Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales

Over the past few decades, principles of theocratic governance have gained enormous public support in developing polities worldwide. The countries experiencing this resurgence of religious fundamentalism are diverse, spanning the globe from Central and Southeast Asia, to North and Sub-Saharan Africa

and the Middle East. While populist Western academic and media accounts tend to portray the spread of religious fundamentalism as a monolithic and ever-accelerating phenomenon, in practice most countries that have recently experienced a fundamentalist revival have long been caught between secular and religious identities, worldviews, and commitments.

The growing popular support for principles of theocratic governance poses a major threat to the cultural propensities and policy preferences of secular and relatively cosmopolitan elites in these countries. An increasingly common strategy undertaken by political powerholders representing these secular voices has been the transfer of fundamental collective identity, or "religion and state" quandaries, from the political sphere to the constitutional courts. Drawing upon their disproportionate access to and influence over the legal arena, social forces in polities facing deep division along secularreligious lines aim to ensure that their secular Western views and policy preferences are less effectively contested. The results have been an unprecedented judicialization of foundational collective identity, particularly in the realm of religion and state questions, and the consequent emergence of constitutional courts as important guardians of secular interests in these countries. In this Article, I explore the scope and nature of this phenomenon.

This Article is divided into four Parts. In the first three Parts, I explore the crucial secularizing role of constitutional jurisprudence in three countries facing a secular-religious divide-Egypt, Israel, and Turkey. These three countries have witnessed a considerable increase in the popular support for, and influence of, theocratic political movements. At the same time, these three countries differ in their formal recognition of, and commitment to, religious values. For example, Article 2 of the Egyptian Constitution, as amended in 1980, states that principles of Muslim jurisprudence (the Shari'a) are the primary source of legislation in Egypt,1 while Israel defines itself as a "Jewish and Democratic" state;2 modern Turkey, conversely, characterizes itself as secular, adhering to the Western model of strict separation of state and religion.3 Accordingly, there are considerable differences in the interpretive approaches and practical solutions adopted by the three countries' respective high courts in dealing with core religion and state questions. Egypt's Supreme Constitutional Court has developed its own moderate "interpretation from within" of religious rules and norms.4 The Israeli Supreme Court has tackled the tension between these conflicting values by curtailing the jurisprudential autonomy of religious courts and tribunals and by subjecting their jurisprudence to general principles of administrative and constitutional law.5 The Turkish Supreme Court, on the other hand, has opted for the outright exclusion of religious values and policy preferences from legitimate political discourse.6 Despite these dissimilarities, there are striking parallels in the way constitutional courts in these and other similarly situated countries have positioned themselves as important secularizing forces within their respective societies. I conclude by suggesting that the ever-accelerating reliance on national high courts in constitutional theocracies for dealing with core religion and state questions provides important insights for understanding the political origins of judicial power and the conditions under which political deference to the judiciary is likely to occur.

I. Egypt

Under the guidance of the Muslim Brotherhood, the largest multinational Islamic movement which was founded in Egypt in the early twentieth century, Islamism has enjoyed an astounding growth in that country over the last three decades.7 Egyptian Islamism has consistently opposed the modernist, nationalist agenda advocated by the government, the historically powerful National Democratic Party, the "pro-statist" military, and above all, by Egypt's secularist, high-income elites.8 These largely cosmopolitan factions have faced a growing popular backlash from Islamic extremist movements centered in peripheral towns and urban slums.9 By the mid-1990s, it had become clear that President Hosni Mubarak's flexible pre199Os policy of accommodation had failed to effectively co-opt or silence the Islamic opposition.10 The result was a subsequent increase in the extremist backlash that has since escalated into periodic massacres and assassinations in support of sectarian causes.11

Furthermore, Islamist groups within the established political and legal order have grown in strength during the 1990s and have encouraged the development of religious sectarianism in education, religion, and the media. Political Islamists have also mobilized certain elements in the al-Azhar center for Islamic higher learning (an institution representing the Egyptian religious establishment and widely recognized throughout the Islamic world as a major theological center) and have used its newly acquired legal authority to censor a large number of books and works of art.12 These same actors have been increasingly using the fatwa procedure (a declarative decree issued by religious leaders) to influence the public policy agenda.13 From 1992 to 1996, al-Azhar's leadership-dominated by the conservative incumbency of Ali Jad al-Haqq as the Shaykh al-Azhar, the supreme religious authority in Egypt-intensified its antigovernment stance by advocating an explicitly conservative position on a number of hotly contentious issues.14 This Islamist agenda included defending the controversial practice of clitoridectomy (female genital mutilation), declaring some of Egypt's most respected intellectuals apostates of Islam, and vehemently opposing the practice of abortion.15

Corresponding with the resurgence of political Islam in Egypt, the Egyptian Supreme Constitutional Court (SCC) has emerged as an important forum for mitigating the fundamental tension between secular cosmopolitan values and religious particularism. The SCC was established in 1969 to determine questions pertaining to the constitutionality of laws, rules, and regulations.16 During its first decade, the Court exhibited restraint, only occasionally commenting on the possible unconstitutionality of laws. In 1979, however, President Anwar al-Sadat responded to growing popular pressure from religious fundamentalists by granting the SCC a relatively broad judicial authority to review the constitutionality of laws and regulations, settle jurisdictional conflicts between courts, and reconcile conflicting judgments issued by lower courts.17 In addition, the SCC was authorized to provide the definitive interpretation of a legal text when the meaning of the text was brought into question during the course of a trial.18

The constitutional reform of 1979 also ensured the Court's formal independence from government, political parties, and other improper influences and interferences.19 Unlike ordinary Egyptian courts, which are managed through the Supreme Council of judicial Bodies or the Ministry of justice,20 the SCC has control over its members' remuneration and enjoys a separate budget and administrative apparatus.21 The Court is composed of nine justices (currently, five Muslims and four Copts) that are guaranteed tenure in office until they reach the mandatory retirement age (currently set at sixty-four) and may not be dismissed without their consent.22 Appointments to the Court are made by presidential decrees based on nominations put forth by the General Assembly for the Court (headed by the Chief justice and consisting of the member judges).23 Thus far, all the appointments recommended by the General Assembly have been approved by either former President Anwar al-Sadat (who was assassinated by an Islamic fundamentalist in 1981) or current President Hosni Mubarak.

Less than a year after judicial review was established in Egypt and as a result of intense pressure from the religious opposition, Article 2 of the Egyptian Constitution was amended to allow principles of Muslim jurisprudence (the Shan'a) to become the main source of legislation in Egypt.24 The original text of Article 2 of the 1971 Egyptian Constitution read: "Islam is the religion of the State, Arabic is its official language, and the principles of Islamic Shari'a are a principal source of legislation."25 On May 22, 1980, the text of Article 2 was changed to read, "Islam is the religion of the State, Arabic is its official language, and the principles of Islamic Shari'a are the principal source of legislation."26 The result of this amendment effectively transformed Egypt into a "constitutional theocracy," in which no legislation could contravene Islamic legal principles.

Since the 1979 establishment of judicial review and the aforementioned 1980 constitutional amendment, the SCC has increasingly been called upon to determine the constitutionality of legislative and administrative acts on the basis of their adherence to the principles of the Shari'a. The question before the Court in all of these cases has been which principles of the Shari'a possess determinative and absolute authority. Unsurprisingly, the SCC has accepted its institutional empowerment enthusiastically and has reacted with a strong inclination to use its legitimacy and newly gained policymaking authority to advance a moderate interpretation of Shari'a rules.27 The consequence has been a curtailing of the scope of the 1980 constitutional amendment.28

To this end, the SCC has departed from the ancient traditions of the fiaqh (Islamic jurisprudence or the cumulative knowledge and science of studying the Shari'a) schools and has developed a new framework for interpreting the Shan'a. Specifically, the Court has developed a flexible, modernist approach to interpreting the Shari'a that distinguishes between "unalterable and universally binding principles, and malleable application of those principles."29 Legislation that contravenes a strict, unalterable principle is declared unconstitutional and void, while at the same time, ijtihad (contemplation or external interpretation) is permitted in cases of textual lacunae, or where the pertinent rules are vague or open ended.30 Furthermore, the government has been given broad legislative discretion in policy areas where the Shari'a is found to provide unclear or multiple answers, provided that the legislative outcome does not contravene the general spirit of the Shari'a.31 This interpretive approach has marked a true shift in the paradigm for legitimizing government policies based upon a moderate, fairly liberal interpretation (ijtihad) of the Shari'a.

