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

Sean Wilson whoooo26505 at yahoo.com
Thu Sep 2 12:18:45 PDT 2010


... looks like duplicate messages are coming because you are hitting "reply all" 

while this addy is stuck in there: conlawprof-bounces at lists.ucla.edu. Might want 

to delete that addy in the thread. 
 
Regards and thanks.
 
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
  (Subscribe:  http://ludwig.squarespace.com/sworg-subscribe/ )
SSRN papers: http://ssrn.com/author=596860
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________________________________
From: Robert Sheridan <rs at robertsheridan.com>
To: Ira (Chip) Lupu <iclupu at law.gwu.edu>
Cc: conlawprof-bounces at lists.ucla.edu; CONLAWPROFS professors 
<CONLAWPROF at lists.ucla.edu>
Sent: Thu, September 2, 2010 2:55:16 PM
Subject: Re: Feds Sue A & F over refusal to allow Muslim headscarves in 
theworkplace

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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