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Muslims and Religious Exemption Law:

I have a piece on the subject in National Review Online this morning. Here's the introduction:

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.

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. Let us briefly review this law, so that this becomes clearer....

Waldensian (mail):

And that turns out not to be quite so:

Ack!!! EV, there has to be a better way to write this.
6.22.2007 10:51am
Cornellian (mail):
Didn't that Florida woman turn out to be a con-artist who was using the veil as a ruse to avoid being identified?
6.22.2007 11:12am
martinned (mail) (www):
L.S.,

Some of the examples mentioned come pretty close to allowing Jehova's witnesses to not say the pledge of allegiance, or to not have "live free or die" written on their license plates. Do we have any US examples about Sikh turbans?
6.22.2007 11:14am
rc:
"And that turns out not to be quite so"

Suggested corrections:

And that turns out to be so in its notness.

It's not that it turns out to be so. In fact, quite the opposite.

This represents a failure to be so.

This fails to reject the null hypothesis of its notness.

Quite so? Turns out no.
6.22.2007 11:30am
whackjobbbb:
Dang you lawyers are gramatically ruthless, among your many other ruthlessnesses.

Speaking of the Sikhs, check the law concerning their daggers, too, as I believe the law has had to address this at some point (passive voice intended).
6.22.2007 11:38am
Curt Fischer:
@ whackjobbb:

Speaking of the Sikhs, check the law concerning their daggers, too, as I believe the law has had to address this at some point (passive voice intended).


I am sorry that things did not go as you intended -- no passive voice phrases are anywhere in what you wrote!
6.22.2007 11:47am
Zathras (mail):
Waldensian: (EV) And that turns out not to be quite so:
Ack!!! EV, there has to be a better way to write this.

Don't be so hard on him. With his activities here, at school, writing, and in the public sphere, I'm surprised he has time to eat and sleep. He should be excused the occasional grammatical dalliance.
6.22.2007 11:49am
s806:
Speaking of the Sikhs, check the law concerning their daggers, too, as I believe the law has had to address this at some point (passive voice intended).



Don't the Sikhs wear turbans also? I wonder if police are allowed to wear turbans, some departments allow baseball caps.

If you have a gun, pepper spray, night stick, and taser, I don't see a problem with carrying a small dagger. But I think for civilians it is more of a concealed weapon issue. Some states concealed carry permits are for handguns as well as other concealable weapons like knives, so they could just get a permit.
6.22.2007 11:51am
John Burgess (mail) (www):
Eugene: Great article! Thanks.
6.22.2007 11:55am
Philistine (mail):


Don't the Sikhs wear turbans also? I wonder if police are allowed to wear turbans, some departments allow baseball caps.



In New York City, yes--but only after bringing suit was brought. Link
6.22.2007 12:02pm
Deoxy (mail):
"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"

For the cases so far, that appears to be correct, but when a foe has stated rather explicitly that they intend to abuse and exploit any part of the system they can ("always claim torture", etc), suspicion that this is whats going on is quite reasonable.
6.22.2007 12:03pm
whackjobbbb:
Fischer, yeah, you're right, I guess I reflexively move away from the passive voice when I write. How about: "The Sikh dagger issue has been addressed by the law at some point"? Is the unacceptablility of that statement suitably established?
6.22.2007 12:04pm
Sarah (mail) (www):
Randomly: there are Mennonites who are trying to figure out how they can visit their family members in Canada without obtaining passports (which weren't required before) that have their pictures on them. The whole thing really bites for them, though obviously they've gotten a temporary reprieve.

I have no objection to courts granting religious-based exemptions (especially on the part of government employers and regulators!) and moreover have no objections to the grammar or spelling in Prof. Volokh's article. ^_^
6.22.2007 12:07pm
SenatorX (mail):
"Quite so? Turns out no."

LMAO I vote for this one.
6.22.2007 12:08pm
jimbino (mail):
It continues to amaze me that EV carries on the tradition of avoiding issues that are at the crux of the problem. Here I mean specifically the "sincerity" qualification.

Nobody is born into a religion or with a religion. When does the "sincerity" of a muslim (or even a Jew or Roman Catholic) begin? Is this "sincerity" that of the parents until the kid turns 18? Can a 17-year old be a conscientious objector? Can he be "conscientious" at all? Was St Peter a lifelong conscientious Jew?

Those of the anabaptist tradition figured this out a long time ago. They at least require some kind of religious expression akin to conversion before a kid can be considered a sincere believer.

Religion poisons everything, and EV can't even figure out that his own celebrations of a friend's engagement are nothing more than baldfaced pronouncements of his peculiar religious sentiments and as such invite attack.
6.22.2007 12:11pm
whit:
the veil thing in court is ABSURD. you can't get more basic than the right to confront your accuser (although this right has been eroded in domestic violence law, but i digress (see the recent 911 call case). if you can't SEE your accuser's face, you can't confront him/her, and the jury traditionally DOES (and should) use subjective measures to help determine the veracity of a witness, such as facial expressions, etc.

there was a case in england not too long ago where a wanted criminal used the veil thang to leave the country, concealing his face with a veil.

there is also the case of a muslim cop in england who REFUSED an assignment to guard the israeli embassy. and he was SUPPORTED by his agency in his decision.

this rubbish never stops.
6.22.2007 12:17pm
Waldensian (mail):

"Quite so? Turns out no."

