3

RELIGION AND WOMEN'S

HUMAN RIGHTS

The mullahs say: "When theywill die we shall not burythem."

Villagers say, "Wherever theywant, theygo. They do not
cover their heads. Theytalk with men. Theywill be sinners."
I said: "If Allah does not see us when we stayhungry then
Allah has sinned."
—A Bangladeshi wife, participant in a literacyand skills
program sponsored bythe Bangladesh Rural Advancement
Committee (cited in M. A. Chen, A Quiet Revolution)

The Liberal Dilemma

Political liberals characteristicallydefend two theses that appear to be closely
related. First, liberals hold that religious liberty, or more generallythe liberty
of conscience, is among the most important of the human freedoms and must
be given a verystrong degree of priorityin the basic structure of a political re-
gime. This is frequentlyunderstood to entail that the freedom of religious exer-
cise can permissibly be infringed upon onlywhen there is an imminent threat
to public order.1 Second, liberals hold that human beings have various other
rights, including rights to freedom of movement, freedom of assembly, freedom
of speech, equal political participation, equal treatment under the law, both civil
and criminal, and, finally, various rights to the integrityand inviolabilityof the
person.
In a sense, there seems to be a strong complementaritybetween the first the-
sis and the second. For we know well that the rights on the list given in the sec-
ond thesis have all too often been denied to individuals on grounds of religious
membership; one clear sign of a regime's failure to honor the first thesis is its
discriminatorybehavior toward religious groups with respect to a wider spec-
trum of human rights. Thus, the German Nazi regime, unlike that of medieval
Spain, was not preoccupied with the specific task of impeding the Jews' freedom

81
82 JUSTICE

to worship. They pursued their campaign through the denial of other human
rights, such as the equal right to contract a marriage; the right to mobility, as-
sembly, and choice of occupation; and, of course, ultimately, the right to life.
True religious liberty required that these other basic freedoms not be impaired
on a discriminatory basis.
On the other hand, the two theses can also generate a tension, which poses
difficult questions for contemporary law and political thought. For the world's
major religions, in their actual human form, have not always been outstanding
respecters of basic human rights or of the equal dignity and inviolability of per-
sons. Some, indeed, have gone as far as to create systems of law that deny the
equal rights of persons and justify violations of their dignity and their person.
Apart from law, influential religious discourse in many parts of the world threat-
ens the bodily integrity and equal dignity of persons—and sometimes, even, their
equal liberty of worship. Consider the following six examples.
(1) In a village in rural Bangladesh in the early 1980s, impoverished women
leave their homes to meet in a group organized by the Bangladesh Rural Ad-
vancement Committee. They are learning to read, to keep accounts, and to pur-
sue various forms of work outside the home—all important ingredients in im-
proving nutrition and health for themselves and their children. The local mullahs
(Islamic religious leaders) make speeches saying that women who work outside
the house and talk with men other than their husbands are whores. They threaten
them with religious and communal ostracism (refusal to officiate at any of the
woman's social or religious functions), and even with physical violence. ("If you
go into the field, your legs will be broken."2) Although most of the women con-
tinue with the literacy project, they fear for their status in the community, their
well-being (which, so far, is entirely dependent on their relation to men), and
their physical safety.3
(2) In Pakistan, again in the early 1980s, a young blind girl named Safia Bibi
complained of rape. Because she was a minor, her father filed a complaint. Under
the recently promulgated Hudood Ordinance, rape convictions require four male
witnesses, and complainants who fail to produce the necessary testimony may
then be prosecuted for fornication (zina). The Sessions Court found Safia in
violation of the zina ordinance, sentencing her to three years hard labor in prison,
despite her blindness. After a storm of national and international protest, the
Federal Shariat Court set the case aside on technical grounds but refused to pros-
ecute the accused rapist.4
(3) In Madhya Pradesh, India, in 1975, a Muslim woman named Shah Bano
was thrown out of her home by her husband, a well-to-do lawyer, after forty-
three years of marriage and five children.5 As required by Islamic personal law,
he returned Rs. 3000 (about $300), which had been her marriage settlement from
her family in 1932. Rather than accept this settlement, inadequate for survival,
she sued for maintenance under Section 125 of the Criminal Procedure Code,
which requires a person of adequate means to protect relations from destitution
and vagrancy.6 (India has a uniform criminal code, although it does not have a
uniform civil code; civil matters are handled by many distinct religious systems
of law.) As a result, she was awarded Rs. 180 ($18) per month, hardly "a princely
 RELIGION AND WOMEN'S HUMAN RIGHTS 83

sum," but an improvement. Her husband, however, appealed this judgment to

the Supreme Court of India, holding that as a Muslim he was bound only by
Islamic law. In 1985, the Supreme Court held that the provisions of the Crimi-
nal Procedure Code regarding maintenance of destitute relations were applicable
to members of all religions and that a person should not lose simply by being a
Muslim. In his opinion Chief Justice Chandrachud alluded to a provision of the
Constitution that had instructed the state to "endeavour to secure" a uniform
civil code; he deplored its failure to have done so. The Muslim Personal Law Board
and other religious leaders vehemently criticized the ruling, using public rheto-
ric to persuade followers that their religion was in grave danger unless the gov-
ernment should decide to exempt Muslim women from the provisions of Sec-
tion 1257 Responding to this campaign, the government of Rajiv Gandhi passed
the Muslim Women (Protection of Rights on Divorce) Bill of 1986, which de-
prived divorced Muslim women of their right of maintenance under the crimi-
nal code8—at the same time recommending that by the year 2000 the nation
adopt a uniform civil code.9 Hindu political activists subsequently complained
that the new law discriminated against Hindus by giving Muslims "special
privileges."10
(4) In 1955, the Indian Parliament passed the Hindu Marriage Act, which
for the first time gave women the right to divorce and remarriage, which men
had long enjoyed. (Indeed, previously men could marry an unlimited number
of times without getting divorced, although the reforms of 1955 and 1956 ruled
out polygamy for Hindu men.) Conservative Hindu members of Parliament
claimed that the bill had been passed to "wound the religious feeling of the Hin-
dus" and was "against the fundamental principles of Hinduism."11
(5) In contemporary Iran, the penalty for women who do not adhere to the
dress code is between thirty-four and seventy-four lashes with a whip. The ac-
tual penalties are more varied. Some women get off with a cash fine. "But, just
as commonly, women who do not adhere to the dress code are punished with
acts of extreme cruelty: their feet may be put in a gunny sack full of mice and
cockroaches, their faces splashed with acid or cut with razor blades."12 So terri-
fying are the penalties that in 1991, a thirteen-year-old girl who was found in
violation committed suicide by throwing herself out a fifth-floor window. On
August 15, 1991, the Prosecutor-General, Abolfazl Musavi-Tabrizi, addressing
the controversy occasioned by this death, declared that "anyone who rejects the
principle of the Hijab [dress code] is an apostate and the punishment for apos-
tasy under Islamic Law is death."13
(6) In 1993, two groups of women attempted to hold prayer services at the
Western Wall (the "Wailing Wall") in Jerusalem. Although they did not chal-
lenge the traditional separation of male and female prayer spaces—and thus
were not in violation of any explicit provision of religious law—they did wear
prayer shawls and read from the Torah scroll, which is not conventionally
appropriate within Orthodox Judaism. The official in charge, representing the
Ministry of Religious Affairs, forbade them to continue, holding that it would
undermine custom and violate the religious feelings of orthodox worshippers.
They were even labeled "provocateurs" for their organized singing. The Supreme
84 JUSTICE

Court of Israel dismissed the women's petition for freedom of religious exer-
cise, recommending that the government establish a commission to look into
the issue.14

In all these cases we see an apparent dilemma for the modern liberal regime. For
if the people who claim to speak for the religious traditions in these examples
are to be accepted as their representatives and their claims as legitimate claims
of religious liberty (and we shall see that this is not an uncomplicated matter),
then there really is a tension between respect for religious liberty and respect
for the basic human rights of many citizens. This tension finds its sharpest form
wherever the religious traditions have arrogated to themselves, and have been
permitted, the right to make law, but it arises, as well, in more informal ways,
when the highly influential discourse of religious leaders poses problems for the
equal worth of basic liberties—usually already guaranteed in the constitutions
(or the legal traditions) of the nations in question, as well as in their commit-
ment to the Universal Declaration of Human Rights and, in most cases, the
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), a multilateral treaty ratified by 131 countries.15 If the government
defers to the wishes of the religious group, a vulnerable group of individuals
will lose basic rights; if the government commits itself to respecting equal
human rights of all individuals, it will stand accused of indifference to the lib-
erty of conscience. Often government actors, like Rajiv Gandhi, make a mere
pretense of serious engagement with the problem—satisfying the religious
group, seeing that it is far more politically powerful than women, but saying, at
the same time, that something must surely be done about this by someone in
the future.
Nor is this dilemma troubling only for the liberal state: It also vexes the re-
ligions themselves. An especially poignant statement of its force can be found
in the Pope's October 1995 address to the United Nations General Assembly.
On the one hand, this address contained a very strong injunction to respect the
world's major religions and a ringing defense of "the fundamental right to free-
dom of religion and freedom of conscience, as the cornerstones of the structure
of human rights and the foundation of every truly free society."16 These senti-
ments are exactly those of John Rawls, who writes that "the question of equal
liberty of conscience is settled. It is one of the fixed points of our considered
judgments of justice."17 At the same time, however, the Pope vigorously en-
dorsed the United Nations Universal Declaration of Human Rights as "one of
the highest expressions of the human conscience of our time," and he spoke of
a worldwide movement toward universal respect for the dignity and inviolabil-
ity of the human person. His more recent "Letter to Women," issued just be-
fore the Beijing Women's Conference, makes it clear that he considers many of
the rights at issue in my examples to be central human rights: He mentions free-
dom from sexual violence (including, it would appear, marital rape), equality in
family rights, equality in political duties and responsibilities, equality under the
law, and equality in the workplace.18 Although his list does not contain all the
rights that all advocates of women's rights have sought, it includes enough of
 RELIGION AND WOMEN'S HUMAN RIGHTS 85

them to generate the dilemma, simply by its juxtaposition with the urgent in-
junction to respect the answers given by each religious tradition.
The dilemma studied here does arise in the United States as well; as I follow
the international issues I shall allude to aspects of those debates. But, given that
the United States has a Bill of Rights that is effective, not merely aspirational
(as are relevant constitutional provisions in many other nations19), and given
that by now the major religions in the United States have long accepted some
fundamental shared ideas about the equal dignity and liberty of persons, such a
focus cannot address the most problematic aspects of the relationship between
political liberalism and religion. We simply do not hear any influential religious
voice in the United States proposing, at this time, that women's legal testimony
be judged unequal to that of men, that women be severely punished for dress-
ing in a particular way, that their legs be broken for working outside the house,
or that they be denied a right to divorce equal to that granted a man. None of
these cases is totally discontinuous with our own past and even present; the
practical difficulty of complaining of rape, for example, and the punishment
meted out to women who do so complain, are real and recent, in some cases
current (see chapter 5). Further back in our history all the mentioned inequali-
ties in family law could be attested, often buttressed by appeals to religion.20
Certainly Christianity and Judaism are far from blameless in the global history
of women's unequal treatment, as my Israeli case attests, although in Europe
and North America they have adopted a more liberal form recently, as a result
of both internal criticism and legal constraint. My international examples mani-
fest, I believe, what parts of most religious traditions (as well as many nonreli-
gious traditions) will try to do when they are not so shaped by liberal traditions.
I believe, therefore, that a focus on current international issues is valuable to
give us a vivid sense of the reality of our topic. Without this focus, we might
fail to acknowledge that religions (like many nonreligious political actors) can
propose atrocities; we might therefore fail to ask what liberals who care about
religion should say when they do.
It is useful to focus on this topic for another reason as well: because these
violations do not always receive the intense public concern and condemnation
that other systematic atrocities against groups often receive—and there is rea-
son to think that liberal respect for religious difference is involved in this ne-
glect.21 The worldwide mobilization against South African Apartheid was not
accompanied by any similar mobilization to divest stock holdings in nations that
treat women as unequal under the law. Indeed, these inequalities are often cheer-
fully put up with, as part of legitimate differences—as when our troops were
asked to fall in with Saudi customs regarding women's dress while serving in
the Gulf. One reason for the reluctance of Western liberals to face such harms
and to take appropriate political action is surely the political hopelessness of it
all—for how could we hope to convince our nation to take economic action against
so many oil-rich nations? There may be several other reasons.22 Among them,
however, is surely the role of religion in the debate: Liberals who do not hesi-
tate to criticize a secular government that perpetrates atrocity are anxious and
reticent when it comes to vindicating claims of justice against major religious
86 JUSTICE

leaders and groups. They are hesitant, I suggest, because they hold that the lib-
erty of conscience is among the fixed points in our considered judgments of
justice, and they are at a loss to see how they could in good conscience ask reli-
gious people to acquiesce in a judgment about sex equality that is foreign to that
religious tradition. This suggests that sorting out the liberal dilemma may con-
tribute to greater political clarity in an area where we urgently need it.
I shall focus on cases in which religions threaten basic human rights. This is
because it is these cases that generate the dilemma with which I am concerned,
not because I believe that this is the primary relation religions have had to human
rights. It is obvious that religious discourse has been among the major sources
of support for human rights around the world, and I have focused on the Pope's
statement partly to keep this fact before our minds.
We must also keep reminding ourselves that cultures are complex. It is gen-
erally very difficult to determine to what extent the religions in a nation reflect
influences from other aspects of the culture and to what extent they influence
the culture. In nations such as Iran, we can contrast the situation prior to the
control of religious fundamentalists with the current situation; usually such
assessments are more elusive, and we must exercise caution in drawing conclu-
sions. The problem is compounded, in a nation such as India, by sharp regional
variations that reflect many different cultural and political factors; differences
across religions are less sharp than such regional differences, though religion
appears to have some independent explanatory weight.23
Our assessments are made still more complex by the fact that when religions
act politically their religious discourse is often powerfully colored by issues of
political power. Thus, the Hinduism represented today in India by the Bharatiya
Janata Party (BJP, the leading Hindu nationalist party) is not very much like
the inclusive, loosely defined, polytheistic Hinduism of earlier tradition; politi-
cal and cultural forces are likely to have shaped the BJP's selection of religious
principles and emphases.24 Very different political aims shaped Mahatma Gandhi's
characterization of the essence of Hinduism, when he said, "If I were asked to
define the Hindu creed, I should simply say: Search after truth through non-
violent means."25 Where women are concerned, the same has been true over the
years. The Hindu tradition, as we noted in chapter 1, offers many different and
contradictory pictures of women's sexual agency. An investigation of cultural
context would be likely, here too, to reveal political influences at work shaping
and reshaping the religious tradition; more important for our purposes, the con-
temporary choice to stress one aspect of the tradition rather than another itself
often expresses political aims.26
Similarly, the Islamic fundamentalism characteristic of the Iranian regime
has little in common with the tolerant and pluralistic form of Islam espoused by
Iranian writer Alberuni, who traveled to India in the eleventh century, or with
that implemented politically by the tolerant Moghul emperor Akbar in the six-
teenth century.27 Islam contains fundamentalists who are intolerant of other
religions, but it also contains some of the earliest expressions of toleration and
the transcendence of sectarian boundaries—in, for example, the great medieval
religious poet Kabir, who wrote, "Kabir is the child of Allah and of Ram: He is
 RELIGION AND WOMEN'S HUMAN RIGHTS 87

my Guru, he is my Pir."28 In India today, Muslims include liberals and conser-

vatives, feminists and traditionalists. Similarly, the contemporary Iranian re-
gime interprets Islam in ways that do not reflect the entirety of that tradition,
in connection with its political goals. Many devout Muslims today support more
liberal views and policies. In nations such as Indonesia and Tunisia, liberaliza-
tion has had large political effects. Most of us are aware that Judaism and Chris-
tianity contain such complexities; we should not refuse this recognition to reli-
gions we know less well.29
Thus the criticisms we may make of "religious practices" and "religious dis-
course" will be criticisms of human beings, often vying for political power; they
do not presuppose that any of these religions has an unchanging and unchange-
able core of misogyny, or even that the misogynistic elements are religiously
central rather than political in origin. Nonetheless, because we are interested in
the rights of individuals, we must approach the religions where they, or their
representatives, threaten these rights.
In what follows, I do not ignore, though I shall not directly address, the dif-
ficulties involved in defining the notion of a "human right" or specifying the
conditions under which a person can be said to have a right to a certain type of
treatment. Clearly, given that I shall be urging legal change to do justice to
women's human rights, I do not accept a positivist analysis, according to which
a person has a right if and only if the law in her country has recognized such a
right. I understand a human right to be a claim of an especially urgent and power-
ful sort, one that can be justified by an ethical argument that can command a
broad cross-cultural consensus, and one that does not cease to be morally sa-
lient when circumstances render its recognition inefficient. A human right, unlike
many other rights people may have, derives not from a person's particular situa-
tion of privilege or power or skill but, instead, just from the fact of being human.
In my understanding, articulated in chapter 1, there is a very close relationship
between a list of basic human rights and a list of basic human capabilities to
function that is also very close to the Rawlsian list of "primary goods," that is,
things that all persons may be presumed to need in order to carry out their plans
of life, whatever the plan is. Human rights are, in effect, justified claims to such
basic capabilities or opportunities.30

Women's Human Rights: The Problem Areas

CEDAW defines "discrimination against women" as follows:

Any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital status, on a basis of equal-
ity of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field.

