Law.com - 3rd Circuit Rejects Muslim Cop's Bid to WearReligious Scarf

[John Taylor]

In response to Chris's question about the current status of Cooper, "religious garb statutes," and the like:  I haven't looked at these cases in a while, but my sense is that:
 
1) if we think of the Federal FE world as divided between Smith and Lukumi, a specific ban on religious garb would have to fall on the Lukumi side and would therefore be unconstitutional unless the government can meet the demands of "strict scrutiny that means what it says."
 
2)  Probably nothing short of the idea that allowing public employees to wear religious garb would constitute an actual Establishment Clause violation is enough to satisfy the Lukumi version of strict scrutiny.
 
3) Courts today are more willing than they were in 1987 to say, "Yes, this was a public employee wearing religious clothing or a religious symbol -- but the relevant audience can understand that this can be personal expression and not state endorsement."  So the idea that we'd have an actual Establishment Clause violation is far less certain, and I suspect a fair number of the folks on this list would think it obvious that police officers (or public school teachers) wearing religious clothing or symbols usually wouldn't violate the EC.
 
4)  A case like Cooper or the Third Circuit decision cited in Webb trades below full market value today mainly because of changes in judicial attitudes toward the Establishment Clause.  Some evidence of this is the district court decision in Nichol v ARIN Int. Unit 28, 268 F.Supp.2d 536 (W.D. Pa. 2003), where an elementary school instructional assistant successfully challenged Pa's religious garb statute.  (I think this case is cited in Eugene's casebook.)  
 
5)  The wild card, if there is one, is Locke v. Davey.  To me, at least, it is not crazy to think religious garb statutes, etc. could be seen as a manifestation of a good faith commitment to separationist values and should not be treated as "religious persecution" by analogy to Lukumi.  If one reads Davey broadly as standing for the idea that cases about "excluding religion" (a la Nelson Tebbe) should be reviewed more deferentially than religious hostility cases, perhaps religious garb statutes and the like could be OK.
 
6)  But (5) is a pretty broad reading of Davey, which can be limited to the funding context, etc. as Doug Laycock and others have argued.  And of course I understand that many on the list would be skeptical that courts can properly decide to vary the stringency of their review based on how suspicious they find the context to be when religious activity is singled out for exclusion.  
 
John Taylor
WVU Law

>>> "Christopher Lund" <Lund at mc.edu> 4/8/2009 5:29 PM >>>
Say that Directive #78 had a ban on specifically religious attire.  (That sort of classification does happen.  Pennsylvania, like some other states, has a statute that forbids public school teachers from wearing religious garb - a statute that both the district and appellate court mention in Webb for support.)  
 
As per what Professor Cruz said earlier, is there widespread agreement that this rule would be invalid under the Smith/Lukumi Free Exercise Clause? 
 
I certainly think so.  But I have a hard time reconciling this with Cooper v. Eugene Sch. Dist., 480 U.S. 942 (1987), where the Supreme Court dismissed a challenge to an Oregon statute that forbade public school teachers from wearing religious dress.  Does anyone know what to make of Cooper in this post-Smith day and age?
 
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 

>>> dcruz at law.usc.edu 4/8/2009 10:24 AM >>>
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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