Does a godless constitution amount to a godless country? Hardly.

The American constitution is, strictly speaking, a secular document. It manufactures a secular government which must construct policy not derived from religion but in near-totality from evidence-based, reasonable, empirical claims. This is the usual narration. In truth, Western philosophical thought has been trying to reconcile faith with reason for centuries now; ever since Augustine’s De Civitate Dei (The City of God) which not only proposed that the purpose of government or Civitas Terrena (City of Man) was to enable citizens to reach paradise or Civitas Dei (City of God) and that all laws should be reflective of this claim. Augustine also happened to pen down the foundation of Just War Theory; a version of which is in incorporated in various treatise and universal declarations. Politics, then, is not only about empirical claims but perhaps, more importantly, about value-prepositions and value-judgments. Some of these have been directly inferred from religion and the resultant has been both horrifying and glorifying.

The American constitution does not make allowance for religion but it does not keep America from being a deeply religious country, America’s religious motifs are enshrined in its very Declaration of Independence (1776) which “holds these truths to be self-evident, that all men are created equal and are endowed by their Creator with certain inalienable rights, that among those are Life, Liberty, and the pursuit of happiness.” According to a 2014 study by the Pew Research Center, 70.6% of the American population identified themselves as Christians, with 46.5% professing attendance at a variety of churches that could be considered Protestant, and 20.8% professing Roman Catholic beliefs. The same study says that other religions (including Judaism, Buddhism, Islam, and Hinduism) collectively make up about 6% of the population.

So how did the non-heteronormative gain favour from a deeply religious country? It would seem by appealing to constitutional guarantees, which are a hallmark of any functioning democracy; by allowing a minority to over-turn the decision of the majority if such a decision led to tyranny. Post Stonewall riots the minority used the same tools for political change that the African American used, or the suffragettes used for equality, albeit much more affectively, to galvanise support.

The definition of marriage in the system comes from William Blackstone, a 17th century jurist who defined marriage to mean “union between man and woman”. This of course is a procreation-centred view of marriage, which creates fundamental problems for a number of variations of marriage in a number of ways: What if a seventy-year old couple wants to get married, or an infertile couple seeks to legally validate their love for each other? What happens to the main premise of Blackstone’s definition then?

Associate justice of the Supreme Court Elena Kagan brilliantly addressed the crux of the procreation arguments in a rather Socratic method when she asked: “Suppose that there’s a state with a very procreation-centred view of marriage of the kind that you are talking about… So when people come in and ask for a marriage licence, they just ask a simple question: Do you want children? And if the answer is, ‘No’, the state says no marriage license for you. Would that be unconstitutional?”

But what does it mean beyond the question of morality? There are a list of tangible awards that the SCOTUS decision has brought to the American non-heteronormative. Apparently, nothing short of complete personhood, same-sex couples will now be able to inherit property, to sponsor their spouse for immigration benefits, have joint parenting rights such as access to a child’s transcript, have next-of-kin status for emergency medical decisions, qualify for domestic violence intervention, and have immunity to from testifying against a spouse.
What lessons does this extension of equality hold for our minorities in Pakistan? For the Sikhs, Hindus, Christians, and Women who have had to play Atlas and bear unbearable oppression and tyranny because we have been unable to reason with God? Can we extend equal rights to them all in practical, everyday life where homo homini lupus est - man is wolf to man?

We can. We ourselves have redefined the sex and gender for ‘leadership’ in pioneering ways. We became the first Muslim-majority country to elect a female head-of-state. We’ve defined marriage in our way, too. A 16th Century Arab would be horrified that Muslims don’t keep harems anymore and frown on polygamy. That now, it has become tantamount to cheating on one’s partner. We redefine what it means to be a Muslim everyday as we grapple with this post-modern and accelerating post-industrial society, problems absent from the societal narrative of Muslims of yore.

In the United States of America, they have arguments around what they call ‘strict construction’ and ‘loose construction’ (in interpreting the constitution) i.e. ‘originalism’ or textualism of the constitution versus looking at it as ‘living’ or growing? What was the intent of the framers when they said these things? Can be re-interpreted based on the changes of time? Their founding fathers didn’t really leave a lot of explanation about how they wanted it to be understood, although there are some remarks. Thomas Jefferson, for example, said that ‘’you can’t expect an adult to wear the coat of a child’’ and ‘’countries grow, and therefore our understanding will grow and there needs to be changes’’ but he also said ‘’but don’t allow the constitution to be wax’’ in the hands of the government to where they can shape it to fit the way they want.

This dilemma that exists in the United States is very similar to the dilemma that Muslims are going through today, if I can be allowed to draw a loose analogy. There are many Muslims that are arguing for a ‘living’ Qur’an as opposed to a type of textual approach to the Qur’an: how do we interpret the Qur’an in the light of modern society?

In ‘Usul ul –fiqh’, arguably the essence the philosophy of legislation in the Islamic tradition - much of the Qur’an and the hadith is in fact closer to what we would call ‘constitutional Law’ in the west. It is not Statute Law. The Prophet, peace be upon him, gives far more constitutional expressions in legal injunctions than he ever gives cut and dry statute law - ‘do this, don’t do that.’ He leaves things open. There’s an immense amount of ambiguity in the hadiths; this was known early on. There are very few verses of the Qur’an and hadith that are considered as what is known as ‘qat’iatil dilala’, which is where the understanding of the expression is absolute; that we know exactly what it means. It often holds two, three, four, five, six meanings.

The other thing that is so extra-ordinary about our early scholars is that they were very well aware of what we would call ‘fallibalism’ - that they were not dictating ‘God’s Law’ in their jurisprudence. They were dictating the ‘mujtahid’ or the individual’s understanding of God’s Law. In fact even Ibn Qayyim al-Jawziya in I’laam ul Muwaqqi’een has a chapter entitled ‘’The Prohibition of Calling a Fatwa ‘The Ruling of God”. The Prohibition of Calling a Fatwa the Ruling of God! The ‘fatwa’ is a personal opinion of a ‘mujtahid’ in attempting to understand the intention of a text.

I would argue that the Islamic tradition has within itself all of the needs to renovate the house, but it’s going to take an immense amount of intellectual energy, it’s going to take very highly qualified people which necessitates institutions that can train and produce the types of people that are needed to engage in this activity; who have the necessary tools to reason with God as our ancestors did in our ‘Golden Age’. There is immense room to accommodate minority opinion, and to see some of the changes in the world as natural and non-threatening to morality or social life.