A Constitutional right to make pilgrimmage
dlaycock at virginia.edu
Mon Dec 13 18:29:13 PST 2010
What you're missing is that Smith interprets the Constitution and this claim is based on a statute, which pretty clearly does not mean what Smith says the Constitution means.
The courts have also been stingy with the statute, and this claim may or may not succeed, but doctrinally, Smith has nothing to do with it.
On Mon, 13 Dec 2010 20:22:50 -0600
"Brad Pardee" <bp51414 at windstream.net> wrote:
>According to the Associate Press:
>The federal government sued a suburban Chicago school district Monday for
>denying a Muslim middle school teacher unpaid leave to make a pilgrimage to
>Mecca that is a central part of her religion.
>In a civil rights case, the department said the school district in Berkeley,
>Ill., denied the request of Safoorah Khan on grounds that her requested
>leave was unrelated to her professional duties and was not set forth in the
>contract between the school district and the teachers union. In doing so the
>school district violated the Civil Rights Act of 1964 by failing to
>reasonably accommodate her religious practices, the government said.
>If I understand current precedent under Employment Division v. Smith, I'd
>think the District's defense should be fairly simple. The requirement that
>leave be related to professional duties and/or set forth in the contract
>with the union is a generally-applicable requirement that is neutral on its
>face. Am I missing something?
>As a point of disclosure, I'm not a fan of the Court's decision in Smith,
>and if this case were to ultimately force the court to re-think that
>precedent, I'd be happy to see it happen. Under the present rulings in
>place, though, I'm not sure if the teacher has a case, regardless of whether
>or not she should have one.
Armistead M. Dobie Professor of Law
University of Virginia Law School
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Charlottesville, VA 22903
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