By ratifying CEDAW—as most of the nations under discussion have—states

pledge (1) to embody "the principle of the equality of men and women" in their
national Constitutions or other appropriate legislation; (2) to legislate against
88 JUSTICE

discrimination against women, providing appropriate sanctions; (3) to "estab-

lish legal protection of the rights of women on an equal basis with men" and to
ensure this protection through "competent national tribunals and other public
institutions"; (4) to ensure that public authorities do not discriminate against
women; (5) to take "all appropriate measures" to eliminate existing discrimina-
tion "by any person, organization or enterprise"; (6) to change or abolish any
existing discriminatory "laws, regulations, customs and practices"; and (7) to
repeal all provisions of the penal law that are discriminatory.31 Article 5 of
CEDAW elaborates these duties by explaining that state parties agree to con-
front and modify "customary and all other practices" that are based on the idea
of the inferiority or superiority of one sex to the other, or on ideas of stereo-
typed roles for men and women. Let us keep these norms in mind as we briefly
survey eleven problem areas for women's human rights (closely connected to
chapter 1's account of the basic capabilities) in which religious discourse, and
often action, has been a major influence.

1. Life and Health

Women's lives are unequally at risk in many parts of today's world. Statistics
continue to show that women suffer unequally from hunger and malnutrition
and from unequal access to basic health care.32 Although it is difficult to pin down
the origins of practices of unequal feeding and care, cultural systems that por-
tray female life as unequal in worth to male life must bear some of the respon-
sibility for this egregious situation. Religious discourse has played a substantial
role here: Although it is difficult to distinguish between a religion and the cul-
tural traditions that surround it, the Hindu, Islamic, and Confucian traditions
have all, with some plausibility, been accused of denigrating the value of female
life in ways that have undermined women's claim to basic goods of subsistence.33
Of equal or greater importance, religious discourse has played a major and
undisguised role in confining women to the home in many parts of the world,
and in denying them opportunities to earn wages outside. Islamic ideas of a
woman's proper role returned thousands of women to the home in Iran and, more
recently, in Afghanistan; they keep women in the home in Bangladesh, India,
and many other nations. Hindu caste traditions, similarly, are often invoked to
resist a woman's attempt to seek outside employment. It is especially common
that middle-rank "upwardly mobile" caste families will invoke norms of the
Brahmin ideal of woman to forbid their women employment, thus defining the
family as "Brahminizing."34 Confucian values, as we saw in chapter 1, are also
publicly invoked to return women to the home from the public sector. But the
fact is that wage labor outside the home is highly correlated with a woman's
ability to command food and other goods within it. Sometimes the connection
is direct: In Rajasthan, Metha Bai, a young Hindu widow, was starving because
her Brahminizing in-laws refused to let her earn money to feed herself and her
children, threatening to beat her if she went out.35 Sometimes it is more indi-
rect, through a perception of a woman's importance to the future of the family.
Because housework is usually not perceived as making a great contribution to
 RELIGION AND WOMEN'S HUMAN RIGHTS 89

the family's well-being, whereas cash wages are, women who work outside do
better at commanding food in times of shortage, and the general perception of a
daughter's worth is similarly affected by her future employment opportunities.36
Religious discourse is thus heavily implicated in many female deaths.
At times, religion directly urges female death. The Indian practice of sail, or
the immolation of a widow following her husband's death, is certainly religious
in origin. The practice has dwindled but has not disappeared completely. On
September 4, 1987, in Deorala, Rajasthan, an eighteen-year-old university stu-
dent named Roop Kanwar was burned alive on her husband's funeral pyre.37 (Her
husband, when he died, was an unemployed university undergraduate.) Some
say that she died willingly; others that she was coerced by family pressure.38
Pilgrims flocked to Deorala, revering Roop as a goddess and believing that of-
ferings at her shrine would cure cancer. A huge public controversy erupted. Three
months later the Indian Parliament passed a tough new law extending the do-
main of criminal culpability with respect to sari, even though an old law already
made the practice illegal. The new law prohibits the "glorification" of sari, de-
fining "glorification" to include the justification or support of the practice of
sari', the eulogizing of a person who has committed sari, holding any ceremony
or procession in connection with sari, or collecting funds to construct a temple
or place of worship in connection with sari.39 Rajiv Gandhi, decisive in this case,
pronounced the practice "utterly reprehensible and barbaric." Traditionalist
Hindus, however, attacked the government. "A leading Hindi journal pointed
an accusing finger at secular, western-educated intellectuals, arguing that only
godless people who did not believe in reincarnation would denigrate Roop's brave
act."40
It is an understatement to say that most Indian widows do not commit sari.
More common are crimes involving dowry: killings of women to get hold of their
dowry or beating and threats to murder to extract further payments from the
woman's family. Laws directed specifically against these abuses, in India and
Bangladesh, testify to the problem they pose. Indeed, India made the entire prac-
tice of dowry illegal, starting in 1961, to cope with the abuses, which, nonethe-
less, persist.41 One 1986 Bangladeshi case illustrates the common sordid pattern.
Ferdousi Begum brought a modest dowry into her marriage with Jahangir Alam,
including a 14" black and white TV set, some personal items of jewelry for the
marriage, a wrist watch, a table fan, a sofa set, and "various items of wooden
furniture." Her husband's family knew, however, that her father and brothers
had a good income and could perhaps pay more. They therefore began a cam-
paign of psychological and physical intimidation, with a view to augment this
dowry. As the judge remarks, "Accused Md. Jahangir Alam was found after
marriage to be a ruthless, cruel and greedy person. . . . All the accused persons
in collusion with each other started torturing complainant Ferdousi Begum both
mentally and physically immediately after the marriage with a view to squeeze
money (as dowry) from the guardians of complainant Ferdousi Begum. . . ." One
morning in 1985, her husband asked his wife Ferdousi Begum to "bring 20"
Coloured T.V. set, Radio, Wrist Watch, and cash money amounting to Taka
25,000 from her brothers (as dowry for the marriage)." When she said her broth-
9O JUSTICE

ers could not meet this demand, he became furious and the whole group of rela-
tives began to beat her "with rod, lathi, etc." Her husband then attempted to
murder her by throttling her; he kicked her, pressed her down on the floor, and
dragged her out of the house by her hair. At this point the accused relatives
snatched the gold jewelry off Ferdousi Begum's body and beat her further,
until she lost consciousness. After she was taken to her father's house, medical
examination revealed that she had received severe injuries to the legs, "trau-
matic collapse" of the spinal column, and a permanent hearing loss in one ear.
The husband and relatives were tried under the 1983 Cruelty to Women Act,
which forbids murder, attempted murder, or grave bodily harm in connection
with dowry payments. A local ward chairman dismissed the complaint observ-
ing arbitrarily that the complainant Ferdousi Begum had "lodged the complaint
falsely to suppress the fact of her own guilt; but the Ward Chairman has not
stated what was her guilt." Judge F. H. M. Habibur Rahman of the Chittagong
Bench reinstated her complaint.42
This sad case shows how difficult it is for women to protect themselves from
violence, even when a special law targets these offenses. Notice that a woman's
life counts less, in the thought of Jahangir Alam and his relatives, than the differ-
ence between a 14" black-and-white TV set and a 20" color TV set. Religion is not
directly involved in such dowry deaths, but it is an important part of a cultural
system that supports these traditions, making women highly vulnerable.
But even these much publicized dowry crimes are few and largely middle class.
Dramatic cases involving upper-class or middle-class women tend to attract more
press coverage and more public protest than the "endemic but quiet depriva-
tions"43 that are the lot of a large proportion of widows, especially in rural areas.
A large majority have very insecure and limited property rights; because they
remain in their husband's place of residence, they can expect little care or sup-
port either from their birth family or their in-laws, who frequently mistreat
them; they may have no freedom to work, even if this causes malnutrition or
starvation.44 As Metha Bai said to Martha Chen, "I may die, but still I cannot go
out. If there is something in the house we eat; otherwise we go to sleep."45 Many
factors are implicated in this situation, including a traditional gendered division
of labor and customs of patrilocal residence and patrilineal inheritance. Religious
discourse about widowhood (according to which the widow is virtually dead at
the husband's death) is, then, not the only cause of these ills; it is, however,
among the causes.

2. The Right to Bodily Integrity

Women suffer many abuses that violate their bodily integrity. These include rape,
marital rape, other sexual abuse, domestic violence, and genital mutilation.
Rape is an underreported and underpunished crime the world over; it is more
likely to be unreported when religions have constructed norms that make rape
a sign of impurity. Stranger rape sometimes has a religious rationale, as in the
large number of rapes and abductions that accompanied the Hindu-Muslim
Partition Riots in India/Pakistan in 1947. Rape was seen as a type of forced con-
 RELIGION AND WOMEN'S HUMAN RIGHTS 91

version and was condemned as such in the position statement of the All India
Congress Committee that met to consider the problem.46 The total number of
women raped on both sides may have been as high as 100,000.47 More commonly,
religion, although not directly urging stranger rape, promulgates norms of fe-
male purity and submissiveness that are used to justify the rape of women who
defy such conventions. Religious discourse is heavily implicated in creating the
picture of women as either chaste or "fallen" that makes prosecution very diffi-
cult. The Iranian Prosecutor-General believes that any woman who violates the
dress code deserves death; he is not likely, then, to deter the common practice of
police rape of women under detention for such violations. There is widespread
evidence of police abuse of women in Pakistan48; in India the law of rape has
been rewritten for police custody cases, to shift the burden of proof onto the
defendant (to deter examinations of women without female witnesses), and
special women's courts have been established to hear charges of rape.49 More
generally, the requirements on rape evidence under Islamic laws that prevail
in many nations (four male witnesses) make an accusation extremely difficult
(as the Safia Bibi case shows) and highly contingent upon the good will of fam-
ily members.50 In Pakistan, with its Catch-22 according to which an unsuc-
cessful accusation of rape constitutes a confession to fornication, an offense
punishable by whipping, few women will complain of rape, and few men will
be deterred from raping.
Domestic violence is one of the gravest problems faced by women the world
over. Religions sometimes call directly for corporal punishment of a disobedi-
ent spouse: Islamic law explicitly countenances this remedy, allowing the wife
to petition for divorce only if the beating is especially prolonged or severe.51 Even
more often, religious discourse promulgates norms of male authority—and also
pictures of female wantonness and childishness52—that support these practices.
(This is as true of Western as of non-Western religions.) Nations that allow the
religions to take charge of family law often move very slowly to counter this
problem. In India, women have long sought a civil law against domestic violence;
a major obstacle is the fact that, in the absence of a uniform civil code, such laws
would have to be separately made for Hindus, Muslims, and Parsis.53 In both
Hindu and Islamic communities, unequal access to divorce and the remedy of
"restitution of conjugal rights" frequently confines women to a scene of domestic
violence and sexual imposition.
The very concept of marital rape is foreign to many religious traditions, which
give a husband limitless sexual access to the wife. The concept is a recent one in
European and North American culture and religion and still is not recognized
in many jurisdictions (see chapter 5). Indeed, the concept of "restitution of con-
jugal rights" that is frequently invoked in Indian and Bangladeshi family courts
is of British origin and was retained in the Hindu Marriage Act and the Special
Marriage Act of 1954. Nonetheless, at this point, religious law and discourse,
including the Hindu and Islamic, are heavily implicated in maintaining marital
rape as an option for men.
There has been opposition. The "Introduction" discussed T. Sareetha v.
T. Venkata Subbaiah (1983),54 in which Judge Choudary of the Andhra Pradesh
92 JUSTICE

High Court, in an eloquent opinion, held that the remedy of "restitution of

conjugal rights violates the right to privacy and human dignity guaranteed by
and contained in Article 21 of our Constitution," depriving a woman of both
sexual choice and control over her reproductive functioning. 55 Although reli-
gious issues were not directly pertinent to his constitutional argument, which
rested on issues of both privacy and equal protection, Judge Choudary did
address the religion question, arguing that the "restitution" remedy was not
entailed by "our ancient Hindu system of matrimonial law." In that tradition,
the wife has a duty to "surrender to her husband," but it is "an imperfect
obligation incapable of being enforced against her will."56 He traces the forc-
ible remedy to medieval English ecclesiastical law, noting that the British abol-
ished it only in 1970.
Thus, if we agree with Judge Choudary, there is no absolutely binding reli-
gious claim at issue here, although the law supports religion, enforcing what
religion considers to be a duty. But the very fact of separate religious courts,
and of their perceived importance in constituting a religious identity, leads to a
demand for enforcement, even against the woman's admitted constitutional
rights. And there is no doubt that the worth of the constitutional rights in ques-
tion in Sareetha's case is severely limited by the insistence of religious courts
on maintaining their separate domains of authority. Indeed, because of those
claims, Sareetha ultimately lost: The Supreme Court reversed, praising the rem-
edy of restitution as one that "serves a social purpose as an aid to the preven-
tion of break-up of marriage."57 The Court (perhaps influenced by Sareetha's
evident autonomy) did not take cognizance of the likely financial position of most
women in her position, many of whom would be forced to return to marriages
from which they had fled, often for reasons of violence; nor did the Supreme
Court effectively respond to the constitutional questions. In other related deci-
sions, the Court has opined that a Hindu woman's duty is to live with her hus-
band in the matrimonial home.
Similar cases can be found on the Islamic side. In Bangladesh, a woman who
had suffered from domestic violence left the conjugal home and filed for divorce;
her husband brought suit for restitution of conjugal rights.58 A lower court held
that the woman had "no right to divorce at her own sweet will and without any
reasonable excuse." In this case, however, the High Court vindicated her rights,
commenting on the inconsistency between the restitution remedy and the equal-
ity provisions in Bangladesh's constitution:

The very concept of the husband's unilateral plea for forcible restitution of
conjugal rights had become outmoded and . . . does not fit with the State and
Public Principle and Policy of equality of all men and women being citizens
equal before the law and entitled to be treated only in accordance with the
law as guaranteed in Articles 27 and 31 of the Constitution. . . . A reference
to Article 28(2) of the Constitution of Bangladesh guaranteeing equal rights
of women and men in all spheres of the State and public life would clearly
indicate that any unilateral plea of the husband for forcible restitution of con-
jugal rights as against a wife unwilling to live with her husband is violative
of the accepted State and Public Principle and Policy.
 RELIGION AND WOMEN'S HUMAN RIGHTS 93

In these two contested cases we see our liberal dilemma. Both India and
Bangladesh have sought to combine a secular liberal constitution, including
guarantees of sex equality, with religious courts of family law. In both cases it
remains ambiguous to what extent the equality provisions of the constitution
apply to the protected family sphere. In such a situation, women's constitutional
rights are bound to be fragile and contestable; sometimes things work out one
way, sometimes the other.
Female genital mutilation is frequently defended with discourse that appeals
to its basis in Islam. It would appear that these appeals are at the very least ten-
dentious, given that there is no authentic religious argument supporting the
compulsory practice (see chapter 4). Nonetheless, religious discourse of a kind
has been powerful in defending the practice and branding the attack on it as
Westernizing.
The right to bodily integrity is also compromised by degrading punishments.
A number of international human rights instruments speak of a right against
"cruel, inhuman, or degrading treatment or punishment."59 A number of pun-
ishments mandated in the Koran and Shari'a have been regarded as problematic
under this description, including the mandated one hundred lashes for zina or
fornication. These punishments are in essence religious, justified at their core
by their religious textual rationale.60 Even Muslims who privately view them
as cruel and inhuman cannot risk the consequences of openly questioning the
will of God; indeed, to dispute the binding authority of the Koran is to be liable
for the death penalty for apostasy.61 On the other hand, liberal Islamic thinkers
agree that a great deal can be done, even within religious orthodoxy, to restrict
the implementation of these punishments in practice, by stressing elements of
the texts that insist they should not be inflicted if there is any doubt; a broad
concept of doubt may be developed that blocks implementation in a variety of
cases.62
There can be no doubt that the control of women's bodies has been a central
preoccupation of many, if not most, religions of the world. These controls have
usually been asymmetrical and, from the point of view of justice, discrimina-
tory. In a wide range of cases, they violate some of the most basic rights of a
human being, without which, as Judge Choudary says, human bodily life be-
comes degraded to a merely animal level of existence.

