Many have since written about this case, including myself. In my work, I’ve detailed how hisba is less a deviation from secularism than an expression of the underlying power that makes secularism possible—including the state’s fundamental right to decide the proper place of religion in social life. Here, however, I focus on something else: how hisba became not only an object of general suspicion, but also a particular modality of suspicion as a result of court litigation and state legislation. This modality of suspicion, exercised by the state, is intimately tied to the defense of religious freedom, and I suspect that it is shared across seemingly very different secular polities. To see this, consider the following passage from the Abu Zayd judgment:

The Court notes that there is a difference between apostasy, which is a material action with its basic elements and conditions….and belief (i`tiqad). Apostasy is necessarily comprised of material acts that have an external being. Such acts must make manifest, in a manner undeniable and without dissent, that one has called God Most High a liar, and the Prophet, peace be upon him, a liar by denying what he has brought to Islam….Belief, however, differs clearly from apostasy. For apostasy is a crime whose basic material elements are presented before a judge to decide whether it exists or not….But belief concerns what is in the interior of a human being’s self, belonging to his domain of secrecy. It is neither a matter of judicial probing, nor of investigation by people, but is to do with the relationship between the human being and his Creator. Apostasy is a breach of the Islamic order, at its highest degree and most valued foundations, through manifest, material actions. In positive law, it comes close to a breach of the order of the state or high treason. Apostasy is investigated by the judge or the mufti. However, the punishment for assaulting religion through [an act of] apostasy does not contradict personal freedom. This is because freedom of belief (`aqida) requires that one be a believer (mu’minan) in his words and acts, and that he possess a sound rationale for his abandonment of belief. But a breach of Islam can only be due to corruption in thought or the lure of material, sexual, or other worldly purposes. To combat this category [of desire] is not considered combat against freedom of belief, but rather the protection of belief from such vain, corrupt passions.

In distinguishing between apostasy as an “outer” material act and belief which occurs in an “interior” forum, the Court defines its jurisdiction over the determination of apostasy and justifies its approach in making that determination. On the basis of this distinction, the Court took only Abu Zayd’s written work into account, without probing into his personal views—his “interior” relationship with his creator. Taking statements from his written work at face-value, the Court compared them with statements designated within the sharia as indicating apostasy; finding them to be similar, it pronounced him an apostate.

Many commentators on the judgment have discussed how it separates private belief from public act/expression. No one, however, has discussed the seeming contradiction it presents just a few lines later, where it reconnects private belief and its public manifestation in the context of a defense of religious freedom. Importantly, the Court does not see religious freedom as simply a right to believe what one wants. It also includes maintaining the conditions under which religious belief can be sustained and cultivated. For the Court, this entails that belief be protected from the motives of worldly power that might corrupt it. This, in turn, requires the Court to pronounce what those motives are—as it did with Abu Zayd. Acts and expressions of belief are therefore objects of especial suspicion, to be put under particular scrutiny, for potentially harboring ulterior, corrupting motives. Such scrutiny might be seen as a kind of vigilance against power and its potential abuse. (Indeed, part of the Court’s concern was that Abu Zayd was also teaching his books to university students.) In other words, outer act and inner belief, though initially divided, come to be reconnected through a suspicion of motives of material interest or worldly power. In the context of the freedom of religious belief, it becomes imperative to determine whether acts or expressions of belief are genuinely religiously motivated. This presumes the power to pronounce upon and, if necessary, probe into the character of one’s private convictions. Here the defense of religious freedom promotes a distinctive form of suspicion.

This suspicion is not exclusive to Egypt. Strikingly similar versions of it are found in seemingly very different secular states.

For example, Winnifred Sullivan has highlighted two central criteria in U.S. jurisprudence on religious freedom. They parallel those of the Abu Zayd case. The first criterion was whether religious acts or expressions were sincerely held to be essential to one’s religion. This conflicted with the second, often prevailing, criterion: whether these acts and expressions were authorized and mandated by orthodox religious texts. In U.S. courts, there seemed to be a disposition to presume the sincerity of litigants’ religious belief—which may be due in part to a traditional American respect for individual belief rooted in a particular Protestant history. Nevertheless, as legal theorist Kent Greenawalt writes, “when the state offers exemptions based on people’s convictions, it cannot avoid all inquiry into sincerity.” The Court thus retains the prerogative to determine and investigate this sincerity in the context of defining and defending religious freedoms—a prerogative it has exercised. More, this determination and investigation purveys a suspicion of motives of material interests or other worldly purposes. To quote Greenawalt again:

Another category of religious claims that should not count as spiritual are schemes cloaked in religious language in which the incentive to participate is financial self-interest and not spiritual development. … A finding that a claimant is sincere should be easy if one cannot discern any secular advantage from a person’s engaging in the behavior she asserts is part of her religious exercise.