For example, traditional Islamic jurisprudence prohibits the charge of usury or interest (riba) in business transactions.32 Applying this prohibition in a strict fashion would undermine a major foundation of domestic and international trade and commerce, corporate financial governance, and modern banking. In the mid-1970s the faculty of medicine at the al-Azhar center for Islamic higher learning in Cairo failed to repay a medical supplies provider on time.33 The supplier charged the university interest at a rate of four percent, starting from the date of the transaction.34 While article 226 of the Civil Code authorized the payment of interest on delayed debts, the rector of al-Azhar claimed that the provision contradicted the Shari'a prohibition of riba.35 The case was brought before the SCC in 1978-two years prior to the rewording of Article 2 of the Constitution.36 In a lengthy judgment released seven years after the beginning of litigation, the SCC dismissed al-Azhar's argument on the basis of the nonretroactivity of Article 2.37 The Court held that an across-the-board nullification of all existing legislation that contradicted the Shan'a was not acceptable, as the constitutional amendment had a prospective purpose; Article 2 could apply only to laws enacted subsequent to the adoption of the amendment-after May 1980.38 The SCC also stated that a retroactive application of Article 2 to strike down pre-1980 laws that contradicted the Shan'a would lead to inconsistency, instability, and confusion in Egypt's judicial system.39 This meant that all pre-1980 legislation could only be aligned with Shari'a rules through fresh legislation.40 By establishing the nonretroactivity of Article 2, the Court eliminated the possibility of drawing on the Article to bring all Egyptian legislation into conformity with the Shari'a rules. While the Court's ruling was hailed as a victory by the government and Egypt's business and banking sectors, it was a devastating blow for revivalist Islamists who described the SCC's nonretroactive application of Article 2 as a politically driven ruling, not a logical interpretation of the Article's applicability.41

The SCC's inclination to support the interests of Egypt's economic elites and to increase the profitability and predictability of its business sphere is reflected in a series of landmark rulings that strengthened the status of private property at the expense of government land expropriation reforms. As Bruce Rutherford reported, the Court's decisions have substantially broadened property rights by holding unconstitutional a 1964 land reform law without compensation42 and by overturning a 1964 nationalization law on the grounds that it failed to provide adequate compensation to the owners of nationalized property.43 The SCC has also required the government to acquire a court order before expropriating property,44 blocked the government from selling sequestered property without the approval of the owner,45 and held that the government may sequester only the property of someone convicted of a crime, not the property of his or her family.46 In another landmark judgment in 1997, the Court upheld the constitutionality of a new law that allowed for the privatization of public businesses despite the explicit constitutional provision that "public ownership is the ownership of the people and it is confirmed by the continuous consolidation of the public sector."47 The SCC based its ruling on a flexible interpretation of Article 30, stating that constitutional texts "must not be interpreted as being the ultimate and eternal solutions of economic situations that have been overtaken by the passage of time, and [that] . . . those texts have to be interpreted in the light of higher values that aim at freeing the nation and the citizens politically and economically."48 Indeed, as influential former SCC Chief Justice Awad el-Morr has noted:

Safeguards are established to maintain the performance of the social function of property in service of the National economy. This qualified protection was established with a view to the fact that ingredients of private property are rooted in an individual's activities, which constitute the machinery for progress and the source of public wealth.49

Likewise, over the last few years, the SCC has demonstrated its consistent secularizing policy by adopting a relatively liberal, middle-of-the-road approach in its interpretation of the Muslim Shari'a rules. In 1996, the Court released a notable judgment concerning the constitutionality of a governmental decree that permitted persons responsible for female pupils below the university level to request that the pupils cover their hair, provided that the covers did not hide their faces, with the niqab (mask or full head cover) and hijab (head cover).50 The case arose when the father of two secondary school girls challenged the decree and invoked, inter alia, Article 2.51 The Court upheld the constitutionality of the government decree and ruled that the relevant Shari'a directives were contestable, flexible, and subject to evolution; the pertinent religious canon was not sacred and could be amended or replaced.52 Specifically, the SCC determined that as long as a woman wore clothes that were modest and did not show any of her private parts (aurai] or her legs, she was abiding by the spirit of Shan'a prescriptions with respect to hijab.53 The dress code imposed by the contested government decree fell within the boundaries of that general tenet.54

From the perspective of constitutional jurisprudence, the significance of the SCC's ruling on the niqab issue is multifold. First, the SCC reiterated its commitment to a prospective application of Article 2 to laws enacted after 1980.55 Second, the decision extended the SCC's jurisdiction to include ministerial edicts, thereby expanding the scope of legislation that falls under the purview of Article 2.56 Third, the SCC emphasized the need for developing an interpretation of Article 2 that would be consistent with other constitutional provisions protecting liberties.57 Finally, the Court engaged in an autonomous substantive interpretation of both the Qur'an and evidence available on Sunna.58 In fact, the Court established its own interpretation of ijtihad irrespective of the contradictory opinions in Islamic jurisprudence, the fiqh, and its traditional methods. The SCC thereby positioned itself as a de facto interpreter of religious norms.59

In a similar vein in 1997, the Court upheld the constitutionality of a law that stated that a wife's right to alimony was not foreclosed if she left to seek legal employment without her husband's permission.60 The SCC rejected the plaintiffs claim that the law infringed upon Article 2 of the Constitution.61 Instead, the Court reemphasized that the Shari'a is not rigid and that its non-fundamental aspects are subject to evolution.62 The Cairo Court of Cassation drew upon the same reasoning in a November 2000 ruling that an Interior Ministry decree granting men the authority to prevent their wives from traveling was unconstitutional by virtue of its infringement upon women's equality rights.63

The SCC's erosion of Article 2's potential scope was echoed by its counterpart-Egypt's Supreme Administrative Court (SAC)-in a landmark decision concerning the controversial practice of clitoridectomy.64 In December 1997, the SAC upheld the Health Minister's July 1996 decision to ban government-certified doctors and health workers from performing female circumcisions.65 The SAC stated, "With this ruling it has become prohibited for all to perform the operation of female circumcision, even with the consent of the girl or her guardians. Violators will be subjected to criminal, disciplinary and administrative punishment."66 The SAC further warned that anyone caught performing the operation risked three years in prison, and that doctors and health workers could lose their licenses.67 The decision was subsequently decried by fundamentalists who argued that the ruling was against all Islamic principles.68

Their significant curtailment of the 1980 "Islamization" amendment notwithstanding, these judgments were merely a preview for what is arguably the most significant, secularizing SCC judgment on personal status laws to date: the so-called "Khul" case.69 Since 1985, when the SCC ruled that the comprehensive overhaul of Egypt's Islamic personal status laws (known as "Jihan's law" after al-Sadat's wife, Jihan Sadat) was unconstitutional and contrary to the fundamental principles of the Shari'a,70 Egyptian feminist activists have intensified their attempts to liberalize the country's religious family law regime.71 These efforts finally bore fruit in January 2000, when a new personal status law was passed by Parliament and signed into law by President Hosni Mubarak.72 The new law included the creation of a family court authorized to facilitate divorce cases, a family insurance plan, and other liberalizing revisions.73 The most significant and hotly contested clause of the new law, however, was Article 20, which established a woman's right to invoke khul-divorce on any grounds, so long as the groom's gifts of jewelry (shabka) and dowry payments (mahr) are returned, and certain financial rights are relinquished.74 The new law allowed this divorce by court order-without the prerequisite of the husband's consent-after a mandatory mediation and reconciliation process failed.75 These new provisions effectively outlawed the abusive practice of men divorcing their wives by simply pronouncing "I divorce thee" three times (talaq al-bid'a), bypassing any efforts to mediate or reconcile partners (talaq al-ghyabi).76

