The Lemon Test 2.0
Nazma Khan was born in Bangladesh and came to New York at age 11. She describes how she was taunted and teased by her fellow students for her traditional Muslim dress, most notably the hijab, the hair covering that is called for by the religious law she observes.
Her negative experience moved her to try to share with others the beauty and depth that her observance brings her. She was motivated further after 9/11, when her hijab inspired some people to call this young American citizen practicing her faith a terrorist. Eventually, she founded what she hoped would be a worldwide day of understanding, through which she would bring others to see what she saw in this observance, or at the least, to persuade the persuadable not to harass those who do observe. In good American fashion, she registered the name “World Hijab Day” as a trademark and has ever since promoted February 1 each year as a day to promote observance of hijab-wearing. In her website, she quotes a member of the UK Parliament, Tasmina Ahmed-Sheikh, expressing this sentiment:
Given the current climate, World Hijab Day®️ is even greater importance. We must stand up and clearly say that women have a right to choose what they want to wear — whenever, wherever, and however. World Hijab Day®️ is an event that we should be proud of celebrating, not just for religious tolerance but for women’s rights around the world.
The reasons the MP gives appeal to Western sentiment. Religious freedom is one of the cardinal tenets of our politics and has been so since the emergence of the movements for modern democracy in the late 1500s-early 1600s. Women’s rights became central to democracy in the 1800s and the assertion made here does not step beyond anything that has the widest popular acceptance as an assertion of political principle.
Why, then, did NYC Mayor Zohran Mamdani’s participation in this year’s hijab day’s observance cause such a stir? Journalist Masih Alinajad, an Iranian-born New Yorker, sets out her reasons for protest:
Your celebration of World Hijab Day, lacking your sympathy for women being oppressed in Iran, is not a neutral cultural gesture. For millions of Iranian women, the hijab is not a choice. It is the uniform of their oppressors. Celebrating it while women are being slaughtered for rejecting it is, at best, deeply insensitive. At worst, it normalizes and sanitizes the violence of a terrorist regime.
Earlier in her piece, she had set the context of her protest to the mayor:
While mass killings are unfolding in Iran, you have chosen silence.
While women are being beaten, imprisoned, and killed for refusing compulsory hijab and the entire Islamic regime in Iran, you have offered no sympathy, no solidarity, not even a basic condemnation.
If we take a dispassionate step back, we can see that there is no conflict between the position of the Nazma Khan and Tasmina Ahmed-Sheikh on the one hand, and of Masih Alinajad on the other. All are explicitly calling to allow women to make their own choices about their religious observance. Why, then, should there be conflict?
Let’s look at our own American jurisprudence about religious freedom to seek an answer. In Kennedy v. Bremerton, Justice Gorsuch for the majority wrote:
Respect for religious expressions is indispensable to life in a free and diverse Republic.
At issue was the right of a public high school football coach to pray privately while still on the field after a game. The Supreme Court found that, absent any attempt of the coach to compel or use his authority to persuade others to join him, the government was under no duty to suppress the coach’s religious act.
Justice Gorsuch continued:
Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech.
Our reigning legal doctrine, as is evident here, creates a free space for religious observance. Doing so in no way diminishes others’ rights, implies the Court, as otherwise, the government would be compelled to step in to preserve their freedom.
This is a highly intuitive approach given the historical appreciation of religion that has been America’s approach, as opposed to the thought coming from the French and Russian revolutions that was fundamentally hostile to religion (as they both, though not in identical ways, saw the state as the font of power and rights rather than God). We require our use of coercive force — the government we establish — to be humble and keep to its place. The people are the source of the government’s legitimate authority, and the people in turn derive their legitimate rights from God.
As my dad used to say in explaining the concept of rights to me when I was little: “The right of your fist ends at my nose.”
One need not be a flagellant to be humble. Humility is the foundation of life. Even the most brilliant person won’t be a good scientist without practicing humility before the facts. No marriage can survive without the practical humility that allows two people created in the image of God not to degenerate into an endless battle of Olympians. Humility before the task at hand is what makes a country work.
And our rights don’t work either absent humility. There is no better indicator of whether a society can work than if it embraces workaday humility.
We can apply this idea to understanding the problem with what Mamdani was doing. Justice Gorsuch announced in his decision above that the Supreme Court was disposing with the previous test of First Amendment complaints, known as the Lemon Test. Therefore, that name becomes available for what we now call for clarity’s sake Lemon Test 2.0.