Stupendous. And I didn't mean to be snarky toward EV. I figured a grammar Ack! was in bounds since he has such an interest in language.

Of course, now I face the fear known to all grammar-flamers: violating rules of grammar while criticizing someone else's grammar. It's paralyzing. Ack!
6.22.2007 12:24pm
Haim (mail):
The mistake you are making is thinking of Islam as a religion. Here is a thought experiment. Imagine that Adolph Hitler claimed he was a messenger from God. Now, find three important distinctions between Muslim and Nazi dogma. World domination? Inferior peoples? Anti-semitism? The free, even welcome, use of violence and intimidation? It's all the same.

I can think of only one distinction. Whereas under the Nazis a Jew was always a Jew, under Islam a man can remove the disabilities placed upon him by converting to Islam. Not so a woman, by the way.

In the Muslim caste system, a woman is permanently indistinguishable from chattel. Whereas a free man can, by an act of his own will, convert to Islam, and a male slave can, in principle, be converted to a free man by an act of the will of his owner, nothing can be done, by man or woman, to improve the inferior condition of women under Islam.

In other words, Islam in the U.S. should "enjoy" the same treatment under law as the Ku Klux Klan.
6.22.2007 12:26pm
SteveJune22:
Religious exemptions seem most applicable to laws that are themselves legislation of a particular religious tenet, e.g., blue laws and exemptions to blue laws, and are thus inappropriate laws in the first place.

I think the better case is that if a religious exemption is appropriate, then that's an indicator that the law itself is inappropriate -- it's based on a religious value rather than a societal one.

If an employee wants an exemption to, say, a police department's "no beards" policy, then the real question is there a valid reason for the police department to ban beards in the first place, other than a religious or arbitrary desire for clean-shaven employees?

OTOH if there's a legitimate basis for the law, then what difference do your sincere beliefs make one way or the other? If I sincerely believe that ownership of property is a sin, what does that mean to you as a property owner? (nothing)

What about non-religious but sincerely held beliefs? Why should the non-religious be discriminated against? What's so special about a religious belief?
6.22.2007 12:37pm
Philistine (mail):

Why should the non-religious be discriminated against? What's so special about a religious belief?



The Free Exercise clause.
6.22.2007 12:48pm
DrGrishka (mail):
Philistine,

But the Free Exercise Clause ("FEC") a) does not mandate exceptions for religion and b) is no more powerful or important than the Free Speech Clause ("FSC").

With respect to the former, all that the FEC requires is that the government not put obstacles in front of religious exercises as such. That does not mean that the government must accomodate religious exceptions. For instance, if NYC decided to implement alternate side street parking for every day of the week and not just weekdays, it would be under no obligation to provide an exemtion to Orthodox Jews who are unable to move their car on a Saturday. In other words, these Jews could continue to freely exercise their religion, but they are not entitled to government help while doing it. (Though, of course, as a matter of policy, it would be good to accomodate religion if at all possible.)

As to the latter, I don't really understand why my religious desire to wear a turban with my police officer uniform is any more constitutionally important than my desire to wear a large button that says "F*** the Draft" or "Impeach Bush" or "Bomb Iran" or even something as non-controversial as "Be Kind to your Neighbor" on the same uniform. Yet, many police departments and the military have strict rules about wearing any insignia on the uniform that is not part of the uniform.
6.22.2007 1:05pm
whit:
i have to agree with the turban thing. cops can (and do) wear religious symbols that are NOT visible to the public - stars of david, crosses, etc.

but wearing a symbol (such as a turban) is not acceptable for police imo, nor is it constitutionally required to allow cops to wear those things.
6.22.2007 1:13pm
Seamus (mail):
Randomly: there are Mennonites who are trying to figure out how they can visit their family members in Canada without obtaining passports (which weren't required before) that have their pictures on them. The whole thing really bites for them, though obviously they've gotten a temporary reprieve.

Don't you realize that al-Qaeda sleeper cells could think of no better cover than to pose as members of a German pacifist sect?
6.22.2007 1:33pm
Seamus (mail):
In other words, Islam in the U.S. should "enjoy" the same treatment under law as the Ku Klux Klan.'

Well, even the Klan has certain First Amendment rights that can't be infringed by the government.

But I think the analogy you're looking for is actually Shinto during World War II. I'd like to know more about how our government dealt with that religion (to the extent that it didn't just ship its adherents to camps in Wyoming), and whether our approach would pass First Amendment muster today.
6.22.2007 1:36pm
SteveJune22:
What I'm suggesting is that if a law is such that a person has a legitimate reason to request a religious exemption from it, then perhaps that law violates the Establishment clause in the first place.
6.22.2007 1:51pm
Avatar (mail):
Er... did the problem actually arise? Shinto doesn't have the same kind of strict belief system as Judaism, Christianity, or Islam, and given Japanese exceptionalism, do strong adherents of that religion emigrate at all?
6.22.2007 1:54pm
neurodoc:
Thus, it is irrelevant, as a matter of standard U.S. religious freedom law, whether "It was only 7 years [after claimant joined the police force], in February of 2003, that she asked to be allowed to wear the khimar while on duty, and still later (August 2003) when she defied her superiors orders by wearing it." Recent converts, and the recently devout, are as protected as those who grew up in a faith.
That was my comment in an earlier thread offered by EV as the "wrong" answer. Foolish though it may be to argue with this particular professor on this particular topic, I will quibble here.