The constitutionality of the new law was challenged on Article 2 grounds by an Alexandrian resident whose wife was granted the right of khul by Alexandria's Personal Status Court.77 In December 2002, the SCC released its historic and much anticipated decision.78 Adhering to its distinction between core, uncontested Shari'a directives and their contested, malleable interpretations, the Court upheld the constitutionality of the Personal Status Law, including the provisions establishing the practice of khul.19 The litigation process was so arduous and controversial that then Chief Justice Fathi Naguib stepped down from his post on the case because he had taken part in formulating the contested law while he was an assistant to the Minister of Justice.80 Delivering the Court's judgment, justice Maher El-Bahri confirmed that the incorporation of khul into the Egyptian Personal Status Law did not violate the Shari'a or Article 2 of the Egyptian Constitution, as there were definitive Qur'anic verses and corresponding fiqh supporting the khul procedure.81

What made the Khul ruling all the more validating for feminists and prosecularization activists was the subsequent nomination of Tahany alGebali, the first ever female judge of the SCC, in January 2003.82 Although nothing in either Egypt's Constitution or, indeed, in Islam itself, prevented qualified and competent women from handling the gavel, there had been a longstanding resistance to the appointment of female justices to the Egyptian courts.83 The credit for influencing the President's decision to appoint al-Gebali to the bench is widely given to Suzanne Mubarak, an active campaigner for women's rights who declared 2003 "the year of Egyptian women."84 Portraying this appointment as "a glorious victory to Egypt who always played a pioneering role in backing progress and enlightenment,"85 Suzanne Mubarak asserted that "the issue of [a woman's] right to assume the post of a judge has long been controversial. Some social and cultural concepts that proved inconsistent with the cultural background of the Egyptian collective mind [were] to blame."86 Minister of Justice Counselor Farouq Seif an-Nasr echoed her statement, noting that "appointing Tahani Al Gibali a judge in the Supreme Constitutional Court is a landmark in the history of [the] Egyptian woman. It is quite reminiscent of the historic moment when the first school for educating girls was established and when the first Egyptian girl entered [the] university."87 The Chief Justice of the SCC was likewise quoted as saying, "[T]his is a momentous event in the history of Egypt and Egyptian judiciary; justice and equality are noble values extolled by all Egyptians."88

Given the fact that Egypt is a "strong state," where the President and the executive branch enjoy a wide scope of powers,89 it is somewhat surprising that the SCC received such a broad grant of judicial review over administrative and presidential legislative authority. Even more surprising is the fact that the SCC has maintained and fortified its relative independence since its establishment. Further, the Sadat and Mubarak regimes' support of the SCC and its relative independence stand in stark contrast to the numerous pre-1971 incidents of blatant political interference with Egypt's judicial sphere90 (for example, the 1969 "massacre of the judiciary," where more than 200 senior judicial personnel were dismissed on "over-independence" grounds by a presidential decree).91 However, when understood as an integral part and an important manifestation of the concrete cultural, religious, and political struggles that have shaped Egypt's political system over the past few decades, the scope and timing of the Egyptian constitutional revolution is hardly surprising. Judicial empowerment in Egypt was fervently advocated by an unlikely coalition of the government and the military, economic and judicial elites, as well as the urban intelligentsia, who united in their efforts to block the increasing effect of Islamic fundamentalism on public life and to enhance Egypt's identity and image as a modern, nonfundamentalist polity.92

The Court has delivered the goods for this coalition of secular factions. Its interpretation of the Shari'a rules advanced a moderate, nonfundamentalist interpretation of the laws, thereby modernizing from within traditional fiqh.93 Further, the SCC's engagement in the interpretation of Shari'a rules has contributed to the secular establishment's efforts to contain religious fundamentalist challenges by delegating the safeguarding of Egyptian Islamic law to a predominantly secular institution-the SCC-while professing commitment to the constitutional principality of the Shari'a.

For those who initiated and carried out the process of judicial empowerment in Egypt, judicial activism came at the cost of losing their exclusive grip on public policymaking. Over the past two decades, the SCC issued a number of landmark rulings that fortified the status of political rights, freedom of the press, and legal due process.94 The Court also asserted its authority to oversee the integrity of electoral processes, thereby favoring the policies of Egypt's secular intelligentsia and civil society over those of the military and state apparatus.95 However, on the core question of the status of Shan'a rules-arguably both the most controversial and fundamental issue troubling the Egyptian polity-the SCC has yet to issue a single ruling that would be deemed unacceptable by the executive branch, the military, or the secular intelligentsia. Along with its establishment of private property rights, the Court has consistently advanced a moderate, flexible interpretation of pertinent Shari'a directives, thereby allowing the antifundamentalist coalition in Egypt to stem the advance of constitutional theocracy while shielding its core worldviews and policies from unfavorable popular pressures. The Court enjoys wider public support than the powerful executive and is not perceived as representing narrow, particularistic political interests.96 Furthermore, although its rulings often take the opinions of important religious leaders into consideration, the SCC generally favors a relatively liberal interpretation of Shari'a rules. Finally, while the Court's moderate translation of Shari'a rules into practical guidelines for public life is not what the executive and its largely secular, ad hoc allies would have hoped for under conditions of minimal religious opposition, it nevertheless serves as a buffer between this coalition and the strength of Islamic revivalist groups and ideas. As Nathan Brown concludes, "Rather than restricting the state to enforcing conceptions of justice whose origins precede the state, law in Egypt continues to enable the state to shape and guide society. Executive authorities, while often annoyed by the exercise of judicial power, have no quarrel with such a vision of law."97

II. Israel

Israel's constitutional system is based on two tenets: (1) that the state is Jewish and (2) that the state is democratic.98 It is this commitment to the creation of an ideologically plausible and politically feasible synthesis between particularistic (Jewish) and universalistic (democratic) values that has proved to be the major constitutional challenge faced by Israel since its foundation.99 Reaching such a synthesis is especially problematic given that approximately one-fifth of Israel's citizenry (excluding the Palestinian residents of the West Bank and Gaza Strip) consists of non-Jews (primarily Muslims, Christians, and Druzes). Even within the Jewish population itself, the exact meaning of Israel as a Jewish state has been highly contested.100

Not only do opinions differ bitterly as to whether Jews are citizens of a nation, members of a people, participants in a culture, or co-religionists, but even within the latter-arguably the most stable of these constructions-there are widely divergent beliefs and degrees of practice.101 Nevertheless, for a host of historical and political reasons, "the Orthodox stream of the Jewish religion has long enjoyed the status of being the sole branch of Judaism formally recognized by the state."102 In practice, this exclusive recognition means that there is an Orthodox monopoly over the rabbinical court system and the provision of religious services and that the least progressive branch of Judaism has an entrenched status as the primary beneficiary of state funds allocated for Jewish religious affairs.

