Thought for the Day

[trish]

But do enough Americans care? Trish responded to the argument with a flippant, cynical dismissal of human rights with a trivial pop song intended to blame the victim, not the perpetrator of crime who is often neither a teenager nor in love. Says it all really.

At least there are some Americans trying to do something about it.
https://www.washingtonpost.com/poste...=.21ccdbce35ae

Flippant and cynical? Yes. A dismissal? No. Intent to blame? I’m leaving that to posters. Puppy Love also reminds of the line from another 50‘s songs, “Why must I be a teenager in love.” The idea behind these laments is that no one seems to recognize that young people fall in love just as intensely as anybody else and that their commitments to each other are just as legitimate. An sentiment as can sympathize with it but still not agree with. Obviously an eleven year old is not in a position to make those kind of commitments, even if in prior ages these sorts of commitments were considered normal. Sorry to have offended some readers.

I agree with Stavos that in the U.S. many of the families who petition the state to allow their underage daughters to marry do so because the daughter is pregnant and they wish to deflect any shame neighbors and family may direct toward them and their daughter. Outside the U.S., child marriage is used not only to deflect shame but also ostracism, beatings and death. This is also the case with some child marriages within the immigrant population of the U.S. ( https://nyti.ms/2kgW4th )

I would just like to point out the ‘shame’ be of being pregnant out of wedlock is a social construction whose origins are obscure, but which I suspect are not disconnected from religious moral instruction, past and present. Historically Mormonism encouraged the practice of child marriage and it still happens in rural compounds today.

Why do we allow the courts to make exceptions to laws against child marriage? Every once in a while it comes up and the House tables it. Why? One would think passing such a restriction would be an easy way to score brownie points among the morally straight. Do they choose not to get those brownie points because no one cares? Or do they table it because someone does? Do they table it because certain organizations frame it as a government intrusion on religious liberty?

Yes, men use religion as an excuse. What can we do about it? I suggest clicking the link that Stavros provides above.

What else can be done? If only somebody could declare that having sex out of wedlock isn’t a shameful Sin against God and society and have people believe it.
But wait, don’t we already believe that?
The people who do aren’t the ones forcing their children into marriages.
(It might also help to declare birth control isn't a Sin against God as well.)

[Stavros]

As usual Trish you provide a compelling argument, but it is about the general issue of sexual morals be they interpreted by religion or by secular society. What seems to me to be a false contradiction that legislators ought to confront, is the fact that sexual intercourse with a minor -be that 18 or 16 years of age as it differs from state to state- is considered illegal, and therefore must be regardless of any appeal to the 'exercise of religion' as the 1st Amendment puts it. I don't see a single argument in religion that allows a marriage where there is no consent from either partner, where there is no demonstrable love, not least because in many cases the bride has note even met the father. Looked at in detail, there is to my mind no basis in religion for marriage between a child and an older person or even between a child and another child, because that is what being a minor means. As there is no basis for it in religion, there can be no basis for it in law, there is no contradiction between child abuse outside religion and child abuse within it, because it is illegal, it is always illegal, and society has, justifiably in my view, argued that it is illegal owing to the lack of emotional and intellectual maturity of the child, and the potential physical damage that may be caused to a young girl having sexual intercourse at the age of 11 or 12.

I continue to wonder how it is that the USA manages to combine the best of this world, with the worst of it. From phenomenal achievements in science and engineering, in physics and chemistry, in computing and communication, in poetry, music, film, literature and dance, while offering as a contrast legally sanctioned behaviour that is not an expression of freedom, but just depraved, immoral, and offensive to decent people. I am not a moral conservative, but I do wonder about some of the so-called 'freedoms' in the US which to me look like they damage other people's lives, and that is not freedom.

[trish]

Certainly theologians have constructed and expounded upon a great many complex arguments over the centuries. But if one had to judge from what laymen are exposed to (mostly sermons and Bible verses) religion has less to do with arguments and more to do with declarations, pronouncements, commandments and parables.

