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 <layco...@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.tay...@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.tay...@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" <l...@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 > >>>> dc...@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-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@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 > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > 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. > 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
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