To complicate things even further, the past three decades have witnessed a continuous decline in the political power and representation of Israel's historically hegemonic and secular Ashkenazi bourgeoisie (mostly Jews of European descent), while Mizrahi or Sepharadi, lower income religious groups (mostly Jews of North African and Mediterranean origin) have steadily gained political influence during this period.103 As I have shown elsewhere, the bloc of Parliament (Knesset) members representing the secular bourgeoisie's policy preferences lost more than one-third of its relative combined electoral power between 1981 and 1999 (from 95 Knesset members (MKs) in 1981, to 62 in 1996, to 58 in 1999).104

This continuous decline of the secular bourgeois power base has been accompanied by a dramatic increase in the electoral power of parties representing disadvantaged minorities in Israeli society. Together, parties representing marginalized groups in Israeli society more than doubled their combined electoral power between 1981 and 1999 (from 25 MKs in 1981, to 58 in 1996, to 62 in 1999). The Shas party alone (representing Orthodox religious Mizrahi residents of development towns and poor urban neighborhoods) increased its power impressively from 4 Knesset seats in 1984 (63,600 votes) to 10 seats in 1996 (260,000 votes) and 17 seats in 1999 (430,000 votes), making it the third largest party in the fifteenth Knesset. Shas' impressive electoral success was quickly translated into powerful policymaking positions in the government and the public service. For over a decade (from 1988 to May 1999), Shas had control over both the Ministry of Labor and Social Affairs and the strategically powerful Ministry of Interior (responsible for local government, budgetary allocations for Israel's municipalities, and the population administration that controls the registration of new immigrants). Shas was the second largest partner (after the Labor Party) in the new governing coalition established by Ehud Barak following the 1999 election, and its ministers held four crucial policymaking portfolios. Drawing on its increasing political power, Shas has been able to secure government funding for its increasingly popular semiautonomous education network.105

A similar pattern is evident in another important majoritarian decision-making arena in Israel: municipal elections. The 1989, 1993, and 1998 municipal elections reflected a weakening of power for the two dominant parties in an arena they had long monopolized. Candidates representing the policy preferences of religious voters have become influential political actors in several urban centers traditionally dominated by the secular Ashkenazi establishment as well as in numerous development towns and peripheral local authorities. The high point of this trend was the election in 2003 of the ultra-Orthodox Torah Jewry candidate as the mayor of Jerusalem.106

Well aware of the backlash eroding its hegemony, representatives of the Ashkenazi secular bourgeoisie in the Knesset initiated and promoted Israel's 1992 constitutional revolution in order to transfer the main locus of political struggle from Parliament, local government, and other majoritarian decisionmaking arenas, to the Supreme Court of Israel (SCI), where their ideological hegemony is less threatened. Until the early 1980s, the dominance of the Ashkenazi secular bourgeoisie in the Knesset, and the fact that its ideological and policy preferences enjoyed an uncontested hegemonic position, created a strong disincentive to delegate policymaking authority from the Knesset to the SCI. When this platform began to erode in the mid1980s, the incentive structure gradually changed.107

As the secular Ashkenazi elite's disproportionate influence over the country's important political decisionmaking arenas has been increasingly challenged, its willingness (if not eagerness) to transfer crucial religion and state questions from the political arena to the SCI has likewise increased. Based on the SCI's record of adjudication and personal composition, as well as the ideologies of the justices, Israel's secular Ashkenazi bourgeoisie can safely assume that its worldviews and policy preferences with regard to constitutive questions of religion and state will be less effectively contested.108 This has resulted in the transformation of the SCI into a (if not the) crucial present-day forum for addressing the country's most fundamental collective identity quandaries.

Two significant formal changes in 1988 and 1992 provided the necessary institutional framework for the Court's activism. Originally, the Court demanded that any petitioner show possible harm to a direct and material personal interest. In 1988, however, the Court significantly liberalized the rules of standing pertaining to direct individual petitions, effectively recognizing the standing rights of public petitioners and lowering the barrier of nonjusticiability.109 Second, the constitutional landscape in Israel changed dramatically in 1992 with the enactment of two fundamental rights laws, the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.110 The laws protected the right of every citizen or resident of the state to engage in any occupation, profession, or business, as well as the right to property, due process of law, freedom of movement, life, personal freedom, privacy, and human dignity.111 Section 1 of Basic Law: Human Dignity and Liberty proclaimed:

Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel (1948).112

Moreover, section 1 of Basic Law: Human Dignity and Liberty stated that its purpose was "to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state."113 It is generally agreed that the two new Basic Laws awarded the SCI the authority to hold unconstitutional, and therefore unenforceable, primary legislation enacted by the Knesset."4

In 1995, the SCI drew upon the new constitutional framework adopted in 1992 to virtually invalidate-for the first time in Israel's constitutional history-a Knesset law.115 The Court used this Marbury v. Madison-like occasion to "firmly establish its power to declare unconstitutional acts and statutes that did not comply with the standards set out in the new Basic Laws."116 More importantly, "the majority of justices held that the two new Basic Laws had ushered in a new era in the historic quest for a comprehensive constitutional catalogue of rights and active judicial review in Israel."117 The SCI's exclusive powers to issue orders against statutory bodies,118 combined with the 1988 liberalization of access and standing rules, the post-1992 constitutional framework, and, above all, the political interests conducive to the expansion of judicial power, contributed to the transformation of the SCI into the principal institutional channel for addressing the fierce struggles over Israel's identity as a Jewish state among secular, Orthodox, and non-Orthodox-Reform or Conservative-interests and policy preferences. In a series of landmark decisions over the past two decades, the SCI pursued a distinctly secularist agenda by subjecting the jurisdiction, prerogatives, and choices of religious bodies to the general principles of administrative and constitutional law. The result was the promotion of policies advocated by those who had initiated the Court's empowerment.119

In one of the first post-1992 cases dealing with the normative foundations of Israel-the Meatrael affair-a prima facie contradiction was raised between the constitutional right to freedom of occupation and Israel's primary character as a Jewish state.120 Meatrael, a private company that intended to import non-Kosher meat products into Israel, appealed to the SCI against the Ministry of Religious Affairs's refusal to license the company to do so.121 The company argued that the Ministry's behavior violated its constitutional right to freedom of occupation.122 The Ministry's refusal was based on the claim that Israel's Jewish character was one of the state's supreme constitutional norms and thus had priority over any other norm.123

In its first decision on the case, the Court declared the Ministry of Religious Affair's refusal unconstitutional because it stood in contradiction to the principles of the new Basic Law by infringing the company's right to engage in any legal economic initiative.124 Subsequently, under pressure from religious parties, the Basic Law was amended (in the spirit of the famous Canadian Notwithstanding Clause) to allow for future modifications by ordinary laws endorsed by an absolute majority of Knesset members.125 An amendment, forbidding the import of non-Kosher meat, was subsequently enacted in 1994.126

Based on the new 1994 "Meat Law," the government renewed its refusal to license the import of non-Kosher meat.127 In response, Meatrael appealed to the Supreme Court again, arguing for its constitutional right to engage in any legal economic initiative.128 This time, the Court ruled against the company, based on the reasonableness of the new Meat Law, in light of the amendments made to the Basic Law.129 Behind this decision, however, lay immense political pressure for the Court to prevent any further erosion of the conception of "Israel as a Jewish state" as the highest constitutional norm. In spite of its somewhat anticlimactic ending-the legislature ultimately managed to circumvent judicial scrutiny of its decision-the Meatrael affair clearly illustrated the impact of the new Basic Law on the contours of political discourse concerning the ideological foundations of Israel. Indeed, prior to the adoption of the new Basic Law, it would have been unthinkable for the legislature to assert its will in such matters and obviate a constitutional crisis in the courts.130

The Meatrael saga and its aftermath, however, were only the first round in a wave of postconstitutionalization adjudications related to the deep secular-religious cleavage in the Israeli polity. Armed with the provisions of the new Basic Laws, appellants representing an explicitly secular agenda have been recently successful in transforming the SCI into an advocate for and guardian of their policy preferences. This trend is clearly illustrated in the curtailment of the exclusive jurisdiction of rabbinical courts in matters of personal status,131 the erosion of Orthodox monopoly over the provision of religious services,132 and the liberalization of "prayer rights" in Jewish holy sites.133 Proponents of secular policies have also scored victories with the SCI's continuous questioning of the constitutionality of the draft deferment arrangement134 and its revolutionary answer to the question of "who is a Jew?"135