What we hear from the pulpit is that it’s a sin to have sex out of wedlock and that wives should obey their husbands. What we read from the sacred texts is that Abraham offered the favors of his own daughters to a group of strange men, that Muhammad married Aisha when she was six years old, and that Mary was essentially told she would be conceiving and bearing God’s Son (although there is a line where she concedes, “...be it unto me according to thy word”).

I am unaware of any argument (argument being distinct from a lesson, a parable or a divine command) from religion, one way or the other, on the issue of sexual consent (within or without marriage) or what the age of consent should be.

Fortunately, most people (I think) would agree that sex should require the consent (in one form or another) of all directly involved parties. In the U.S. this is just part and parcel of the individual freedoms we are all expected to afford one another. Nobody likes to be coerced. For me the tricky part is determining the age of consent.

Most of us agree, I agree, that thirteen years old is way too young. However we should guard against the tendency to think this is a trivial matter. There are thirteen year old children who know they are not the gender that most adults presume them to be. One cannot automatically decide, because of their age, that they are not competent to know this about themselves. Their futures depend on them being able to convince some open minded adult with some authority over them that they are indeed who they say they are.

I know of an 18 year old boy who has been given the same sentence as a hardened pedophile for having fallen in love with and consensually made love to a 16 year old. For the rest of his life, where ever he chooses to live, he has to knock on the neighbor’s doors and announce that he’s a sex offender. This just doesn’t seem humane to me, let alone just.

These are tricky issues. We need to depend upon our common sense and our common humanity when we consider individual cases. There may be a sort of religious temperament that can be brought to bear here; but not one that makes people ashamed of themselves and labels them sinful in the eyes of a God whose keeping count.

I’m pretty sure these are not the sort of examples that scare Congressmen into tabling proposals that would disallow exceptions to the underage marriage laws. Rightly or not (I think not), Congress is largely persuaded by First Amendment ‘Argument’ alluded to in my prior post.

Personally I’m glad it’s not my task to codify any of this into law.

[Stavros]

A few comments on your post, Trish -

1) The age of consent is not the same in all of the states in your Union, and the application of the law is also different. The age of consent is 16 in some states so the case you cited may criminalize a male having sex with a 16 year old that is legal in another state. Bear in mind also that the age of consent is not the same as the age of marriage -the age of consent in Kentucky is 16, but it is not legal to marry until 18. It is legal for 16 year olds to marry in the UK but in England they need the consent of their parents but not in Scotland where it is permitted without the need for parental consent.

I believe in some States (it is the case in most of the UK) some leniency is shown when sexual relations take place between a minor and a male who is not much older than she and whom she may have known for some time, whereas, as in the UK if the girl is 16 (the age of consent here) and the man is 44 the law steps in. This means again that you can find legal situations in one state that are illegal in others, but while this might be an example of 'States rights' the issue is in fact marriage not sexual intercourse, so it would be -probably ought to be- possible for states to show leniency if a relationship can be proven between two people of comparable age, where the real issue is of men taking advantage of underage girls, with or without their parent(s) approval and marrying them, or manipulating the parent(s) with money or other inducements to obtain their possession of an underage girl.

2) Muhammad's 'child bride' Ayesha is bogus, as over the years I have seen her age fall from 9 to 6, but only one Hadith among thousands claiming Ayesha was nine when they married and most others suggesting she was at least 18 so you should regard the 'paedophile Prophet' as an historic distortion intended to smear the reputation of 'God's Messenger', this has been taking place since the Middle Ages and was not invented by Breitbart though nobody takes them seriously anyway.
But if the Hadith are to be taken as some form of Holy Writ or the basis for the definition of Shari'a law, and to some extremists they are, then religious law rather than custom dictates how long a man's beard must be, the length of his robe, where he puts his hands during prayer though in this it is confusing because is it hands crossed above or below the navel, and is it wrong to hold them by one's side instead? What happens if a believer is in a wheelchair and cannot kneel? On this basis, any religion can pluck an example from its 'holy' scripture and transform it into a legal obligation on the believer, whatever nonsense it is -does the example of Jesus prove that Christians should either be completely vegetarian or vegetarian but allowed to eat fish? Did you ever hear of Jesus eating steak or chicken wings?