But whether it is preferable for the Court to actually investigate sincerity or simply make presumptions about it without an investigation has been historically difficult to decide.

A similar situation is found in France. Anthropologist Mayanthi Fernando describes the dilemma veiled Muslim women faced in opposing the banning of the veil in public schools. If, on the one hand, the veil was deemed an obligation mandated by religious authorities, then it could be construed as potentially coercive and an impingement of religious freedom. The French state was therefore very concerned to ascertain that there was no external coercion or pressure to wear the veil—a concern that entailed knowing about the circumstances of people’s private lives and convictions. But if, on the other hand, the veil was construed as a matter of personal belief—a choice—then it was not mandated by orthodox religious texts and therefore inessential to the practice of one’s religion. Banning it was therefore not necessarily an impingement on religious freedom.

But even as a personal belief and choice, the veil was still construed by the state as an essentially religious, and fundamentally Islamic, sign. For state officials, it indicated a will and a desire to manifest Islam. Some saw it as potentially indexing a rising Islamism, one that degraded women in ways incompatible with the French republic’s fundamental values. It was thus a will and a desire that the state sought not to encourage, lest those values become undermined. Thus, in his analysis of the state’s investigation, Talal Asad notes that,

…not only [do] government officials decide what sartorial signs mean, but …they do so by privileged access to the wearer’s motives and will—to her subjectivity—and this is facilitated by resort to a certain kind of semiotics. A governmental commission of inquiry claims to bring private concerns, commitments and sentiments to the public sphere in order to assess their validity for the secular Republic, but it does much more than that. It constitutes meanings by drawing on internal (psychological) signs or external (social) signs, encourages certain desires and emotions at the expense of others.

So even though the veil was construed as a choice, indeed, precisely because it was, it could be deemed a suspicious and potentially dangerous act.

That the determination of genuine religiosity in terms of ulterior motives is a practice of suspicion becomes fully evident when it comes to Muslims in Europe and the U.S., with the near paranoid quality of the public debates about the building of mosques and minarets, the potential usage of sharia law, the teaching of Arabic in public schools, the donating to Muslim charities, and the wearing of veils. While there are complicated historical and political reasons for this near paranoia, my point here is to emphasize a central element of the structure it takes. And this is the constant attempt to unmask ulterior motives of material interest and worldly power behind a range of otherwise ordinary (in this case, Muslim) practices and expressions of belief, in order to defend those freedoms, including especially religious freedom, that are seen as constitutive of the ways of life the state is supposed to guarantee.

These examples, then, reveal a distinctive structure of legalized suspicion. On the one hand, private belief and public act/expression are made separate, but on the other, they are brought together in order to define and defend religious freedoms. In this case, private belief becomes framed within a complex of motives, will and desire—one that becomes suspect to the extent it expresses material interests or drives towards worldly power. As such, it can become subject to investigation and disciplining, which means probing into the details of private life and conviction. This structure of suspicion, shared by the U.S., France and Egypt, brings together under the pretext of religious freedom two central aspects of liberalism and secularism respectively. The first is a distinctively liberal vigilance against power and its abuse, and the second is a characteristically secular desire to draw a line between religion and material power. What this suggests is that, under a liberal secular legal regime, suspicion of religion is the flip-side of the freedom of religious belief.

The Abu Zayd judgment cited above poignantly highlights this contradictory structure of suspicion. At one level, the Court took Abu Zayd’s written statements at face-value—to say what they mean—and found them to contradict orthodox doctrines literally construed. The Court thus declared him an apostate. But when it came to religious freedom, his words were paid extra attention, meaning more than what they said, as having ulterior worldly motives against which the freedom of belief—to cultivate belief and have it flourish—had to be defended. In this case, the Court simply presumed and pronounced upon Abu Zayd’s motives, without investigation. This shows that the suspicious attribution of motives does not depend on an investigation, even though it enables one to be done at the discretion of the judiciary.