True, the court did not decide against the complainant policewoman because she was on the force for years before raising the head cover issue. They found it sufficient to say that it would be unduly burdensome on the police department to make this accommodation for her. I don't think the recency of her "conversion" or adoption of more observant ways is necessarily "irrelevant" to the case, though. It may bear on the "sincerity" of her beliefs, something that could and should be taken into account in deciding an EEO complaint. (The court noted that the supervisor who upheld the disciplinary action she complained of was himself a Muslim. A "irrelevant" aside by the court, since it didn't go to whether or not the accommodation sought was too burdensome or not?) IIRC, there were job performance issues separate and apart from the narrowest possible statement of the religious accommodation question, which would justify questions that might not be asked in the absence of such.

EV, if the employer came forward with credible testimony that this employee belonged to a mixed-sex judo club and did not wear a headscarf during that after-hours activity, should it have been excluded as "irrelevant" to the immediate religious accommodation issue?
6.22.2007 2:13pm
Jon Rowe (mail) (www):
I think stories like this are good reason for getting rid of religious exemptions for all groups Christian, Muslim or whatever. Yet, at the same time try to make our secular laws free and unburdensome.
6.22.2007 2:28pm
Bill Poser (mail) (www):
I think that a key factor in the reaction to Muslim requests for exemption is not the legal structure that they use, which as you say is perfectly general and has long been of benefit primarily to Christians, but the belief that Muslims are using such exemptions not merely to obtain accomodation for themselves but as the opening wedge of a campaign to Islamize society as a whole. There is little objection to, say, Amish exceptionality, because nobody thinks that the Amish are trying to impose their way of life on the rest of us; there is considerable objection to Muslim exceptionality because many people believe that Muslims are trying to impose Islam on the rest of us.

As to the truth of this perception, at an individual level, some Muslims at least are sincere in only wanting accomodation for themselves. As a group, on the other hand, concern is legitimate since Islam is by its very nature exclusive, evangelical, and millitant and does aim at domination, and since there are explicit exhortations to this effect from numerous current Muslim leaders. This does not mean that the rights of individual Muslims should not be taken into account, but it means that others are entitled to be careful least accomodation turn into surrender.
6.22.2007 2:35pm
TM Lutas (mail) (www):
During Prohibition, Catholic and Orthodox priests continued to provide the sacraments (which include alcohol). Had they not, we would have had massive civil disobedience and violence as parishioners attempted to protect their pastors from arrest and preserve access to communion. I recall Scalia's opinion in a peyote case some time ago stated that he would not approve of such an accommodation today. Were the FDA to require the addition of some nutritional supplement in all bread that would invalidate it for use in communion without religious exception, things would get rather ugly today as well.

The point of these accommodations is to prevent the creation of martyrs and revolutionaries and that's something that's worth preserving in our system of governance. People will go to the wall for their religious beliefs and if the state will not provide reasonable accommodation, the state will find, and has, little peace and less stability.
6.22.2007 3:14pm
Haim (mail):
Seamus posted:
>Well, even the Klan has certain First Amendment rights
>that can't be infringed by the government.

True. But I wonder how likely it is that a klansman would (openly) get on a municipal police force in the first place. And, if there, how sympathetic would a court be to his demand that he be allowed to wear klan or Nazi insignia?
6.22.2007 3:28pm
TruePath (mail) (www):
Poser,

And the evangelical churches who pushed for RLUPA and use it aren't trying to use this as a wedge to christianize society as a whole? This is their explicit stated aim.

Look all evangelical religions believe that their beliefs are true and correct. If god says you must do X then you really must do X. The Christians who demand that abortion be outlawed because their religion teaches it is wrong are no different than these Muslims. What about the Christians who demand that the laws criminalize sodomy and homosexuality because they think they violate scriptural mandates?

The objection that Islam is different because it is 'militant' doesn't hold water. Are there Islamic terrorists, sure. There were also catholic terrorists in Ireland but that isn't valid grounds for holding it against every catholic. Since these Muslims are seeking court decisions supporting their positions not demanding it at the end of a gun what reason is their to treat them any differently because other people who use the same name for their religion are violent?
6.22.2007 3:35pm
gasman (mail):
As for the mennonites and pictures, the issue is not so much that they don't want photos taken (i.e. they don't think their souls will be trapped in the silver halide emulsion or the pixels of the ccd sensor).
They object to posessing photos of themselves because of the potential for self-worship, hubris, pride, etc. That someone else has a photo of them not used for idolatry or other 'false' purposes is less of a big deal. The conundrum comes when they are the ones who have to posess and carry the photo otherwise owned by the government. (as best as I understand things from relatives who haven't made the leap into the 20th century yet)
6.22.2007 3:36pm
PDXLawyer (mail):
On grammer, I vote for EV's original formulation. It scans. The objections are pedantry up with which we should not put.

On the substance, a good contribution to the wider debate, EV. I particularly liked the historical description / context of multiculturalism as a long-established American value, particularly in religion. Also, the ability to put subtle legal thought into language accessible to non-lawyers is rare and valuable. This is on a par with Richard Posner's work - really first rate.

