By Amos N. Guiora
Religious extremism poses the greatest danger to contemporary civil society. The threat comes from religious extremists, not people of moderate faith. The recent suicide bombing by Islamic extremists killing 21 Copts in Egypt is a prime example.
Decision makers, the general public and people of moderate faith – whose faith does not lead them to kill others in the name of their god – must address how to minimize this palpable threat. Step one is recognizing the threat, although it may make us uncomfortable. Step two is involves proactive, concrete measures to protect society. Society can say a collective “woe is me” or take aggressive proactive measures. The former is defeatist; the latter protects the innocent.
Religious extremist incitement is the primary source of this danger and the danger is clear: religious extremist inciters have done extraordinary harm to society. Underage girls – in an internal community shockingly unprotected by government – are forced to marry and have sexual relations with adult males in the name of religious extremism pronounced by the Prophet of the Fundamentalist Church of Latter Day Saints. A religious Jewish extremist assassinated Israeli Prime Minister Rabin after extremist rabbis placed a curse on Rabin, directly inciting the violent murder. An extremist imam placed a fatwa on an Islamic Dutch politician who said Islam must come to grips with homosexuality.
Needless to say, multiple other examples abound, from right-wing extremist Christians killing abortion-performing physicians to extremist Jews burning mosques in the West Bank to Islamic terrorists committing suicide bombings targeting innocent civilians. All result from religious extremist incitement.
Limiting the ability of extremist faith leaders to incite their parishioners is the critical step. Simply put, unabated incitement endangers society. Monitoring and surveillance are effective, essential and lawful measures to negate the power of religious extremist speech to which society and law enforcement have largely granted immunity.
Nevertheless, these measures are problematic because of the potential to chill participation in religion. Potential members may hesitate to join a congregation under surveillance and existing members may shy away from attending services. Preachers, rabbis, imams and other religious leaders may not feel free to fully express their messages.
However, the clear and present danger religious extremist faith leaders pose demands an effective response. Resolving the tension between justified surveillance and the cost associated with such surveillance is difficult, but it is essential to adequately protect the community. To that end, I recommend the following:
*Articulate clear guidelines for monitoring
*Enhance cooperation between law enforcement and clergy
*Adopt a heightened probable cause standard for monitoring Houses of Worship
*Articulate and enforce limits of free speech with respect to religious extremism
The monitoring and surveillance must not be arbitrary or capricious, but rather initiated narrowly and specifically in response to compelling evidence, including intelligence information, suggesting that a particular faith leader is inciting in the House of Worship. This cautiousness will ensure that due process and equal protection standards and obligations are met.
Without this sober analysis, the inevitable chilling effect will be unwarranted and therefore unconstitutional. Protecting the general population is without doubt a compelling government objective; the key question is whether monitoring Houses of Worship is the least restrictive way to achieve this legitimate objective.
Second, enhanced cooperation between law enforcement and clergy enables the former to warn clergy of the potential criminal nature of their speech and suspected criminal conduct by individual congregants. Through open channels of communication, law enforcement can minimize any potential chilling effect and focus surveillance efforts as narrowly as possible.
Such proactive discussions could negate the need for future monitoring and protect the general public and specific audiences. However, if religious extremist faith leaders continue inciting, state authorities could monitor, conduct surveillance and if justified, interrogate and prosecute the faith leader.
Third, a heightened probable cause standard for determining whether previous speech justifies surveillance also addresses the chilling effect, by ensuring that the surveillance would occur only when and where truly required. This heightened probable cause standard would thus facilitate respect for the Free Exercise Clause while ensuring that government fulfills its primary obligation of protecting the public.
Each of these three steps advances the ball towards the fourth recommendation above by shaping the parameters of lawful and legitimate religious speech and isolating the extremist incitement that endangers members of the faith community and the broader public alike.
Members of civil democratic society – secular and religious alike – cannot afford to sit idly by while extremist faith leaders take advantage of society’s unwillingness to tackle tough issues. The unprotected deserve protection from this clear and present danger.
Amos N. Guiora is Professor of Law at the SJ Quinney College of Law, University of Utah, and author of Freedom from Religion: Rights and National Security (second edition forthcoming).