at all. The Supreme Court has never before decided a case under, or even affirmed the existence of, the ministerial exception, so this will be a much watched-for decision.

The transcript of the argument in this case provides an opportunity to reflect on the terms in which religious accommodation is being argued today in the U.S. and the extent to which the religion clauses demand formal judicial deference to an alternative normative order; that is, how and whether, in the peculiar alchemy of their jurisprudential history, an eighteenth century religious politics can be asked to serve a twenty-first century one.

The religion clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These words are understood today to guarantee the rights of individuals to freely choose their religious opinions and to prohibit government from funding or mandating core religious activities such as worship and proselytizing. In recent decades, the Court has seemed to favor a hands-off model of religion clause jurisprudence, finding, on the one hand, that religiously motivated folks are usually subject to the same laws as everyone else (absent a showing of intentional discrimination, viz. Employment Division v Smith); and, on the other, that they may bid for government funds on the same ground as everyone else (as long as they abstain from coercive proselytizing, viz. Agostini v. Felton). Further, in Hein, the Court has recently implied that church-state separation no longer demands an establishment clause exception to the standing rules in taxpayer cases. One effect of this jurisprudence has been to shift religious lobbying and law-making to the legislatures and lower courts.

Hosanna-Tabor is interesting in part because it brings to the fore a troublesome left-over issue for Americans. To what extent does religious freedom imply a need for formal legal recognition of churches at all? Can American churches manage on their own as private voluntary associations of like-minded individuals worshipping together under the laws that govern other private associations; or, do they need, or does the Constitution demand, more robust government support, even a ceding of sovereignty within certain areas, allowing them to act as small state-like institutions, enforcing their own laws?

A radical version of U.S. disestablishment would suggest that churches in the U.S. are, and have from the beginning been, understood to be entirely voluntary and private organizations that survive or not due to the enthusiasm and pocketbooks of their congregants (and God’s will), not public institutions legally defined and supported by the state. State-supported churches with their own jurisdictional domains were the common model in Europe. Arguably it is that model that Americans have been trying to get away from for several hundred years. The ministerial exceptions, and other lingering legal privileges for American churches, particularly the most legal-minded of them, seem, at times, to be vestiges of that older European model.

These are complex issues, particularly given the religious diversity of the U.S. Let us listen in on last week’s argument in the Supreme Court. It was a remarkably confusing conversation. What exactly is the ministerial exception understood to accomplish? Is that something most Americans want to accomplish?

One of the striking aspects of the argument last week was the extent to which, although there was much discussion of the difficulty and unavoidability for the courts of defining who is a minister, both the lawyers and the justices accepted as the limiting case the Catholic Church and its restriction of priestly ordination to men. It seemed for many present that whatever rule was arrived at had at the very least to preserve the Catholic Church from being forced to accept women into the priesthood. Even the lawyer for the government, the deputy solicitor general, kept backing off from a strong assertion that churches must be subject to law respecting retaliation to the same extent as other private associations as soon as she was pressed to consider the Catholic case. For example, see the following interventions, made by various justices and lawyers:

JUSTICE BREYER: So the fact if they want to choose to the priest, you could go to the Catholic Church and say they have to be women. I mean, you couldn’t say that. That’s obvious. So how are you distinguishing this?

MS. KRUGER: Right. We think that both the private and public interests are very different in the two scenarios. The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.

****

CHIEF JUSTICE ROBERTS: On the other hand, the — the belief of the Catholic Church that priests should be male only, you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic.

MS. KRUGER [Acting Deputy Solicitor General]: Yes.

***

JUSTICE SCALIA: Would you — would you allow the government to go — go into the — into the dismissal of the Catholic priest to see whether indeed it — it was pretextual?

MS. KRUGER: I think the answer is no, Justice Scalia –

***

JUSTICE SCALIA: Would you—would you—take the firing of a Catholic priest example. Does that get into the courts?

MR. DELLINGER: No, it doesn’t.

***

MR. DELLINGER [representing Ms Perich]: Well, in our view, if that was the test, then we would say that the court of appeals was correct in holding that she was not a minister, and the reason — the principal reason is she carries out such important secular functions in addition to her religious duties -

CHIEF JUSTICE ROBERTS: I’m sorry to interrupt you, but that can’t be the test. The Pope is a head of state carrying out secular functions; right. Those are important. So he is not a minister?