Hisba, through and under the law, has come to embody this structure of suspicion and the discretionary power that comes with it. It therefore enables the assertion of the sovereign power of decision into the intimate domains of everyday life. This becomes clear when we remember that hisba was placed in the hands of the General Prosecutor, with his ambiguous status between judiciary and executive power and his nearly unfettered investigative authority. For now it is the General Prosecutor who is responsible for bringing a hisba case to court. He must therefore conduct an investigation to decide whether a potential case merits further litigation. That means he might have to scrutinize the motives behind statements of religious belief. If, however, such scrutiny seems to intrude too much into a person’s private life or interior forum, the General Prosecutor has another option at his discretion: to take these statements at face-value, as saying what they mean, as the Court did with Abu Zayd. A focus on literal statements, however, may fail to capture the complexity of people’s private religious lives. As with the U.S. and France above, it is unclear here which is preferable: to investigate how genuine one’s religious motives are, or to make presumptions about how genuine they really are.

This tension between intruding into a private, ostensibly protected, domain or taking statements too literally is reminiscent of another tension upon which modern legal legitimacy both rests and continually founders: between the enactment and the appearance of justice. The more zealously an official investigates, the more abusive of justice he might seem to be. If, however, he relies strictly on procedure, this might make a mockery of justice. Hisba now partakes of this dilemma too.

To conclude: I cited the Abu Zayd judgments to show how hisba, in its contemporary legalized form, embodied a distinctive structure of suspicion. Through the judgments, hisba potentially undermined an entire domain of private rights. In restricting hisba’s uses, the state transformed it into a modality of suspicion only it could exercise. This modality of suspicion, enabled to defend religious freedoms, nevertheless undermined the crucial distinctions on which they relied. More, it became ensconced within another dynamic of suspicion, the tension between the enactment and the appearance of justice. This tension is even further compounded because, as I show elsewhere, it remains irresolvably indeterminate whether hisba is still an Islamic and thus primarily religious principle, or, as an expression of public order, it has become an essentially secular principle. The example of hisba therefore not only confirms Winnifred Sullivan’s thesis that religious freedom as a legally enforceable right is impossible to attain. It also shows how such religious freedom will never appear to be fully achieved, being entangled in its entirety within the dynamics of law’s suspicion and secular/religious ambiguity.

We should not, however, take the impossibility of religious freedom to mean the failure of secularism. For that would reduce an analysis of secularism to an assessment of whether it fulfills the promises it makes. Secularism as a historical phenomenon is certainly more than its promises, if only because it so consistently and demonstrably falls short of them. We might consider instead how this sense of a continual failure is built into the historical grammar of secularism, and its consequences. In this case, the constant disjuncture between religious freedom as a secular aspiration and the secular means of achieving it constitutes a space of a continual striving, one which works to expand and entrench the suspicion and potential for intervention that provoked it in the first place. Within this space, religion is given to continual politicization, political theological claims acquire plausibility and force, and critique becomes a seemingly indispensable capacity that one must sustain and tirelessly cultivate. As a result, the question of religious freedom, as a central secular stake, remains poignantly alive, drawn into a seemingly unavoidable and incessant cycle of provocation, critique, and intervention. That is, the modalities and dynamics of suspicion outlined here help sustain the problem-space of secularism, its constitutive questions and stakes, the critical dispositions it induces, and the propensities toward sovereignty it displays. We remain bound to this problem-space through the incessant suspicion it provokes.

It was not until the introduction of democracy in 1994 and the adoption of South Africa’s Constitution that a commitment was made to foster a society that is tolerant of diversity and does not posit one religion above another. This is evident in sections 15 and 31 of the 1996 Constitution: s15(1) protects every individual’s right to freedom of religion; s15(2) allows religious observances to be conducted at state or state-aided institutions; s31(1) protects the collective right of religious communities to practice their religion and to establish and maintain religious associations; s15(3)(a) permits the enactment of legislation to recognize religious marriages or religious personal or family law systems. In fact, s15(2)-(3) enables the establishment of a semi-secular, legally pluralistic society that involves an intersection between religion and the state where government is encouraged to support religion. Yet, in an attempt to ensure that discriminatory religious rules and practices do not permeate the legal framework of South African family laws, an internal limitation was added to s15(3), which provides that any legislation that purports to recognize religious marriages or religious personal or family law systems must be consistent with other constitutional provisions including gender equality. While none of the rights in the Bill of Rights are absolute, the internal limitation on religious freedom appears to subordinate the regulation of religious marriages or religious personal or family law systems to gender equality.