3. Employment Rights
Women should have the right to seek employment outside the home without
intimidation or discrimination. CEDAW states that the rights to seek employ-
ment, to nondiscrimination in hiring, to free choice of occupation, and to equal
pay for work of equal value are all fundamental rights that women enjoy equally
with men.63 Religious discourse, as I have already indicated, is prominently used
to oppose women's efforts to seek and retain employment outside the home. In
the Rajasthan inhabited by Metha Bai, in the Bangladeshi village described by
Martha Chen, in Islamic Iran, in the contemporary Chinese workplace—in all
these places, religious norms about women's proper place are working to deny
94 JUSTICE

women equality and in many cases totally to deny them access to employment.
At the time of Iran's Islamic revolution, the regime fired more than 40,000
women working as elementary and high school teachers, as well as many oth-
ers; women's employment fell in five years by 50% and reached a low point of
6.2%.64 The 1995 United Nations Human Development Report gives 19% as
the figure for women's economic activity, but this figure includes unpaid agri-
cultural labor and is therefore difficult to compare with the earlier figures. The
Ayatollah Mutahari, one of the architects of Islamist policy, wrote that "the
specific task of women in this society is to marry and bear children. They will
be discouraged from entering legislative, judicial, or whatever careers may re-
quire decision making, as women lack the intellectual ability and discerning
judgement required for these careers."65 More recently, the Taliban in Afghani-
stan has banned women from working outside their homes, exempting only a
small number of female doctors and nurses from the decree.66
These views of women are similar to those that were defended by appeal to
Christian norms in earlier American cases—for example, the famous Bradwell
case in 1873 in which a woman was denied the right to practice law, in an opin-
ion that mentioned "the divine ordinance" as a source for the view that women
were naturally unsuited for the professions.67 Employment rights are a central
source of genuine equality for women in a modern liberal regime. They are also
frequently essential for well-being and often for survival.

4. Mobility and Assembly Rights

It is obvious that women who are confined to the home and threatened with harm
or opprobrium by religious leaders should they walk outside are being deprived
of an essential right. It is difficult to conceive of the meaning and extent of this
deprivation. Cornelia Sorabji, the first woman to take a degree in law at Oxford
and the first woman admitted to the bar in India, dedicated her career to repre-
senting women who were not permitted to see a man other than their husband.
(As a Parsi, Sorabji was in an unusually advantaged position, because Parsis of
that era held more liberal views about women's mobility.) She reports that when
she brought a rose to one young wife and mentioned having plucked it from a
bush outside, the wife reacted with puzzlement. Having been married as a small
child, she had never been in contact with growing things of any kind; she be-
lieved that roses lie on the ground and are picked up like stones.68 The Bangla-
deshi women described by Martha Chen are not exactly in that position—one
reason for this being that they are too poor not to have to go outside for some
purposes. But their lives were utterly circumscribed by religious threats of
ostracism and physical violence if they walked around in the streets and talked
to males. The dress codes that obtain in Iran and, in an even more extreme form,
in Taliban-ruled Afghanistan impose great restrictions on women's mobility,
as do other related provisions of these regimes, such as the requirement that
Iranian women sit in the back of the bus and the recent restriction on female
bicycling in Teheran, now confined to a fence-enclosed trail.69 In 1990, the Saudi
 RELIGION AND WOMEN'S HUMAN RIGHTS 95

government justified a ban against women driving as flowing from Islamic

morality and principles.70
In all countries governed in whole or part by Islamic law, women are under
some form of male guardianship, and this, again, imposes various limits on
mobility. To take many trips, especially trips abroad, women must secure writ-
ten permission from a male. In Saudi Arabia, for example, women may not leave
the country without permission of a father or husband—and female visitors are
riot allowed in unless accompanied by a male family member.71 In the Sudan,
the Personal Law for Muslims Act directs the husband to grant permission
"within reason" for a woman to visit parents and relatives for short periods, but
she may never travel on her own. If she is under fifty, she must be accompanied
by a male relative to whom she could not legally be married; if she is over fifty,
another sort of "trustworthy companion" may, with the guardian's permission,
be selected. Exit visas require written permission of the guardian.72
As to assembly rights, it is of course true that in regimes that are not liberal
and democratic nobody has very secure freedom of assembly, especially when
political protest is involved, but assembly rights are also denied to women, fur-
ther, on a discriminatory basis. When Saudi women demonstrated against the ban
on driving, the government responded by prohibiting all future demonstrations
by women.73 In Egypt, the prominent Arab Women's Solidarity Association was
suppressed in 1992, with reference to religious norms: The organization had
"threatened the peace and political and social order of the state by spreading ideas
and beliefs offensive to the rule of Islamic shari'a and the religion of Islam."74
Particular reference was made to the group's criticisms of established laws regu-
lating marriage and divorce. In China, it is similarly impossible for any inde-
pendent women's organization to exist, but it is unclear to me whether religious
discourse has been used to justify the repression.
Even in the constitutional democratic regimes, such discrimination in assem-
bly rights is well-known. The women described by Chen drew the opposition of
the mullahs primarily on the ground that they were going to meet in an orga-
nized group to mobilize for common action. Even had the women complained
of a constitutional violation, it is unlikely that this complaint would have been
effectual given the way religious power dominates the local scene.

5. Rights of Political Participation and Speech

Again, these rights are severely curtailed for all citizens in many of the nations
under discussion. Are they unusually curtailed for women in ways that show
the influence of religious norms? The Egyptian case involves suppression of
speech as well as assembly. All countries that impede women from going out-
side the home create barriers to political speech and participation, as do those
that create barriers to women's literacy. Nations that effectively enforce consti-
tutional guarantees of free press and free political speech, for example, India, do
not often suppress women's speech or speech about women's issues in a discrimi-
natory way. On the other hand, the fear of offending religious authorities does
96 JUSTICE

at times pose acute threats to speech—consider various democratic governments'

willingness to ban The Satanic Verses, and the relative absence of official pro-
test against the fatwahs directed against authors Salman Rushdie and Taslima
Nasrin, both critics of Islamic traditions regarding women. The most pervasive
impediments to women's speech in the democratic nations are, however, the
indirect and unseen obstacles imposed by poverty, malnutrition, impediments
to mobility outside the home, illiteracy, and an exhausting round of duties. In
the nondemocratic nations, speech is not free for anyone, but it is especially
unfree for women who might be inclined to criticize the prevailing view of
women's role—recall the Saudi ban on demonstrations by women.
As to political participation: In Iran, women were for a time banned totally
from employment in government and are heavily discouraged from entering
politics. Only 3 % of parliamentary seats are held by women (as contrasted with
12% in Jamaica, 16% in Nicaragua, 18% in Trinidad and Tobago, 24% in South
Africa, 20% in Guyana, 33% in Denmark, 39% in Finland and Norway, 34%
in Sweden, 29% in the Netherlands, and 20% in Germany75), and there are no
female ministers. Although women notoriously play leading roles in govern-
ment in India, Pakistan, and Bangladesh, their situation is far from representa-
tive of the average women in their nations: In Pakistan 2% of parliamentary
seats are held by women, in India 7%, in Bangladesh 10%. It is very difficult to
gauge actual participation in elections, but we can infer that poverty, illiteracy,
and lack of mobility are grave impediments to women's equal participation.
Religious doctrines to the effect that women are unsuited for political functions
are invoked in many nations and play at least some part in bringing about this
situation.

6. The Right of Free Religious Exercise

Once again, there is no recognition of such a right in many of the nations under
discussion, a fortiori none for women. In India, however, such a right is given
prominent constitutional recognition,76 giving rise to many dilemmas, as we have
said. The entire Indian system of civil law may be held to violate the free exer-
cise of religion.77 Individuals must be classified at birth into one of the religious
systems, and it is very difficult to extricate oneself from the system to which
one is assigned, particularly because ancestral property can never be extricated.
Conversion to a religion of one's choice is therefore greatly impeded by the legal
structure. Religions that are not among the traditional religions of India, and
therefore lack a legal system, are under strong disabilities. The choice to be non-
religious is even more impeded, because, although secular marriage and divorce
exist, there is no secular law that can govern hereditary property; thus, indi-
viduals are forced to deal with religion, whether they wish to or not. All these
provisions would be unconstitutional under our own free exercise and non-
establishment jurisprudence.
Israel faces similar problems. As is well-known, the rights of conservative
and reform Jews are severely curtailed under law and may become even more
so. Moreover, there are no secular marriage and divorce at all, a more serious
 RELIGION AND WOMEN S HUMAN RIGHTS 97

assault on free exercise for secular people than we encounter in India. The very
idea of a Jewish state violates nonestablishment, and infringements of free exer-
cise are not far away. In my opening example, the women's free exercise of a
right to worship was indeed infringed, with appeal to majority religious norms;
it seems very likely that the behavior of the guard would have been declared
unconstitutional under U.S. law. The fact that Israel at that time had no written
constitution made the situation of basic rights, including religious rights, un-
clear. This indicates that whatever the tensions and confusions between the claims
of free exercise and the claims of nonestablishment in our own jurisprudence,
we have chosen a wise course in giving both of these values strong protection,
because they support one another. It is very difficult to maintain free exercise
for minorities when one has established a single religion and given it consider-
able political and legal power.

7. Rights of Property and Civil Capacity

Article 15 of the Women's Convention insists on women's equality with men
before the law, on their full legal capacity, and on their equal opportunities to
exercise that capacity. Women are to have equal rights to make contracts, equal
treatment before courts and tribunals, equal property rights, and rights to ad-
minister property. This is simply not the case for very many of the world's
women, frequently on account of religious discourse and religious law. Under
traditional Islamic law, women are explicitly unequal. A woman must have a
male guardian to perform many contracts, including a marriage contract for
herself. A woman's testimony in court is regarded as half as weighty as the tes-
timony of a man; in the case of rape and adultery, women are forbidden to give
evidence. Witnesses to contracts and other documents may be either two men
or one man and two women. States vary in the degree to which this religious
discourse and the laws based on it have full effect: Some, like Iran, Pakistan, and
the Sudan, are quite thoroughly Islamicized—though even among these there
are differences of degree; in others, such as Egypt, there is an unpredictable
mixture of elements; in India and Bangladesh, there is a putative distinction
between private law, which is governed by religious norms, and other affairs,
which are in the charge of the secular state. In none are women's human rights
to legal equality fully respected.
Once again, the Indian situation provides instructive examples of the con-
flict between constitutional guarantees of sex equality and religious legal sys-
tems.78 Because we have focused until now on Hindu and Muslim law, let us
turn, for a change, to the situation of India's Christian women. Christians in
India (2.4% of the population in 1981) are governed by a bewildering variety of
distinct regional codes. Catholic Christians in Goa, for example, are still gov-
erned by the Portuguese Civil Code. Until recently, Christians from Kerala were
governed by the Cochin Christian Succession Act of 1921 and the Travancore
Christian Act of 1916. In 1983, a Syrian Christian woman named Mary Roy
challenged the Travancore Act in the Supreme Court on the grounds that it vio-
lated the sex equality guarantee by denying equal inheritance rights to daugh-
98 JUSTICE

ters and sons. The Supreme Court did not declare the Act unconstitutional, but
overturned it on a technicality, ruling that Christians in Kerala should hence-
forth be governed by the Indian Succession Act of 1925, which grants daugh-
ters and sons equal rights.79 The Christian community in Kerala has continued
to protest this judgment as an inappropriate interference with their religious
prerogatives, adding that it would "open up a floodgate of litigation and destroy
the traditional harmony and goodwill that exists in Christian families."80 The
Synod of Christian Churches has supported these protests, arranging for legal
counsel to help draft wills to disinherit female heirs.81 Such clashes between
constitutional rights and religious law are common throughout the Indian legal
system.

8. Nationality
The Women's Convention insists (in Article 9) that women and men be fully
equal in matters of their own and their children's nationality. All nations that,
relying on Islamic law, require a woman to obtain a guardian's permission be-
fore moving abroad are in violation of this fundamental right. In addition, quite
a few nations have laws forbidding women from passing their own nationality
on to their children. Although a landmark case testing such a law derives from
Botswana and involves no religious element,82 religious discourse is heavily
implicated, elsewhere, in the maintenance of this form of discrimination against
women.

9. Family Law
This is an especially large and complex area of women's inequality; religious
norms and laws play a direct role in it. Religious systems of family law, Islamic,
Hindu, Jewish, and other, may severely limit women's degree of choice in and
consent to marriage, their rights to control the lives of their children during a
marriage and of child custody if the marriage ends, their access to divorce and
the type of evidence required to get a divorce, and their right of maintenance
after a divorce. Polygamy, insofar as it continues to exist, is a structurally un-
equal practice: Plural marriages are unavailable to women.83
A few examples of these practices must suffice to indicate the whole. In the
Sudan (whose Personal Law for Muslims Act is closely based on the shari'a) a
woman's guardian had absolute authority to decide on a marital partner—until
a rash of suicides by young girls forced a change. Now the woman's consent is
required. In the Sudan, again, a man may divorce a wife simply by saying, "You
are divorced." A woman must go to court and establish a basis, such as impo-
tence, cruelty, or inability to provide. Most religiously grounded systems of
personal law are asymmetric in a similar way. In India, secular marriage is avail-
able as an option, but secular divorce is not: A couple must appeal for divorce to
the religion of their birth. As to the important issue of maintenance, so dramati-
cally exposed in the Shah Bano case, the uniform civil code in India that might
 RELIGION AND WOMEN'S HUMAN RIGHTS 99

adjust the plight of such women is very far in the distance, even as the year 2000
rapidly approaches.
In nations governed by Islamic law, deviation from religious orthodoxy may
force a divorce. In Cairo in August 1996, the Court of Cassation, Egypt's top
appeals court, rejected the appeal of Nasr Abu Zeid, a professor of Arabic, against
a ruling ordering his separation from his wife, Ibtihal Younis, also a professor.
Islamic fundamentalists claimed that Mr. Zeid's writings make him an unbe-
liever; Zeid denies this, claiming that fundamentalist clerics have quoted texts
out of context and made factual errors. (The couple has now moved to the Neth-
erlands, where they have accepted teaching jobs.) The Secretary General of the
Egyptian Organization for Human Rights calls the ruling "a slap in the face of
civil society in Egypt."84
In most systems of Islamic law, a woman is guardian of a male child only
until he is seven years old. In a recent Bangladeshi case, however, the high court
ruled that a mother might retain custody of her eight-year-old son, who was
afflicted with a rare disease. (The mother, a doctor, was able to give him expert
care and she had also financed his medical treatment.) The judge remarked, "The
principle of Islamic law has to be regarded, but deviation therefrom would seem
permissible as the paramount consideration should be the child's welfare."85 But
the judge was also in a relatively easy position: He pointed out that this was an
issue on which there was no rule in either the Koran or the Sunnah; the rule
resulted from a Hanafi interpretation, not agreed to by other traditions of Is-
lamic legal interpretation. Thus he was able to say that the rule "would not seem
to have any claim to immutability." Nor did he make any general conclusion
about mothers' rights: He rested his analysis on the unusual facts of the case.
As for India's Hindu law, the father is regarded as natural guardian of the child,
except for children under the age of five, or when the father is away. Only an
illegitimate child can remain in its mother's custody.86
The right to adopt a child, a right important to many women, is another matter
that is decisively affected by the domination of religion in codes of personal law.
The Hindu Adoptions and Maintenance Act, passed in 1956, was for many years
the only statutory law of adoptions in India. This law applies only to Hindus.
Thus for many years only Hindus could adopt a child, and only a Hindu child
could be adopted. Attempts in both 1972 and 1980 to enact a uniform adoption
act met with determined resistance from Muslim leaders, who hold adoption to
be forbidden by the Koran. (This is not a universal opinion: Tunisia in 1958
enacted a law of adoption whose provisions were very similar to the 1972 In-
dian Adoption Bill.) The 1980 bill was passed—thus granting Jews, Christians,
Parsis, and others adoption rights—but only after Muslims were explicitly ex-
empted.87 Tariq Mahmood, of the Faculty of Law at the University of Delhi,
summarized the matter well in a public letter to the Indian Council for Child
Welfare:
Even if it is accepted that Islamic law prohibits adoption, how can the Mus-
lims prevent enactment of a secular law of adoption which will be applicable
only to those who wish to adopt a child? If Islamic law does not permit adop-
1OO JUSTICE

tion, the Muslims need not make use of the Indian adoption law. That law
will certainly not impose on any person a duty to adopt. . . . If Islam does not
recognize a social or economic concept, the state cannot compel every Mus-
lim to keep away from it. If that were possible, our banking laws should not
be available to any Muslim, since Islam does prohibit interest on money. .. .
The demand that a special saving clause exempting the entire Muslim com-
munity from its application be inserted in the Bill cannot be accepted. There
are some Muslims who do not share the belief that their personal law pro-
hibits adoption; and there are many who do not consider personal law as a
part of their religion at all. To them the benefit of the adoption law cannot be
denied.88

This sensible conclusion seems right for the whole area of family law: Loyal
members of a religious group should remain at liberty to follow its teachings in
such matters, but this does not justify imposing such teachings on people who
do not so choose, especially when imposition is unequal and when it violates a
fundamental right of choice.