I don't agree with some bloggers that Muslim efforts to Islamize society are per se an illegitimate attack on non-Muslims (even though some methods are plainly abhorent). After all, many Christians believe they have a duty to bring the Word of God to unbelievers, and speaking as an unbeliever I see this as a genuine concern for my welfare. Its no different than a stranger urging me to try some new diet supplement, because it *really* worked for them.

In this way, I see Islam as being quite a generous religion. I have some Jewish friends who believe that Christian evangalization is inherently aggressive, but my own reaction is that Jewish aversion to evangalism (and the related theoretical linkage of religion and ethnicity) is disturbing. I don't mean to argue the relative truth of Christianity over Judiaism, only to point out that a presumption that evangalism is wrong contradicts much established Christian thought, and that "Live and Let Die" or "Live and Let Go to Hell" has its own moral weaknesses.

The problem is that Islam seems stuck in the wars of the Reformation, or even the Crusades. The Crusades did not make Christians more peaceful, but the intra-Christian wars of The Reformation apparently brought most Christians to the conclusion that killing heretics was not the path to salvation. One of these was called the Hundred Years War, which is a clue that learning this lesson took a while. I don't know if Islam will outgrow terrorism in the way that Christianity outgrew the Inquisition, but I see no reason to exclude the possibility.
6.22.2007 4:02pm
CrosbyBird:
I have some Jewish friends who believe that Christian evangalization is inherently aggressive, but my own reaction is that Jewish aversion to evangalism (and the related theoretical linkage of religion and ethnicity) is disturbing.

There is a long, sordid history that Christian conversion effort has to overcome. It isn't all history either. There are still people today who believe that if you don't follow a specific path, you are spiritually doomed. Moreso, that it is correctable merely through a conscious choice.

That sentiment rapidly translates into the idea that those who do not make that choice are less worthy as human beings. They have, after all, been judged as such by the ultimate authority.

Once you're comfortable establishing that a person is somehow less worthy than you are, it becomes a fairly easy bit of convincing to come up reasons to harass them, deprive them of rights, or even torture them "for their own good."

A fundamental principle behind the Inquisition's use of torture is "the suffering of the body is nothing when measured against the potential suffering of the eternal soul." That's a sound logical principle, once you accept the premise.

I hold that society should respond harshly and aggressively toward premises that lead toward the justification of such conclusions. Not the role of government to tell people what to believe, mind you, but the role of an enlightened society to reject and display its rejection of such beliefs.
6.22.2007 5:23pm
KevinM:
I remember the Third Circuit (per Judge Alito) deciding a related issue with respect to Muslim officers in the Newark, NJ police department in the 1990's.
Here's the headnote:

Police officers brought action alleging that city, police department, and others violated their free exercise rights under the First Amendment by requiring them to shave their beards in violation of their Sunni Muslim religious beliefs. The United States District Court for the District of New Jersey, John W. Bissell, J., entered order permanently enjoining police department from disciplining the officers for refusing to shave their beards. City and others appealed. The Court of Appeals, Alito, Circuit Judge, held that: (1) Rule of Employment Div., Dep't of Human Resources of Oregon v. Smith is not limited in its application to cases involving criminal prohibitions; (2) department's decision to provide medical exemptions to its no-beard requirement, while refusing religious exemptions from same requirement, would be subject to heightened scrutiny; and (3) denial of religious exemption to no-beard requirement violated free exercise clause.

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999)
6.22.2007 5:29pm
Elliot123 (mail):
EV: "But exemption requests can't be rejected on the grounds that they represent minority religious views, idiosyncratic religious views, newly acquired (or newly strengthened) religious views, irrational religious views, or scripturally unsupported religious views."

Can we use Occam's razor to simplify things a bit? Religion is not needed for these arguments. Since there are no definitions or restrictions for what constitutes a religion, then anything constitutes a religion if someone claims it does. So, when we cut out the unnecessary aspect of religion, we are simply dealing with sincerely held personal preferences. We should just say so.
6.22.2007 5:30pm
S.D.G! (mail):
Eugene: You wrote in your article: "...(The Bible in fact does not specify uncle-niece incest in its list of prohibited forms of incest.)..." A couple of points. First, please refer to Leviticus 18:14. The specific law prohibits aunt-nephew relations. However, a rudimentary perusal of orthodox Christian doctrine on the matter (commentaries by such folks as Luther or Calvin on Leviticus) will reveal that what is implied by God through Moses is a parallel prohibition against uncle-niece sexual relations (cf. study note on chapter 18, verses 1-30 on page 186 of the Spirit of the Reformation Study Bible, NIV). Second, Jesus drives this proper hermaneutic of the Mosiac Law home during His Sermon on the Mount when He teaches His disciples regarding divorce, murder, adultery, etc. He was instructing them that God's law contained more than just the specific prohibition of particular acts, but encompassed the entire spectrum of say lust, from seeing the person to fantasies of performing the act.

Proto-Israel was a patriarchal society so addressing the law to the men was the custom of the time. Women and children were implicitly included in all aspects of the law.