It was within the paradigm of s15(3)(a) that the South African government enacted the 1998 Recognition of Customary Marriages Act to provide full legal recognition to customary marriages. Subsequently, same-sex marriages were also afforded recognition through the 2006 Civil Union Act. The SA government further initiated a process as early as 1994 to ensure legal recognition for Muslim marriages. Given the spatial constraints of this paper, I consider only some of the implications of the process to recognize Muslim marriages in this essay.

After extensive consultations with the South African Muslim community and broader civil society that spanned several years, the South African Law Reform Commission, which was tasked with drafting legislation to recognize Muslim marriages, submitted a Muslim Marriages Bill (MMB) to the Minister of Justice and Constitutional Development in 2003. Seven years later, the Department of Justice and Constitutional Development (DoJ) effected some amendments to the MMB and submitted an amended MMB to Cabinet, which was approved by the latter at the end of 2010. The public were invited to make submissions on the 2010 MMB by 31 May 2011. To date, the DoJ has not yet finalized the processing of those submissions.

Several interesting observations have emerged from the process relating to the recognition of Muslim marriages. For the purposes of this paper, I shall focus on two namely: a) the reasons for the delay in recognizing Muslim marriages; and b) the different responses to the MMB.

To date, no official reason has been given by the DoJ to explain why after 18 years since the advent of democracy, Muslim marriages have not been afforded legal recognition; especially since customary marriages and same-sex marriages have been recognized.

One can only speculate as to why the process for the legal recognition of Muslim marriages appears to be going nowhere slowly. In the first instance, the political imperative to recognize customary marriages was overwhelming since the majority of the South African population comprises black Africans. The same political imperative does not appear to exist for minority religious communities, the largest of which—namely the Muslim community—comprises 1.5% of the population. Secondly, the position of Minister of Justice and Constitutional Development has been occupied by several different politicians since 2003 and the progress or stagnation of the process perhaps depended on their own political inclinations about whether or not the state ought to regulate minority religious marriages. Thirdly, consensus about the MMB is lacking within the Muslim community and broader civil society, and perhaps the Ministry of Justice and Constitutional Development is hesitant to move forward with draft legislation that is perceived as contentious. Yet, if the latter reason is the real justification for delaying the process of recognition then it is disingenuous because the national government has enacted several contentious pieces of legislation since it assumed power in 1994, including the 1996 Choice on Termination of Pregnancy Act.

The only other reason that makes sense for the delay in enacting legislation to recognize Muslim marriages is that government lacks the political will to do so. This clearly means that an entrenchment of fundamental rights in a Bill of Rights does not guarantee their automatic implementation. Instead, a strong and un-apathetic civil society is required to hold government accountable to its constitutional obligations. Therefore, those within the Muslim community and broader civil society who support the enactment of legislation to recognize and regulate Muslim marriages need to provide the political incentive for such enactment to take place. For instance, the Muslim community needs to take the lead in mobilizing and launching a strong and sustainable campaign for the recognition of Muslim marriages, which to date they have not done. Furthermore, civil society should use the courts and launch a civil action against government to encourage enactment. In 2009, the Women’s Legal Centre (WLC), which is a NGO that litigates gender-based precedent setting cases, did just that but launched its action in the Constitutional Court (CC) instead of the High Court (HC). The CC decided that there was no basis for the WLC to have direct access to the CC and directed them to re-launch their action in the appropriate HC. Although no order was made in favor of the WLC, the positive consequence of that action was that it motivated government to apply their minds to the 2003 MMB, which resulted in the submission of the 2010 MMB to Cabinet and its subsequent approval by the latter. Consequently, the WLC saw no need to re-launch its action in the HC. However, that was three years ago. Perhaps it is time for another launch of the action.

The second observation about the process for the recognition of Muslim marriages relates to the different opinions that were formulated in response to the MMB over the past several years. Indeed, there are those who support the MMB and those who oppose it. Yet, the matter is far more complex given that the support for and opposition against the MMB is multi-layered and has exposed interesting bedfellows.

