What About the No Test Oath Clause

Steven Jamar stevenjamar at gmail.com
Fri Nov 24 11:41:23 PST 2006


On Nov 24, 2006, at 2:15 PM, Bob Sheridan wrote:

> Let me ask this.  Recently there was a report, out of Denmark, I  
> believe, that the burqa, the head-to-toe garment imposed on women  
> by some Muslim societies (or men), would be outlawed.  Is this a  
> religious based law (or an anti-religious law), or non-religious?   
> Are there compelling non-religious based reasons for requiring all  
> women, including Muslim, to go in public non-burqaed?  What about a  
> head-scarf ban in public schools in France?  Or in the American  
> workplace.
>
> Bob S.
> sfls

First, would a dress code be a neutral, generally applicable law?  If  
it targets a particular sort of garb that is only religious, then it  
would seem that under US law a compelling state interest and least  
restrictive alternative would be needed.  Of course there is no magic  
to such a standard of review -- one can have religious freedom under  
a lesser standard and Denmark may have such an approach.

Second, it seems to me that the government has a legitimate, and  
maybe even important or substantial interest in distinguishing  
between the civil and the religious and that a dress code may be one  
way closely enough related to that interest to pass muster.  I don't  
think it wise or necessary, but it turns on one's deference to the  
legislature's determination unless one is really doing strict scrutiny.

Third, a head scarf ban in public schools seems to overstep what is  
needed, but the particular history in a particular culture  can make  
all the difference.  Can all headwear be banned?  Turbans, yarmulkes,  
hats, scarves, baseball caps, etc?  I think so -- but then the issue  
becomes one of necessity of accommodation.

Fourth, to the private workplace the US Constitution does not reach.   
So one would need to look to the duty to accommodate religious  
practices and beliefs under state anti-discrimination laws.

Steve

-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Howard University School of Law           fax:  202-806-8567
2900 Van Ness Street NW         mailto:stevenjamar at gmail.com
Washington, DC  20008	                http://iipsj.com/SDJ/

But, Mousie, thou art no thy lane,
In proving foresight may be vain;
The best-laid schemes o’ mice an’ men
                     Gang aft agley,
An’ lea’e us nought but grief an’ pain,
                     For promis’d joy!

Robert Burns, 1785


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