This is named after the former CNN star Don Lemon’s memorable performance as a journalist/advocate participant in the invasion of a Twin Cities church. Manifesting his ideal of the crusading journalist taking part in what he reports upon, discarding humility before the facts as dangerous to his own beliefs, Lemon was recorded in planning the invasion with his non-journalist fellow activists. He actively disrupted the service by sticking his mic in the face of the pastor and hectoring him with accusations disguised as questions. Then Lemon claimed that his mission in protest was achieved by the pain he produced in the families and the children of the worshippers he had joined in harassing.
Lemon justified all this as being his right under the First Amendment. As someone exercising the freedom of the press, he cannot be forced to not invade a church, disrupt its worship, harass the worshippers, terrorize the children, and refuse the church’s repeated requests to leave. The worshippers have no right to assert their First Amendment freedom to worship if it limits his First Amendment rights to do whatever he claims is a journalist’s right to do.
As my dad used to say in explaining the concept of rights to me when I was little: “The right of your fist ends at my nose.”
The Lemon Test 2.0 is this: If anyone’s claimed exercise of freedom is only obtained by curtailing another’s right to the same exercise, that claim is bogus. That is “freedom” exactly as much as the People’s Democratic Republic of Korea is republican, democratic, or of, by, and for the people.
The enchantment with preening self-assertion is certainly not limited to one side of the aisle. And given that politics requires assertion, we can reasonably expect that it will manifest in negative ways regularly. No one is exempt from the proclivity to cross the line.
So we need a test. We are obliged to Mr. Lemon for providing it.
If your practice of a “right” requires trampling upon someone else’s legitimate right, then yours is no right.
You have no right to invade a church and harass its worshippers.
You have no right to claim any right that you do not simultaneously grant to the people with whom you differ.
We used to call this common sense. We knew it takes self-sacrifice to keep our republic working. We test our own assertions of rights — am I allowing room for all my fellow citizens to make similar assertions by right, not by virtue of agreeing with me? If not, we fail the test. Mr. Lemon has helped us all by providing a spectacular and breathtaking example of such a failure. May it long serve as a clarifying paradigm of what a bogus claim of rights looks like.
Apply this test to the clash of Mamdani and his critics over the mayor’s embrace of hijab day and his silence over the myriads slain for asserting religious freedom in Iran.
The same thinking and constitutional tradition that were given to support the ideals of the hijab day give even greater support for the cause of the Iranian people against murderous religious coercion.
Alinajad did not argue against the right of a woman to choose to wear a hijab. Given our First Amendment jurisprudence, only teenage bullies or adult bodies inhabited by a teenage-bully soul would disagree.
The power of Alinajad’s words is in the total picture, not a single idea abstractly considered. She may have remembered Mamdani’s similar use of hijab persecution on the anniversary of 9/11, when he proposed that the made-up incident of a family member riding in a subway who felt that people looked at her in a hostile way as being more important to consider than the lives of the thousands killed in cold blood on that day by people who believed that no one has the right to religious expression except themselves.
Despite his slick presentation, Mamdani has shown a violent lack of interest — at the least — in the big picture. He has been silent about far greater injustices than the ones to which he gives his exclusive attention. “Violent” because by the exquisite concern he shows over misdemeanor-level injustice, his absence of words for the massive criminality of the mullahs speaks as clearly as the quiet of a passive-aggressive neurotic.
Instead of appealing to a shared sense of justice — think of Lincoln — the justice he speaks of is parochial in the extreme, for all the smooth rhetoric. There is something always sticking in his throat. The humility to free it is missing. Although his language, like that of Nazma Khan, is correct in appealing in a universal way to rights, the mayor does not give the impression that his commitment is to more than the rhetoric.
And so, as with the gulags and the show trials, as with the Holocaust when there was still a chance to avert it, the greatest of moral issues are buried under the smallest, and the theatrics are elevated above the real struggle of millions to live free from stifling and murderous repression.
An old teaching of the Rabbis of the Talmud we can always find in Scripture, very close to any mention of God’s power, a mention of God’s compassion and humility. This biblical understanding has pervaded our Western culture. It has the firm foundation of the character of the citizens who made rights the centerpiece of their politics and so changed the world for the better.
Those who embrace humility are not the fools the Lemons of the world take them to be. Their silence in the face of provocation is bravery and dedication to duty. They make the case of the country and of the good and of God first, not the settling of their petty scores or the worship of their previous thoughts and achievements.
And with humility, their words do not stick in their throats. They will be heard, in the way that only heartfelt, soulful words can be. They do not establish their rights by curtailing others. Their devotion is to the common weal, to the infinite good of our common Creator. They strive to emulate His ways in their own paths in life.
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