10. Education Rights

Nothing is more important to women's life chances than education. With lit-
eracy, a woman may consider her options and to some extent shape her future.
She may question tradition and discover how women in other parts of the world
are managing to live. She may discover that women are actually able to achieve
well in many of life's functions; that the female body is not as weak as has some-
times been said. With literacy, she may do her own accounts, read a bill, read an
important notice that comes to her in the mail,89 and enter trades that require
literacy.
Women's educational opportunities and achievements are dramatically lim-
ited in many nations in the world. Adult female literacy rates, in the developing
countries, range from 96.7% (Guyana) and 94.2% (Cuba) all the way down to
5.8% (Niger) and 8.0% (Burkina Faso). Among the nations under discussion
here, we find Pakistan at 22.3 %, India at 35.2%, Bangladesh at 24.4%, Afghani-
stan at 12%, and the Sudan at 30%; China does considerably better at 69% 90 ;
Saudi Arabia, at 40%, is extremely low among the countries sharing its general
level of economic development, as is Iran at 55 %. In all these cases, women are
doing considerably worse than men. In Pakistan, the female literacy rate is 56%
that of males; in India, 55%; in Bangladesh, 51%; Afghanistan, 29%; the Sudan,
56%; China, 79%; Saudi Arabia, 66%; and Iran, 74%.91
The reason for disproportionaly low female attainments are not always reli-
gious, but in many cases one can see clearly that religious discourse has played
a major part. The mullahs in the village described by Chen set out to oppose
women's literacy—by insults to the women's moral character and, if necessary,
by threats to their physical safety. As Cornelia Sorabji's memoir attests, denial
of literacy has strong conventional links to purdah and to general notions of
women's purity that are at least in part religious. In Afghanistan, the Islamic
fundamentalism of the Taliban has led to a ban on women going to school. In
 RELIGION AND WOMEN'S HUMAN RIGHTS 1O1

India, women's education is opposed or neglected for all sorts of reasons, some
economic, some customary, but the major religions certainly play their role in
creating an image of a woman's role. Although regional differences in policy
and culture are important in explaining these differences, religion also seems to
play at least some independent causal role.92 In Iran, related ideas of women's
proper role have led to severely curtailed educational opportunities at the level
of higher education. Women are excluded from 79 of 157 courses of study in
the university, including 55 of 84 courses in math and technology; they are for-
bidden to study, among other things, archaeology, cinematography, and graphic
design.93 In the United States, the successful attempt of the Wisconsin Amish
community to keep their teenage children out of the last years of required school-
ing has a differential impact on boys and girls: Boys learn skills (such as carpen-
try) that are marketable outside the community; girls, confined to the home,
will have a harder time leaving should they want to leave.94
And one must ask, as well, what is being taught when girls are taught. In
the ultraorthodox communities of Jerusalem, all children attending state-
supported schools are permitted to follow a curriculum that contains absolutely
no information about world history or about the life of the world outside (just
as at home television and radio are entirely forbidden). They do learn modern
math and science, but women are carefully shielded from any image of a woman's
proper role that is not that of the ultraorthodox community. They will not be
in a position to choose their own way of life as the result of their very own
reflection.

11. Reproductive Rights

This is such a familar contested area that it seems unnecessary to discuss it at
length. International human rights activists agree, with few exceptions, that
women's access to contraception is an extremely important ingredient of their
own well-being, both because of reproductive control and because of AIDS. They
agree, further, that promoting women's control of their own reproduction (along
with women's education more generally) is the most effective way to control
world population without unacceptable infringements of liberty.95
Both Islamic and Roman Catholic discourse have been involved in opposi-
tion to such policies, as the Cairo conference made clear, although the primary
emphasis of the Catholic position was access to abortion. I know of no corre-
sponding discourse from the Jewish or Hindu traditions, though clearly the
ultraorthodox Jewish community, in Israel and to some extent elsewhere, does
have a strong pronatalist bias and for its own members opposes contraception.
It seems plausible that unimpeded access to contraception is a basic human right
of women.96 It is especially urgent to protect this right for women who have no
economic or social alternative to marriage and no recourse against enforced in-
tercourse within it.
As for abortion, the issue cuts both ways where women's human rights are
concerned. On the one hand, many defenders of such rights do hold that abor-
tion rights, at least in the first trimester, are basic to women's equality; I myself
10 2 JUSTICE

would defend such a right for the United States on such grounds.97 On the other
hand, abortion has very often been used sex-selectively, to destroy female fe-
tuses; in that sense it can also be a dangerous instrument of women's inequal-
ity. Right now it is possible to prevent the abuse without restricting abortion
rights, by forbidding access to amniocentesis and by forbidding late abortions,
as some governments have done, but this balancing act will not endure long into
the future, as information becomes more readily available and at an earlier date.
Some Indian feminists therefore favor removing the abortion right—indeed,
some would like to jail women who seek abortions.98 The issues are so difficult
and have generated such intense, subtle, and lengthy debate that it would be
foolish of me to attempt, here, to determine what an advocate of women's human
rights should say.

Addressing the Dilemma

My starting point is a simple one: It is that human beings should not be vio-
lated, and that the protection of the basic human rights should have a very strong
degree of priority, even when this interferes with some elements of traditional
religious discourse and practice. To those who object that violating others is part
of the free exercise of their religion, we should reply as we do when a murderer
claims that God told him to do it (and he may sincerely believe this to be true):
Never mind, we say, there are some things we do not allow people to do to other
people. Or, as the Bangladeshi wife said in my epigraph, if Allah really said that,
then he is dead wrong. (What we really mean by saying such things is that a
just God cannot possibly have said such things.99)
Beyond this, we can say more about the list of basic rights that has just been
enumerated. These rights, like (and closely related to) John Rawls's list of pri-
mary goods, would appear to be necessary for all people if they are to carry out
their plans of life, whatever they are. They therefore have a strong claim to be
recognized politically as basic in a pluralistic society, whatever the commitments
of its constitutive religious groups. Because of their fundamental role, a liberal
society should commit itself to protecting these rights for all individuals, regard-
less of whether it contains groups that do not like individuals (their own mem-
bers or members of other groups) to have these rights. The list is somewhat more
extensive than Rawls's list and closely related to the list of basic human capa-
bilities defended in chapter 1.
In the view I have defended in chapters i and 2, the fundamental bearer of
rights is the individual human being. This seems right: A violation of a person
is no better when it comes from some group to which the person belongs than
when it comes from the state. The hunger of A is made not less but more mor-
ally offensive when we learn that A is a loving girl child in a family in which
there is, overall, enough food to go round. The rape of B is made not less and
quite likely more offensive when we discover that the rapist is B's husband and
therefore a member of an allegedly altruistic organic unit together with B. Nor
is the bodily integrity of B a merged part of a larger whole; B's body is B's body,
the only one she will ever have.
 RELIGION AND WOMEN'S HUMAN RIGHTS 103

The rights, furthermore, should not be regarded as isolated atoms, which can
be given or withheld independently of one another. Because they interact and
support one another in so many ways, we should think in terms of a total sys-
tem of liberties and opportunities and refuse to compromise on any one item
not only because of its intrinsic worth but also because of the way it affects the
other items on the list. Education is closely correlated with meaningful oppor-
tunities for employment, and both of these with nutrition and health. The right
to protect one's bodily integrity is closely connected to, and derives support from,
equality in family law and rights to mobility and assembly. The right to contra-
ception is closely associated with increased abilities to pursue education and
employment, with political participation and with health, and so forth. We want,
then, to secure to individuals not only one or two liberties but a total system of
liberties, and not merely the liberties in name only (as some words in a consti-
tution) but their fully equal worth, meaning the capability to avail oneself of
them.
I shall now make some normative suggestions; in a concluding section I shall
ask what practical action is available.

Religion and the Structure of the Legal System

Basically, no systems of religious law should be permitted to interfere with the
basic human rights of citizens. It is especially obvious that intolerant sectarian
regimes, such as those of Iran, the Sudan, and Pakistan, and in some respects
Israel, are unacceptable. Such systems do not raise our liberal dilemma because
their violations of other human rights are accompanied by equally serious vio-
lations of the liberty of conscience—either for members of minority religions
(witness, as one egregious example, the Iranian persecution of the Baha'i) or for
nonorthodox members of the dominant religion.
At times, a tolerant liberal regime has an established state religion but pro-
tects the rights and liberties of all citizens—as is the case, in general, in today's
Britain and Scandinavia. Such arrangements, I would argue, are not necessarily
unacceptable, but always raise serious moral questions. In the British case, the
unsavory history of discrimination against dissenters, Jews, and Roman Catho-
lics colors the social meaning of the innocuous and bland pronouncements of
the Anglican Church; its established status, even if it does nothing wrong, may
still be expected to affect the self-respect of members of these minorities, and
nonreligious people as well, despite liberal policies. This suggests that establish-
ment by itself raises problems for a liberal political understanding,100 although
the Scandinavian cases perhaps show an acceptable form of establishment, dedi-
cated to the protection of minority religions. (Norway's current opposition to
Islamic schools suggests, however, that even benign establishment is a danger-
ous policy.) On the other hand, the problems are certainly different in kind from
those that obtain where recognition of equal protection of the law for all citi-
zens is not a fundamental political commitment. In Israel, there is, of course, an
intense struggle over just this issue of equal citizenship, and the religious na-
ture of the state makes its resolution extremely difficult.
1O4 JUSTICE

For our questions about women's rights, however, the most complex and
interesting situations are those in countries such as Bangladesh and India, where
a basically liberal constitutional order (nominally secular, in the Indian case) has
allowed the religions to take charge of part of the legal system, creating systems
of religious law. Here we see the liberal dilemma in its sharpest form. Such re-
gimes are problematic in a number of ways. First, they are simply unwieldy,
creating tremendous administrative costs and inconsistencies. Second, they treat
nonreligious citizens very unfairly, forcing them to deal with religion in im-
portant areas of their lives whether or not they want to. Third, they treat citi-
zens unequally on the basis of the chance of their birth into a given religious
community. Shah Bano did worse because she was a Muslim than had she been
a Hindu, and she had no option of going to a different court if she did not like
the way Islamic law handled things. Fourth, they encourage the maintenance of
practices that are in direct violation of equality provisions recognized in many
constitutions and implicit in the legal system of some nations that lack a writ-
ten constitution. It is less than ideal for India to guarantee women all sorts of
rights in the Constitution and then turn the all-important sphere of family law
over to codes that explicitly deny women the equal protection of the laws. All
such elements in religious law codes should be reformed to bring them into ac-
cord with the Constitution's list of Fundamental Rights of citizens. Finally, such
systems are highly divisive politically, as we see from the endless negotiations
in which the Indian government has had to engage.
The example of India101 illustrates the way in which a keen sensitivity to our
liberal dilemma has led, years later, to an unfortunate situation. The Indian
Constitution abolishes "untouchability," arguably a core feature of Hinduism,
boldly and decisively, in Article 17 of the Constitution itself, at the same time
creating constitutional protections for affirmative action toward previously op-
pressed caste groups.102 These decisive steps have led, forty years later, to a situa-
tion in which no religious leader urges the restoration of caste hierarchy; it is
simply off limits as an area of legitimate free religious exercise.
Where sex equality and the separate courts of religious law were concerned,
however, the framers decided to leave crucial issues for later resolution. In the
original constitutional debates, Muslim leaders repeatedly held that retention
of the personal laws is "a part of the fundamental right to religious freedom."103
Therefore, the directive that the state shall "endeavour to secure" a uniform civil
code was placed in Article 44 of the Constitution, among the unenforceable
Directives of State Policy. The words "endeavour to secure" were chosen delib-
erately to contrast with the words "shall enact," and essentially the idea of Ar-
ticle 44 was that the state should gradually prepare the population to accept a
uniform code at some future date. On the other hand, it is perfectly plain that
the enumerated Fundamental Rights include a right for all persons to the equal
protection of the laws and also a right to nondiscrimination on the grounds of
religion, caste, sex, or place of birth, and Article 13(1) rendered void all "laws in
force" that were inconsistent with the enumerated Fundamental Rights; at the
same time, Article 13(2) forbade the state to introduce any new law abridging a
Fundamental Right.
 RELIGION AND WOMEN'S HUMAN RIGHTS 10 5

Thus a contradiction was created because the existing (and also the subse-
quently introduced, i.e., reformed) personal laws of both Hindus and Muslims
do violate the constitutional guarantee of sex equality, and in some respects the
guarantee of religious equality as well. It would thus appear that the framers
deliberately left in place a route whereby such personal laws could be deemed
unconstitutional—although in a 1952 decision in State of Bombay v. Narasu
Appa Mali, two especially eminent judges held that the term "laws in force"
did not include the personal laws, which he held to be distinct from other "laws
in force" in that they are not just the result of legislative enactments but are
grounded in religious texts. This seems perfectly beside the point, in a liberal
constitutional regime with no established state religion. Clearly the state should
strongly urge the internal reform of personal laws until they are in conformity
with the list of Fundamental Rights.
Does this nullify the whole project of having distinct systems of personal law?
Modern defenders of secularism insist that the ideal of secularism requires only
symmetrical treatment of the religions, and that this can in principle be fulfilled
in quite a few different ways.104 We must remember, however, that the funda-
mental bearer of rights is the individual citizen, and that any system of personal
law that groups individuals in accordance with their religious origins runs a great
risk of disadvantaging those individuals who do not particularly rejoice in that
classification, whether because they are nonreligious or because they do not agree
with the dominant group in their own religion, or because they would prefer to
make their fundamental affiliation one with a professional or gender-based
group. In India, religious classifications do not require any statement of mem-
bership, belief, or enthusiasm: One is classified by origin, and everyone is put
into one box or another. One does not, similarly, have the option to participate
in feminist law courts, even though that affiliation might in fact be the most
fundamental in one's life. Secular marriage, divorce, and property laws exist,
but people whose property is tied up in one of the religious systems can rarely
avail themselves of these alternatives. To reform those portions of the separate
religious codes that treat citizens unequally on grounds of their religious back-
ground and membership would seem to be the bare minimum that would be
compatible with justice.
More important for our purposes, a guarantee of nondiscrimination on the
basis of sex, such as the one enacted in the list of Fundamental Rights in India's
constitution, requires the reform of many of the provisions of most of the sepa-
rate codes, in regard to marriage, divorce, and maintenance. In all the heated
debate about Indian laws of marriage and divorce, the fundamental interest of
women in equality before the law was rather neglected—Muslims claiming vio-
lation of religious freedom if they were held to the uniform provisions of main-
tenance under the criminal code; Hindus claiming that the exemption of Mus-
lims from these provisions violated their equality rights as Hindus. In effect,
they were haggling over how not to be required to pay a destitute woman $18
per month. The woman's fundamental rights under the constitution were not
taken to represent fundamental interests of either religious group. But such
debates can and should be cut short by pointing to the fundamental role of the
10 6 JUSTICE