In the camp opposing the MMB, several components are identifiable. The most obvious are the Muslim extremists; some of who oppose any type of state regulation of Muslim family law by a non-Islamic state and prefer that the status quo be maintained, namely, that the ulamā (Muslim clergy) should continue to regulate Muslim family law within the community. Others advocate for the establishment of a separate sharia court that they argue should operate alongside the secular court system and should be presided over by members of the ulamā. There are also those Muslims who feel that their Islamic schools of thought are not catered for in the MMB. The most prominent of the latter dissident voices follow the Shia tradition but comprise a small minority within the South African Muslim community. Within the same opposition camp, secular extremists ironically find themselves locking arms with the Muslim extremists because they too favour a strict separation between religion and state. The final component within the opposition camp is the gender advocates who expect the MMB to be absolutely gender consistent before they will consider bestowing their blessings upon it.

On the other hand, there are those gender activists who, along with progressive Muslims, support the enactment of the MMB. These two groups acknowledge that the MMB is challengeable on the grounds of gender equality, but also realize that if enacted, the MMB promises to provide more protection for women than they currently have. The driving force behind their support is the achievement of substantive equality as opposed to formal equality. They also recognize that there will be opportunities after the MMB is enacted to institute constitutional challenges against the gender-problematic provisions.

A third component, namely moderate members of the ulamā, is further discernible within the camp supporting the enactment of the MMB. This group understands that South African Muslims are a minority operating within a constitutional framework and that any recognition of Muslim family law will need to happen within that framework. They therefore seek to have the Islamic principles governing marriage incorporated into the MMB in a way that produces a balance between constitutional expectations and Islamic prerogatives. For these reasons, the moderate members of the ulamā supported the 2003 MMB because it constituted a reasonable compromise. However, they have expressed dissatisfaction with the 2010 MMB because for their purposes, it departs from the 2003 MMB in two significant ways. Firstly, the 2003 MMB enabled adjudication of disputes arising from the MMB to be presided over by Muslim judges from within the secular judiciary sitting with Islamic law experts as assessors. In contrast, the requirements that the judge must be Muslim and must adjudicate with Islamic law experts have been removed from the 2010 MMB. Secondly, the 2003 MMB required binding arbitration to precede the dispute going to court whereas the 2010 MMB proposes voluntary mediation to enable the parties to settle their dispute prior to adjudication. The latter change is problematic for the ulamā because they envisaged the arbitration process as the medium through which they would play a significant role in the management of disputes relating to Muslim marriages and divorces.

Interestingly, although the aforementioned changes appear to have secularized the 2010 MMB more so than the 2003 MMB, the 2010 MMB has also been Islamized to a greater extent. For instance, a definition for Islamic law is included in the 2010 MMB, which limits the types of Islamic law sources that a judge can rely on to only a few traditional ones. This may constrain the extent to which reform of Muslim family law may be affected through the MMB. Hence, the increased Islamization of the MMB has caused some consternation among Muslim progressives who supported the 2003 MMB. Yet, Muslim progressives and moderate members of the ulamā who supported the 2003 MMB do not reject the 2010 MMB and are willing to negotiate with the DoJ to revisit the problematic provisions of the MMB.

It is unfortunate that the DoJ decided to effect changes to the MMB without consulting with the relevant stakeholders within the Muslim community and broader civil society since there had been a general consensus in favour of the 2003 MMB, which had emanated from a widespread process of consultations. Although not perfect, the 2003 MMB had contained innovative mechanisms for the regulation of minority Muslim marriages within a secular legal framework. Given the disagreement over the 2010 MMB, it may mean that parties will have to retreat to the drawing board, which means more time wasted while the rights of Muslim women continue to be negated.

Johns, Jasper (b. 1930) © VAGA, NY

Flags. 1968. Lithograph, printed in color, irreg composition: 34 5/8 x 25 7/8″; irreg sheet: 34 5/8 x 25 7/8″. Gift of the Celeste and Armand Bartos Foundation. (291.1968)

Location: The Museum of Modern Art, New York, NY, U.S.A.