One of the pinnacles of the SCI's secularizing jurisprudence in matters of religion and state is its subjection of the religious courts' jurisprudential autonomy in matters of personal status to the general principles of due process and equality. In Israel, no unified civil law applies to all citizens in matters of marriage and divorce.136 Instead, for various political and historical reasons (the roots of contemporary Israeli family law go back as far as the Ottoman Empire's ancient millet system), the courts of the different religious communities hold exclusive jurisdiction over marriage, divorce, and directly associated personal status matters.137 A number of other personal status matters may be adjudicated through the rabbinical court system (controlled by Orthodox Judaism), if the involved parties consent to such extended jurisdiction.138 Muslim, Christian, and Druze courts also have exclusive jurisdiction over the personal status affairs of their respective communities.139 In short, in preserving religious courts' powers to adjudicate matters of personal status, the Israeli state has recognized the right of each community to demarcate its membership boundaries through its own family law codes and lineage rules. However, in doing so, the state has also granted these communities a license to maintain intragroup practices that disproportionately injure vulnerable group members, such as women.140

Although the fundamental problem of women's heightened vulnerability to gender discrimination in the religious divorce process remains unresolved, the SCI has gradually been attempting to limit the authority exercised by religious courts. Specifically, the Court has dealt with issues connected to marriage and divorce status, such as property allocation and child custody. The most important SCI judgment regarding these matters was promulgated in 1995 in Bavli v. Great Rabbinical Court.,'41 In this ruling, the SCI held that the adjudications of all religious tribunals, including the Great Rabbinical Court, are, in principle, subject to review by the SCI.142 While the Court recognized the special jurisdictional mandate awarded to Jewish, Muslim, Christian, and Druze courts by the legislature, it nevertheless asserted its power to impose constitutional norms upon their exercise of authority.143 Rabbinical court officials have responded by publicly asserting their resistance to the idea that the SCI, as a secular entity, possesses a mandate to review their adjudication, which rests on religious law.144 Some have gone so far as to declare their intention to ignore the SCFs ruling in Bavli, which they perceive as an illegitimate intrusion into their exclusive jurisdictional sphere.145

Based on its landmark decision in Bavli, the Court went on to rule in Katz v. Jerusalem Regional Rabbinical Court that the rabbinical courts were not authorized to declare an individual who refused to have a civil matter adjudicated by the rabbinical court ex-communicated or ostracized.146 The majority opinion stated that since the rabbinical court system was a public organ that exists by force of law and draws its authority from the law, it could only exercise those prerogatives vested in it by law.147 One year later the SCI overturned a rabbinical court decision that held that a divorced father who had become religious was entitled to decide where his children would be educated, even though his secular wife had been granted custody of the children.148 In 1998, the Court overturned another rabbinical court decision that forced a divorcee to send her son to a religious school at the demand of her ex-husband.149 In a similar spirit, the SCI ruled in March 2001 that the rabbinical courts were not authorized to rule on a request by a man to prohibit his ex-wife from letting their children spend time with her lesbian partner.150 In 2002, the SCI went on to overturn two rulings of the Great Rabbinical Court that gave undue preference to religious rules over general law when determining the distribution of property between sides in a personal status dispute.151

Drawing on the same principles, the Court has refused to accept the exclusion of women and non-Orthodox Jews from membership in religious councils.152 The 1987 Poraz affair involved a challenge to the Municipality of Tel Aviv, which refrained from appointing women to the committee that selected the city's chief rabbis.153 By doing so, the municipality avoided a confrontation with the ultra-Orthodox representatives who constituted roughly two-thirds of the appointment committee.154 The Court held that such exclusion of women from a publicly appointed body to be unacceptable and discriminatory, as it disregarded the fundamental principle of gender equality.155

The SCI adhered to similar reasoning in its ruling in Shakdiel v. Minister of Religious Affairs, which was determined in the same year as Poraz.156 Leah Shakdiel, an ultra-Orthodox woman, was elected by the municipal council of a small town in southern Israel to the town's religious council.157 The town's chief rabbi and religious leadership refused to summon the religious council, arguing that according to Torah laws, women are not permitted to supervise religious matters.158 Shakdiel petitioned the SCI, challenging the constitutionality of the religious authorities' refusal to accept her (legally obtained) membership in the council.159 Drawing upon the fundamental principles of gender equality, the SCI held that, as public bodies that provide public services, religious councils are subject to the general fundamental norms of Israel's legal system.160 Accordingly, the Court ordered the council to accept Shakdiel's membership and to resume its operation without any further delay.161 This type of jurisprudence, revisiting the historic monopoly of Orthodox Judaism over (Jewish) religious matters in Israel, continued a few years later when the Court drew upon the sameness principle to rule that the exclusion of women and non-Orthodox representatives from Jewish municipal religious councils and the electoral groups that selected candidates for these councils contravened the constitutional principle of equality.162 In 1998, the Court reaffirmed its earlier rulings, ordering the immediate inclusion of representatives of Reform and Conservative Jewish communities in regional religious councils;163 it also instructed the minister of religious affairs to allow a woman to be a member of a local religious council.164

Yet another illustration of the wholesale judicialization of the secularreligious cleavage in post-1992 Israel, and the anti-Orthodox impulse that lies at the heart of this process, can be seen in the "Women of the Wall" affair. The Women of the Wall was an organization of observant Jewish women who prayed together in a minyan-a religious quorum traditionally reserved for men.165 This form of worship was not acceptable to ultra-Orthodox Jews when practiced by women and was therefore prohibited by the "Rabbi of the Wall"-a state-nominated official authorized to regulate the Jewish prayer arrangements at the Western Wall.166

In 1994, after several years of political deliberation failed to yield a solution to the problem of women's "prayer rights," the SCI was called upon to resolve the dispute. In its first ruling on this matter, the Court held that when the principle of gender equality came into direct conflict with the religious beliefs of a group (as in this case), preference should be given to the religious group in an effort to avoid confrontation at the Western Wall, a holy site and a highly volatile political area.167 However, the SCI also urged the government to find a fair solution to the problem that would balance religious-based accommodations with women's rights to equality.168 A government committee was set up to find such a solution, but it failed to reach an agreement that was acceptable to the involved parties.169 The petitioners subsequently returned to the SCI to reassert their prayer rights based on the equality principle.170 This time around, in light of the failure to achieve a negotiated settlement in good faith, the Court reversed its original decision and ruled in favor of the Women of the Wall organization.171 The government was ordered to make the technical arrangements that would enable the women to pray as they wished, while minimizing the disturbance to other worshippers.172 Following a government appeal, an extended panel of nine justices revised the ruling in early 2003 and instructed the government to designate the adjacent Robinson's Arch area of the Wall plaza as a women's prayer section.173

In a historic decision released in December 1998, the SCI harshly criticized the validity of a fifty-year-old arrangement under which Orthodox yeshiva students had received draft deferments.174 The Court's criticism was based on the constitutional principle of equality, as well as the fundamental principles of administrative law.175 According to longstanding practice, deferments were granted solely at the discretion of the Minister of Defense.176 A rare, expanded panel of eleven justices handed the matter to the Knesset, ordering it to create legislation within a year to replace the system that was based on ministerial decrees rather than on primary legislation.177 Following this decision, a public committee was appointed to propose amendments to the existing draft deferments policy that would be acceptable to all the relevant parties.178 Following two extensions granted by the SCI, the committee published its final recommendations for modest revisions to the historic draft deferments arrangement.179 These amendments were endorsed by the government and enacted as an interim law in 2000.180 The new law (which still awards fairly broad draft exemptions to ultra-Orthodox Jews) barely survived constitutional scrutiny in early 2002 and was saved primarily because of its temporary status.181 In 2002, the Knesset succumbed to extreme pressure by all religious parties and granted permanent status to the interim law, effectively overriding the SCI's 1998 ruling.182

Arguably the clearest examples of the SCI's deep entanglement with formative questions of collective identity are its recent rulings concerning the question of "who is a Jew,"183-a decision that determines who qualifies for the right to return to Israel.184 As explained earlier, the Orthodox stream of Judaism has been the sole branch of Judaism formally recognized by the state.185 This exclusive status has enabled the Orthodox community to establish a near-monopoly over the supply of public religious services, as well as to impose rigid standards on the process of determining "who is a Jew." This question has crucial symbolic and practical implications because, according to Israel's Law of Return, Jews who immigrate to Israel are entitled to a variety of benefits, including the immediate right to full citizenship. Non-Jewish immigrants are not entitled to these benefits.186 Since being Jewish is sufficient to qualify for citizenship, the state's self-definition as a Jewish state is inextricably caught up with defining "who is a Jew."

