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Unholy Prison Break
Banning books.


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But why did the Bureau of Prisons purge thousands of perfectly peaceful Christian and Jewish (for example) books when the problem was a handful of Islamic texts? A Bureau spokeswoman offered this brow-scratcher: “We really wanted consistently available information for all religious groups”. In what sense, though, are the Koran, The HarperCollins Encyclopedia of Catholicism, and The Chronicles of Narnia — apparently all still permitted — consistent”? Besides, Senator Schumer never asked for “consistency” across religions. He asked about sources of Muslim extremism. No one imagined a total redo of prison libraries nationwide.

Critics across the political spectrum have criticized the Project for limiting the reading material of prisoners. Perhaps they are right, though simply reducing the number of books in prisons could well be justified by legitimate security concerns. The real problem with the Project is not the what, but the why. What is the sense behind this strangely ecumenical policy of equal material about all faiths?

Lying behind the prisons’ curious reduction strategy is something familiar and, in a curious way, something very American. It is a cardinal principle of American law that we treat religions equally. No discrimination on religious grounds. No religious test for public office. No “establishment” of any one church or faith. The Supreme Court most famously put it in an 1871 case: “the law knows no heresy.” What is true (or false) about distinctively religious things — creeds, worship, prayer — is not for the government to say.

Neither Senator Schumer not the Inspector General proposed that Islam was a heresy. They never suggested that the distinctively religious tenets of Muslims — their steadfast monotheism, their mode of frequent prayer towards Mecca — were silly or unworthy, much less that the government declare them to be false. Schumer proposed that tenets of certain Islamic theologies are dangerous, and that they should be treated accordingly. He may have also asserted, at least implicitly, that certain moral teachings — such as the license to kill people who are innocent of any use or threat of force, harassment or killing of those who leave Islam, moral approval of subjugating non-Muslims — are false as well as dangerous. Good that he did. They are indeed both false and dangerous. Nothing whatsoever in our law or in our traditions calls us to pretend otherwise. Nothing, moreover, in a wholesome regard for religious pluralism — and in the public rhetoric or etiquette thereof — should lead us to deceive ourselves, either.

We should expect that our public officials, when faced with a threat from one religion, hesitate to say it. We know that they instinctively prefer the language and grammar of religious neutrality. It is no surprise that, at first, they speak generically and even blandly, and act as if things are, well, other than as they are. But only at first.

The Bureau of Prisons had plenty of time for sober second thought. Still they acted as if things were as they might have wished, rather than as they are. In failing to face facts they harmed those in their custody and care. Even more so than most of the rest of us, prisoners need access to spiritual support, which they cannot obtain unless the prisons give it to them. As the recent lawsuit complains, the “books and media…removed at Otisville form the basis for understanding and practicing” their faiths.

Still, the damage, comparatively speaking, is still modest. Well, so far. But as we move ever deeper into the struggle against terrorism, failing to face up to and name the real source of it will become more and more costly. The costs of failure will be visited mainly upon non-Islamic institutions and their partnership with government in projects for the common good — education, health care, and social services among them.

What if the IRS, for example, responds someday soon to reports of Islamic charities funneling money to terrorists, in the way that the Bureau of Prisons did to Senator Schumer? Will “consistency” across religions strip all churches of their tax-exempt status? Will social-service providers be squeezed out of the contracts opened to them by Charitable Choice, by the presence of suspicious Muslim providers? What is to become of school-choice initiatives wherever the affected community contains a few madrassas? Will politicians propose, and will courts sustain, public aid to religious schools with realistic adequate safeguards against funding breeding grounds for terror? Or will they take the easy way carved out by the federal Bureau of Prisons?

Gerard V. Bradley is a professor of law at the University of Notre Dame and a legal scholar at the Hoover Institution.



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