Christians are also instructed to submit completely to the government, as it too is ordained of God. Such passages as Romans 13:1-6 are very clear about this! Christians are only obligated to disobey the government when the government requires them to do what God specifically prohibits. There are guidelines for Christians throughout the Bible on how to conduct themselves with efforts to change civil laws, evangelize, etc. Christian groups that work within the law to combat racism, abortion, etc., are fully within both their biblical and constitutional rights to do so. I would imagine that although unpalatable, most orthodox Christians believe that would equally apply to members of other faiths.

Kindest regards,

S.D.G!
6.22.2007 5:35pm
Bill Poser (mail) (www):
TruePath,

Nowhere do I suggest that Christianity does not pose similar problems to Islam by virtue of its exclusivity and evangelism. Overall, Christianity is probably in a less virulent form than Islam at the present time, the major exception being some forms of right-wing Protestantism. The demands of the Christian right for exceptions legislation and regulations are less salient than those of Muslims because their customs don't interfere as much with American society. While both Christians and Muslims want to be exempted from zoning regulations, Christian women, for example, are not demanding to veil themselves or refuse to touch or speak to men.
6.22.2007 6:31pm
whackjobbbb:
CrosbyBird, your entire post is bunk, and let me know who wins the argument presented in this part of your post: "...society should respond harshly and aggressively toward premises that lead toward the justification of such conclusions. Not the role of government to tell people what to believe..."
6.22.2007 7:07pm
robertemmet (mail):
Since membership in the IRA resulted in excommunication, I think TruPath's use of the lower case c for catholic as opposed to his use of the upper case for Islam is appropriate. I am unaware of any equivalent action is Islam.
Rather than talking of beards and turbans, what about the asserted right by Mohammedans to act as common carriers in Milwaukee, yet refuse passage to anyone who had liquor in their luggage?
6.22.2007 7:23pm
PDXLawyer (mail):
CrosbyBird:

I think its inherent in the concept of religion (or more broadly in the concept of ethics) that if you don't follow a specific path, you are spiritually doomed. For example, I think most people believe that if your path includes participating in and advocating genocide throughout your life, you are spiritually doomed. On the other extreme, nobody I know of thinks that since I had an apple for lunch today I'm OK, but if I'd eaten an orange, I'd be doomed. So, its untenable to say either "all paths are OK" or "only my path is OK." The challenge is deciding how much deviation from my (or your, or Congress') preferred path and in what subjects, is tolerable.

David Bernstein has written some interesting things about Jewish thought on how Jewish law applies to Gentiles. It is not simply non-judgmental, nor could it be. For example, if I (a Gentile) go to Israel with my Gentile wife, as a tourist, and murder her there, I will quite properly be punished by Israeli law. My understanding from David was that it would be religiously wrong for Israeli society to refuse to protect my wife (or punish me) in that situation, even though this involves making a judgment about my moral path. I am perfectly comfortable with the idea that murderers are less worthy than I am, and so it is OK for me to deprive them of some of their rights.

Extreme judgmentalism has many obvious problems. Once you admit that extreme non-judgmentalism does not work either, it really comes down to a question of judgment and degree. Which paths should be illegal? Which should we think of as wrong, but not make criminal? Which would we think of as OK for others, though unsuited for us? If we cannot have a discussion on this point, but instead everone reacts "harshly and aggressively" against anyone who is more "judgmental," the only thing that will be punishable in the end is having moral opinions.

Whether your prophet is Moses, Jesus, Mohammed, Thomas Jefferson or Ayn Rand, you cannot build a functioning society from the crooked timber of humanity without being judgmental to some degree.

In addition to keeping basic order, being judgmental has the potential to improve society. For example, I believe that I would be a better person if I were kinder to children. This is a useful belief because it improves the chances that I will act kindly to children. Since you and I are equal people, it must follow that you would be a better person if you were kinder to children. In otherwords, I can only avoid "judging" you by either abandoning a moral code for myself or abandoning the idea that you and I are morally equivalent.

It is certainly true that Christian conversion efforts have long, sordid history, but the relevant question is "compared to what"? There are many countries dominated by Christians (and there were at one time many Moslem countries) which provide happy homes for significant religious minorities. I cannot think of a single society in which the dominant religious/ethical strain is non-conversion which can say the same thing. Conversion causes problems, but the inequality inherent in ideas of non-conversion causes even worse problems.
6.22.2007 8:09pm
Alan Gunn:
Jon Rowe wrote:


I think stories like this are good reason for getting rid of religious exemptions for all groups Christian, Muslim or whatever. Yet, at the same time try to make our secular laws free and unburdensome.


I agree, but is there really much chance that our laws will allow more freedom? Legislation has outlawed goose liver in Chicago, trans fats in New York, and smoking just about anyplace. It looks as if the government is poised to take over what remains free in medical services: bit by bit if the Republicans hold on, all at once if they don't. A hundred years ago, there was little or no need for religious exemptions from legislation because we were a free people ("we" being white heterosexual men, to be sure). We've gone from that to a system of virtual total state control over all aspects of people's lives except for sex, speech, and religious practices. I don't see change on the horizon.

