Feds Sue A & F over refusal to allow Muslim headscarves in theworkplace
Robert Sheridan
rs at robertsheridan.com
Thu Sep 2 11:55:16 PDT 2010
Thank you very much indeed for pointing out this truly helpful essay
by Martha Nussbaum. See also her follow-up material at:
http://tinyurl.com/2bdotkv.*
*This is the sort of clarification I hope to see when coming here and
love when it appears. I'm so glad we've been having this ongoing
discussion and thank all concerned for helping define the complex issue.
Locke and Roger Williams!
rs
On 9/2/2010 10:10 AM, Ira (Chip) Lupu wrote:
> Here is a link to a very fine essay by Martha Nussbaum re: European attempts to ban the burqa: http://opinionator.blogs.nytimes.com/2010/07/11/veiled-threats/
>
> Ira C. Lupu
> F. Elwood& Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>
> ---- Original message ----
>> Date: Thu, 02 Sep 2010 09:22:58 -0700
>> From: conlawprof-bounces at lists.ucla.edu (on behalf of Robert Sheridan<rs at robertsheridan.com>)
>> Subject: Re: Feds Sue A& F over refusal to allow Muslim headscarves in theworkplace
>> To: hamilton02 at aol.com
>> Cc: CONLAWPROFS professors<CONLAWPROF at lists.ucla.edu>,conlawprof-bounces at lists.ucla.edu
>>
>> According to a report heard on NPR yesterday, some
>> Muslim women in France have chosen to wear the burqa
>> as a matter of personal choice. In fact, a group
>> has devised a fund to pay the fines incurred, so
>> that the women can wear the burqa w/o fear of having
>> to pay the resulting fines, under the new French
>> law, themselves.
>>
>> So, while it might be tempting to view burqa wearing
>> women as victims of male domination, to prevent them
>> from being leered at by other men, it appears that
>> some women wear the burqa out of free choice, or so
>> they claim, and who am I to deny them that right?
>>
>> Under the stated analysis, do free-choice burqa
>> wearing women have the right?
>>
>> Or is the dominant culture simply over-riding the
>> minority culture out of a mixture of motives, few of
>> which would withstand heightened scrutiny?
>>
>> Many of these "offends the dominant culture" issues
>> seem primarily to have elements of cultural
>> prejudice of a religious and ethnic nature, as
>> opposed to legitimate police power concerns, that
>> is: genuine public health, welfare, safety and
>> morals protections.
>>
>> Shouldn't we be trying to separate the legitimate
>> and genuine from the biased and
>> made-up-for-the-purpose reasons?
>>
>> My guess is that there is no genuine cultural
>> objection to the head scarf, the burqa, nude
>> sunbating, and gay marriage except that some of us
>> don't like some, or all, of these practices. I
>> question whether Abercrombie& Fitch may
>> constitutionally enforce a policy prohibiting the
>> wearing of religious symbols, any more than the
>> airlines could insist on employing only comely
>> twenty-somethings for what they used to call
>> stewardesses, because the practice enticed the
>> patronage of some, or many, male air passengers.
>>
>> rs
>>
>> On 9/2/2010 8:15 AM, hamilton02 at aol.com wrote:
>>
>> Harm to the woman who must cover herself
>> head-to-toe so no man is tempted. I do believe
>> these are difficult issues under our Constitution
>> but I also have no question that extremist Islamic
>> practices are as bad for women and girls as the
>> FLDS's practices are for women and children. And
>> the latter need to be fought to the same extent we
>> are fighting sex trafficking.
>>
>> A head scarf is not so clear on this axis. Though
>> I do think A& F plainly have the better of the
>> argument.
>>
>> Marci
>>
>> Sent from my Verizon Wireless BlackBerry
>>
>> ------------------------------------------------
>>
>> From: Robert Sheridan<rs at robertsheridan.com>
>> Date: Thu, 02 Sep 2010 08:07:15 -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
>> 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?
>>
>> rs
>>
>> 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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