I find all that Alan says helpful, and what Eugene adds in his later message is also helpful. A couple of reactions: 1. Alan's concerns, I think, largely apply (and are meant to apply) whether the religious garb is "banned" by a religion specific rule or by some more general policy of the sort at issue in the Webb case. (Thus the reference to the wrongness of Smith). I hadn't tried to get into that, though I suppose it is correct (and I think Alan would agree) that from the standpoint of a governmental employee who feels a religious obligation to dress in a certain manner, the difference between being burdened by a "neutral and generally applicable law" and a "religion-specific ban motivated by honest separationist concerns" would not matter very much. I know that Alan has tried in some of his scholarship to develop a more multi-faceted approach to free exercise law, so perhaps he would think the analysis should be a little different based on the character of the law. But I'm pretty sure he would say that even a ban resulting from a neutral and generally applicable law should be constitutionally suspect under the federal free exercise clause. 2. So, on Alan's view, teachers generally ought to have a federal free exercise right to wear religious garb, and legitimate concerns about improper messages being conveyed should be dealt with via less restrictive means. (I see that Eugene has posted something while I was writing this, seconding Alan's point that less restrictive means are available like explaining the difference to kids between what teachers wear out of personal preference and what they wear because the boss tells them to do so.) I also very much like Alan's formulation of how we should approach the question of "private capacity versus official capacity" in a teacher or other governmental employee by distinguishing the message conveyed: incidental messages of religious identity are OK, messages of "you should believe what I believe" or "what you believe matters to how I treat you" are not. 3. In many circumstances, I think Alan and Eugene are clearly right. As I said before, if one imagines a diverse community where you have teachers of different faiths it should be easy for students to see the difference between what is personal to the teacher and what is part of the official role. And I'm also not really worried about the situation where you have a pretty homogenous community and the occasional teacher with a minority religious perspective wearing religious garb. For example, a teacher who wore a headscarf of the sort discussed in Webb is not going to be seen by anyone as "speaking for the state." (Though I don't think the courts recognize this with great explicitness, I believe social context matters a great deal when we're deciding what counts as "endorsement.") And in those situations, I agree that a school would be unjustified in restricting the teacher's religious expression rather than talking to the kids (and parents, if they complained). 4. I do find it a closer question, in any event, whether a school might justifiably take stronger steps in situations where "private expression" by teachers would tend to reinforce majoritarian religious norms. (Perhaps this kind of thing seems like a bigger problem when one teaches in WV rather than California!) There are plenty of places where any religious garb or symbols worn by teachers will be uniformly Christian and will be worn by most teachers, and I don't think that is a trivial concern from an EC standpoint. If we are talking about small crosses or the like, which would probably be the norm as Eugene suggests, maybe that's not problematic and kids ought to be expected to understand that not everything a teacher wears is "official." Yet I do think the role of public school teacher is one where lines between private and government expression are not easily drawn, and schools ought to have some leeway in dealing with this. To give a fairly extreme example, imagine a school where a teacher (10% of teachers, 40% of teachers?) wears a T-shirt every Friday printed with "John 3:16" in large letters. (Yes, I know that wearing a T-shirt would be considered unprofessional attire and so this is a bit far fetched, but perhaps "casual Fridays" are practiced with a vengeance at this school!) Now, perhaps I am idiosyncratic, but I confess to thinking that the EC concerns here are sufficiently significant that a school should be able to do more than simply point out to kids that there is a difference between what teachers choose to wear and what the boss tells them to wear. (Now Eugene is going to say, "Well, if it's casual Fridays maybe a bunch of teachers will wear Grateful Dead T-shirts and no one thinks the government is endorsing the Grateful Dead. So my point stands." OK, I grant that makes the question closer. But to come at it from the other direction, does it matter if lots of the teachers wear the John 3:16 shirt? If they do so in a coordinated fashion? I think O'Connor talks somewhere -- in Pinette, I think? - about the idea of overwhelmingly one-sided religious expression in public forums and how that worries her. Perhaps I'm on a similar wavelength here.) This seems, at least to me, quite a bit different from the Muslim teacher who wears a head scarf. Why would that be so? Perhaps it is the sense that wearing the scarf is religiously obligatory in a way that wearing the John 3:16 shirt presumably is not. Perhaps it is the sense that the shirt is inherently proselytizing in a way that the headscarf is not -- that, to use Alan's terminology, it communicates the message that "you should believe what I believe." Perhaps it is the difference between religious expression which reinforces majoritarian religious norms and that which does not. Perhaps there are other reasons. In any event, I confess to thinking that there are situations where a school ought to be able to restrict what a teacher can wear in the pursuit of Establishment Clause values. I certainly do not claim to have a fully worked out theory of when this is so; and I recognize that even if I had the worked out theory, there could be another gap in turning that theory into an judicially administrable rule. Perhaps someone more sympathetic to Smith than Alan is -- and perhaps Eugene is such a person -- would say that extreme examples could be adequately remedied through a religiously neutral rule, but that a religion specific approach is never proper. 5) I agree with Eugene that it is much harder, and perhaps impossible, to justify any religion-specific garb ban if Lukumi applies; and my earlier remarks were in the vein of exploring what might follow from a broad reading of Davey. I confess to having more sympathy than does Eugene for the idea that there some "middle path" between Lukumi and Smith in cases about "excluding religion," though I'm not a fan of the specific reasoning (such as it was) in Davey or even necessarily of its result. But these questions are larger than I want to go into here, and indeed the amount of time I have spent on this discussion already leaves me marveling at the productivity of all those who post here on a regular basis! If anyone persevered through all of that, I thank you for your patience. Best, JET
>>> "Brownstein, Alan" <aebrownst...@ucdavis.edu> 4/9/2009 2:31 PM >>> 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
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