When I was a child, other kids' complaints about one's behavior were met by saying, "Hey, it's a free country." I haven't heard anyone say that for decades. Because it isn't.
6.22.2007 8:18pm
SenatorX (mail):
Yeah, yeah the Christians, but back to the Muslim question...

http://www.fallacyfiles.org/tuquoque.html

Tu Quoque

Translation: "You, also" or "You're another", Latin
"Tu Quoque is a very common fallacy in which one attempts to defend oneself or another from criticism by turning the critique back against the accuser. This is a classic Red Herring since whether the accuser is guilty of the same, or a similar, wrong is irrelevant to the truth of the original charge. However, as a diversionary tactic, Tu Quoque can be very effective, since the accuser is put on the defensive, and frequently feels compelled to defend against the accusation."
6.22.2007 10:31pm
Joshua:
Prof. Volokh: And that turns out not to be quite so:

Yoda: "And to be so, turns out it does not."

Advantage: The good Professor. Although I'm amazed that after all these side-posts about an awkward phrasing, I was the first to get in a Yoda comparison.
6.22.2007 10:40pm
Waldensian (mail):

Although I'm amazed that after all these side-posts about an awkward phrasing, I was the first to get in a Yoda comparison.

You would think that after several hundred years of wandering the galaxy, Yoda would figure out where to put the dang verbs. Must be sort of like Kissinger's accent, there's just no getting rid of it.
6.23.2007 12:31am
David M. Nieporent (www):
The demands of the Christian right for exceptions legislation and regulations are less salient than those of Muslims because their customs don't interfere as much with American society. While both Christians and Muslims want to be exempted from zoning regulations, Christian women, for example, are not demanding to veil themselves or refuse to touch or speak to men.
But the only reason Christian customs don't "interfere" as much with society is because most people are Christian and thus society's customs already conform to Christianity, not because there's something special about Christianity. If we lived in a society in which, e.g., women going topless in public was the general custom, then religious Christian women would also be demanding their right to cover up.
6.23.2007 2:19am
Henri Le Compte (mail):
The problem with "being reasonable" is that no one knows precisely where it begins and where it ends.

Folks that insist that Christianity makes just as many demands upon its adherents as Islam makes are simply not paying attention. Or are blinded by a need to appear PC.

Removing the question from these particular facts for a moment, do you not see that there are some doctrines that are far more "comprehensive" or intrusive than others? That it is being open-minded to the point of absurdity to insist that a doctrine that has one rule is "really no different" than a doctrine that has thousands upon thousands?

If Rome demanded that all Catholics wear enormous headgear, or hairshirts, or publically flagelate themselves (and so forth), that would be a very different Catholicism than exists today. In reality, the ritualistic demands put apon Catholics are relatively few. For instance, Rome does not prescribe detailed attire for believers. Or detailed rules of social engagement. Or elaborate (burdensome?) requirements of prayer. And so on. There were times in Christianity's past where it was much more authoritarian and autocratic than it is now, but those times are historical and irrelevant to today's world.

Islam-- as it is practiced today, as it is prescribed by its church "elders"-- is much more intrusive, demanding, and authoritarian than any other major religion I am aware of. At a certain point quantity become quality. A vague instruction to dress "discretely" (Catholic), is quite different than an explicit demand to obscure yourself from head-to-toe in a burlap sack (Islam). The consequences of failing to live up to these demands will yield a stern talking to in some Christian families, or a beating (or perhaps even a stoning to death) in many Islamic nations.

I can't prove it, but it seems completely unreasonable to me to insist that these sorts of distinctions are meaningless.
6.23.2007 2:04pm
Elliot123 (mail):
David M. Nieporent,

In Saudi Arabia the Muslim customs interfere with the efficient functioning of society to a great extent, and it has been Muslim for 1400 years. I don't think Christian customs have anywhere near the same effect. The last relic of such effects from Christianity are probably the old blue laws which have almost vanished.

In Saudi:

Women wear head to toe abayas (cloaks) with face masks when in public. They get run over far more than men. They say this is religious.

Men wear a ghuttra and egal on their heads. This is the cloth and black head band. This blocks a driver's vision to the side and causes traffic accidents. They say Mohamed wore one.

Women can't drive, so families have to employ Filipino drivers to cart the women around. About half the population hates this.

Shops and restaurants have to close during prayer times. This means all stores kick people out at noon, 3pm, and at sundown. This is a drag on the economy and wastes the time of shoppers. Prayer times vary throughout the year, and the greatest number of auto accidents always occur in the twenty minutes prior to the sundown prayer as drivers rush to get somewhere before prayers close the establishments.

Businesses have to allow Muslims to pray at noon, 3pm, and sundown. This disrupts efficient management. They have to hire non-Mulsims for things that can't be left unattended for tewnty minutes.

The month of Ramadan is essentially non-productive. Religious dictate says they can't eat or drink from sunrise to sunset. So, they feast all night, get to bed at 4am, get to the job late, can't function, and nothing gets done. Many of them hate this.

Separate male and female schools demand that two schools be built where one larger one would be much more efficient in terms of cost and operation. At the university level, screens down the middle of the classroom inhibit class discussion and instruction.
6.23.2007 2:47pm
ed (mail) (www):
Hmmm.

@ PDXLawyer


I cannot think of a single society in which the dominant religious/ethical strain is non-conversion which can say the same thing.


Thailand.