constitutional guarantee of sex equality. If codes agree in doing away with hierar-
chies of gender, caste, race, and so on, then the case for allowing differences that
reflect different traditions will be far stronger.
The founders clearly believed that such uniformity could not be implemented
overnight in nations that contain groups with traditional hostilities. At every
step in the unfolding debate about personal law, opposition to a uniform civil
code was vigorous from some quarters of both Muslim and Hindu communi-
ties. On the other hand, at every stage, defenders of constitutional uniformity
also included prominent members of these religious traditions. Muslim lawyer
Chowdhry Hyder Hussain strongly defended a uniform civil code already in
1949, arguing that separate codes were a vestige of British rule and "wholly a
medieval idea [that] has no place in the modern world."105 Twenty years later
another distinguished Muslim jurist, M. C. Chagla, held that an acceptable
legal system was one that "applies to every individual whatever his religion or
his community. . . . The Constitution was enacted for the whole country, it is
binding on the whole country, and every section and community must accept
its provisions and its directives."106 Such influential voices, which have been
heard continuously throughout the post-Independence period, show that strong
rights-oriented constitutionalism is not generally opposed by Muslims any more
than it is by Hindus. It is not clear, even in strategic terms, that the right choice
was made. Decisive action on untouchability has created a solid social consen-
sus in the next generation; indecisiveness on civil law has made the question of
the uniform code a political football for fractious and self-interested actors. At
this point, it is virtually impossible for liberals and feminists to support a uni-
form civil code, given that the cause of the uniform code is now championed by
the BJP as part of their projected assault on the equality of Muslim citizens.
The claim that the uniform protection of the rights of individuals infringes
legitimate prerogatives of free religious exercise is itself a contentious and highly
political claim. Religious liberty is a right of persons, like other rights. How, then,
can the religious liberty of a person possibly be infringed by the determination
to protect all individual rights of the religion's members on an equal basis? The
liberty to treat your co-religionists unequally is simply not a legitimate preroga-
tive of religious freedom. The order to pay alimony to Shah Bano did not re-
strict her husband's freedom of worship; indeed, one may more easily argue that
her freedom of worship was compromised by not getting alimony and thus
being in a state of "destitution and vagrancy." The fact that Mary Roy's female
descendants will now inherit equally with males does not compromise Chris-
tian worship; actions of the Christian church protesting this constitutional judg-
ment seem related more to power than to freedom of conscience. Similarly, de-
nial of the right to force Sareetha to return to his home does not seem to have
impeded the ability of Venkata Subbaiah to worship in accordance with his con-
science. It simply diminishes the power of the Hindu courts, which is a very
different matter. The right to divorce does not force anyone to get divorced; the
right to contraception does not force contraceptive use; the right to adopt, as
Muslim jurist Mahmood eloquently insists, does not force anyone to adopt a
child against his or her religious principles. The fact that prominent spokesmen
 RELIGION AND WOMEN'S HUMAN RIGHTS 10 7

for the major religions agree with this liberal principle should be insisted on, as
one makes this argument. The liberal should emphasize this individualistic con-
cept of basic rights and religious liberty, insisting on uniform codes of law that
give individuals broad latitude to choose forms of life in accordance with the
dictates of their religion. We should not accept the idea that denying any fun-
damental right of any individual is a legitimate prerogative of a religious group.
As Zoya Hasan, convener of the Committee for Protection of Rights of Muslim
Women, commented on the Shah Bano case, "In the guise of freedom of reli-
gion, Muslim women are being denied constitutional and human rights. . . . It
is not [a] question of the personal law of the community, but that of the aban-
doned getting social justice."107 Danial Latifi went even further, calling the 1986
law "obnoxious to Islamic principles" and "an insult to the traditions of Islamic
civilization."108 In a recent statement shortly after the death of the aged Shah
Bano, he writes that Muslim legal scholars who support it "have forgotten the
dictum of the Prophet Mohammed who spoke as follows: 'heed the cry of the
oppressed; for these shake the very Throne of God.'"109
Indeed, we should not even grant that such cases raise our liberal dilemma:
The legal claims of the religious courts conflict with individual liberty of con-
science as much as they do with other basic rights. The very same system that
denies Shah Bano equal rights as a citizen also denies her, effectively, the op-
tion to define herself as a Christian, or an atheist, should she so choose; fur-
thermore, it discriminates against her on the basis of her religious membership.
If the system of personal laws were modified to allow the latitude for mobility
in accordance with conscience that religious liberty itself would seem to require,
we might well get the desirable result that the religions would compete with one
another to attract female members by instituting sex equality, a situation now
heavily promoted by feminist legal scholars.110
In general, then, when any democratic government or government actor takes
an action or makes a law that violates the equal rights of its citizens in response
to pressure from a religious party or group, this action should be regarded as
incompatible with the basic rights of citizens in a liberal democratic regime, and
steps should be taken to change this practice. This is what happened in the case
of Shah Bano—before Rajiv Gandhi's intervention. It is the way Judge Choudary
argued in Andhra Pradesh, defending Sareetha's privacy and equality rights—
until the Supreme Court intervened, defending the Hindu Marriage Act. It is
what happened in the High Court in Bangladesh, in a similar case. It is what
happened in Bangladesh, again, in the child custody case, in which the judged
dared to opine that deviation from Islamic legal tradition "would seem permis-
sible" for the sake of a child's well-being. It is what happened in India's Supreme
Court in the case of Mary Roy, when the unequal inheritance rights mandated
by the Travancore Christian Act were declared henceforth inapplicable. It is what
happened in the Unity Dow case in Botswana, not religious but a precedent for
many cases involving religion because the Women's Convention was interpreted
as binding on state actors.
In a related way, the Israeli public school setup should be held unlawful and
presumably would be unconstitutional if Israel had a constitution enumerating
10 8 JUSTICE

basic rights in keeping with the Women's Convention. There are many issues
here, including the egregious separate and unequal treatment of Arab children.
But let me focus for now on the case of Jerusalem's ultraorthodox commu-
nity, permitted to receive state funding for schools that produce gross igno-
rance of the modern world. This is inappropriate for all sorts of reasons, but
in keeping with my theme let me simply focus on the fact that such systems
prevent women from having access to information about their role in the world
and norms of sex equality in modern democratic constitutions. They are thus
a kind of purdah, and this ought to be deemed a violation of education rights.
Were a religious school to operate in this manner in the United States, it prob-
ably would not win accreditation by any regional or local agency, much less
receive public funding.
Special issues arise when a nation-state contains within its borders a distinct
national minority that has in effect been conquered and subdued and now claims
the right to a separate legal system. Will Kymlicka has given an extensive analysis
of the situation of tribal populations in Canada, urging that in such cases broader
latitude be granted to such groups to form distinct political communities. If such
groups rule illiberally, violating individual rights, he holds that it is legitimate
for constitutional arrangements to immunize them from judicial review at the
federal level. Liberals should hold that such a minority acts unjustly, should speak
out against such injustices, and should promote the development of international
human rights policies that would ultimately give international courts the power
to handle complaints of rights violations from such communities. But interven-
tion from the federal level in the internal affairs of a minority would be justi-
fied, he argues, only in cases of "gross and systematic violation of human rights,
such as slavery or genocide or mass torture and expulsions, just as these are
grounds for intervening in foreign countries."111 Remarks elsewhere in the chap-
ter indicate that Kymlicka does not regard the denial of legal and political rights
to women as the type of "gross and systematic" violation that would justify
intervention.112
This position seems to me totally inadequate. It is of course desirable that
ultimately international courts should become strong defenders of individual
rights. But what is to happen in the meantime with women who are not only
suffering what ought to be called gross and systematic rights violations but,
precisely on account of those deprivations (of political voice, mobility, assem-
bly, education, often equal nutrition, and health care), also are unable to move
their own community in the direction of change? Should this subgroup within
the nation even be thought of as "their" community, just because they are in it
and unable to leave? We think that the family is a type of community. None-
theless, if a husband beats a wife or tries to prevent her from voting or going
out of the house, we do not hesitate to intervene—or if we do hesitate, we should
not. I see no reason why a tribal or religious group should have any more lati-
tude than a family in abridging the fundamental rights of adult citizens.
It is of course another matter to decide how to implement that judgment
politically. Kymlicka seems right that such cases are less tractable than the In-
dian case, in which the two largest religious groups have been intertwined for
 RELIGION AND WOMEN'S HUMAN RIGHTS 1O9

years and each has considerable political power at the federal level. In India, it
seems plausible for defenders of a unified civil code to say, with Muslim jurist
M. C. Chagla, that Muslims who wish to influence the law are already empow-
ered to do so: "After all fifty million Muslims113 have a voice in the election of
that Parliament through adult suffrage."114 The election of 1996 showed the
world exactly how decisive that power can be: Muslim parties form a major
part of the coalition that eventually managed to form a government, after the
BJP was unable to do so.115 (Today, that political power is in jeopardy; Islamic
courts should therefore probably be protected, though also urged to reform.)
In Kymlicka's case, by contrast, the tribal peoples are few, uninfluential, and
bitterly opposed to cooperation with the former oppressor. But it is hard to un-
derstand how the sad history of a group can provide a philosophical justifica-
tion for the gross denial of individual rights and liberties to members of the group.
What is a "group" anyway? As Joyce's Leopold Bloom said of that equally over-
rated concept "nation," it is neither more nor less than "the same people living
in the same place"116 (or, as the case may be, not in the same place). A "group"
is, then, not a fused organism but a plurality of individuals, held together in some
ways but usually differing in many others. The voices that are heard when "the
group" speaks are not magically the voice of a fused organic entity; they are the
voices of the most powerful individuals; these are especially likely not to be
women. So why should we give a particular group of men license to put women
down, just because they have managed to rise to power in some group that would
like to put women down, if we have concluded that women should have guaran-
tees of equal protection in our nation generally?117 To do so is condescending to
that group—we don't hold them up to the same moral standard to which we hold
ourselves—and it is grossly unfair to the women, who are simply being told that
because they are tribal women, or whatever, they do not enjoy the same guaran-
tees of liberty that other women do. (And what of the "group" of women? Are
they not as much a group as the tribe? And do they not have their own sad tale
to tell?)
No religious group, then, should maintain a separate system of law that ei-
ther violates the basic rights of any citizen, as specified above, or involves the
religions in inequality vis-a-vis one another. If all this is firmly guaranteed, the
case for permitting religions some latitude in areas such as marriage and divorce
contract may at least be argued. For example, it ought to be possible, as it is vir-
tually everywhere, to enter into a religious marriage contract—provided that
the state guarantees equality of treatment to all citizens regardless of religion in
areas such as consent, divorce, and maintenance, provided that secular marriage
also exists and is regulated in an evenhanded way by the state, and provided that
individuals of religious origin may choose whether or not to avail themselves
of religious marriages when they marry. In such cases, the devotional and spiri-
tual meaning of religious marriage and divorce may still be great; what is im-
portant is that these rules do not impose an obligation on citizens in violation of
their equal rights and liberties. (Thus, a religious Roman Catholic may decide
to regard the availability of secular divorce as spiritually unimportant and may
focus on annulment as the only way in which a marriage may be validly termi-
HO JUSTICE

nated; what is important is that the state does not impose these Roman Catholic
views on all people of Catholic origin but maintains a secular system of divorce
open to all citizens.)

Religions Actors under the Legal System

Religious actors should be governed by the same legal system as everyone else.
This is not always the case. In Thailand, Buddhist monks can be indicted and
tried only by courts composed of themselves; they may not be indicted by the
general legal system. They tend, however, to hang together. In a recent case, a
monk charged with sexual harassment and refusing to support an illegitimate
child (he had allegedly told various women that their spiritual status was in grave
jeopardy if they did not sleep with him) could not be publicly prosecuted, and
the other monks refused to prosecute him. Only after a prolonged scandal did
the Ministry of Education order the monk to take a DNA paternity test118 or
risk being defrocked, and even then its authority to do anything was in doubt.119
Needless to say, this should not be permitted to happen.
Should religious organizations and their members be treated as unequal under
the law for certain purposes connected with gender? United States constitutional
law has standardly granted special latitude to religion, by contrast with other
forms of commitment and affiliation. Religious reasons for exemption from
military service,120 or for refusing to work on a particular day,121 are granted a
latitude that is not granted to other forms of conscientious commitment, such
as the familial or the artistic or even the ethical. This remains controversial for
the way it appears to privilege religion over nonreligion and thus, it might seem,
to violate the Establishment Clause. The future of this issue remains uncertain,
and this is not the place to make a normative argument on such a complex and
vexed matter. Suffice it to say that such privileges given to religion, though
highly contestable, can be strongly supported by pointing to the special impor-
tance of the liberty of conscience as a fundamental right and the consequent need
to give religious freedom special protection from the incursions that, through-
out history, have threatened it.
Religious bodies have also claimed exemption from certain laws of general
applicability, including nondiscrimination laws. A Catholic church may refuse
to accept a Jew as a member just because she is a Jew; such action, usually un-
constitutional, seems perfectly legitimate here. The crucial question is how many
jobs within a religious organization should be covered by such an exemption.
Currently, Title VII permits discrimination on the basis of religion when it is a
"bona fide occupational qualification reasonably necessary to the normal opera-
tion" of the enterprise, and it makes a specific exemption for religious educa-
tional institutions, permitting them to discriminate on the basis of religion in
the hiring of "employees." This seems excessively broad. While it seems rea-
sonable (though controversial) that Notre Dame should seek a "preponderant
number" of Catholics on its faculty, it hardly seems reasonable that janitors and
construction workers should be so selected. Some clearer demarcation of the
exemption is in order.
 RELIGION AND WOMEN'S HUMAN RIGHTS 111

More difficult still—and more important for our purposes—are demands by

religious groups to be exempted from the reach of other nondiscrimination stat-
utes, for example, those dealing with gender and sexual orientation. The state
does not require the Roman Catholic Church to admit women to the priesthood
on equal terms, although in almost all other occupations a denial on the basis of
sex would be illegal. But this affects other appointments, as when the president
of a Roman Catholic university is required by statute to be a member of a par
ticular order of priests. One can argue that the priesthood lies within the core of
worship and should be protected on that account; the presidency of a university
seems hard to defend on this basis, especially when it has been granted that fe-
male faculty and administrators are a valued part of the institution.
As for sexual orientation, some local nondiscrimination laws on sexual ori-
entation, for example, that of the city of Denver, have exempted religious insti-
tutions. These are borderline cases, difficult to distinguish from those of private
clubs and educational institutions, whose liberty to discriminate on grounds of
religion and gender has steadily eroded. Again, the legal questions are complex;
we can only gesture in the direction of a recommendation. But a promising ap-
proach would be to insist that any form of discrimination on the basis of gen-
der, race, or sexual orientation should face heightened scrutiny under the Equal
Protection Clause—or the analogue of this in the legal system in question: Only
a compelling state interest can justify such restrictions. On the other hand, it
should be possible to hold in some cases that the protection of religious liberty
may supply such a compelling interest, as long as the law in question is nar-
rowly tailored to protect that particular interest.122 My own view is that such
narrow tailoring should involve specifying which functions lie within the core
of worship and which are other activities that happen to be undertaken by a
religious body.
A further area of controversy is the role of state benefits and subsidies: Should
the state be permitted to grant tax-exempt status to an institution that does
engage in discriminatory activity? In Norwood v. Harrison,123 the Court held
that a state-supported textbook program was unconstitutional as applied to
schools with racially discriminatory policies. In Bob Jones University v. United
States, 124 the Court upheld the Internal Revenue Service's denial of tax-exempt
status to a religiously grounded institution125 that had a racially discriminatory
admissions policy.126 The Court argues that "[t]he Government's fundamental,
overriding interest in eradicating racial discrimination in education substantially
outweighs whatever burden denial of tax benefits places on petitioners' exercise
of their religious beliefs. Petitioners' asserted interests cannot be accommodated
with that compelling governmental interest, and no less restrictive means are
available to achieve the governmental interest" (2020-2021). A religious insti-
tution that refused to admit women, or treated them in a discriminatory way,
might possibly receive similar treatment, and state subsidies to such institutions
might be struck down, although, this is unclear. The question is, however, what
other practices of religious institutions qualify as discriminatory for these pur-
poses? Hardly any religion fails to allow women in as members; the question is,
how does it treat them when they are there? Should the Roman Catholic Church
112 JUSTICE