As in the case of draft deferral, the growing political deference to the judiciary soon brought the question of "who is a Jew" to the SCI. Ayelet Shachar notes:

In 1989, the Supreme Court held . . . that for purposes of immigration, any person who converted to Judaism outside Israel, whether under an Orthodox, Conservative, or Reform religious institution, is automatically entitled to all the rights of an oleh [Jewish immigrant] . . . . In 1995 . . . the Supreme Court was again drawn into the muddy waters of identity politics. This time, the question brought before the Court was whether a non-Jewish person who underwent a non-Orthodox conversion in Israel was entitled to automatic citizenship based on the right to return.187

The SCI avoided giving a clear answer while explicitly reaffirming its 1989 ruling validating non-Orthodox conversions made abroad.188

Following this ruling, an increasing number of non-Jewish persons residing in Israel (primarily foreign workers and non-Jewish immigrants from the former Soviet Union) went abroad to pursue non-Orthodox conversion in order to claim the benefits awarded by the state to those newcomers recognized as Jews.189 In response, the Ministry of the Interior (controlled by the ultra-Orthodox Shas party) renewed its refusal to recognize Reform and Conservative conversions to judaism made abroad.190 In November 1999, the SCI revisited the issue by stating that if the involved parties had failed to reach a settlement by April 2000, an expanded panel of eleven justices would address the conversion issue soon thereafter.191 No agreeable compromise was reached by the deadline,192 and the Court resumed its deliberation on the issue later that year. The judicialization of the conversion question culminated in early 2002 with the Court's historic decision to recognize non-Orthodox conversions to judaism performed in Israel and abroad.193 In spite of the justices' continuous attempts to portray the ruling's applicability as specific to the petitioners (instead of as an across-the-board legitimization of non-Orthodox conversions), the judgment has been perceived by the Israeli public as a significant step toward the ultimate legitimization of non-Orthodox conversions, and therefore, as one of the most glaring examples of the Court's anti-Orthodox line of adjudication.

Moreover, according to recent interpretive studies, the imagined "enlightened public"-a criterion frequently used by the SCI throughout the 1990s to determine the "reasonableness" of specific acts194-closely conforms to the characteristics of the secular Ashkenazi bourgeoisie and their ideological preferences.195 These studies also suggest that the Court's conception of the rule of secular law, with its deep-rooted orientation toward Western liberalism and formal reasoning, necessarily precludes the potential accommodation of alternative hierarchies of traditional or religious interpretation. The SCI's reluctance to grant support to ultra-Orthodox religious interests also derives from its interest in retaining its status as the one and only legitimate interpreter of Israel's laws; alternative interpretive factions that pose a threat to the Court include the traditional rabbinical authorities, which are well established within the ultra-Orthodox and ultra-nationalistic communities in Israel. The deep reluctance of the SCI to recognize the legitimacy of alternative (primarily religious) interpretation systems is one of the principal reasons for its appeal to the historically hegemonic, yet increasingly threatened, secular Ashkenazi bourgeoisie and its political representatives.

III. Turkey

Like Egypt and Israel, modern Turkey has long been torn between Western secular and traditional religious identities. This is hardly surprising given Turkey's strategic location as a geographical and cultural bridge between Europe and the Middle East, the long Islamic tradition established by the Ottoman Empire, and the fact that 99.8% of Turkey's population is Muslim.196 Unlike many other predominantly Islamic societies, however, Turkey defines itself as a wholly secular state that adheres to a strict separation of religion and government.197 This principle is reflected in the first republican Constitution of 1924 and the relatively liberal and democratic Constitution of 1961, as well as the more authoritarian Constitution of 1982.

The 1982 Constitution, which was instated following the September 12, 1980 military takeover, set out to establish a new regime based on the Kemalist ideals of secularism and modernization.198 It defined Turkey as a strong, unified, and indivisible nation, with a powerful President and a semi-parliamentary system of government that adhered to the strictly secularist conception of the state-as advocated by the politically powerful Turkish military.199 The 1982 Constitution vested extended powers with the office of the President, granting it executive authority over national security, defense, and foreign policy, as well as control over the appointment of higher court judges, rectors of universities, and directorship of the higher education council.200 The President was also granted the power to approve senior bureaucratic posts, thereby insulating these crucial posts from the vicissitudes of democratic politics.201 Both the 1961 and 1982 Constitutions adhered to a centralized constitutional review system, under which the Turkish Constitutional Court (TCC) (originally established by the Constitution of 1961 and reorganized and further empowered by the 1982 Constitution) had exclusive and fairly extensive powers of abstract and concrete review, as well as the power to dissolve political parties.202 The 1982 Constitution allowed for, and even encouraged, public officials and political actors to challenge the constitutionality of legislation.203 In fact, most requests for constitutional review were brought by public officials, members of the Grand National Assembly and major political parties or were referred to the TCC by lower courts.204 The 1982 Constitution was accompanied by an electoral law-the Political Parties Act of April 22, 1983-that severely curbed the activities of Turkish political organizations.205 Parties were restricted in the nature of their organization, as well as in their ties with youth, women's, and local groups.206 Moreover, electoral laws restricted representation in the Grand National Assembly to parties that received at least ten percent of the national vote.207

Despite the strong secularist agenda established by the 1982 Constitution, Turkey (like many other predominantly Muslim countries worldwide) has witnessed a dramatic resurgence of political Islam over the past two decades. This trend is reflected by the growing public support for political parties advocating principles of theocratic governance. The expanding antisecularist sentiment in the Turkish populace has evolved alongside Turkey's tight economic and military ties with the West and its continuous quest to join the European Union. The gradual referral of the secular-religious clash to the Turkish judiciary has become an attractive solution for powerful secular interests seeking to fight the threat of religious fundamentalism while maintaining a facade of legality and Western style constitutional democracy. The TCC offered influential secular players who were unable or unwilling to advance their policies through majoritarian decisionmaking processes with an alternative institutional channel for safeguarding their agendas from popular political pressures. The result has been the emergence of the TCC as an important venue for excluding political Islam and its policy preferences from the purview of legitimate political discourse. Subparts A and B provide two examples.

A. Dress Code in the Public Education System

A perennial bone of contention between secularists and Islamists in Turkey has been the struggle over female dress code in public schools. As in other similarly situated polities, the struggle has been centered on the wearing of Muslim headscarfs (hijab) by Islamist female students in public universities. As with the fight against Islamist parties, the TCC has been a major supporter and ultimately the guardian of the ban on wearing a hijab. Succumbing to mounting pressure by Islamist groups, in 1984, Turkey's Council of Higher Education allowed female students to cover their hair with a turban it deemed a modern version of the traditional larger hijab-an acceptable deviation from the Council's general requirement of "modern clothing" in universities.208 Following a series of rulings by lower tribunals, the question of the constitutionality of the Council's bylaw reached the TCC.

