Ayatollah 1, First Amendment 0

There’s an ironic barricade on the road to a free Iraq: The nation’s top Ayatollah won’t rescind a fatwa demanding free elections to choose those who’ll write Iraq’s constitution.

If all you knew about Grand Ayatollah Ali al-Sistani was gleaned from reading back issues of the New York Times you might not see this as a problem. The day after Sistani issued his fatwa last summer, the Times reported he “adheres to a moderate strain of Shiite Islam that traditionally separates religion and politics.”

Curious about this “moderate strain,” I looked at Sistani’s English-language website ( I was particularly interested in his view on the “freedom of speech” and “free exercise” of religion guaranteed by our 1st Amendment.

In “Contemporary Legal Rulings in Shiei Law,” Sistani tackles a question about the punishment due those who “intend to slander” his religion. “The ruling upon them is death,” he says.

With moderates like this, who needs fundamentalists?

The State Department’s annual reports on religious freedom put views such as Sistani’s in context. “Apostasy, specifically conversion from Islam, can be punishable by death,” says State of Iran. “Under Sharia,” says State’s report on Saudi Arabia, “a conversion by a Muslim to another religion is considered apostasy, a crime punishable by death if the accused does not recant.” .

Even in Jordan-realm of the telegenic Queen Rania and King Abdullah-freedom of conscience is not guaranteed. “The small number of Muslims who convert to other faiths claim social and governmental discrimination,” says State. “The government does not fully recognize the legality of such conversions.”

“It should be clear to all that Islam-the faith of one-fifth of humanity-is consistent with democratic rule,” President Bush said last month announcing “a forward strategy of freedom in the Middle East.”

Free Middle Eastern democracies would be splendid thing. But are they an achievable goal for U.S. foreign policy? That brings us back to Sistani’s free-elections fatwa.

Responding to the U.S. plan for an interim government not chosen by direct elections, Sistani’s spokesman Abdul-Aziz al-Hakim said November 26 the Ayatollah was not backing down. “There should have been a stipulation [in the transition plan],” al-Hakim added, “which prevents legislating anything that contradicts Islam in the new Iraq, in either the interim or permanent phase.”

That begs a question: Who will decide what contradicts Islam in Iraq? Sistani?

Ambassador Paul Bremer, the top U.S. official in Iraq, has made a mantra of the phrase “freedom of worship.” On November 16, he told Fox News the Iraq plan “guarantees the freedom of worship.” He told CNN “it will embed in it . . . freedom of worship.” He told ABC that the Iraqi Governing Counsel “commits itself to freedom of worship.”
Why “freedom of worship” rather than the 1st Amendment’s “free exercise of religion”?

I put that question to New York University Law Prof. Noah Feldman, whom the Defense Department hired to advise the Iraqis on drafting a constitution. “It seems to me ‘freedom of worship’ is a narrower thing,” I said. “. . . Non-Muslims may go to their own churches and worship there, but they cannot proselytize and convert Muslims, and Muslims are not free to give up Islam and profess another faith.”

“Greece, India, and Israel-a Christian, a Jewish, and secular/Hindu state, all democracies- all ban proselytizing for different historical reasons (Holocaust sensitivity in Israel; in India, fear of wars of religion),” Feldman responded by email. “Although full free exercise of religion would of course include the right to missionize, the reality is that some Muslims suspect the export of ‘democracy’ is a Trojan horse for exporting Christianity. If Muslims were to come to believe that more widely, it means we will lose our opportunity to convince 1.2 billion people that democracy and Islam are in fact compatible. In the long run, the best way to promote religious freedom worldwide is to let countries choose themselves how to define religious liberty.”

And what if they define “religious liberty” to mean that changing one’s faith is a crime?

Hard reality already seems to have determined that our goal in Iraq is not to make the Ayatollahs accept our full 1st Amendment, but a government that won’t invade its neighbors, harbor terrorists or build weapons of mass destruction.