Dispatches from the Creation Wars

Volokh on Religious Exemptions

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.

Comments

  1. #1 MJ Memphis
    June 25, 2007

    That was a very interesting and well-reasoned article, but I suspect much of it may be lost on its target audience (NRO readers). After all, these are mostly the same people that accuse gays of wanting “special rights” because they want the same rights that other people already have; it isn’t much of a stretch to accuse Muslims (or other minority beliefs) of wanting “special rights” if they press hard to get the same rights Christians already have.

  2. #2 BobApril
    June 25, 2007

    I agree with MJ, an excellent article. I wish there was a comments section with it – those comments might provide evidence of what MJ mentioned about the target audience.
    At any rate, Volokh obliquely points out something Heinlein said, and I agree with – religious freedom in this country does not result from an honest principle in favor of personal liberty. It comes from an armed truce between competing Christian sects that dare not pass laws restricting non-Christians, for fear that such laws would then be turned against them.
    Before one of your Christian readers yells at me, I note that there are plenty of them who do indeed support religious freedom by principle. Plenty of them post here, and I’ve met several in person. However, the unthinking mob and the demogogues who guide them could easily override the more principled believers, if they ever thought they had sufficient numbers to overwhelm the other mobs in the market.

  3. #3 Ed Brayton
    June 25, 2007

    One thing I’ve always liked about Volokh’s writing is that he’s incredibly thorough. When he explains an issue he manages to tell you pretty much everything you need to know about it while still managing to write concisely and well, and while fairly representing all of the positions on the issue.

  4. #4 JuliaL
    June 25, 2007

    It comes from an armed truce between competing Christian sects that dare not pass laws restricting non-Christians, for fear that such laws would then be turned against them.

    This is a broad generalization, and you’d need to provide evidence that more than half the people supporting relgious freedom do so out of fear and not out of principle. Also, it’s interesting that you appear to attribute religious freedom to the actions of Christians only, which I doubt. Many non-Christians have been and are instrumental in maintaining that freedom.

    Still, you have an important point buried in this comment. A great many people of all and no religious beliefs would be willing to pass a great many bad laws were it not for the fear that the law would then be turned against them. This is a healthy fear that should be encouraged. Even the best of us can get angry enough momentarily to be willing to abandon principle; fear makes a good brake.

    The most effective argument I’ve found with fellow Christians who at first don’t see the problem with teaching ID in high school biology classrooms is the reminder that the designer could be presented to children as something other their own view of God. In fact, the fear that ID would open the door to teaching Satanism was the stated basis for one of the “no” votes on our state committee that recently rejected a move to introduce ID in schools here.

  5. #5 justin
    June 25, 2007

    A few years ago Sikh members of the Royal Canadian Mounted Police requested a uniform exemption in order to wear turbans instead of standard police hats. There was a bit of noise about this initially but the rules were changed for Sikhs and I don’t think anybody cares anymore.

    Though I think it’s a bit silly to think God might care about how one wears his or her hair, this was an easy accommodation to make.

  6. #6 Bill Poser
    June 25, 2007

    I see Sikh police officers wearing turbans in a different light from Muslims wearing the veil, for two reasons. The first is that the turban, unlike the veil, doesn’t prevent one from identifying the person wearing it and from seeing his or her facial expression, eyes, and lip position (useful for the hard of hearing). Police officers should be readily identifiable (when not undercover) and it is desirable that both other officers and the public should be able to interpret their facial expressions and speech.

    The second is that the message conveyed by the Sikh turban is one that is essentially neutral: it just says: I am a baptized Sikh, and the values associated with being a Sikh are ones that I find unobjectionable and that, I think, the great majority of people find unobjectionable, even if we do not share the Sikh faith. In contrast, the message conveyed by the veil is that women are so enticing that men cannot be expected to behave rationally and decently in the presence of a woman unless she is unidentifiable and the shape of her body is concealed, and that this is the fault of women. This is a vicious and sexist attitude that I find extremely objectionable. Individual Muslims are of course free to hold and express such views, but I don’t think that police officers should. Allowing police officers to wear the veil is like allowing them to wear Ku Klux Klan insignia.

  7. #7 anonymous
    June 25, 2007

    Did anyone else crack up when they read “asked that she be allowed to wear a veil in a driver’s license photo”? I can imagine a cop pulling her over: “These eyes don’t look like yours…”

    I don’t think this will be the “single largest legal issue over the next few years”. It will probably keep popping up as a case by case basis, and not make many headlines, since this aspect of exemption is pretty low-key in this country. There just aren’t enough people with turbans and veils in America to make a big splash.

  8. #8 BobApril
    June 26, 2007

    JuliaL replied to me:

    This is a broad generalization, and you’d need to provide evidence that more than half the people supporting relgious freedom do so out of fear and not out of principle. Also, it’s interesting that you appear to attribute religious freedom to the actions of Christians only, which I doubt. Many non-Christians have been and are instrumental in maintaining that freedom.

    It IS a broad generalization, true. And I can’t provide evidence on the subject – it is doubtful that anyone would admit to it on a poll, for instance.
    However, I think history suggests that a culture that holds generally to a single religion tends to legislate against others. In fact, even where there are multiple denominations, they will tend to discriminate against an upstart that violates ALL of them. Example – polygamy in the Latter-Day Saints. And of course, any Islamic country will do nicely for a more modern example.
    I attribute the APPROVAL of religious freedom to Christians because in my country, Christians are the vast majority, and have been since it was founded. Certainly, non-Christians have been instrumental in bringing the issues before courts. The courts have largely and increasingly ruled in their favor. But I suggest that the rivalry between Christian sects is what prevents public demand to change the rulings – demand that would be expressed by voting in candidates who would replace the judges as needed.
    The system as designed protects religious freedom – but a sufficiently powerful demagogue could change the system. That’s the idea that scares me, and the one I think has been prevented by the multiplicity of competing denominations.