Right wing politicians in Switzerland have been embroiled in a series of legal battles for the last several years over the construction of ‘minarets,’ or the tall spires that indicate the location of a mosque and broadcast the call to prayer. After suffering from a number of legal setbacks, the group finally succeeded in having a popular referendum on the issue on November 29. The Swiss people voted overwhelmingly in favor of amending their constitution to include a ban on the future construction of minarets, which are perceived by many in the country to be symbols of religious fundamentalism and theocratic political power.
Political advertisements circulated in the weeks leading up to the referendum showed a Swiss flag riddled with dark, ominous minarets and a fully veiled Muslim woman. Before I discuss some of the political-philosophical dimensions of the referendum, I will raise a few obvious points, in addition to a personal note. First, minarets do not have some particular association with fundamental or militant Islam any more than church steeples are inexorably associated with fundamental or militant Christianity, or features of synagogues with militant ‘Zionism.’ I can’t imagine how terrible I would feel as a Jew, if the structures common to Jewish temples, whether reformed, conservative, or orthodox, were explicitly linked in a piece of political propaganda to militant forms of Judaism. The utter lack of nuance is not only patently ignorant, but incredibly dangerous insofar is it further divides large swaths of people into discrete groups that are increasingly perceived as a threat one another’s existence. People who are offended by the sight of the minaret should do well to consider that throughout much of history and to some extent even today, Jews, Muslims, and other historically persecuted groups involuntarily shudder in the powerful presence of a church.
On a personal note, I knew veritably nothing about Islam and the use of minarets until I married into a wonderful Turkish family and began to spend quite a bit of time in Turkey. Admittedly, I was taken off guard when the call to prayer came blasting into our bedroom at around 5am from—you guessed it—the local minaret. The practice grew on me, however, as there is something beautiful and ‘Old Worldy’ about it; for me it is one of the defining features that makes places like Istanbul like nowhere else in Europe or the Americas. That being said, I am of the opinion that the booming call to prayer should be prohibited in a liberal, secular democracy where many of the inhabitants are of a different or no faith, or would otherwise prefer not to have religious song thrust into their open windows. But the minaret controversy was not about the call to prayer or whether it constituted a ‘public nuisance’ in the legal sense of the term (I am not sure if prayer was even carried out from minarets in Switzerland); rather, it was about the mere fact that the minaret is perceived to embody a form of religion that the people of Switzerland choose, as a polity, not to countenance.
I find this outcome of democratic deliberation to be a tragedy on multiple levels—social, in terms of inter-group relations; moral, with respect to the harm it causes to individuals by restricting their freedom to live and worship freely and pursue their own conception of the good; and political, insofar as it reflects the tyranny of the majority to trample on fundamental political and religious rights of a minority citizenry. This referendum represents one of the rare instances in which a constitution was actually amended to take away, rather than provide a baseline for, fundamental religious and political rights. Of course, the attempt to explicitly regulate Muslim religious structures, rather than simply structures per se of a certain height, or even religious structures per se of a certain height, would not survive constitutional scrutiny in countries where the content-based regulation of religion is subjected to high levels of judicial scrutiny. The key point here, however, is that the regulation of minarets in Switzerland no longer has to stand up to constitutional scrutiny at all—since thanks to the referendum it is now part of the constitution itself!
The basic idea behind constitutional governance is that it provides a scheme that specifies the basic structure and allocations of power between independent branches of government, and creates entrenched legal limitations on government power that prevent key civil and political rights from being subject to the tyrannical whim of the democratic majority (e.g. the Bill of Rights in the U.S. Constitution). Although constitutional arrangements are themselves subject to amendment, removing them should be much more difficult than changing ordinary laws. But as the minaret ban in Switzerland shows, even respectable constitutional democracies can sometimes fail to provide equal protection of the rights of some of their citizens, especially denigrated members of national minorities. It is precisely for these situations that multinational or international human rights law needs to step in. The notion of international law trumping the democratic and indeed constitutional will of a national polity is a thorny issue, one that I have written about elsewhere with Allen Buchanan. It is up to international lawyers and legal scholars to determine whether the constitutional minaret ban is consistent with, or takes precedence over, Switzerland’s human rights obligations under the EU and other Supranational legal regimes. From a moral and social perspective, however, it is a sad day indeed.