When the 1st Amendment provides for the 'exercise of religion' does it not mean that anyone can create a religion -which in the US they can, as with the commercial enterprise masquerading as a religion known as 'Scientology'- and that there is nothing to stop such a religion from providing the authorities in their state with the documentations, written by God of course, or one of his angels, that permits an adult male to marry and have carnal relations with a girl once she begins menstruating, if not before (but that can be arranged). Do you really think state authorities can be duped in this way?

A legislator should ask for documentation or proof that the underage girl has consented to marry and that she is doing so without the advice or from any pressure applied by parents or anyone else, but must also be provided with the legally valid proof that the religion permits underage children to marry. I don't see this is difficult at all. If your religion says it is permissible, prove it!

3) The example of the transgendered child is a difficult one for reasons most of us know on this board, but the issue is not gender identity or even consensual sex, and while I accept that many children aged 12 or 13 are interested in it, keen to have it, and may even be experienced in it, that doesn't make it legal and the issue here is not getting laid, but getting married.

4) the point is that in the modern age I do not know of any religion in which marriage between a male and underage girl is permitted, and that includes arranged marriages even if the couple have not even seen each other, where the arrangement is probably a mixture of the financial and 'communal' or 'inter-communal' 'values and customs' in nature.

Child abuse has been smuggled into the law on religious freedom, that is the core issue here. Child marriage must be abolished, made illegal in all circumstances.

[trish]

Nicely reasoned. Thank you.

I did realize the distinctions between consent to marriage, consent to have sex and consent to gender transitioning render my examples somewhat suspect. I was only hoping readers would realize that youth doesn’t automatically render mute one’s personal insights and desires and also that some laws (bearing on the issue of consent) might work best if some flexibility were built into them. You write convincingly that child marriage is not one of them.

Having just written the above I realize ‘consent’ is rather a strange thing to ask of someone entering a marriage, or of someone about to have sex or especially of someone about to undergo a gender transition. Mere consent seems a rather low bar!

As to your question, “Do you really think state authorities can be duped in this way?” (referring to faked religions taking advantage of First Amendment protections in order to sexually abuse children). I don’t know. I’m not sure it matters whether or not representative so-and-so is duped by the First Amendment ruse. What matters is whether the electorate is duped. The mentality that is most susceptible to this sort of misdirection tends to be the get-big-government-out-of-my-private-life mentality that has always been a thorn in the side of American politics. What irks me is legislators, sworn to uphold the Constitution, worry more about getting re-elected than about doing their job and protecting children from the abuses of predators posing (or not) as religious leaders.

[broncofan]

The problem with providing any exceptions for religious practices is that they can only be justified by reference to the scripture or by the practices of the adherents. Bonafide religious beliefs can be ridiculed as fraud the more outlandish they seem, even when they may not be fraud but delusion. This is not meant to be pejorative but to raise the question for non-believers; does it matter whether it's fraud or delusion?

There seems to be a problem that runs through the entire enterprise of making exceptions for religious practices based purely on the sincerity of the beliefs of the believer. Does a religion need to be ancient in order to be recognized as bona fide? Does it need a lot of adherents? Or just a few people who are certain about the origin of the universe and the will of God who will not yield to any state-based authority? If this seems like a strawman it's only because modern states have worked their way around the problem to minimize any actual conflict with the most established brands and the most established brands have been interpreted in ways to minimize conflict with secular institutions as they've begun to divorce themselves from the church.

It's true that many attacks on Aisha are based on animosity towards Islam but maybe the best interpretation to this reference in the Hadith is that religion has often perpetuated the norms of the status quo. It doesn't overturn power structures but privileges groups of people, even if apparently based on merit for how devout they seem. These are systems that aren't based on anything empirical, that depend on authorities to dictate their rules and priests to divine the will of supernatural beings.