lose its tax-exempt status because women are not admitted to the priesthood?
Should the University of Notre Dame lose federal funds because only a male
can serve as its president? Such questions may well be answered in favor of broad
latitude for the religious group, but they must be honestly confronted and de-
bated. If we take them off the table, we suggest that such forms of discrimina-
tion, unlike racial discrimination or religious discrimination, are permissible and
innocuous expressions of cultural variety—and that, I think, is an assumption
from which women have suffered far too long. If we debate these questions
openly, we will come to a better shared understanding of the limits of religious
liberty even in voluntary organizations, within a liberal regime committed to
the protection of fundamental rights.
There are many other controversial issues of religious free exercise that bear
on sex discrimination: those, especially, involving parental rights to control
children's schooling in accordance with religious beliefs and practices. This com
plex issue needs full and separate treatment; suffice it to say that one important
issue, not always sufficiently stressed in such cases, will be the quality of edu-
cation granted to girls, and its relation to their equal rights to education that
will fit them for employment and citizenship.
Are there, and should there be, any legal restrictions on the speech of reli-
gious actors ? Any form of religious discourse that constitutes a threat of vio-
lence against an individual or group should be, and probably already is, illegal
under the state's system of criminal law. It is obvious that proposing a fatwah
should be an illegal act, and that all who had a part in it are international crimi-
nals and villains, but because they are also the makers of law in their country,
we cannot use their case to speak about how a constitutional democracy should
operate its legal system.127
Let us therefore turn to cases that arise within democracy. The mullahs who
threatened to break women's legs should have been arrested. The fact that they
are mullahs should give them no special rights; insofar as they are advocating
leg breaking, they are no different from Mafia crime bosses making similar
threats. What is their crime? Presumably assault: Take, for example, the Model
Penal Code's definition, according to which one sufficient condition for assault
is that the person "attempts by physical menace to put another in fear of immi-
nent serious bodily injury" (211.1.c). Given that the actions of the mullahs re-
strained women from going outside to seek education, we might also focus on
the crime of "felonious restraint," which occurs if a person "(a) restrains an-
other unlawfully in circumstances exposing him to risk of serious bodily injury
or (b) holds another in a condition of involuntary servitude" (212.2). Other statu-
tory solutions could involve notions of stalking, harassment, and so forth that
have more recently been developed. Probably their threat of social ostracism
should receive similar treatment, because in that situation it was like a death
threat.
In a gray area is discourse that incites other people to commit violent acts
against women. This is a large and heterogeneous class. The case of sati is in-
structive. Direct incitement to commit sati (itself illegal as a form of suicide) was
illegal under Indian law for some time; and similar acts can be criminalized in
 RELIGION AND WOMEN'S HUMAN RIGHTS 113

the United States. But the new law passed after Roop Kanwar's death criminalized
a far broader area of speech: "glorifying," "eulogizing," and holding ceremo-
nies and processions in connection with sati. Some of this speech, at least, lies
within the core of political speech protected by our First Amendment; the In-
dian Constitution explicitly permits the State to "impose reasonable restrictions
on the exercise of the right" of free speech "in the interests of the sovereignty
and integrity of India, the security of the state, friendly relations with foreign
States, public order, decency or morality, or in relation to ... incitement to an
offense." The prohibition is thus more likely defensible within this constitutional
regime. Although we may find the Indian restriction overly broad, it must be
interpreted within the history of tremendous religious violence and violence
against women; the judgment was that only such a restriction could prevent a
widespread outbreak of a practice that would put many women in jeopardy.
Similarly in a gray area are speeches saying that women who do thus and so
(say, dress in a certain way, or talk immodestly) deserve to die; speeches saying
that such women are whores and fair game for rape; speeches simply saying that
such women are whores; speeches saying that widows are virtually dead and their
wishes do not count; speeches saying that women are childlike and immoral and
in need of stern home discipline; and a host of others. Such incitements are a
major cause of battery, rape, and even death of women: At what point should
the religious speaker be held to have committed a criminal offense? It seems
obvious, here again, that the strongest case for criminality exists when the in-
citement is directly targeted at a particular individual and is an incitement to
immediate action. For example, a brother whose sister has gone off to work in
the big city and comes home in short skirts is told that a woman like her de-
serves to die without further ado,128 or a man is told by a religious leader that
he should assert his domestic authority more and a little thrashing when he gets
home today won't hurt, or village men are urged by mullahs to feel free to beat
up these particular women as they go to school. Just in this way, the Cruelty to
Women laws in both India and Bangladesh criminalized mental as well as physical
abuse of women in connection with extraction of dowry. Even when no threat
is involved, expressions of hate targeted narrowly against a particular individual
may legitimately be criminalized.129
When threatening speech or hate speech is more general, we should be cau-
tious. Much speech against women's equality is political speech, and general ex-
pressions of a political sentiment, however odious, should receive a high degree
of protection. And yet, a country may legitimately, in keeping with its particular
history, judge that some forms of speech expressing hatred and stirring up hos-
tility are too dangerous not to be made illegal. Most European nations, including
Britain with its Race Relations act, set narrower limits to hate speech than does
the United States. In Germany, anti-Semitic speech is illegal, even if it is clearly
political or religious speech and would obviously, as such, be protected under the
U.S. Constitution. Such a course seems right, given Germany's particular history.
A nation in which millions of women are "missing" might legitimately judge that
some forms of speech denigrating the value of female life are to be forbidden,
even if the speech is religious and, indeed, the expression of a deeply rooted reli-
114 JUSTICE

gious tradition. In practical terms, such laws are likely to cause more problems
than they solve—for the religious groups in question, unlike the Nazis, are not
defeated and mostly dead and therefore will make no end of trouble with clever
use of ideas of free speech. Nonetheless, it seems important to point out that there
is a moral case to be made for such laws. India has possibly gone too far in re-
stricting speech in some areas, with the ample laws against blasphemy that per-
mitted suppression of Rushdie's novel. But it is obvious that such line drawing
must be done with a concrete understanding of the threats to public order faced
by each nation, and therefore it is unwise to comment further here.130 This large
and controversial topic deserves separate treatment.

Moral Constraints on Religious Discourse

in the Public Realm
Even when religious discourse is not legally regulable, it may still be judged
immoral in some cases. Here, finally, we approach the topic of most of the cur-
rent U.S. debate. In a constitutional or otherwise democratic regime that has
adopted a guarantee of sex equality or ratified the Women's Convention, it should
be straightforwardly immoral and inappropriate, though legally protected, to
speak in ways that contradict or undermine these fundamental rights. Thus, any
discourse that denies women's equal humanity (or, indeed, the equal humanity
of all citizens); any discourse that portrays women as by nature whorish or child-
ish or unfitted for citizenship; any defense of practices that violate women's
human rights as guaranteed in the constitution, such as marital rape or female
genital mutilation—all should be deemed highly inappropriate. (And I do mean
to include here any religious speech attacking contraception in international fora,
because, as I have said, I take contraception to be a basic human right of women.)
We could legitimately view a history of such speech as a reason against con-
firming a judge for office; a religious leader who uses such speech in the public
realm should be strongly criticized as a subverter of the constitution.
As for other forms of religious discourse, my view is essentially that of John
Courtney Murray (and close to the view defended in the new paper edition of
John Rawls's Political Liberalism131): that such discourse is appropriate, even
in debates about basic constitutional issues, provided it can be made publicly
assessible and intelligible to citizens who do not share the speaker's religious
starting point, and provided it takes care to indicate its harmony with the fun-
damental principles of the constitution (or the principles implicit in the demo-
cratic political culture, if there is no written constitution). Thus, the Pope's ad-
dress to the United Nations132 seems to me fully appropriate, because he is always
at pains to make his moral argument available to others who may come to the
issue from a different metaphysical starting point, and because he is careful to
show its consistency with fundamental principles of, in this case, international
law and morality.
Special care should be taken, however, to avoid offense to minorities: Thus,
a judge in India who cites the Ramayana, however compatibly with the prin-
 RELIGION AND WOMEN'S HUMAN RIGHTS 115

ciples I have set forth, may send a political signal that many will construe, in
the present climate of opinion, as denigrating Muslims and expressing the sen-
timent that India is basically a Hindu society133; a judge who cites the Laws of
Manu, even as a storehouse of wisdom of the ages, could be suspected by some
feminists of holding its views regarding women, even if the portion he has cited
has nothing to do with women's issues; a Hindu judge who criticizes a portion
of Islamic scripture unwisely suggests that he is exercising authority over a
minority group in an intimate area of religious self-definition.134
Are these acceptable constraints? Certainly they will not be acceptable to many
participants in many religions because they involve the curtailment of traditional
prerogatives. We should insist, however, that there is a basic core of interna-
tional morality that constrains all religious actors in the public realm, that to be
held to this morality in the ways I have described is no more violative of reli-
gious free exercise than is the requirement to obey the criminal law.
If any of these proposals should be greeted with charges of "Westernizing/'
liberals should insist, once again, that the loudest voices in a religious tradition
do not define the totality of its possibilities; that political actors use religious
appeals as a vehicle for their own power, not always as legitimate attempts to
capture the essence of the tradition in question; that all religions are plural and
contain argument and dissent; and finally, that all religions contain the voices
of women, which have not always been heard in the statements that are usually
taken to define what the religion is and requires. It is, moreover, just false, and
chauvinistic, to hold that the idea of the fair treatment of the diverse groups
comprising a population is Western in origin. It has been on the Indian agenda
since the edicts of Ashoka in the fourth century B.C., and ideas of toleration were
elaborately developed in the legal system under the Moghul emperors, well
before the European Enlightenment. An Indian judge who extends these ideas
to women is not borrowing an external concept but extending one that has deep
roots in Indian history.

What Can Be Done

One form of action in which liberals concerned with religion can very definitely
engage is to encourage pluralistic and comparative religious discourse on these
topics, discourse that brings to light and publicizes the plurality of views on all
these matters within the religious traditions and also brings members of the
different traditions together for consultation and comparative discussion.135 In
the process, many appeals to religion that do violate women's rights will be
exposed as at the least narrow and partial accounts of a tradition, and often as
simple misrepresentations—as has been happening with the relation of Islam
to female genital mutilation. This is one area in which the old adage that it is
best to drive out bad speech with more speech seems to be just right. Religious
discourse, if a villain in many of my examples, is also, in multiple and powerful
ways, a major source of hope for women's future. We should therefore not ac-
cept any solution to the liberal dilemma that unduly marginalizes religious speech
116 JUSTICE

or asks people to cut themselves off from humanitarian motivations that may
motivate them in a specifically religious form. I believe that my own proposal
does not do this.
It is, moreover, a legitimate function of a liberal state to encourage the lib-
eral elements in the religious traditions. Here I agree with John Courtney
Murray and with Rawls: By giving prominence to the type of religious speech
that accords with constitutional fundamentals and to its speakers, a state legi-
timately strengthens the political consensus around these fundamentals and
dramatizes to citizens the fact that religious argument in the major traditions
can support them. Thus, in India, it would be highly advisable for major state
actors to spend time insisting (as intellectuals such as Tariq Mahmood and
Amartya Sen have long insisted) that both Islamic and Hindu traditions are
diverse and plural and contain prominent liberal elements. Such public em-
phasis weakens the claim of antiliberal parties and individuals to speak for the
entirety of a religious tradition.
Beyond this, it seems crucial for all who are concerned with these facts to
promote and support local forms of group action that are the most promising
avenues of change. This means supporting NGOs like the Bangladesh Rural
Advancement Committee (organizer of the literacy project), which are free from
government pressure and able to pursue a highly effective grass roots agenda.
At the same time, recognizing that governments are more fully accountable to
people than are NGOs, especially international ones, women and their support-
ers should also try to bring pressure to bear on governments and on multina-
tional corporations to alter the problematic aspects of women's situation, as was
done so successfully in the case of South Africa. Women from other nations may
join a domestic struggle if they do so with proper deference and sensitivity.
Women who are fighting these injustices on the spot need reinforcement. Fre-
quently, too, the fact that an international body or a foreign government has
made compliance with certain human rights practices a condition of some form
of economic or diplomatic cooperation gives women a way to support such
changes without fear.
Meanwhile, in acute cases, individuals who suffer human rights violations
on account of being female should be granted political asylum, as in the case of
Fauziya Kassindja, who fled to the United States to avoid genital mutilation (see
chapter 4). Clearly, however, we should not rely on this remedy, which is arbi-
trary in its benefits (it helps only those people who can get on a plane and go
somewhere), and which can hardly address problems that affect millions of
people.
The best way to promote the role for religious discourse defended in this
chapter is to produce active, unintimidated, educated democratic citizens. Such
citizens will be likely to demand that religious discourse play a role compatible
with constitutional guarantees of human equality. And this means that their role
toward their own religious tradition will also be active and reflective, not merely
submissive to the powerful interpreters of the moment. In many parts of the
world, women have not been encouraged to become such citizens. But this situa-
tion is changing. At the conclusion of the literacy project, some women said that
 RELIGION AND WOMEN'S HUMAN RIGHTS 117

they no longer took advice from the local religious leaders. One woman said that
she still went to get advice. Asked whether she found the advice helpful, she
replied, "I will think myself whether he gives me good suggestions or bad ones.
If he gives me a good suggestion, I will try to understand how far it is good for
me. Or whether it is a bad suggestion." This clearly did not mean that the speaker
was losing her religious convictions: She was the one in the group still inter-
ested in religious advice. It meant that she had ceased to assume that male reli-
gious leaders are infallible, and she had adopted a reflective attitude to her own
religious practice. This is exactly the response that a society truly committed to
religious liberty should encourage.
 NOTES TO PAGES 81-83 393

Chapter 3
1. See John Rawls, A Theory of Justice (hereafter TJ) (Cambridge, MA: Harvard
University Press, 1970), 205-21. Rawls holds that restrictions of religious liberty
can be justified only when the consequences for the security of public order are
"reasonably certain or imminent" (213).
2. See Martha A. Chen, A Quiet Revolution: Women in Transition in Rural
Bangladesh (Cambridge, MA: Schenkman, 1983), 172-8, 204, 217. This example is
on p. 174.
3. In this case, the fact that the women were soon understood to be augmenting
the family income won the day for them; husbands and in-laws soon ceased resis-
tance, and the authority of the mullahs declined in importance. One woman con-
cludes, "We do not listen to the mullahs any more. They . . . did not give us even a
quarter kilo of rice. Now we get ten maunds of rice [i.e. through their new employ-
ment]. Now, people help us." Ibid., 176. Now, another woman adds, the leaders
"know that if they do anything bad with us they will face a problem." Ibid., 177.
4. See the account of the case in Radhika Coomaraswamy, "Women, Ethnicity,
and the Discourse of Rights," in Human Rights of Women: National and Inter-
national Perspectives (hereafter HRW), ed. Rebecca J. Cook (Philadelphia: Univer-
sity of Pennsylvania Press, 1994), 39-57.
5. Mohammed Ahmed Khan v. Shah Bano Begum & Others, S.C.R. (1985). As
the Chief Justice wrote, "Undoubtedly, the Muslim husband enjoys the privilege of
being able to discard his wife whenever he chooses to do so, for reason good, bad, or
indifferent. Indeed, for no reason at all." Shah Bano's husband had a second wife,
both being his first cousins; the three sons from Shah Bano were all employed in
managerial and technical jobs, and the son from Halima Begum shared his father's
legal practice.
6. Relations enumerated are spouse, minor children, adult handicapped children,
and aged parents. On the addition of divorced spouses to the law in 1973, and the
controversy at the time that led to an amendment officially exempting Muslim
women from the reach of the law, see Kirti Singh, "The Constitution and Muslim
Personal Law," in Forging Identities: Gender, Communities, and the State in India
(hereafter Forging Identities) ed. Zoya Hasan (Delhi and Boulder, CO: Westview
Press, 1994), 96-107. After 1973 the Supreme Court held that divorced Muslim
women were entitled to maintenance in spite of the amendment, since the law had
to be interpreted in the light of its social purpose, which was to benefit destitute
women. See Bai Tahira v. Ali Hussain, S.C.R. (2) 75 (1979).
7. On the controversy, see Kavita R. Khory, "The Shah Bano Case: Some Politi-
cal Implications," in Religion and Law in Independent India (hereafter Religion and
Law) ed. Robert Baird (Delhi: Manohar, 1993), 121-37, pointing out that in reality
the Islamic community was highly divided about the judgment. See also Amartya
Sen, "Secularism and Its Discontents," in Unravelling the Nation, ed. Kaushik Basu
and Sanjay Subrahmanyam (Delhi: Oxford University Press, 1995), 11-43. Kirti
Singh, "Obstacles to Women's Rights in India," in HRW, 384—5; Singh, in Forging
Identities; Zoya Hasan, "Minority Identity, State Policy and the Political Process,"
in Forging Identities, 59-73; relevant documents are collected in Asghar Ali Engi-
neer, ed., The Shah Bano Controversy (Delhi: Ajanta Publishers, 1987). See also
Veena Das, Critical Events (Delhi: Oxford University Press, 1992), chap. 4. On gen-
eral issues about the Indian legal system and its history, see John H. Mansfield, "The
Personal Laws or a Uniform Civil Code?" in Religion and Law; Tahir Mahmood,
394 NOTES TO PAGES 83-84

