Law.com - 3rd Circuit Rejects Muslim Cop's Bid toWearReligiousScarf

Thu Apr 9 12:03:06 PDT 2009

The Webb case brings to mind an ongoing matter involving Kevin
Harrington -- a turbaned Sikh who was told by the New York
Metropolitan Transportation Agency (MTA) that he could no longer wear
his turban as a train operator (a position within full view of the
public), and that if he still insisted on wearing his turban he would
be assigned to the railyard (an inferior post away from the public).
The MTA subsequently stated that Harrington could continue working as
a train operator if he wore an MTA logo on his turban (ostensibly to
inform the public that Harrington was in fact an MTA employee).
Harrington agreed to wear the logo out of a concern for the
potentially adverse employment consequences of refusing to comply with
the MTA's logo request.

The U.S. Department of Justice filed suit on behalf of Harrington,
arguing in part that the proposed railyard transfer and the
requirement that Harrington wear an MTA logo violated Title VII.  The
complaint is here:
http://www.usdoj.gov/crt/emp/documents/nymtacomp.pdf.

Please note that the Harrington case took place in the post-9/11
context -- he served as a train operator for twenty years and only
after 9/11 did the MTA approach him and attempt to enforce its uniform
policy.  Accordingly, in this case, the evidence of discrimination and
the selective application of the uniform policy appears stronger in
comparison to Webb.  It seems to me, nonetheless, that the Harrington
case does speak to the extent to which a public agency's uniform
policy may permissibly trump an employee's right to wear his or her
religious garb.

To be sure, public transportation is different from police.  But this
difference in settings, in my view, shouldn't make a significant
difference in terms of the individual's religious rights.  For
instance, Sikhs have a long, proud tradition of public security
service-- for example, they composed 33% of the Indian Army during its
fight for independence (though it represented only 2% of the Indian
population).  To effectively ban turbaned Sikhs from military or
security positions not only harms religious freedom, but also denies
our armed forces some of the world's most valiant people.

In any case, I apologize for the length of this email and hope the
introduction of the Harrington case is of some value to this most
interesting and important conversation.

Dave

--
Dawinder “Dave” S. Sidhu
http://www.ssrn.com/Auth?_id=688955

On Thu, Apr 9, 2009 at 2:31 PM, Brownstein, Alan
<aebrownstein at ucdavis.edu> wrote:
> I would describe the problem in a slightly different way than John does
> although I think his break down of the issues is quite helpful.
>
> In most cases wearing religious garb fulfills religious obligations and
> incidentally communicates a message identifying the person wearing the garb
> as a member of a particular faith community. This is true for government
> employees as well as non-government employees. As a general matter, the
> decision to wear religious garb should be protected as part of the free
> exercise of religion. If Smith does not recognize such a right, the problem
> is with Smith.
>
> What states, and courts, are correctly concerned about is the government
> employee going beyond the incidental message of religious identity
> communicated by wearing religious garb and communicating two other messages,
> “You should adopt my religious beliefs” or “Whether or not you hold the same
> religious beliefs that I do will influence the way I act in my official
> capacity towards you,” to clients, people receiving services from the
> employee, and subordinate employees.
>
> I think there are more effective ways to prevent these other messages from
> being communicated (ways that are less burdensome to religious liberty) than
> a ban on the wearing of religious garb. To the extent that such mechanisms
> are in place and training provided to make sure that these other messages
> are not communicated, the prohibition against religious garb becomes
> increasingly difficult to defend.
>
> Alan Brownstein
>
>
>
>
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of John Taylor
> Sent: Thursday, April 09, 2009 9:01 AM
> To: religionlaw at lists.ucla.edu
> Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid
> toWearReligiousScarf
>
>
>
> Doug's concerns are certainly legitimate ones, and I suspect few would
> disagree with the propositions that:
>
>
>
> (a) a specific religious exclusion like a garb statute is more worrisome
> than "neutral" laws under Smith (as the Police Directive in Webb apparently
> was), and
>
> (b) courts should certainly be very interested in any evidence that such a
> statute or regulation is being enforced selectively.  The potential that a
> hoary garb statute can be ignored most of the time and then
> selectively enforced due to biases of particular officials is troubling, and
> certainly proof that this was happening ought to result in a finding of a
> constitutional violation.
>
>
>
> How much enforcement and/or retention of a garb statute or the like would
> turn on hostility versus honest commitment to separationism is an empirical
> question.  I am always a little skeptical of the idea that in America there
> are significant numbers of communities where significant numbers of
> government officials or citizens are hostile to religion in all its
> forms, though I'm sure there are quite a few who are hostile to conservative
> forms of religiosity or to specific views.  I don't really know how to
> answer the empirical question, but I don't disagree with Doug that there
> is some real and fairly general hostility out there.  I suppose I'm a bit
> less suspicious on this front than Doug, but Doug is admittedly in a better
> position to make the empirical judgment than I am.
>
>
>
> I think the best case for the propriety of a religion-specific exclusion
> might be something like this: a "no religious garb or symbols" rule applied
> to public school teachers in a community that is largely religiously
> homogenous; i.e. the teachers who choose to wear symbols of their religious
> commitments will pretty much all be wearing Christian symbols.  In such a
> setting, I think Establishment Clause concerns are pretty significant and
> the indicia of religious hostility pretty low.  (In contrast, the balance
> changes if the community and the teachers' religious affiliations are more
> mixed).  But even there, one could imagine the counterargument that the
> school district's legitimate concerns could be more properly addressed
> through some religiously neutral dress code rule.
>
>
>
> John Taylor,
>
> WVU Law
>
>
>
>
>
>
>
>>>> Douglas Laycock <laycockd at umich.edu> 4/9/2009 10:49 AM >>>
>
> I think that hostility to religion in general, or to conservative religion
> in general, or to all religions that are in conflict with the secular
> culture -- the reach of the bias will vary from person to person -- is a
> large part of why these laws stay on the books and why some administrators
> seek to vigorously enforce them and quite probably, other administrators
> don't much care.
>
> This is not to say that an honest commitment to separation is not also part
> of the explanation.  But so is real hostility.
>
> Quoting John Taylor <John.Taylor at mail.wvu.edu>:
>
>> It occurs to me that I should offer an additional point before my
>> omission is pointed out by others:  Re the statement below that it is
>> not crazy to think that in some circumstances "singling out religion"
>> as in a religious garb statute is not always badly motivated, I
>> neglected to say that I recognize that the historical circumstances
>> of the statute in PA (circa 1890 or so, I believe) may well indicate
>> an anti-Catholic bias.  But I am willing to think this is not the
>> reason statutes of that sort have been retained, just as the Supreme
>> Court was willing to say that the reasons Sunday closing laws stayed
>> on the books were not the same as the reasons for their original
>> enactment.
>>
>>>>> "John Taylor" <John.Taylor at mail.wvu.edu> 4/9/2009 9:48 AM >>>
>> 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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>
>
>
> 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
>
> _______________________________________________
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> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>