I'm puzzled why there would be significant Establishment
Clause problems when teachers wear Christian religious symbols. Even
fairly young children, I take it, must realize that lots of people wear
things because they like them, not because their employer or the
government or society likes them. This is especially clear as to
jewelry, which is what Christian religious symbols tend to consist of.
Even if several teachers wear cross necklaces, other teachers wear other
necklaces, and still other teachers wear other jewelry. Students see
their teachers with a pretty wide range of dress, hairstyles, jewelry,
and the like - the logical and likely inference would be that the
teachers, like other adults (and many children), are expressing their
own personal esthetic, cultural, or religious preference, and not
speaking through their dress, hairstyles, and jewelry on behalf of the
government.
But even if I'm mistaken, and an appreciable number of
students don't get it, isn't explaining this situation to students a
less restrictive means of preventing a perceived endorsement religion
than just banning such religious symbols altogether? It can't be hard
to convey this, I think; the notion that some dress choices are personal
and some are dictated by the boss is a pretty simple one, and can easily
be illustrated by familiar referents (e.g., though the policeman's
clothing are chosen for him by the police department, most people choose
their own clothing and jewelry, and that's what teachers do). It would
even be a valuable bit of life education, in case we do conclude that
such education is necessary.
So it seems that even Prof. Taylor's narrower rule should be
unconstitutional under Lukumi: It involves discrimination (whether or
not ill-intentioned) against religious symbols, the compelling interest
in preventing an Establishment Clause violation probably isn't
undermined by the conduct, and even if it is, explaining the situation
to students is a less restrictive alterative of serving the interest.
And I don't think the Davey exception would apply, for reasons Prof.
Taylor himself explained.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of John Taylor
Sent: Thursday, April 09, 2009 11:01 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's
BidtoWearReligiousScarf
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
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