Guest post by Chad Nagle
The Agriculture Act of 2014 authorizes the United States government to purchase both halal and kosher certified foods for the federal government’s Emergency Food Assistance Program (EFAP). This program provides food at no cost to Americans that are in need of short-term hunger relief through food-banks, soup-kitchens, and homeless shelters. By authorizing the purchase and funding of kosher and halal food options, the 2014 law enables needy Muslims and Jews to take advantage of the program’s benefits without violating their respective religious dietary practices.
But is this legal? While no constitutional challenges to this kind of funding have yet appeared in American courts, it seems appropriate to examine the policy’s implications for American secularism.
As both a legal and philosophical commitment, American secularism is rooted in the 1st Amendment to the United States Constitution, which reads in part, “Congress shall make no law respecting an Establishment of religion, or prohibiting the Free Exercise thereof.” Traditionally, the amendment has been understood to enshrine two distinct but related principles: First, that the government may not prevent Americans from practicing their religion (the Free Exercise Clause); and second, that the government may not establish an official state religion, or privilege some religions over others (the Establishment Clause).
The issue of halal and kosher food provided at taxpayer expense does not violate the Free Exercise Clause, since it does not appear to impede anyone’s right to practice his or her religion freely. The fact that Muslims and Jews can receive free, religiously-compliant food from the government does not prevent Christian Americans from practicing their own faiths, for example.
The policy does, however, touch on the Establishment Clause, since it accommodates two established religions through extra public expense, thus entangling the government in picking and choosing which religions deserve financial aid, and in what manner. The government is not only facilitating religious practice; it is privileging particular religions (Islam and Judaism) vis-à-vis others. EFAP provides special food for Jews and Muslims, but this same food would not meet the religious needs of Hindus, who avoid all beef, and who can only eat meet killed in a process called jhatka, with which halal or kosher slaughter does not comply. Are Hindu schoolchildren—to give one example—being accommodated equally to Muslims and Jews in America? If Muslims and Jews receive extra protection for their faith in the form of free kosher or halal lunches, then perhaps Hindus who do not receive religiously-compliant food are being relegated to ‘second class.’ As one article argues, “If a school district goes out of its way to provide food satisfying the religious requirements of only some students, but not others, it risks illegally giving them unequal advantages and elevating their religion over others.”
A secular state ought to pursue two key objectives: (1) equal treatment of all religions; and (2) equal treatment of religion and ‘irreligion’ (the ‘absence of religion’). American secularism has been relatively successful in fulfilling these objectives, primarily by legally excluding religion from the public sector in order to preserve the public sphere as a neutral, secular, irreligious space. ‘Irreligion‘ does not entail a commitment to ‘atheism‘ or hostility to all public manifestations of faith, however. Unlike France and Turkey, two other self-proclaimed secular states that have aggressively banned expressions of religious commitment in public places, American secularism aims for religious neutrality.
Most importantly, secular states should treat citizens fairly without regard to religion even when the personal faith commitments of those responsible for administering justice differ from those of the people being governed. America’s brand of “passive secularism” does not seek to banish a Christian judge’s Christianity from the courts, but instead expects that judge to fairly adjudicate the rights of American Jews, Muslims, Hindus, and atheists without referring to the specific tenets of his or her own faith. Atheists may complain of any reference to God in the American public sphere in America, but they have never demonstrated concretely the nature or extent of the injury they allegedly suffer from such features of the American state system. In short, under the law and philosophy of American secularism, ‘God’ has never been banished from ‘the state,’ even if ‘church’ has been ‘separated’ from ‘the state.’
American secularism of this sort may be described as ‘accomodationist,’ which Professors Nicholas Aroney and Rex Ahdar have argued is a more advanced form of secularism than ‘assimilationist.’ Assimilationist secularism, like that of France seeks to level religion as a differentiating factor in public life. The accomodationist stance, by contrast, embraces religious pluralism rather than secular monism, and seeks to make reasonable accommodations for religious difference within the framework of an equally applicable law.
But it is precisely America’s accomodationism, coupled with its unique commitment to a legal secularism enshrined in its written Constitution that makes legal issues of things like government-provided halal and kosher food. In other accomodationist countries like Britain, such actions are unlikely to raise legal concerns. Indeed, Britain has gone even further by introducing alternative dispute resolution forums apart from the regular courts that Muslims and Jews can freely use to resolve family and property matters in accordance with their religious beliefs. America’s peculiar variant of accomodationist secularism makes an issue of things like government funded halal and kosher school lunches because it subjects government involvement with religion to complex, public legal and constitutional analysis and debate. Not so Britain, where religious government activity is part and parcel of the national tradition, and secularism demands only neutrality.
It is arguable whether the U.S. or British variety of accommodationism and public scrutiny better preserves human rights and religious freedoms. The most pressing debate with regard to Islam and secularism is precisely whether such public debate is the best solution both for improving Islamic jurisprudence and achieving interreligious social harmony in Muslim-majority states.
I argue that it is.