Law.com - 3rd Circuit Rejects Muslim Cop's Bid to Wear ReligiousScarf

[Eric Rassbach]

This case was poorly litigated.  No constitutional claims were raised until the appeal, so the only thing before the court was a Title VII religious discrimination claim, which means that the claim was examined under the "undue hardship" standard rather than strict scrutiny.  (The City admitted that it had not provided a reasonable accommodation.)  Apparently the plaintiff failed to controvert the City's testimony regarding undue hardship, and the allowed scarves issue was not before the Court of Appeals because the plaintiff had not raised it in the District Court (see fn.5).  The plaintiff also dropped the PA RFRA claim on appeal. 

It's a shame that it was bungled so badly, since the real issues at the core of this dispute are worth a court's attention. 

________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock [laycockd at umich.edu]
Sent: Wednesday, April 08, 2009 7:11 PM
To: religionlaw at lists.ucla.edu
Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to Wear     ReligiousScarf

This case appears to have just become outrageous. She can wear a scarf but not "this" scarf?  Or not for "this" reason?  Or not if she's a Muslim?  What rule, or what interpretation, did she violate?

Quoting Christopher Lund <Lund at mc.edu>:

> I was confused about this too. The 3rd Circuit opinion makes it sound as
> if Directive #78 was religion-neutral.  But the district court opinion
> was a little more unclear.  Judge Bartle made statements like,
> "Philadelphia Police Directive 78 bars the wearing of religious dress or
> symbols under all circumstances when a police officer is in uniform."
> That sounded to me like an explicit ban on religious attire.
>
> So I looked at the Directive 78 that Dave Sidhu sent.  That does not
> single religious gear out specifically.  It does have certain
> exceptions, such as for jewelry (wedding rings, class rings, id
> bracelets, small post earrings for women only).  And relating to what
> Professor Finkleman said before, there's actually an allowance for
> "scarves" if they are "black or navy blue," and "captains and above may
> wear white scarves."  Perhaps a khimar can fit in there.
>
> Best,
> Chris
>
> ______________________
> Christopher C. Lund
> Assistant Professor of Law
> Mississippi College School of Law
> 151 E. Griffith St.
> Jackson, MS  39201
> (601) 925-7141 (office)
> (601) 925-7113 (fax)
> Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>>>> VOLOKH at law.ucla.edu 4/8/2009 11:16 AM >>>
>
>     Is the rule really against wearing religious attire?  I couldn't
> quickly find Police Department Directive 78 -- the relevant rule --
> online, but as I understand it, it sets forth a specific uniform, and
> all deviations from the uniform are prohibited, whether they are
> religious or otherwise.  I doubt, for instance, that the department
> would allow the wearing of political buttons, or ethnic symbols, or
> just
> the officer's favorite hat.  Or am I missing something?
>
>     Eugene
>
>> -----Original Message-----
>> From: religionlaw-bounces at lists.ucla.edu
>> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of David Cruz
>> Sent: Wednesday, April 08, 2009 8:24 AM
>> To: Law & Religion issues for Law Academics
>> Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid
>> to Wear ReligiousScarf
>>
>> I don't understand why counsel would not have argued starting
>> with the complaint that a rule against wearing *religious*
>> symbols or attire was not a "neutral law of general
>> applicability" and thus should receive strict scrutiny under
>> the federal Free Exercise Clause.
>>
>> David B. Cruz
>> Professor of Law
>> University of Southern California Gould School of Law
>> 699 Exposition Blvd.
>> Los Angeles, CA 90089-0071
>> U.S.A.
>>
>> -----Original Message-----
>> From: religionlaw-bounces at lists.ucla.edu
>> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Joel Sogol
>> Sent: Wednesday, April 08, 2009 2:05 AM
>> To: Religionlaw
>> Subject: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to
>> Wear Religious Scarf
>>
>> A Muslim woman who works as a Philadelphia police officer has
>> lost her court battle to wear a religious head scarf on the
>> job now that the 3rd U.S.
>> Circuit Court of Appeals has ruled that forcing the
>> department to accommodate her would compromise the city's
>> interest in maintaining "religious neutrality" in its police force.
>>
>> http://www.law.com/jsp/article.jsp?id=1202429736190
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> _______________________________________________
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>



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713