Muslim Personal Law, Role of the State in the Indian Subcontinent (Delhi: Vikas,
1977); Archana Parashar, Women and family Law Reform in India: Uniform Civil
Code and Gender Equality (Delhi: Sage, 1992).
8. The Act, however, contains an option: At the time of marriage, a couple may
elect to submit themselves to the maintenance provisions of the Criminal Proce-
dure Code instead of the Islamic law; previously, Islamic law was enforced toward
all Muslims, regardless of their choice, and that is still the case, in effect, for most
matters. Such options have been a matter of great dispute. Under the Shariat Act,
individuals will be governed by the Shariat only if they make an election in its favor,
but that choice will be binding on their descendants, who have no choice in the matter.
See Mansfield, 169.
9. On the pros and cons of a uniform code, see Sen, "Secularism," 22-24, citing
constitutional debates; Mahmood, 115-30, on Muslim opinion. Although Dr.
Ambedkar, the leader of the team of constitutional framers, expressed a preference
for "uniformity of fundamental laws, civil and criminal," this uniformity was not
incorporated in the constitution, and his preference was included only as an unen-
forceable "Directive Principle of State Policy," stating that "the State shall endeavour
to secure for the citizens a uniform civil code throughout the territory of India." It
was stated that this principle was "fundamental in the governance of the country,"
and that "it shall be the duty of the State to apply" it, but that it "shall not be en-
forceable by any court." Constitution of India, Article 44. At the same time, how-
ever, Article 13(1) provides that all "laws in force" shall be void insofar as they are
in conflict with the constitutionally enumerated Fundamental Rights, among which
(Articles 14 and 15) are the right of all persons to the equal protection of the laws
and a guarantee of nondiscrimination on the basis of "religion, race, caste, sex, place
of birth or any of them." It is thus possible to hold that the personal laws were al-
ready rendered void by Article 13(1). See discussion that follows.
10. Cited in Sen, "Secularism," who observes: "This line of reasoning has many
problems. . . . Any unfairness that is there is surely one against Muslim women,
rather than against Hindu men" (22).
11. Singh, 380, quoting from Lok Sabha Debates Part II, Vol. IV (1955), 6889.
Further extracts from parliamentary debates are found in Shaheeda Latif, "Defin-
ing Women Through Legislation, in Forging Identities, 38-58. For an extensive
account of the changes, see Parashar, chap. 3.
12. Akram Mirhosseini, "After the Revolution: Violations of Women's Human
Rights in Iran," in Women's Rights, Human Rights (hereafter WRHR), ed. Julie
Peters and Andrea Wolper (New York: Routledge, 1995), 75.
13. Ibid, (citing Rinaldo Galindo Pohl, Special Representative of the United Na-
tions Commission on Human Rights in the Islamic Republic of Iran, report of Janu-
ary 2, 1992).
14. Hoffman et al. v. Officer of the Western Wall, HC 257/89, 2410/90, judg-
ment delivered January 26, 1994, reported in Carmel Shalev, "Women in Israel:
Fighting Tradition," in WRHR, 89-95.
15. Data as of January 1994, cited in HRW, 254. See also Human Development
Report (New York: United Nations Development Program, 1995), 43. Among the
countries that will be discussed, Iran, Pakistan, Saudi Arabia, and the Sudan have
not ratified the Convention; some of the others, including India, China, and Bangla-
desh (and many European nations as well) have ratified it only with some "reserva-
tion"; in the United States, President Carter signed the treaty in 1980, but the Sen-
 NOTES TO PAGES 84-86 395

ate has still not ratified it. See "Clinton Chides Senate for Not Approving Women's
Rights Treaty," New York Times, December 11, 1996, A5.
16. Pope John Paul II, Address to the United Nations General Assembly, Octo-
ber 5, 1995.
17. TJ, 206.
18. Pope John Paul II, "Letter to Women," dated June 29, 1995, released July
10, 1995:
As far as personal rights are concerned, there is an urgent need to achieve real
equality in every area: equal pay for equal work, protection for working moth-
ers, fairness in career advancements, equality of spouses with regard to family
rights and the recognition of everything that is part of the rights and duties of
citizens in a democratic state. . . . The time has come to condemn vigorously
the types of sexual violence which frequently have women for their object and
to pass laws which effectively defend them from such violence." (2)
Elsewhere, the Pope has spoken explicitly about marital rape, making it clear that
he believes it to fall among the violent acts that should be legally prohibited.
19. Constitutional guarantees of rights outside the United States may be merely
aspirational for two distinct reasons: (1) because they include a long list of rights,
including many economic and social rights, that are extremely difficult to enforce;
or (2) because they do not attempt to enforce the very same rights that are enforced
in the United States. I am speaking here of the second contrast: Guarantees of equal
protection, mobility and assembly rights, speech rights, rights of religious exercise,
and others are merely aspirational for many citizens in many nations.
20. See Mary E. Becker, "The Politics of Women's Wrongs and the Bill of
'Rights': A Bicentennial Perspective," University of Chicago Law Review 59 (1992),
453–517.
21. An honorable exception to the neglect is certainly Rawls, who, in "The Law
of Peoples," in The Oxford Amnesty Lectures 1993, ed. S. Shute and S. Hurley (New
York: Basic Books), argued that women's equality was one area in which it was
legitimate to interfere with the religious or traditional practices of a nation.
22. One may be that even our citizens are not fully convinced of the equal worth
of female life. Recent protests from Christian groups against granting most favored
nation status to China on grounds of its persecution of Christians have not been
accompanied by any similar protest against the far more widespread and horren-
dous harms to women. See chapter 1.
23. See Jean Dreze and Amartya Sen, India: Economic Development and Social
Opportunity (Oxford: Clarendon Press, 1996).
24. See Sen, "Secularism"; and Amartya Sen, On Interpreting India's Past
(Calcutta: Asiatic Society, 1996).
25. Cited by Jawaharlal Nehru, The Discovery of India (Calcutta: Signet Press,
1956, centenary ed. Oxford: Clarendon Press, 1989), 75; see discussion in Sen, In-
terpreting, 13-4.
26. For one clear example of this, in her study of reactions to the Shah Bano
case, Khory summarizes: "[T]he Shah Bano case is representative of the way in which
group divisions within Indian society are increasingly manipulated for political rea-
sons." See also Amartya Sen, "Human Rights and Asian Values," The New Repub-
lic, July 10/17, 1997 , 33–40; and Hasan, in Forging Identities.
27. See Sen, "Secularism," 32-39.
396 NOTES TO PAGES 87-90

28. See Sen, "Secularism," 41 (citing the translation by Rabindranath Tagore

in One Hundred Poems of Kabir [London: Macmillan, 1915], Verse LXIX); see also
Kshiti Mohan Sen, Hinduism (Harmondsworth: Penguin Books, 1960), chaps. 18
and 19.
29. For a representative spectrum of positions in the current U.S. debate, see Paul
Weithman, ed., Religion and Contemporary Liberalism (Notre Dame: University
of Notre Dame Press, 1997); and John Rawls, "The Idea of Public Reason Revisited,"
University of Chicago Law Review 64 (1997), 765-807.
30. See Martha C. Nussbaum, "Capabilities and Human Rights," Fordham Law
Review 66 (1997), 273-300. Other much-discussed questions, concerning the pre-
cise relationship between rights and interests, rights and theories of the good, and
rights and duties do not affect the analysis to be presented here and can therefore be
deferred.
31. Women's Convention, Article 2.
32. See chapter 1, on "missing women."
33. On Islam, see Chen, A Quiet Revolution; Valentine Moghadam, Gender,
Development, and Policy: Toward Equity and Empowerment, UNU/WIDER Re-
search for Action series, November 1990; on the Confucian tradition, see Xiarong
Li, "Gender Inequality in China," in Women, Culture, and Development (hereafter
WCD), ed. M. Nussbaum and J. Glover (Oxford: Clarendon Press, 1995), 407-25;
on Hindu traditions, see Roop Rekha Verma, "Femininity, Equality, and Person-
hood," in WCD, 433-43, with ample references to traditional texts.
34. See Martha Chen, "A Matter of Survival: Women's Right to Employment
in India and Bangladesh," in WCD, 37-57.
35. See Chen, "A Matter of Survival," 37.
36. See A. Sen, "Gender and Cooperative Conflicts," in Persistent Inequalities:
Women and World Development, ed. I. Tinker (New York: Oxford University Press,
1990).
37. For an account of the case, see Coomaraswamy, in HRW, 48-50.
38. Pressure can be either spiritual or financial; in the past, many such cases
clearly involved financial motives by family members eager to avoid dowry pay-
ment and also by in-laws eager to avoid having another mouth to feed.
39. See Das, "Communities as Political Actors," in Critical Events, 84-117.
40. Coomaraswamy, p. 49.
41. See the discussion of the legal developments in Indira Jaising, "Violence
Against Women: The Indian Perspective," in WRHR, 51-6; the 1983 Cruelty to
Women act (similar to the 1983 Bangladesh law, see discussion later) has somewhat
improved women's bargaining situation. A UNICEF report estimates that 5,000
women a year die from such abuses in India. Progress of the Nations (UNICEF, July
1997). For a nuanced contemporary analysis, see Uma Narayan, "Cross-Cultural
Connections, Border-Crossings, and 'Death by Culture': Thinking About Dowry-
Murders in India and Domestic-Violence Murders in the United States," in U. Narayan,
Dislocating Cultures: Identities, Traditions, and Third World Feminism (New York
and London: Routledge, 1997), 81-118.
42. Khatoon v. State 38 D.L.R. 348 (1986).
43. Dreze and Sen, India, 173.
44. See Dreze and Sen, India, 172–5; M. Chen, The Lives of Widows in Rural
India (forthcoming).
45. See Chen, "A Matter of Survival," 37.
 NOTES TO PAGES 91-94 397

46. See Das, "National Honour and Practical Kinship," in Critical Events, 55-83.
The document states: "No civilized people can recognize such conversions and there
is nothing more heinous than abduction of women." Ultimately, however, the
women's interests and rights took a back seat to questions of national and religious-
group honor: Laws governing the return of abducted women gave the women no choice
at all in the matter, despite the protests of some politicians who pointed out that forc-
ible return seemed to conflict both with international law and with Indian law.
47. Das, citing information given to the House in the context of legislative de-
bates. These figures may well be inflated, given the political context, but the num-
bers certainly were very large.
48. Double Jeopardy: Police Abuse of Women in Pakistan (New York: Women's
Rights Project, and Asia Watch, Human Rights Watch, 1992).
49. Indira Jaising, The Lawyers' Collective, New Delhi, personal communica-
tion, March 1997.
50. Witnesses need not always be eyewitnesses, so the requirement is not as ab-
surd as it seems, but a woman whose guardian or other male relatives do not ap-
prove of her general demeanor is highly vulnerable.
51. It is explicitly forbidden to beat on the face or in a way that permanently
marks the body; this leaves a lot of ground open.
52. Chief Justice Chandrachud in the Shah Bano case cites the Laws of Manu
statement that "[t]he woman is utterly unfit for independence."
53. See Indira Jaising, "Violence Against Women: The Indian Perspective," in
WRHR, 51-6.
54. A.I.R. (A.P.) 356 (1983).
55;. Article 21 states, "No person shall be deprived of his life or personal liberty
except according to procedure established by law." The history of the interpreta-
tion of this article, described in detail by Judge Choudary in his opinion, parallels
that of the interpretation of the Due Process Clause of the Fourteenth Amendment
of the U.S. Constitution and indeed is heavily influenced by that history; major U.S.
cases establishing a "right to privacy" are cited by the judge as having shaped the
interpretation of the terms "life" and "liberty" to recognize a right to choice in
intimate matters of sex and reproduction.
56. Choudary cites a 1927 case from Bombay, A.I.R. (Bom.) 264 (1927), which
makes the same point.
57. A.I.R. (S.C.) 152 (1984); see Singh, 388.
58. Nelly Zaman v. Ghiyasuddin, 34 D.L.R. 221 (1982).
59. For a review of these documents, see Abdullahi A. An-Na'im, "Toward a
Cross-Cultural Approach to Defining International Standards of Human Rights: The
Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment," in Human
Rights in Cross-Cultural Perspectives, ed. A. An-Na'im (Philadelphia: University
of Pennsylvania Press, 1992), 19-43.
60. See ibid., 36.
61. See ibid., 35.
62. Ibid., 36, citing parallels from the orthodox Jewish tradition.
63. Women's Convention, art. 11.
64. Mirhosseini, 73.
65. Ayatollah Mutahari, The Question of the Veil, quoted in Mirhosseini, 73.
66. See "Guerillas Take Afghan Capital as Troops Flee," New York Times, Sep-
tember 28, 1996, Ai; John F. Burns, "Walled in, Shrouded and Angry in Afghani-
398 NOTES TO PAGES 94-98

stan," New York Times, October 4,1996; Burns, "Afghanistan's Professional Class
Flees Rule by Ultra-Strict Clerics," New York Times, October 7, 1996; Barbar
Crossette, "Afghans Draw U.N. Warning Over Sex Bias," New York Times, Octo-
ber 8,1996; Burns, "Afghan Says Restriction Will Not Be Eased," New York Times,
October 9, 1996, A8; Susan Moller Okin, "U.S. Should Protest Afghan Women's
Plight" (Letter to the Editor), New York Times, October 7, 1996.
67. Bradwell v. Illinois, 83 U.S. (16 Wallace) 130 (1872).
68. Cornelia Sorabji, India Calling (London: Nisbet and Co., 1934), 68. Though
rich and pampered, this woman (one of three or four wives of the local Thakur) was
also illiterate, "the theory being that if women learnt to write they would get them-
selves into trouble" (67).
69. See Neil MacFarquhar, "Backlash of Intolerance Stirring Fear in Iran," New
York Times, September 20, 1996, A1.
70. Ann Elizabeth Mayer, "Cultural Particularism as a Bar to Women's Rights,"
in WRHR, 176-88.
71. Marsha A. Freeman, "The Human Rights of Women in the Family," in
WRHR, 149-64.
72. See Asma Mohamed Abdel Halim, "Challenges to Women's International
Human Rights in the Sudan," in HRW, 397-421.
73. See Mayer, 180, with documentation.
74. Mayer, 180-81.
75. On the United States, in comparison to other developed countries, see chap-
ter 5.
76. "Subject to public order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of conscience and the right freely
to profess, practice and propagate religion" (Art. 25). Article 17, however, abolishes
"untouchability," arguably a core feature of the Hindu tradition. Article 26 gives
the religions management of their own affairs and property; article 28 guarantees
freedom to attend religious instruction; articles 27 and 28 forbid the use of tax money
for religious purposes and religious instruction in state-funded schools.
77. See also Hasan, in Forging Identities, on violations of the constitutional pro-
vision against discrimination on the basis of religion, when women lose a benefit on
account of being classified as Muslim.
78. See Bina Agarwal, A Field of One's Own: Gender and Land Rights in South
Asia (Cambridge: Cambridge University Press, 1994), chap. 5, which describes the
situation for all the major religions; see also Chen, Widows, chap. 9.
79. Mrs Mary Roy v. the State of Kerala and Others, A.I.R. (SCC) 1011 (1986b);
see Agarwal, 224, Parashar, 190-1.
80. P. J. Kurien, cited in Agarwal, 225.
81. See Agarwal, 225, with references.
82. Dow v. Attorney General, Ct. App. Civ. App. No. 4/91 (1992): Unity Dow
challenged the Botswana nationality law, under which by marrying an American
she lost her ability to transfer Botswana nationality to the children of the marriage
and thereby the free university education to which the children would otherwise be
entitled. The Court ruled in her favor by a 3-2 vote. In the majority opinion, Judge
President Amissah cites Article 2 of the Universal Declaration of Human Rights of
1948, which states that everyone is entitled to all the rights contained in the Decla-
ration "without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth, or other status."
In a concurring opinion, Judge Agudah cites the Women's Convention as binding,
 NOTES TO PAGES 98-104 399