Thailand is predominately Buddist, which is generally not interested in forcible conversions, and has a number of religious minorities including Islam, Christian, etc. Additionally there has been a great deal of trouble being stirred up by Islamic fundamentalists in southern Thailand.
6.23.2007 5:18pm
Elliot123 (mail):
David M. Nieporent: "If we lived in a society in which, e.g., women going topless in public was the general custom, then religious Christian women would also be demanding their right to cover up."

I disagree. Religious women have the right to dress in what they consider a more modest mode than the general public. Note Amish and Menonites. No demand is necessary. If we lived in a society where the police uniform was topless, then there would be agitation to cover-up on the job.

A more interesting question is the person who feels sincerely compelled by religious belief to walk around naked in public. I recall a documentary about a 45-year-old woman in California who walked all over town naked. The DA said there was no statute that prohibited what she was doing. She didn't cite religious reasons, but it would be great fun if someone from the Church of the Gentle Breeze claimed a religious exemption from clothing. (The California woman was 5ft 2in, 185 lbs.)
6.23.2007 6:00pm
Bill Woods (mail):
Gasman: "As for the mennonites and pictures, the issue is not so much that they don't want photos taken (i.e. they don't think their souls will be trapped in the silver halide emulsion or the pixels of the ccd sensor).
They object to posessing photos of themselves because of the potential for self-worship, hubris, pride, etc."

The typical driver's-license or passport photo doesn't have much potential for self-worship. ("Yikes, why didn't the guy tell me my hair looked like that?")
6.23.2007 7:08pm
Stan C (mail):

TM Lutas: "During Prohibition, Catholic and Orthodox priests continued to provide the sacraments (which include alcohol)."

And that was just fine according to the Volstead Act: "Nothing in this title shall be held to apply to the manufacture, sale, transportation, importation, possession, or distribution of wine for sacramental purposes...."
6.23.2007 7:10pm
VKI:
David M. Nieporent: "If we lived in a society in which, e.g., women going topless in public was the general custom, then religious Christian women would also be demanding their right to cover up."

Elliot123: "I disagree. Religious women have the right to dress in what they consider a more modest mode than the general public. Note Amish and Menonites. No demand is necessary. If we lived in a society where the police uniform was topless, then there would be agitation to cover-up on the job."

I disagree with you both. If we lived in a society in which going topless in public was a general custom, to the point where even the police uniform did not have a shirt, many religious Christian women would be going topless.

Modesty exists within the context of society.

It is not considered particularly immodest at this time and in this society for women to wear pants. It is not considered particularly immodest for women to wear sleeveless shirts or dresses. It is not considered immodest for a woman's ankle to be exposed on the street. Most religious Christian women have no objection to these practices.

Yet there have been times and societies in which women in pants or uncovered arms or legs have been scandalous.
6.23.2007 7:39pm
David M. Nieporent (www):
I disagree. Religious women have the right to dress in what they consider a more modest mode than the general public. Note Amish and Menonites. No demand is necessary.
I don't mean to be rude, but are you paying attention to this thread? That's exactly the topic: Muslim women wanting to dress in a more modest mode than the general public, and demand is indeed necessary. Amish don't want to dress very differently than the majority sects in this country, so they don't have a problem.

Islam-- as it is practiced today, as it is prescribed by its church "elders"-- is much more intrusive, demanding, and authoritarian than any other major religion I am aware of.
Perhaps you don't know any Orthodox Jews; while the rules are obviously not identical to those of Islam, there are just as many and they're just as comprehensive.

The fact that most Christians (and most Jews) no longer take their religions seriously does not mean that the religions themselves are that different.
6.23.2007 8:19pm
neurodoc:
David M. Nieporent:
Perhaps you don't know any Orthodox Jews; while the rules are obviously not identical to those of Islam, there are just as many and they're just as comprehensive.


The prescriptions/proscriptions of Orthodox Judiasm may be more numerous and comprehensive than those of Islam, but so what? Orthodox Jews can "opt out" out at any time. "Opting out" may not be an option for Muslims everywhere, since Islamic authorities would punish apostasy with death. (Yeah, I know, Islam supposedly doesn't countenance coercion.) That in and of itself is a rather significant difference, isn't it?

The fact that most Christians (and most Jews) no longer take their religions seriously does not mean that the religions themselves are that different.

Christianity and Judaism are not that different one from the other, or together they are not that different from Islam, or what? The former two, at least in modern times, don't call for flogging for possession of alcohol; the lopping off of hands and/or feet for stealing; stoning for adultery; and those sorts of things, do they?
6.24.2007 12:44am
David M. Nieporent (www):
Neurodoc: it's liberal society that allows people to "opt out," not the religions per se. There are illions of Muslims who "opt out" around the world without suffering consequences. Throughout history, apostates in most religions -- not just Islam -- have not been treated well in situations where those religions have the temporal power to enforce their edicts.


I'm the last person who makes a "moral equivalence" argument. There is no doubt that Islam today is a serious problem in ways that Christianity or Judaism are not. But that's not because Islam is inherently more "intrusive and demanding" than other religions; it's because the people who are fervent about these things in Islam, but not other religions, still have the power in parts of the world to enforce their fervor.
6.24.2007 1:29am
Elliot123 (mail):
David M. Nieporent: "I don't mean to be rude, but are you paying attention to this thread? That's exactly the topic: Muslim women wanting to dress in a more modest mode than the general public, and demand is indeed necessary."