Repeatedly the Catholic example was reached to as the test case. Undoubtedly that is the case that most of the justices know best, but there was also a certain privileging of the Catholic Church as exemplary.

Lawyers for the Church argued that the ministerial exception is necessary because, if the employment relationship between a religious organization and its employees were subject to civil rights law, there would be a fundamental threat to religious institutions and their constitutional independence from state regulation. There are stronger and weaker versions of this need for what is sometimes termed “church autonomy.” Some in the courtroom seemed to think the ministerial exception could be limited to what they thought were obvious cases—what they called the hiring and firing of priests, pastors and rabbis. Others, inside the court, and out, would claim a larger sphere of sovereignty for church jurisdiction.

Are the U.S. civil rights laws really a threat to the continued male clericalism of the Catholic Church? That concern seems misplaced. The relationship of the Catholic priest to the Church is, at heart, not an employment relationship. A man becomes a priest through the sacrament of ordination, a religious ritual which confers an “indelible” mark, under canon law:

Canon 1008. By divine institution, the sacrament of orders establishes some among the Christian faithful as sacred ministers through an indelible character which marks them. They are consecrated and designated, each according to his grade, to nourish the people of God, fulfilling in the person of Christ the Head the functions of teaching, sanctifying, and governing.

Canon 1024. A baptized male alone receives sacred ordination validly.

He is subject to the supervision of his Bishop in his exercise of his office. No one argues that it would be constitutional for Congress or for a court to force the Catholic Church to ordain women. (And the EEOC was not seeking reinstatement of Ms. Perich to her ministry in this case.) The conferring of sacerdotal authority is a private act in the U.S. Churches do not need special exceptions to protect that. The difficulty comes when churches act as public institutions, such as when they hire people to discharge public, secular, duties such as school teaching. Then the public interest in protecting employees from discrimination and retaliation comes into play. Then the churches’ larger claims to special institutional autonomy become evident.

If the court is to exempt churches, as employers, from secular law, it is inevitable that they will be required to decide who is a minister and who is not, as was acknowledged repeatedly in court. Courts have often said that they don’t want to do that and yet they don’t seem to quite have the courage to walk away from the special protection and corresponding public role that churches and ministers enjoy—and the inevitable line-drawing that must be done. The Church’s lawyer was ready with a definition of a minister that he thought would be easy for the courts to administer:

MR. LAYCOCK: A minister is a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously, including teaching of the faith.

What are important religious functions? Among other things, it is quite striking that in 2011 an argument about giving special privileges to religion could proceed using only Christian language—as if churches and ministers exhausted the possibilities of religious leadership in the U.S. today. Everyone in the Court spoke of Christians and Christian churches and Christian ministers. Indeed they seemed to veer toward the higher liturgical end of the spectrum even among Christians. It does seem ironic, at the least, that among the thousands of religious groups in the U.S., the hierarchical churches might be given the strongest legal protection under these laws.

There are thousands of American laws giving special legal privileges to churches and to ministers. Many of these are extended well beyond the historically established churches to persons and institutions of a variety of religious commitments. When they support the autonomy of religious institutions in the disciplining of their members they tend toward the support of alternative normative orders. While individual conscience under Smith must bow to secular neutral laws of general application, church autonomy laws would require individuals also to bow to ecclesiastical law in a variety of contexts. Professor Laycock explains why this is necessary, as a political theological matter:

MR. LAYCOCK [for Hosanna-Tabor]: It’s not that institutions are different from individuals. It is that the institutional governance of the church is at a prior step. Smith is about whether people can act on their religious teachings after they are formulated. The selection of ministers is about the process by which those religious teachings will be formulated.

The presumption under this exception seems to be that churches must be protected by the state because it is in churches that individual consciences are formed. Most cases under this exception involve schoolteachers. The ministerial exception assures that children will be taught by schoolteachers who are under church discipline and that the church will exercise a public ministry with respect to those children. This is a robust claim for legal pluralism.

While most Americans undoubtedly believe that the government should not tell churches who should exercise religious leadership, arguably it is also the case that most Americans think that ministers are not the last word on what religion and moral formation is about—that the life of religion is not in the rules of established churches but in the faith-filled spiritual life of the people who only occasionally listen to their pastors, rabbis, priests, monks, gurus, or other would-be spiritual leaders—anyway.