Photo Credit: Digital Image © The Museum of Modern Art/Licensed by SCALA/Art Resource, NY (ART193346)

On June 1st,President Barack Obama proclaimed June 2009 Lesbian, Gay, Bisexual, and Transgender Pride Month and called “upon the people of the United States to turn back discrimination and prejudice everywhere it exists.” If President Obama expected to be showered in lavender love in return for this proclamation, he was sorely disappointed. During June, grumbling about the Obama administration’s public stance on such issues as gays in the military, same-sex marriage, and the Defense of Marriage Act (DOMA) reached a crescendo. Candidate Obama had expressed his determination to overturn the military’s “Don’t Ask, Don’t Tell” (DADT) policy and DOMA; now-President Obama is taking a decidedly more muted tack—in the name of pragmatism. At a White House reception for invited gay and lesbian leaders on June 30th, with wife Michelle prominently at his side, the President implicitly acknowledged the slow pace of change (critics might say the no-pace of change) and counseled patience: “I know that many in this room don’t believe progress has come fast enough, and I understand that. It’s not for me to tell you to be patient any more than it was for others to counsel patience to African-Americans who were petitioning for equal rights a half-century ago. We’ve been in office six months now. I suspect that by the time this administration is over, I think you guys will have pretty good feelings about the Obama administration.”

The timing of the reception was historically resonant, coming just two days after the 40th anniversary of the Stonewall rebellion. “Stonewall” began on June 28, 1969, when patrons at the Stonewall Inn, a gay bar in New York City’s Greenwich Village, upset by constant police harassment, fought back and resisted arrest. Their resistance is commonly set down as the beginning of the modern gay and lesbian liberation movement in the US. As numerous historians of lesbian and gay history have argued, this way of narrating lesbian and gay history leaves out of view the important activist efforts—of groups like the Mattachine Society and Daughters of Bilitis—that preceded the events at the Stonewall Inn. This is not a minor historical quibble: Stonewall as origin tale forgets that social change happens over time, sometimes over a long time. If this is what President Obama means when he counsels his gay and lesbian critics to be “patient,” then we are sympathetic to this long view of what it means to build and sustain a social movement. But it is not clear that this is what the President had in mind with his call for “patience.”

Instead, Obama was asking for time so that Congress could take the lead on gay issues like DADT and DOMA. Obama’s reticence to speak out for gay rights, let alone show leadership on them, is all the more glaring in light of his much-vaunted ability to redefine the terms of public debate on a number of other divisive issues. For example, his promotion of “abortion reduction” has been widely hailed for the way it eschews the polar oppositions “pro-choice” and “pro-life” to produce a new political center. This new political center has seemed to come at the cost of Obama’s retreat from his previous support—in the Senate and on the campaign trail—for the “Freedom of Choice Act.”  When it comes to sexual freedom, the center does not seem to hold much promise at all, neither for a broad array of reproductive rights nor for LGBT rights. What makes gender and sexuality, but especially homosexuality, such a stumbling block for this otherwise rhetorically and strategically nimble politician?  As Hendrik Hertzberg put the matter in a recent New Yorker column, “where gays are concerned [Obama's] fine-tuned ear for the emotional resonance of his actions has an alloy of tin.”

As we argue in a forthcoming article in Social Research, this strange hesitation is due less to some personal failing on Obama’s part than to the force of Christian secularism in US. How so?  Not only does it seem pragmatically difficult for the Obama administration to address an issue like gay marriage, which remains a rallying cry for religious conservatives even as it may be less so for many other Americans, Obama’s commitment to marriage as between “one man and one woman” is in line with both his stated personal religious commitment and his efforts to promote a new culture of responsibility—from corporate executives to unmarried fathers—as part of the answer to the country’s economic problems. This language of “responsibility” (variants of which he used fourteen times in his first address to Congress) is not itself directly religious. It is, however, deeply indebted to a Christian, and specifically Protestant, understanding of the individual’s role in society. This version of responsibility connects secularism to Christianity even for those who understand themselves to be fully secular, and it does so by using gender and sexuality as sites of “moral” suture between individuals and the state. Simultaneously, Christian secularism links some conservative religious constituencies to broader secular forces such as the economic neoliberalism of the last thirty years, the devastating effects of which Obama is so desperately trying to manage. The secular parts of this equation are crucial to recognize, because focusing on religion alone not only occludes the many religious people who are themselves gay or supporters of gay rights, it also perpetuates the idea that religion is “the” problem blocking gay rights and sexual freedom more generally.

