Pooyan Tamimi Arab
Yesterday I was at the European Parliament to participate in a hearing on religious marital captivity. It was organized by ALDE (European liberals) and by Femmes For Freedom, to push EU states to recognize marital captivity as a fact, and as something that requires European attention. It was a very cosmopolitan hearing, with speakers from European, African, and Asian backgrounds, concerning diverse religions, cultures, and traditions. One of the most impressive talks was by prof. Ruth Halperin-Kaddari, vice-president of CEDAW, who explained the absurd fact that there are no civil marriages in Israel.
The following is the text of my own contribution at the end of the day:
Secularism and Marital Captivity. Pooyan Tamimi Arab. ALDE Hearing: The Injustice of Marital Captivity. 25 June 2018, Brussels, European Parliament.
I am honored and happy to be here today among such distinguished speakers, and would like to congratulate Femmes For Freedom and in particular Shirin Musa for bringing the issue of religiousmarital captivity to our attention. I am here today as an anthropologist following Femmes For Freedom, and as someone who sympathizes with the aim of tackling the injustice of marital capitivity.
To move “Toward Tangible Solutions”, as this final panel has been named, is in our age of very complex, multidirectional, global interactions, certainly no easy question to which there are no easy– one size fits a
ll – answers. We have heard and read about different cases, involving different legal and religious regimes, different levels of policy, law, and institutions, different types of personell, and, ultimately, affected people of different religious and cultural backgrounds. What a “tangible” solution is, will not always be clear as it is likely that some religious or state actors simply will not or are not able to recognize the urgency of tackling marital captivity. It is therefore important that as we are approaching the end of our hearing today, we are clear about the principles that underly the tangible, in particular the legislative, solutions we seek.
It appears to me that the issue, if indeed extended from the Netherlands to Europe, revolves around how we interpret secularism. Now, this is then immediately an enormous problem, because we know of many different types of state-religion relations even within Europe, and secularism itself is a disputed, “cacaphonous concept” (Bader 2007, 2012), which often obscures more than it clarifies. It is not a coincidence, then, that words like “secular” and “secularism” are often absent from legal and constitutional language, showing us, as the philosopher Veit Bader puts it, a normative priority for liberal-democratic constitutionalism, i.e. stipulating the rights of individual citizens concretely without the use of the confusing terms secular and secularism.
However, in the case of marital captivity, the term secularism is, I believe, unavoidable. While the secular-religious distinction does not always have to be a guiding distinction – a Leitdifferenz as Bader puts it – in this case it no doubt is, because governments that may wish to uphold a separation of church and state, or at least some form of principled distance between the two, must decide to what extent they will intervene in religious marriages.
So, let me offer a working definition, devised by philosopher Akeel Bilgrami, that may help to understand why it is necessary to take legislative action to tackle marital captivity. According to Bilgrami, secularism entails the following:
“Should we be living in a religiously plural society, secularism requires that all religions should have the privilege of free exercise and be evenhandedly treated except when a religion’s practices are inconsistent with the ideals that a polity seeks to achieve in which case there is a lexicographical ordering in which the political ideals are placed first” (2014: 12).
This understanding of secularism balances religious freedom against other ideals that a polity seeks to achieve, ideals which are often concretized as fundamental human rights and as constitutional commitments. This kind of secularism is not anti-religious, it is not intended to aggressively enforce societal secularization, which should be conceptually separated from secularism. Legislation to tackle marital captivity would not foreclose the possibility to work with religious authorities, but offers protection in cases where these authorities clearly exhibit bias or for some reason do not help to end the state of captivity. In other words, while this form of secularism is not anti-religious, it does allow the possibility of correcting religious practices when they cleary conflict with other, often basic, human rights. I believe that in 2018 marital captivity is definitely such a case.
European states can, therefore, take an “adversarial stance” (Bilgrami 2014: 4, 12-13) against religious practices that lead to, in this case, marital captivity, but – and this is important to get right – not because of the particular, cultural, sensibilities of majorities, but the priority lies rather with the ideals that are adopted by the European Union as universal ideals.
I say that this is important, because we are living in a time in which many Muslim practices that fall under the Treaty of Rome are openly disputed or contested, including the construction of mosques, veiling practices, circumcision of boys, and ritual slaughter. It is therefore unfortunate, for example, that the European Court of Human Rights has upheld the French ban on face-veiling practices not for the universal goal of gender equality, an argument that was explicitly rejected by the court, but for the sake of the French state’s so-called “wide margin of appreciation”, and because of French majority aversion towards a minority practice. In this context, it could be argued in public debate that because European Muslims face xenophobic backlash, one should take a neutral, that is, an undecided, stance towards marital captivity, or to postpone action. This would be a mistake, which would not do justice to the great diversity of European Muslims, fatalistically viewing them as unchanging, “hopeless orthodoxizers” (Ahmed 2016: 276), and neglecting the universality of ideals as made explicit in the Convention on the Elimination of all Forms of Discrimination Against Women.
Only when understood in this universalistic way can Europe legitimize the actions of women who are fighting against marital captivity outside of Europe, and who may also simultaneously beEuropean citizens. To close off with a personal example: as a dual Dutch-Iranian citizen, married to a Dutch-Iranian woman, I can refuse to grant my wife the permission to leave the Islamic Republic of Iran, for example after a holiday. European legislation will of course not simply undo this situation, but it will recognize and legitimize the rights and concerns of affected European citizens, and in some cases – as when a husband resides in a European country – open up possibilities to enforce cooperation to end marital captivity.
Ahmed, Shahab. 2016. What is Islam? The Importance of Being Islamic. Princeton University Press.
Bader, Veit. 2007. Secularism or Democracy? Associational Governance of Religious Diversity. Amsterdam University Press.
2012. Post-Secularism or Liberal-Democratic Constitutionalism? Erasmus law review, 5(1): 5-26.
Bilgrami, Akeel. 2014. Secularism, Identity, and Enchantment. Harvard University Press.