saying that it "has created an international regime" that must be considered in con-
sidering whether national laws were constitutional.
83. And also, in India today, to non-Muslim men—a fact that has given rise to
some interesting free exercise jurisprudence in Indian courts. Polygamy is of course
not required in Islam, but criticisms of the practice are met with intense opposition.
84. "Egyptian Court Forces Professor to Divorce for Writings on Islam," New
York Times, August 6, 1996.
85. Abu Baker Siddique v. S. M. A. Bakar, 38 D.L.R. (AD) (1986).
86. Hindu Guardianship and Minority Act, reported in Singh, 382.
87. See Mahmood, 110-14.
88. Mahmood, 113 (citing his letter of 15 September 1974, addressed to Mrs.
Tara Ali Beg, President, Indian Council for Child Welfare).
89. Metha Bai almost lost her small farm because a mortage notice arrived and
she put it aside, knowing that she was unable to read it.
90. See Dreze and Sen, India, on the India/China contrast and its importance
for overall welfare. They emphasize that the Chinese achievement has its basis in
the policies of the older regime, highly egalitarian toward women, and long pre-
exist the current era of market expansionism; in Iran, the discrepancy between fe-
male and male education becomes much sharper as we move higher up: Iranian
women have only 47 percent the tertiary education (i.e. college) of males.
91. Data from Human Development Report (New York: United Nations Devel-
opment Program, 1995); the data are from 1992.
92. See Dreze and Sen, India.
93. Mirhosseini, 74.
94. Wisconsin v. Yoder, 406 U.S. 205 (1972). The sex-equality aspect of the issue
was not discussed in any of the opinions.
95. See Sen, "Population: Delusion and Reality," New York Review of Books,
September 22 (1994); and "Fertility and Coercion," University of Chicago Law
Review 63 (1996), 1035-61.
96. Compare Article 16 of the Women's Convention, which guarantees women
"the same rights to decide freely and responsibly on the number and spacing of their
children and to have access to the information, education and means to enable them
to exercise these rights."
97. For the equality-based defense of abortion rights, see Cass R. Sunstein, The
Partial Constitution (Cambridge, MA: Harvard University Press, 1993).
98. See Vina Mazumdar, in Reproductive Technology and Women's Equality,
ed. J. Glover and M. Nussbaum (forthcoming).
99. Compare a moment in Lincoln's Second Inaugural, where, commenting on
the use of religious discourse by southern slaveholders, he observes that it "may
seem strange that any men should dare to ask a just God's assistance in wringing
their bread from the sweat of other men's faces."
100. Nor is the British legal system fully symmetrical: Blasphemy laws protect
Christianity and no other religion, just as in Pakistan blasphemy laws protect only
Islam.
101. The most detailed and comprehensive recent treatment of conflicts between
women's rights and systems of personal law is in Indira Jaising, ed., Justice for
Women (Mapusa, Goa: The Other India Press, 1996), with meticulous accounts of
all the major provisions of all the personal codes, and leading court cases, in the areas
of marriage, divorce, maintenance, custody and guardianship, matrimonial property,
and hereditary family property. Particularly helpful general summaries are in three
4OO NOTES TO PAGES 104-109

articles by Jaising: "Introduction" i-v; "The Politics of Personal Laws," 1-8; and
"Towards an Egalitarian Civil Code," 24-7.
102. Article 15, which prohibits employment discrimination on grounds of re-
ligion, race, caste, sex, or place of birth, explicitly states that this shall not prevent
the State from making special provision for "the advancement of any socially and
educationally backward classes of citizens or for the Scheduled castes and the Sched-
uled Tribes."
103. See Mahmood, 80-82 (citing Mohammad Ismail). Some Muslim leaders
took the rather different position that the uniform code was a good thing but "in
advance of its time." Still others were openly in favor of uniformity: see Hasan,
in Forging Identities; and Heera Nawaz, "Toward Uniformity," in Jaising, ed.,
14-18; Danial Latifi, "After Shah Bano," in Jaising, ed., 213-15. Ironically, some
speakers invoked the Raj, holding that one of the "secrets of success" of the Brit-
ish rulers was their willingness to retain the personal laws: Pocker Saheb, cited in
Mahmood, 82.
104. See Sen, "Secularism."
105. Chowdry Hyder Hussain, "A Unified Code for India," A.I.R. (j) 68, 71-2
(1949), cited in Mahmood, 115.
106. M. C. Chagla, Proceedings of the 26th Congress of Orientalists, 79-80
(1964); and "Plea for a Uniform Civil Code," Weekly Round Table, March 25,1969,
7, both cited in Mahmood, 116. As the Sareetha case shows, it is not just the idea of
separate codes that is British, it is also some of the most controversial provisions of
the codes themselves.
107. Engineer, 158. See Forging Identities.
108. Excerpt from The Times of India, March 12-13, 1986, reprinted in Engi-
neer, 107.
109. Latifi, "After Shah Bano," in Jaising, ed., 213-15; see also Latifi, "Women,
Family Law, and Social Changes," in Jaising, ed., 216-22, criticizing Tahir Mahmood's
writings in the Shah Bano case, where he took a conservative position and criticized
the Supreme Court ruling in writings that Latifi describes as "rabble-rousing," and
guilty of "suppressio veri and suggestio falsi," "Actually," Latifi writes, "it is un-
Islamic not to respect the court verdict."
no. Indira Jaising, personal communication, March 1997; see Jaising, ed., 7
111. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority
Rights (Oxford: Clarendon Press, 1995).
112. See ibid., 165, arguing that intervention with the policies of Saudi Arabia
denying political rights to women and non-Muslims would be unjustified.
113. In 1996, no million.
114. Chagla, "Plea for a Uniform Civil Code," in Mahmood, 116.
115. Interestingly, the coalition has become a major defender of women's equal-
ity, at least in the political arena: Mr. Deve Gowda, the Prime Minister, proposed a
bill in the Lok Sabha (the lower house of parliament) to reserve a full third of seats
in parliament and state assemblies for women; this bill is parallel to a 1947 bill that
reserved a third of seats for Dalits and tribal people. The bill would boost the num-
ber of female representatives from 38 to about 180. Mr. Gowda scrapped plans to
refer the bill to a committee for further study, after female MP's complained that
this would kill the Bill. All major parties publicly support sex equality, though many
individuals hoped to delay action on the measure. See "Women Score Historic Vic-
tory in Indian Parliament," Times of London (on-line), September 13, 1996. For
bringing this report to my attention, I am grateful to John Lott.
 NOTES TO PAGES 109-111 401

116. Joyce, Ulysses, in the "Cyclops" episode in which Bloom confronts an

antisemitic Irish nationalist in Barney Kiernan's bar.
117. Kymlicka's principle suggests that the United States should permit segre-
gated schools in the South because of the sad history of quasi-national division.
118. Only one woman dared to come forward to claim that Yantra had fathered
her child, but many complained of sexual harassment.
119. "Yantra May Be Drummed out of Monkhood," The Bangkok Post, Febru-
ary 4, 1995; "Phra Yantra's Back to the Wall," The Bangkok Post, February 5, 1995.
The latter article summarizes: "The nagging Yantra fiasco has in fact shown that
there is no official agency with real authority and willingness to deal decisively and
rightly with such a high-profile scandal. . .The buck has been passed to and from
with no one fully authorised or equipped to deal with the case." For these articles,
and discussion of the case, I am grateful to Suwanna Satha-Anand, Philosophy De-
partment, Chulalongkorn University.
120. See United States v. Seeger, 380 U.S. 163 (1965): The intent of the law is
understood to be "to embrace all religions and to exclude essentially political, socio-
logical, or philosophical views. " The Court held that where a set of beliefs "occu-
pies a place in the life of its possessor parallel to that filled by the orthodox belief in
God," the person may be considered for the exemption, and much of the argumen-
tation about Seeger's non-orthodox system of belief proceeded by comparing it to
beliefs that would be orthodox for a practicing Buddhist.
121. A classic case is Sherbert v. Verner, 374 U.S. 398 (1963), in which it was
held that a state's refusal to grant unemployment benefits to a woman who had been
dismissed because she refused, for religious reasons, to work on Saturday violated
the free exercise clause. As Justice Stewart pointed out in his concurring opinion,
the state would be within its rights to refuse unemployment benefits to a woman
whose dismissal from employment resulted from inability to find a Saturday
babysitter: "[T]he Court . . . holds that the State must prefer a religious over a secular
ground for being unavailable for work." Stewart argues that this creates grave dif-
ficulties for the Establishment clause. Sherbert was overruled in Employment Divi-
sion v. Smith, no S. Ct. 1595 (1990), which very much narrowed the scope of free
exercise exemptions to "generally applicable law[s]." Smith, in turn, was overruled
by the Religious Freedom Restoration Act of 1993 (RFRA), Pub. L. No. 103-41, H.R.
1308, S. 578, 103d Cong. (1993), which restores the "compelling interest" test set
out in Sherbert, again with an exclusive focus on religious interests. In June 1997,
RFRA was declared unconstitutional by the Supreme Court.
122. In Evans v. Romer, the case dealing with the constitutionality of Colorado's
Amendment 2, which denied local communities and state agencies the right to pass
nondiscrimination laws for sexual orientation, Judge Bayless, ruling that the law
did not survive strict scrutiny, recognized the interest in religious liberty as a com-
pelling interest, but pointed out that the way to protect that interest in a "narrowly
tailored" way was to do as Denver had done, and exempt religious organizations
from the law. (These issues were not addressed in the Supreme Court's discussion
of the case in Romer v. Evans [see chapter 7, in this volume] because strict scrutiny
was not at issue and the entire mode of argumentation was different.)
123. 413 U.S. 455 (1973).
124. 461 U.S. 574, 103 S. Ct. 2017 (1983).
125. Although not affiliated with any specific denomination, its stated purpose
is "to conduct an institution of learning . . ., giving special emphasis to the Chris-
tian religion and the ethics revealed in the Holy Scriptures." Ibid., 2922.
402 NOTES TO PAGES 111-114

126. The primary focus of the institution was on preventing interracial dating.
Until 1973, the institution completely refused to admit black students; from 1971
to 1975 it admitted only black students "married within their race," giving a few
exceptions to longterm members of the university staff. Since 1975, unmarried black
students have been permitted to enroll, but a disciplinary rule forbade interracial
dating and marriage, stating that violators would be expelled.
127. There is an interesting question, however, whether the fatwah would not
be protected under the current U.S. law of free speech. In Brandenburg v. Ohio, 395
U.S. 444 (1969), the Court required three things in order for speech to forfeit pro-
tection: (1) express advocacy of law violation; (2) the advocacy must call for imme-
diate law violation; and (3) the immediate law violation must be likely to occur. The
fatwah may not satisfy (2), and yet a number of individuals connected with the
publication and translation of Rushdie's book have, over the years, been murdered.
See the discussion in G. R. Stone, L. M. Seidman, C. R. Sunstein, and M. V. Tushnet,
Constitutional Law, 3rd ed. (Boston: Little, Brown, 1996), 1127 (citing Schwartz,
"Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action?"
Supreme Court Review 209, 240-41 [1994], who argues that the Brandenburg test
would protect the Ayatollah's speech). If one holds, as I do, that the Ayatollah's
speech should be punishable, one may feel that the Brandenburg test is too protective.
128. There was a recent case of this type in an Arab family in northern Israel, in
which a woman who came home to visit her family was murdered for allegedly bring-
ing shame on the family by her short skirts, and so on.
129. See C. Sunstein, Democracy and the Problem of free Speech (New York:
The Free Press, 1993), 202-204, arguing that the Stanford speech code would be
constitutional even in a public university. Under the Stanford code, speech quali-
fies as regulable "harassment" if it "(1) is intended to insult or stigmatize an indi-
vidual or a small number of individuals on the basis of their sex, race, color, handi-
cap, religion, sexual orientation, or national and ethnic origin, (2) is addressed directly
to the individual or individuals whom it insults or stigmatizes, and (3) makes use of
insulting or 'fighting' words or nonverbal symbols." To qualify under (3), the speech
must by its "very utterance inflict injury or tend to incite to an immediate breach of
the peace," and must be "commonly understood to convey direct and visceral ha-
tred and contempt for human beings on the basis of" one of the grounds enumer-
ated in (2). I cannot comment extensively on the complexities involved in applying
this useful paradigm to the cases I have been talking about, but one surely is the
contestability of "hatred and contempt": For speech that might legitimately be seen
by women as expressing hatred and contempt of them may be seen by the speaker
as expressing a protective kind of love, the kind of love one has for a child who is
prone to error.
130. Article 19 of the Indian Constitution protects the right "to freedom of speech
and expression" but allows "reasonable restrictions" for the sake of "the sovereignty
and integrity of India, the security of the State, friendly relations with foreign States,
public order, decency or morality, or in relation to contempt of court, defamation
or incitement to an offence."
131. John Rawls (New York: Columbia University Press, 1996), 1-iii; see now
the fuller development of the new view in Rawls, "Public Reason." Because Rawls's
view is highly protective of the liberty of conscience, all his argument pertains to
moral, not legal, restrictions on religious speech.
132. Whether this is, in the Rawlsian sense, a speech about constitutional fun-
damentals or issues of basic justice remains unclear.
 NOTES TO PAGES 115-119 403

133. Sen, "Secularism," notes, however, that the attitude to Rama taken in Hindu
activist politics (that he is the central god of the tradition) is far from universal: In
Bengal, Rama is traditionally thought of as simply a good king, not divinity incar-
nate. (Thus, even the idea that the Ramayana is in any sense a religious text is con-
testable.) Furthermore, in the classic Bengali dramatic poetry of Madhusudhan Dutt,
Rama's adversary Meghad is the hero, while Rama and his brothers are not even
especially admirable.
134. Thus, Chief Justice Chandrachud, in the Shah Bano case, arguing (in his
opening paragraph) that women are a class "traditionally subjected to unjust treat-
ment":
Na stree swatantramarhati said Manu, the Law-giver: The woman does not
deserve independence. And, it is alleged that the "fatal point in Islam is the
degradation of woman." [footnote to Edward William Lane, Selections from
the Kuran]. To the Prophet is ascribed the statement, hopefully wrongly, that
"Woman was made from a crooked rib, and if you try to bend it straight, it
will break; therefore treat your wives kindly."
This appearance of balance in criticism, however, did not prevent a storm of protest
over the Chief Justice's treatment of Islam, and citing a British critic of Islam was
certainly not the most prudent or courteous thing to do.
135. For one good recent example, see Religion and Human Rights, ed. John
Kelsay and Sumner B. Twiss (New York: The Project on Religion and Human Rights,
1994).

Chapter 4
1. See Celia W. Dugger, "U.S. Gives Asylum to Woman Who Fled Genital Mu-
tilation," New York Times, June 20, 1996; and "A Refugee's Body Is Intact but Her
Family Is Torn," New York Times, September 11, 1996. For related stories, see Neil
MacFarquhar, "Mutilation of Egyptian Girls: Despite Ban, It Goes On," New York
Times August 8, 1996, A3; Celia W. Dugger, "African Ritual Pain: Genital Cutting,"
New York Times, October 5, 1996; Celia W. Dugger, "New Law Bans Genital Cut-
ting in United States," New York Times, October 12, 1996, A1.
2. Moreover, the male operation, in both Judaism and Islam, is linked with mem-
bership in the dominant male community rather than with subordination.
3. Nahid Toubia, Female Genital Mutilation: A Call for Global Action (here-
after FGM) (New York: UNICEF, 1995), 5. Toubia was the first woman surgeon in
the Sudan. She is an advisor to the World Health Organization, vice chair of the
Women's Rights Project of Human Rights Watch, and director of the Global Action
against FGM Project at the Columbia University School of Public Health. Other
medical discussions include Toubia, "Female Circumcision as a Public Health Issue,"
New England Journal of Medicine 331 (1994), 712 ff. Amy O. Tsui, Judith N.
Wasserheit, and John G. Haaga, eds., Reproductive Health in Developing Countries:
Expanding Dimensions, Building Solutions (Washington, DC: National Academy
Press, 1997), 32-3 with bibliography; N. El-Saadawi, "Circumcision of Girls," and
R. H. Dualeh and M. Fara-Warsame, "Female Circumcision in Somalia," in Tradi-
tional Practices Affecting the Health of Women and Children, ed. T. Baasher, R. H.
Bannerman, H. Rushwan, and I. Sharif (Alexandria, Egypt: the World Health Orga-
nization, 1982); C. P. Howson et al., eds., In Her Lifetime: female Morbidity and
Mortality in Sub-Saharan Africa (Washington, DC: National Academy Press, 1996);