Feds Sue A & F over refusal to allow Muslim headscarves in theworkplace

Robert Sheridan rs at robertsheridan.com
Thu Sep 2 08:07:15 PDT 2010

  I agree that these issues are more complicated than the issue of 
religious intolerance, which is why I posted the article and the 
reader-comment citing undefined "cultural" objections, whatever they 
are, and then broadened the subject of inquiry to the burqa ban in 
France and the publicly nursing mother in America.

The question:  "Does the Constitution require society to ignore obvious 
harm?" suggests that there is an obvious harm in these activities that 
isn't quite yet apparent to me.  Is a publicly nursing mother harming 
me?  Is a burqa wearing woman harming me?  Is a publicly yarmulka 
wearing man harming me?  Is same-sex marriage harming me?

Years ago, police in California cited nude-beach bathers for the crime 
of indecent exposure, an offense registrable, for life, as a 
sex-offender under California Penal C. Sec. 314.1.  The statute was held 
unconstitutional by the California Supreme Court on the ground that 
there was nothing necessarily obscene under Miller, nor sexual, 
communicated by the nude sunbather at the beach.

Some observers in our culture no doubt have read something sexual, or 
obscene, into nudity, considering the general cultural taboo against 
going "too far" in public, the quoted words being subject to vague 
definition, as in "I know it when I see it."

But "obvious harm?"

Obvious to whom?


On 9/2/2010 7:47 AM, hamilton02 at aol.com wrote:
> These issues are much more complicated than your religio-centric post 
> suggests. In the case of burqas, we are dealing with liberty issues 
> separate from religion -- gender equality and oppression. The question 
> is how a free society deals with such issues. Does the Constitution 
> require society to ignore obvious harm?
> The appropriate focus for A and F, by the way is not religious 
> symbols, but rather consistency of the article of clothing with the 
> store's marketing policy. A small cross or star of david necklace, 
> like a wedding ring, does not introduce the same interference as does 
> headwear.
> Marci
> Sent from my Verizon Wireless BlackBerry
> ------------------------------------------------------------------------
> *From: * Robert Sheridan <rs at robertsheridan.com>
> *Date: *Thu, 02 Sep 2010 07:11:11 -0700
> *To: *<hamilton02 at aol.com>
> *Cc: *Marc R Poirier<Marc.Poirier at shu.edu>; 
> <conlawprof-bounces at lists.ucla.edu>; CONLAWPROFS 
> professors<CONLAWPROF at lists.ucla.edu>
> *Subject: *Re: Feds Sue A & F over refusal to allow Muslim headscarves 
> in theworkplace
> Assuming that the A&F store policy lawfully forbids the wearing of 
> religious symbols, I presume that employees may not wear a necklace 
> bearing a cross or a chai, nor a yarmulka, nor a tattoo of a religious 
> symbol, nor a Sikh turban, or the like.
> Broadening the question to the issue of dominant cultural mores, as 
> asserted in the reader- comment to the news article, what do you think 
> of legislation pending in France subjecting Muslim women who choose to 
> wear a burqa (a head-to-toe overgarment with openings to see and 
> breathe) to a fine?  Would ban-the-burqa legislation, if enacted in 
> the U.S., likely be constitutional as a general law only incidentally 
> affecting a specific minority, a la Smith v. Employment Division 
> claims of religious freedom in light of a ban on a narcotic drug used 
> as a sacrament?  I believe that the argument that the covering 
> conceals identity from the general public and the authorities was 
> rejected as a compelling state interest in cases involving masks worn 
> in public decades ago, if recollection serves, leaving the main motive 
> against the burqa a religious one.
> Further regarding cultural pressure, are nursing mothers 
> constitutionally entitled to nurse uncovered in public w/o fear of 
> citation or arrest for some form of alleged indecent exposure or 
> disorderly conduct?
> rs
> On 9/2/2010 6:22 AM, hamilton02 at aol.com wrote:
>> I agree with this Marc here.  And to insert some facts into the debate, A&  F has a non-negotiable policy regarding what employees wear from top to bottom.  It is not a general look-good policy, but a specific brand-based policy that goes to its marketing plan overall
>> There is no justification for imposing on the company a requirement that its employees have rights to water down its public image. It is a clothing company
>> Marci
>> Sent from my Verizon Wireless BlackBerry
>> -----Original Message-----
>> From: Marc R Poirier<Marc.Poirier at shu.edu>
>> Sender:conlawprof-bounces at lists.ucla.edu
>> Date: Thu, 2 Sep 2010 09:14:08
>> To: 'Robert Sheridan'<rs at robertsheridan.com>; CONLAWPROFS professors<CONLAWPROF at lists.ucla.edu>
>> Subject: RE: Feds Sue A&  F over refusal to allow Muslim headscarves in the
>>      workplace
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