This notion—that religion and sexuality are somehow in opposition—is one of the few beliefs shared by opponents and supporters of gay rights. Yet it has significant policy implications, particularly in recent moves to enact far-reaching “religious exemptions” as a condition of passing state laws permitting same-sex marriage. In New Hampshire, Governor John Lynch threatened to veto same-sex marriage unless state legislators also passed a bill framed as “protecting” religion and extending “religious liberty,” but that in practice exempts religious organizations and their employees from otherwise applicable state anti-discrimination laws. (Legal scholar Nan Hunter has predicted that the New Hampshire language could become a model for same-sex marriage laws nationally.)

In our 2003 book, Love the Sin: Sexual Regulation and the Limits of Religious Freedom, we offer an extensive argument that religious freedom and sexual freedom are actually interdependent rather than oppositional. Unfortunately, the impact of “religious exemptions” like those included in the New Hampshire law is to codify a narrow version of religious freedom in which religious liberty and sexual freedom can only be seen as mutually exclusive. This is not just a loss for sexual freedom; it also significantly narrows the parameters of religious freedom offered by the US Constitution.

If there is a “religion problem” posed by gay marriage, it is not that some religious organizations might be “forced” to provide secular benefits to same-sex couples, such as healthcare or equal access to residential housing; it is rather the entanglement of the state with the business of any couple’s religious marriage. The problem here is that the state legitimates religious marriages, performed by members of the clergy, rather than only civil unions performed by representatives of the state, thus entangling, rather than separating, state and religious practice. When such entanglements are maintained in law, religious practice is not “protected” from the state any more than citizens are “protected” from the imposition of religious convictions they do not share. New Hampshire and other states could actually “protect” both religious practice and those who are not religious (or who are differently religious) by providing civil unions on the basis of equality and letting religious bodies provide for religious marriages. No secular benefits would then flow from religious marriage, and the secular benefits that follow on civil unions would be separated from religious debates over homosexuality.

This is not a matter of fine-tuning the President’s ear on gay issues. Instead, we call on him to take up a broad-ranging version of religious freedom as a means of reframing the entire debate over gay rights. Yes, of course Obama should repeal DADT—and suspend it immediately by executive order as is in his power. Of course he should move to repeal DOMA. But is this really the legacy of generations of activism for sexual freedom: gays in the military and marriage equality?  Or might sexual freedom implicate broader questions of social justice that exceed the frame of “gay identity,” per se?

In a recent issue of the Nation, Lisa Duggan highlighted Equality Utah’s proposal for an Adult Joint Support Declaration, which would allow a legal framework for caretaking—medical decision-making, health insurance benefit designation, and inheritance—among adults who are not necessarily related by sexual or romantic partnerships. Such a proposal separates secular benefits not just from marriage but from sexuality as well, further removing the current entanglement between state benefits and religious debate over sexual practice. As Duggan points out, such a measure could spark unexpected political alliances as well as expand the support for caretaking in our society well beyond the question of marriage or domestic partnership, getting, in her words, “the AARP on board to lobby for medical next of kin, tax and inheritance rights for ‘Golden Girls’ households, or attract libertarians who want to take the state out of the business of ‘recognizing’ sexual or romantic relationships entirely.”

This shift in framework—from gay rights to the basic ground of freedom and equality—would do much not only for gay people and for the Obama administration’s standing with the oft-invoked “gay community;” it could significantly alter how controversial issues are approached in American public life. We might move beyond the identity politics of rights-based movements, even as we preserve the ability to act on identity- and rights-based claims. Who knows, but we might even create the basis for one of the most promising possibilities invoked by the early Obama campaign: not just change we can believe in on given political issues, but the possibility of creating a “new majority” that goes beyond individual issues to larger questions and practices of liberty and justice for all. Achieving this new majority cannot happen if we trade off some people’s sexual freedom for some other people’s religious freedom (or vice versa).

[See David Kyuman Kim's introduction to "These things are old," a conversation about Obama, civic virtues and the common good at The Immanent Frame]

It is this “secular” opening we want to pursue here. We want to suggest from the outset that the secular sexual imagination is more capacious than Taylor admits.

