Posted by Eugene Volokh has an article at the National Review Online about the history and law regarding religious exemptions from other laws and/or administrative rules and procedures. He points to recent controversies over Muslims wanting exemptions religious exemptions:
Recent years have seen a set of requests by Muslims for exemptions from generally applicable laws and work rules. A Muslim policewoman in Philadelphia, for instance, asked for an exemption from police-uniform rules so that she could wear a Muslim headdress. A few years ago, a Muslim woman in Florida asked that she be allowed to wear a veil in a driver’s license photo. Last year, a Muslim woman in Michigan asked that she be allowed to testify veiled in a small-claims case that she brought.
And points out that this is not at all unusual:
All these claims were rejected by courts, and likely correctly, though the arguments for the rejection are not open-and-shut. But some of the public reaction I’ve seen to the claims suggests that people are seeing such claims as some sort of special demands by Muslims for special treatment beyond what is given Christians, Jews, and others. And that turns out not to be quite so: While the claims are for religious exemptions for Muslims, they are brought under general religious-exemption statutes that were designed for all religions and that have historically benefited mostly Christians (since there are so many Christians in America).
The Muslim exemption claims are plausible attempts to invoke established American religious-exemption law, and they deserve to be treated as such — even if there are good reasons for rejecting them, as American religious-exemption law recognizes.
He then points out the long history of such exemptions, even in the Constitution itself (the provisions requiring oaths but allowing affirmations were put there to allow Quakers, whose religion forbid taking oaths, to hold public office and fully participate in the government). The Civil Rights Act, as amended, requires religious exemptions for employees unless those exemptions constitute an “undue burden” on the employer. The Religious Freedom Restoration Act requires religious exemptions unless those exemptions would interfere with a “compelling government interest.” And as Volokh makes clear, these are legislative enactments, not court rulings, and they require a case-by-case analysis:
From 1963 to 1990, the Supreme Court interpreted the Free Exercise as constitutionally mandating a religious-exemption regime, and over ten states have implemented such a regime under their state constitutions. But today, religious-exemption law is mostly a matter of democratically enacted statutes.
One could of course argue that such religious exemptions should not be legally required, perhaps because if one exemption is granted, people will demand other exemptions. But Congress and many state legislatures have made the contrary judgment. Their response to the likelihood that one claim will lead to others is that (1) each claim should be considered largely on its own, and (2) future claims should be rejected if they impose “undue hardship” on employers (Civil Rights Act) or undermine “compelling government interests” (RFRA). It is the undue hardship / compelling government interest test that is the barrier to slippage down the slope to too many exemptions. Congress deliberately declined to instead use the barrier of not demanding exemptions at all.
This shows the weakness, under decades-old U.S. law, of the common objections that, for instance, “[T]he need to wear a headscarf is probably not the last accommodation [the policewoman will] need. I wonder about a Muslim policewoman who can’t touch or talk to men? This is quite the can of worms.”
Religious-exemption statutes generally require courts to consider exemption requests one at a time. A court might accept an exemption for wearing religious headscarves, on the theory that it doesn’t impose an “undue hardship” on police employers (presumably because the court is unpersuaded by the argument that exemptions undermine morale or worsen police-citizen relations). But it would surely decline an exemption request for women who can’t touch or talk to men, because that exemption would create a much more tangible and therefore undue hardship. That’s just the normal way exemption requests are supposed to work, for Christians, Muslims, or anyone else.
He goes on provide a lot more detail on how the courts have interpreted these standards and applied them in specific cases. As I’ve said before I think this is going to be the single largest legal issue over the next few years, occupying the time of state and Federal legislators and courts.
June 25, 2007
June 25, 2007
June 25, 2007
June 25, 2007
June 25, 2007
June 25, 2007
June 25, 2007