I will point out that if one criticizes religion by pointing to the text they are told they are interpreting religion like a fundamentalist. If one points to the practice of an adherent or a group of adherents, then the critic is told that group of people have a rogue interpretation that exists nowhere in the text.

So religion has opened itself up to groups of people who use its lack of objective verification to promote their own interests? Can we be sure it didn't start out that way? And yes the practice of pedophilia is odious and would exist without religion...but why is religion a convenient way to insulate the practice?

[trish]

Lot’s of good points. Thanks for the post, Broncofan.

Another problem with the State making exceptions for certain religious practices is that it puts the State in the position of having to recognize some religions and not others. Some churches don’t have to pay taxes because the state recognizes the associated religion. Other churches are not so regarded by the state. Mormonism counts as a religion, Rastafarianism does not. This may not directly contradict the non-establishment clause, but to my mind it’s pretty close to the state ‘establishing’ some religions over others. The State effectively gets to decide what is a religion and what is not. This has always been my primary argument against exempting churches from taxation; but it works not only for taxation but anytime the State is asked to make an exception for a religious entity simply because it’s a religious entity. Child marriage being the case in point.

[broncofan]

Lot’s of good points. Thanks for the post, Broncofan.

Another problem with the State making exceptions for certain religious practices is that it puts the State in the position of having to recognize some religions and not others. Some churches don’t have to pay taxes because the state recognizes the associated religion. Other churches are not so regarded by the state. Mormonism counts as a religion, Rastafarianism does not. This may not directly contradict the non-establishment clause, but to my mind it’s pretty close to the state ‘establishing’ some religions over others. The State effectively gets to decide what is a religion and what is not. This has always been my primary argument against exempting churches from taxation; but it works not only for taxation but anytime the State is asked to make an exception for a religious entity simply because it’s a religious entity. Child marriage being the case in point.

I agree with what you're saying about establishing religion, whether it's viewed that way or not, recognizing one and not another privileges some sincerely held beliefs over others.

There is also an issue with how the free exercise clause is interpreted; if the free exercise clause cannot be used to strike down any neutrally applied law that only targets a practice and not a religion, it might be superfluous.

For instance, to violate this interpretation of the free exercise clause a law might prohibit the use of peyote in religious ceremonies but not for recreational use. But if it did that it might also violate the equal protection clause because it would discriminate against an insular group without a sufficient justification. It would not prohibit peyote use based on health justifications but based on the identity of the group in question.

But any broader interpretation of the free exercise clause yields legislative authority to the religious entity. If a law that is intended to prohibit a practice and not impinge on a particular group is barred by the first amendment, then beliefs sincerely held by one group can permit an exception to the rule of law or bar that rule by veto.

We've talked about the monopoly of the state to use violence but what about the monopoly of the state for rule-making?

I know the objection to all of the above might be that the practices might be based on the abuse of religion rather than religion itself. But the abuse stems from how religion tends to be administered, how it distributes power through its institutions, and how the religion itself makes claims. Religion is usually hierarchical internally, insular with respect to the outside world, reluctant to cede power to any authority not divinely ordained and impervious to any argument that does not cite its doctrine.

[broncofan]

if the free exercise clause cannot be used to strike down any neutrally applied law that only targets a practice and not a religion, it might be superfluous.
.

This is unclear because I tried to state it as a negation. An interpretation of the free exercise clause that only bars laws directed at a practice when it is engaged in by a religious group is probably superfluous.

[Stavros]

We've talked about the monopoly of the state to use violence but what about the monopoly of the state for rule-making?
I know the objection to all of the above might be that the practices might be based on the abuse of religion rather than religion itself. But the abuse stems from how religion tends to be administered, how it distributes power through its institutions, and how the religion itself makes claims. Religion is usually hierarchical internally, insular with respect to the outside world, reluctant to cede power to any authority not divinely ordained and impervious to any argument that does not cite its doctrine.