Although we do not share Taylor’s Catholic idiom, we too worry about the effects of the sexual ethic developed in the Protestant Reformation, a worry that haunts Taylor’s essay with its focus on the French Counter-Reformation. Like Taylor, we would locate the beginning of a modern sexual ethic in the Reformation and the various contentious and countering movements that it sparked. In fact, we would argue that it was the Reformation that has made sexuality so often stand in for morality tout court in modernity. There is no question that the Reformers actively made a shift away from celibacy and toward a focus on marital sexuality as a site of both moral idealization and concern.

This shift entailed not just a shift in ideals, but an intensification of moral concern. Sexuality is so central to the Protestant vision that in his Institutes of the Christian Religion, Reformer John Calvin takes on the three vows of monastic life, obedience, poverty, and celibacy—only by criticizing celibacy. (Having completed a long critique of celibacy, he lets it stand in for criticism of the other two, which he does not pursue, “Lest we seem to criticize every little point too spitefully.”)

Sex provided a means of distinguishing the Protestant way of life from its Catholic forbears. Not only did the idea that Protestant clergy should marry distinguish them from both celibate clergy and the monastic life of Catholic religious calling, but marriage and the idea of the individual householder provided a fundamental distinction between the Protestant vision of human being—as the individual who stands alone before God, responds to God’s individual calling, and manages an individual household—and the Catholic vision of communal being. It was not just a vision of moral purity that was wrapped up in the Protestant sexual ethic; an entire way of life was crystallized around the vision of the individual householder and his commitment to marriage. This was a distinctly gendered vision; and whatever else one wants to say about the Catholic ideal of sexual purity and monasticism, a spiritual calling to celibacy provides women a legitimated means to resist marriage and some of the strictures of gender roles.

We thus agree with Taylor that the singularity of this Protestant vision, including its disregard for the spiritual and material practice of celibacy, creates a set of problems for modern life, just as does the Counter-Reformation’s singularity of focus on sexual purity. But our concern is not just with the loss of spiritual and moral possibility; our concern is also with how this particular vision of sexual life and, indeed, of modern life as a whole becomes intertwined with the nation-state, including with presumably secular nation-states like the United States.

Despite the putative separation of church and state, one of the major places in the U.S. where religion and the state remain entwined is around sexuality, specifically at the point of marriage, where religious officials are actually empowered to act on behalf of the state. And whenever politicians talk about marriage laws, they nearly always do so with reference to religious commitments—and the political affiliation or philosophy of the policymaker doesn’t much matter in terms of this outcome. Whether it’s George Bush invoking his Christian views in a Rose Garden press conference to explain his support of an anti-gay marriage amendment to the Constitution before the 2004 elections, or Democratic presidential hopefuls naming “religion” as the reason they support civil unions but not gay marriage; whether it’s former Senate majority leader Republican Bill Frist calling marriage a “sacrament,” or Democratic Senator Robert Byrd reading from his family Bible on the floor of the Senate in the 1996 debate over the Defense of Marriage Act: when it comes to sex, a particular set of religious (and, we’d argue, specifically Reformed Protestant) assumptions inform the law of the land.

And yet, if marriage is really a religious concern, we wonder why the secular state is in the marriage business at all. The secular state’s commitment to marriage seems to fail the Constitutional promise of the First Amendment on all counts. If the state’s interest in defending traditional marriage is based on religious principle, as so many politicians claim, it fails what is termed the “disestablishment” clause: the principle that the government should not establish or endorse any particular religion or any religion at all. Moreover, when the state restricts the marriage franchise to heterosexual couples it also fails the religious freedom clause, which generally prohibits government interference in religious practice. This is so because many mainstream Christian churches as well as Reform and Reconstructionist Jewish congregations do perform marriages between same-sex couples. Nevertheless, religiously-sanctified same-sex marriages are not recognized by the state.

Why is the state picking and choosing which religious “sacraments” to recognize? We believe the state should not be restricting freedom in this way, and, therefore, should not be legalizing marriages of any kind. The state could find ways to support relationships without abrogating either religious or sexual freedom, whether by offering civil unions to everyone or though other forms of support. Freedom may be the most idealized keyword in U.S. public life. Nevertheless, when it comes to sex, the high value set on freedom comes crashing to the floor. As the contradictions of U.S. laws regulating marriage show, a robust religious freedom is a condition of possibility for the realization of sexual freedom. As long as specifically Protestant notions of the good life and of good sex versus bad sex form the bedrock of “secular” commonsense, not to mention supposedly “secular” law and policy, American ideals of freedom and equality are cramped at their root.