Among the arguments put forth by Islamic women was the claim that a ban on wearing hijab would violate their constitutional right to freedom of religious expression (guaranteed by article 24 of the 1982 Constitution), as well as their right to be free of discrimination on the basis of religious creed (guaranteed by article 10 of the 1982 Constitution).209 Islamist activists argued that the cumulative effect of these constitutional provisions guaranteed the right of female students to wear the hijab, thereby rendering unconstitutional any government prohibition on wearing headscarves.210 In a widely publicized ruling in March 1989, the TCC held the bylaw unconstitutional.211 The TCC dismissed the religious freedom and equity arguments because the practice of wearing a headscarf contrasted with Turkey's long-term commitment to and constitutional entrenchment of modernity.212 The Court also found it problematic that pro-hijab groups based their arguments on religious freedom grounds; in rejecting those arguments, the TCC held that allowing female students to wear Muslim headscarves would constitute unfair discrimination against students adhering to other religious creeds.213

The European Commission of Human Rights sided with the TCC and dismissed a 1993 appeal filed by a female Turkish student who had been refused her degree certificate until she would submit a photograph of herself with her head uncovered, as required by university disciplinary regulations.214 In 2002, the European Court of Human Rights similarly affirmed rulings by the Turkish Supreme Military Council that approved the dismissal of soldiers in the strictly secular Turkish army who were found to be members of Islamic sects and whose wives wore hijab scarves.215

B. Closure of Pro-Islamic Parties

Under the 1982 Constitution, the TCC is vested with the power to order the closure of political parties whose agenda is found to be "in conflict with the independence of the State, its indivisible integrity with its territory and nation, human rights . . . [or] principles of the democratic and laic Republic," or when "[t]he activities, internal regulations and operations of political parties [do not] accord with the principles of democracy."216 Such closure may take place upon the ruling of the TCC in a suit filed by the public prosecutor of the Republic.217 Between 1983 and March 2003, the TCC has ordered the closure of political parties on eighteen occasions (seventeen of those since 1991).218 While some of these closures were based on technical grounds (e.g., the parties failure to comply with certain bureaucratic standards), others were based on ideological grounds. Parties that have dissolved include several pro-Kurdish parties, and most notably, two major Islamic parties-the Welfare (Refah) Party (dissolved by the TCC in 1998)219 and the Virtue (Fazilet) Party (dissolved by the TCC in 2001).220

The dissolution of the Welfare Party is illustrative of the TCC's antireligious stance and key role in preserving the secular nature of Turkey's political sphere. The party came onto the Turkish political scene in 1983 as the successor to the National Salvation Party, under the leadership of Necmettin Erbakan.221 In its first election in 1991, the party managed to garner 17% of the popular vote and 62 seats in the 550-seat national Parliament.222 In 1995, the party extended its share of popular vote to 21.4% and was able to form part of a coalition government in 1995, with Erbakan becoming Turkey's first Islamist Prime Minister.223 He was eventually forced out by the military, and in November 1997, an action was brought before the Constitutional Court to dissolve Refah.224

Refah was accused of undermining Turkey's constitutionally enshrined principle of secularism.225 This charge was based on a number of activities and policies of the party while it was in power. First, Refah supported a movement that would allow female civil servants and students to wear headscarves, despite the fact that this contravened the decisions of the National Security Council and an education law.226 Second, the prosecution targeted Erbakan for hosting a dinner party at the official residence of the Prime Minister that was attended by Islamic leaders in traditional dress.227 Third, Refah was accused of trying to block the closure of religious high schools, again in defiance of National Security Council decisions.228 Finally, a fourth charge was leveled against statements made by Erbakan during a Refah meeting at the national parliament, in which he said: "Refah Party will bring a just system, this is a must. Sixty million of Turkish population will decide whether the transition will be soft, hard, or bloody."229 While Refah claimed that these comments were taken out of context, the TCC understood them as threatening the establishment of a religious political order in Turkey "by any means necessary."230

Despite the fact that Refah was a legitimate and popularly elected party and that much of the evidence brought against it was not directly related to the party itself but was designed to show the threat posed by Islamist movements in general,231 the prosecution was successful in convincing the Court that Refah's activities posed a threat to Turkish secularism. In its decision, the Court relied mainly on the laicity principle referred to in the preamble to the Turkish Constitution: "A way of life that has destroyed the mediaeval scholastic dogmatism and has become the basis of the vision of democracy that develops with the enlightenment of science, nation, independence, national sovereignty and the ideal of humanity."232 In modern secular states, religious creed is a private matter, held the TCC, "saved from politicization, taken out of being a tool of administration, and . . . kept in its real, respectable place which is the conscience of the people."233 In such countries, modernity has become "the basic building block of transforming the people from an ummah (religious community) to a nation."234 In its ruling, the Court reiterated its view that wearing a headscarf in the public educational system was unconstitutional, as it ran contrary to the principle of secularism.235

In a similar fashion, the TCC went on in June 2001 to order the dissolution of a new, more moderate Islamist party that emerged out of the rubble of Refah-the Virtue Party.236 Despite Virtue's toned-down platform and the fact that in the 1999 general election it managed to garner 103 seats of Turkey's 550-seat parliament,237 the Court accepted the charge that, like its predecessor, the Virtue Party was violating the fundamental secular principles of the Turkish Constitution by using religious symbols for political purposes.238 Moreover, the Court ordered the treasury to confiscate the party's funds and property.239 This ruling followed the expulsion of Virtue Party deputy Merve Kavakci from the swearing-in ceremony that she was attending and ultimately stripped her of her Turkish citizenship; the action was taken against Kavakci because she arrived in parliament wearing a headscarf in direct defiance of a law prohibiting its use in public buildings.240

In February 2003, the European Court of Human Rights (ECHR) dismissed an appeal against the TCC's ruling in the Refah dissolution case and concurred with the TCC's view of Shan'a norms as incompatible with fundamental principles of democracy.241 The ECHR stated that, in its view, "a political party whose actions seem to be aimed at introducing shari'a in a State party to the Convention can hardly be regarded as an association-complying with the democratic ideal that underlies the whole of the Convention."242 The ECHR continued that,

[t]he offending statements, which contain explicit reference to the introduction of the Shari'a, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention . . . . It is difficult to declare one's respect for democracy and human rights while at the same time supporting a regime based on shari'a, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.243

The struggle between the TCC and political Islam continues. In the November 2002 general election, the Justice and Development Party (AKP)-a moderate offshoot of the Welfare Party-won 363 of the 550 seats in the Turkish parliament.244 The AKP eventually won two more seats in the March 2003 by-election, bringing its total number of seats in the Turkish parliament to 365. The AKP's popularity was further reaffirmed in the March 2004 municipal elections, where AKP-affiliated candidates won the vast majority of mayoral positions. The AKP's charismatic leader, Recep Tayyip Erdogan, while serving as a mayor of Istanbul in the late 1990s, was convicted for reciting a poem seen as inciting religious hatred.245 Despite his leading the AKP to a landslide general election victory, the TCC ruled in January 2003 that Erdogan was barred from serving as Prime Minister due to his past conviction for Islamic subversion.246 Ironically, a constitutional amendment aimed at harmonizing Turkish legislation with that of the European Union eventually invalidated Erdogan's initial conviction, thereby removing the legal obstacles to his return to Parliament (through winning a by-election on March 9, 2003), and becoming Turkey's incumbent Prime Minister.247

IV. Lessons for the Study of Comparative Constitutional Politics

Leading public intellectuals have recently depicted the Islamic world as a monolithic entity committed to a fundamentalist, anti-Western agenda.248 The post-September 11 popular media followed suit by portraying Islamic societies as united by their religious zeal and antiliberal sentiment. In practice, however, the picture in most predominantly religious polities-Islamic, Jewish, Roman Catholic, or Hinduist-is much more complex and nuanced, reflecting deep divisions and strife along secular-religious lines, as well as widely divergent beliefs, interpretations, and degrees of practice within religious communities. Democratic theocracies, therefore, provide a fascinating, yet seldom addressed context for studying the role of constitutional courts and constitutional design in addressing one of the most salient and pressing political questions of our time: what is the appropriate place for religion in public life?

Secularist elements in predominantly religious polities throughout the developing world face an ever-intensifying quandary that I call the dilemma of constitutional theocracy-how to address the intrinsic tension between secular worldviews and policy preferences, on the one hand, and increasingly popular principles of theocratic governance on the other. The empowerment of and deference to constitutional courts has become a common strategy employed by secularists to address the dilemma of constitutional theocracy. The comparative religion and state jurisprudence examined above illustrates the key role the Egyptian, Israeli, and Turkish constitutional courts have played in protecting and preserving the secular nature of their respective polities against the growing support for theocratic governance.

