What About the No Test Oath Clause
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
> Bob S.
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.
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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