What About the No Test Oath Clause

[Lynne Henderson]

     This debate is  assuming the *Civil Rights Cases* were decided the 
proper way.  Maybe they were, maybe they weren't.  (Is Title II of the 
Civil Rights Act of 1964 constitutional or not?)
	  Many, many people--including the late Gerald Gunther--believed 
section 5 was the way to prohibit discrimination in the workplace 
rather than the commerce clause.  A broad reading of section 5, along 
with Privileges and Immunities (if you thing that's the best place to 
locate citizen's rights) or due process incorporation of the Bill of 
Rights certainly could support the application of constitutional rights 
to the workplace.  Since the state action doctrine is so incoherent and 
the public/private "distinction" elastic, it is not "wrong" to say that 
constitutional rights should expand to the workplace.  It is 
far-fetched on current positive law grounds, but it is not crazy to 
think it could be done.  (Else why would Justice Scalia have spent any 
time distinguishing Title VII "hostile  environment" cases in *R.A.V.*? 
  That's a *rhetorical* question, there are all sorts of reasons why he 
would've distinguished those cases)

Prof. Lynne Henderson
Boyd School of Law--UNLV

On Nov 24, 2006, at 4:54 PM, Steven Jamar wrote:

>
> On Nov 24, 2006, at 7:30 PM, Bob Sheridan wrote:
>
>>
>>
>> Steven Jamar wrote:
>>
>> "...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."
>>
>> ***
>>
>> The Constitution may or may not reach the private workplace per se,
>
> Under what circumstances may the Constitution reach the private 
> workplace per se, other than the 13th Amendment banning slavery?
>
>> but if a large business, such as Macy's, for example, fires a worker 
>> for showing up with a Muslim head-scarf, doesn't she have an issue to 
>> bring to the U.S. EEOC as a matter of religious discrimination in 
>> employment?
> Statutory claim.  Not constitutional claim, no?
>
>>
>> Bob S.
>>
>
> -- 
> 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/
>
>
> "Rarely do we find men who willingly engage in hard, solid thinking. 
> There is an almost universal quest for easy answers and half-baked 
> solutions. Nothing pains some people more than having to think."
>
> - Martin Luther King Jr., "Strength to Love", 1963    
>
>
>
>
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