Operating within different constitutional traditions, frameworks, and constraints, all three courts have advanced secular or secularizing responses to fundamental religion and state questions. In so doing, they have been able to impose effective limitations on the accommodation of religious values in public life. Bounded by Article 2 of the Constitution, Egypt's Supreme Constitutional Court has developed its own moderate "interpretation from within" of religious rules and norms.249 The Israeli Supreme Court has responded to the increased tension between Israel's dual commitment to cosmopolitan and parochial values by subjecting the jurisprudence of religious courts to the general principles of administrative and constitutional law.250 Turkey's adherence to a Western-style separation of religion and state has allowed the Turkish Supreme Court to exclude religious practices and policies from the purview of Turkey's political sphere.251

The ever accelerating judicialization of foundational religion and state questions in Egypt, Israel, and Turkey, coupled with the corresponding transformation of constitutional courts in these and other similarly situated polities into active guardians of secular interests, may shed light on an aspect of constitutional politics that is often overlooked-the origins of political deference to courts. Most critics of judicial activism often blame courts and judges for being "hyperactive," excessively entangled with moral and political decisionmaking and subsequently disregarding fundamental separation of powers and democratic governance principles.252 In my opinion, portraying courts and judges as the source of evil is misguided. Courts do not operate in a political, institutional, or ideological vacuum. Judicial power is politically constructed. Its expansion (e.g., through political deference to the judiciary, constitutionalization, and the establishment of judicial review) does not develop separately from the concrete social, cultural, political, and economic struggles that shape a given political system. Indeed, the expansion of judicial power is both an integral part and an important manifestation of those struggles and, as such, cannot be understood independently of them. Moreover, because powerful constitutional courts hold no pursestrings and have no independent enforcement power, but nonetheless limit the institutional flexibility of political powerholders, the voluntary transfer of power from legislatures and executives to the courts seems, prima facie, to run counter to legislative and executive interests.

However, from the politicians' point of view, delegating policymaking authority to the courts may be an effective means of shifting responsibility, thereby reducing the risks to themselves and to the institutions within which they operate. If the delegation of powers can increase credit or reduce blame attributed to the politician as a result of the policy decision of the delegated body, then such delegation can be beneficial to the politician.253 Political powerholders may defer to the judiciary when they wish to signal credible long term commitments to certain policy preferences,254 when they face a no-win political dilemma, or when they have been unable or unwilling to settle contentious public disputes in the political sphere.255 At the very least, the transfer of core religion and state questions from the political sphere to the courts offers a convenient refuge for politicians seeking to avoid "no-win" moral and political decisions. After all, when hotly contested quandaries, such as the balance between secularism and democracy in Turkey,256 the question of "who is a Jew?" in Israel,257 or the place of Shari'a law in Egypt's public life,258 are treated as constitutional questions, the concomitant assumption is that constitutional courts, rather than elected representatives in majoritarian decisionmaking arenas, should resolve them. In other words, deference to the judiciary when dealing with questions of that nature is derivative of political, not judicial, factors.

A more astute examination suggests that the transfer of these and other contested questions from the political sphere to the courts may become an attractive option for influential yet increasingly threatened elites seeking to entrench their policy preferences from the vicissitudes of democratic politics. As I have shown elsewhere, judicial review in many "new constitutionalism" countries resulted from actions taken by hegemonic yet threatened sociopolitical groups fearful of losing their grip on political power.259 Deference to the judiciary and judicial empowerment more generally may provide a solution for influential groups who, in light of serious erosion of their popular support, may seek to entrench or "lock in" their policy preferences against the growing influence of "peripheral" groups.

Secularist, cosmopolitan elites in polities such as Egypt, Israel, Turkey, Ireland, India, and Malaysia (to name but a few) face a constant struggle to preserve their relatively universalist worldviews and policy preferences against religious particularism and its alternative worldviews and policy preferences.260 Such elites are likely to initiate and carry out a transfer of crucial political controversies from the political sphere to the judiciary in several circumstances: (1) when they find strategic drawbacks in adhering to majoritarian decisionmaking processes, or when their worldviews and policy preferences are increasingly challenged in such arenas; (2) when the judiciary in that polity enjoys a better reputation than the political regime for its rectitude, professionalism, and impartiality; (3) when elites who delegate power to the courts enjoy general control over legal education and judicial appointment processes; and (4) when the courts in that polity are inclined to rule in accordance with hegemonic ideological and cultural propensities.

Under specific circumstances, then, political powerholders may choose to maintain or enhance their positions by voluntarily tying their own hands. Such a strategic, counterintuitive self-limitation may be beneficial from the point of view of political powerholders when the limits imposed on rival elements within the body politic outweigh the limits imposed on themselves.

The transfer of core collective identity questions to the courts may also serve the interests of a supreme court seeking to enhance its political stature, influence, and authority. As the recent "strategic revolution" in the study of judicial decisionmaking has established, judges may be precedent followers, framers of legal policies, or ideology driven decisionmakers, but they are also sophisticated and realize that their range of choices is constrained by the preferences and anticipated reactions of the surrounding political sphere.261 Justices tend to vote "strategically to minimize the chances that their decisions will be overridden. If the interpretation that the justices most prefer is likely to elicit reversal [by other branches], they will compromise by adopting the interpretation closest to their preferences that could be predicted to withstand reversal."262 Accordingly, it would be plausible to assume that quite a few landmark decisions of the Egyptian, Israeli, and Turkish constitutional courts concerning religion and state have not been merely acts of professional, apolitical jurisprudence-as doctrinal legalistic explanations of court rulings often suggest-or reflections of its justices' ideological preferences and values-as "attitudinal" models of judicial behavior might suggest-but also a reflection of their strategic choices.

But short term policy considerations represent merely one possible motivation for strategic behavior by courts. Supreme court justices may also be viewed as strategic actors to the extent that they seek to maintain or enhance the court's institutional position vis--vis other major national decisionmaking bodies. Justices may decide "to play it safe" (e.g., by refraining to decide or by releasing ambiguous, passive, or conformist judgments) when the institutional incentive structure or political conditions within which they operate are not conducive to judicial innovation, divergence, or hyperactivism.263 Likewise, courts may realize when the changing fates or preferences of other influential political actors, as well as gaps in the institutional context within which they operate, might allow them to strengthen their own position by extending the ambit of their jurisprudence and fortifying their status as crucial national policymaking bodies.264

From secularist powerholders' point of view, the transfer of core religion and state questions to the courts poses a major dilemma: how to ensure that the courts will indeed produce judgments that reflect the ideological preferences of those who have handed policymaking authority over to the judiciary. At least in theory, once granted authority, there is the risk that courts might metamorphose into autonomous decisionmaking bodies whose judgments may run counter to the interests and expectations of their political advocates.265 However, the threat of consistent counter-establishment jurisprudence is unrealistic, to say the least. As we have seen, when contemplating fundamental religion and state questions, constitutional courts in theocratic democracies-as a result of a combination of their members' ideological preferences and their own astute strategic behaviorare strongly inclined to rule in accordance with the worldviews, interests, and expectations of secular groups and powerholders. Indeed, as Robert Dahl observed with regard to the U.S. Supreme Court, it is "unrealistic to suppose that a court whose members are recruited in the fashion of Supreme Court justices would long hold to norms of rights of justice that are substantially at odds with the rest of the political elite."266 The religion and state jurisprudence in the three countries that are the focus of this Article has certainly not been an exception to this rule. Those who initiated and carried out the shift of religion and state questions to the courts as a response to the increased popularity of theocratic governance successfully achieved their aims: establishing a means of insulating their policy preferences from the dynamic nature of democratic politics without risking the perils of delegation.

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Ran Hirschl*

AUTHOR_AFFILIATION

* I thank Ayelet Shachar for her thoughtful comments on an earlier draft of this Article; Bruce Rutherford and Hootan Shambayati for allowing me to cite their unpublished conference papers; and Paul Kaufman, Shahram Kholdi, Beth Tsai, and the editors of the Texas Law Review for their skillful research and editorial assistance. Some passages in Part III of this Article are reprinted by permission of the publisher from TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM by RAN HIRSCHL, pp. 54-68, 173-78, Cambridge, Mass.: Harvard University Press, Copyright 2004 by the President and Fellows of Harvard College.