There is an important issue here, because in Europe at one time there were Ecclesiastical Courts that dealt with religious law separate from the State, and they still exist, not as a parallel legal system to try heretics and/or apostates, but mostly to deal with 'in-house' issues among their clergy, with the exception that I believe the Roman Catholic Church in the USA retains the power to officially ex-communicate a believer, and I assume this is also possible through the Beth Din for Jews.

The Beth Din is a good example of how what Chris Christie has defended as 'Religious Custom' -note he did not use the term 'Religious belief'- can shape people's lives. Here in the UK there have been numerous complaints that in cases of family law, primarily divorce, an observant Jew who has been granted a divorce by the Court, has then found the Beth Din refusing to recognize the judgement. The women concerned have complained that the judgement tends to reflect the arguments of their former husband who may oppose the divorce out of spite rather than for any other reason. This matters to them because as observant Jews they feel they cannot marry again unless the Beth Din has recognized the judgement of the court, as well as the obvious fact that the marriage has broken down. There is a similar problem for those Muslim women in the UK who seek the endorsement of a Shari'a court in matters of divorce and child custody, where the 'religious custom' may in fact reflect the cultural bias of the Imam who was born and bred in say, a small town in Pakistan rather than in London.

So the issue of the 'monopoly' of the law appears to be simple on one level: the law as passed by and administered by the State is the sole source of authority, but on another level, there are people for whom religion is the essential ingredient of their lives who need their faith to endorse what the law has decided, or for that matter, to oppose it, if only within the context of the faith. Most of these issues, perhaps all of them, relate to family law with regard to divorce and the custody of children. I don't know how the State can deal with the emotional, or spiritual impact of a secular decision, but I venture to suggest that Courts do in fact try to address these issues when they are before them but that the decisions cannot always be satisfactory to the people involved, as happens in a lot of other cases.

A clear distinction is also not made when the Courts are persuaded to make a judgement on the basis of religious law in order to reach a conclusion -it has been argued by some, I think for mischievous reasons, that US courts are 'bowing' to Shari'a law when passing judgements in family law that affect Muslims or have even 'incorporated' Shari'a law into the legal system of the US, as if it were some 'take over' -when it may also be the case that Courts bear in mind the Christian faith or the Jewish faith or the whatever faith when dealing with those cases. A court being sensitive to a person's faith may not be replacing secular law with religious law.

The key issue for me here is that what Christie is calling 'Religious custom' makes no attempt to look in detail at what this means with regard to the law or even the religion itself, and begs the question, if 'child marriage' is acceptable because it is part of 'religious custom' or even belief, and I dispute this, why does child marriage rather than many other aspects of that 'religious custom' take place as many times as it does?
A good example would be the claim that in Jewish law, the penalty for adultery is death by stoning, something which I believe has not happened in the US, indeed, I don't know if anyone in any religion in the US has been stoned to death. Is incest permitted in Jewish law because Abraham had sex with his daughters (assuming this to be true, much of the Bible is written in metaphor and we know that the original texts have often been mis-translated and retain these errors in the most commonly available versions in English)?

It comes down mostly to sex, that Child Marriage is being allowed because of a 'pick 'n mix' approach to religion which the Courts should recognize to be pernicious precisely because so much else in the religion is banned or not even considered acceptable in the 21st century. It seems always to be related to the female sex, be it sex, or marriage or family issues notably divorce, and seems almost always to result in decisions that are biased towards men and against women.

The right of women to be treated equally before the law is already contested in the US with regular attempts by religious fanatics to deny women the sole authority over their own bodies, and here is an example of the law denying children the right to be treated equally as other children on the basis of what their parents claim is best for them on the grounds of 'religious custom'. No, it is wrong, and is not even supported by the religion, and it is time for States to re-write their laws to protect children who should at the ages of 11, 12, 13 and 14 be focused on their education not their (often unwanted) babies.