Don’t Pick Me Last [edit]

[edited for “i really should have proofread it one more time” mistakes.]

So a few days ago I said I was working on a post on the state and inclusion. My hook was going to be about gay marriages and the hijab, but the article I linked to did a pretty good job of covering some of that ground.

Then an article got picked up by Al-Muhajabah and Muslims Under Progress about the legality of Islam in Australia. I hadn’t seen it the article, and left the issue on the back-burner. Dervish Du’a gave me the details (and some good background) as to why I hadn’t seen it: it was being reported in Melbourne, and I really only keep up with Sydney news (pole Miriamu). So now I have new hook.

The idea of gay marriage has been a highly controversial topic here in the US recently; I don’t want to talk about the theology of homosexuality, particularly from an Islamic perspective (although there has been some discussion elsewhere of the topic.) From a civil society perspective the rhetoric around gay marriage has shifted from being about the granting or meaning of rights to one of actively excluding people from the state.

In Massachusetts the courts ruled that homosexuals had the right to marry. Regardless of what the governor or the population thinks, that was the law of the land. Rather than try to seek a legislative solution that attempts to return to the previous ambiguity, the executive branch wants to exclude homosexuals from the state. Since passing a law would be unconstitutional, the current wisdom is to amend the constitution.

The situation clearly mirrors that in France and Turkey (women can’t wear hijab to be considered part of the state), Iran and Saudi Arabia (women have to wear the hijab to be considered part of the state, although not necessarily active participants), or pre-Civil Rights Era US (when race was the limiting factor in state participation).

In a truly civil society, the state should not be actively seeking to exclude people. Changing mores may show that people have been excluded, but the state should then move to remedy that situation. Occasionally the state and a group may exist in an ambiguous situation, and for a limited time, it can be an acceptable alternative to confrontation.

Looking at what has colloquially been called the separation between church and state in the US, one can actually see the attempt by the founding fathers to make sure that no one was excluded from the state based on the biggest marker of identity of their world, religion. The separation is in fact composed of two parts, the establishment clause and the free-exercise clause. The first prevents the state from declaring an official religion, and the second allows people to practice their religions without interference from the state, unless there is an overriding state interest (I’ve only seen this applied in child-protection and drug-use cases). We may look at the UK now and see the variety of religions and the freedom to practice, but that was not always the case as the state and the Anglican church are essentially the same entity. The blasphemy laws in the UK were used in the controversy surrounding Salman Rushdie, and the courts ruled that those laws did not apply. It’s the situation Australia is in now; how do you include, when protections for one group must exclude another.

As an individual I have the right to avoid other individuals; if I were terribly close-minded I could avoid entire groups of people. However, I find it objectionable that a state, any state, is actively working to exclude people from participation in society. There has to be a better way to have this debate.