Your not rude, just wrong. The topic is exemption from laws and work rules. The topic revolves around EV's article in NR, and the first sentence of that article is, "Recent years have seen a set of requests by Muslims for exemptions from generally applicable laws and work rules." Are you paying attention?

Demands are only necessary where a law or work regulation sets a certain dress. In other circumstances they are free to war abayas or headscarves at their own discretion. Do you know any cases where Muslim women in the US are denied the right to walk down the street in a head scarf or abaya? Can you cite any examples where they have to fight for that right other then in dealing with work rules?
6.24.2007 2:54am
neurodoc:
[b]David M. Nieporent[/b], I don't pretend to be very knowledgeable about any of these religions, least of all Islam, and I seriously doubt that you are very knowledgeable about them either. (Correct me if I am wrong in that assumption.) So neither of us are well-prepared to distinguish between what they require of their observers as opposed to what their observers may think is required of them. (For example, it seems that female circumcision is not required by Islam, but it is deeply rooted in the cultures of some Islamic societies. Many Muslims believe that veiling of women was prescribed by Mohammed and not optional, giving women no choice in Saudi Arabia, the Taliban's Afghanistan, etc.)

We can, however, see how observant Muslims and Muslim societies see and live their religious precepts. Few show a preference for liberalism, except as they may find greater opportunities, especially economic ones, living in the West, where they are in the minority, unable to recreate exactly what they had where they originated from.

You can emphasize similarities between these three monotheistic religions with common roots if you wish. I, however, see the differences between Islam the religion or Islam as practiced by its adherents and the other two as religions or as practiced their adherents is far more consequential, especially in the present world.

If, as you assert, Islam is not "inherently more 'intrusive and demanding' than other religions," then will you tell us where in modern times Islam has been strong, but not "intrusive and demanding," leaving individuals at liberty to observe or not as they chose. I can't think of any such places.
6.24.2007 2:59am
ReaderY:
Regarding the argument that the Free Exercise Clause should be no more extensive than the Free Speech Clause -- would it be acceptable for government to enact a general beautification law that prohibits ugly speech as well as ugly buildings, so long as the prohibition of ugly speech is simply part of a general law against ugliness which is completely neutral as to both speech and non-speech ugliness and specifically single out speech for prohibition? Would we really believe that such a construction of the Free Speech Clause protects speech in anything remotely resembling what the Framers intended or, for that matter, the way things we actually regard as important are protected?

For that is how the Free Exercise Clause is currently construed. It's a disgrace. It's simply not taken seriously as a real part of the Constitution.

What's the difference between people who believe it's OK not to respect Moslem religious rights because Moslems are at war with American society and values, and the very similar argument that it's OK to make black people sit at the back of the bus because blackness is at war with our white culture?

If some African countries persecuted white people, would this fact make it any more justifiable for us to make black people sit at the back of the bus? If not, why does the fact that some Moslem countries persecute non-Moslems justify not applying the Free Exercise clause to Islam?
6.24.2007 5:05am
David M. Nieporent (www):
Eliot123: I have no idea what you're driving at, or why you think you've scored a point here.

Bill Poser claimed that Muslims are more likely to demand accomodations than Christians. My response was that this had nothing to do with differences between Islam and Christianity, but rather was simply a result of the fact that, since Christians are a majority, the default rules already accomodate them. If Christians were a small minority, we might have default rules in which, e.g., women are topless; in that scenario, devout Christian women would also be demanding the right to cover themselves up.

Your point, that these demands for accomodations apply to the workplace rather than, e.g., people walking down the street, is certainly true -- but wholly non-responsive to the above discussion about the difference between the demands of Christianity and Islam in situations where accomodations are needed.
6.24.2007 8:26am
Elliot123 (mail):
David Nierporent: "I have no idea what you're driving at, or why you think you've scored a point here."

It's not that hard. My contention is that the only time Muslim has to demand a right to dress in what they consider a modest manner is when there is a law or work regulation to the contrary. (That's what EV's article addressed.) In the general case, they can dress according to their custom and feely walk down the street. Christians who are required to dress in the same manner as these Muslims also have the same right.

Perhaps you can clarify your position? Are you addressing the general right to dress according to their custom, or are you addressing the particular cases where work regulation or law requires a different dress?

Thanks for the point.
6.24.2007 12:52pm
ReaderY:

The prescriptions/proscriptions of Orthodox Judiasm may be more numerous and comprehensive than those of Islam, but so what? Orthodox Jews can "opt out" out at any time.


But since Jews and Christians can equally "opt out" of their religion when government law forbids them to exercise it freely in Moslem societies as well as our own, why we should object to government laws that have that affect there either? For that matter, since people in our society can "opt out" of self-incrimination if police torture is painful enough, should we take the right against self-incrimination seriously either? As long as people have a choice, why should we care how difficult our society makes one option as distinct from the other?
6.24.2007 2:37pm
ReaderY:
Just as information, in Orthodox Judaism, women wear knee-to-ankle lenghth dresses, sleeves below elbows, and married women cover their hair, usually with a scarf (although some, especially those Eastern European ancestry, wear wigs). The result is a set of modesty rules that is somewhat similar to Islam but simply doesn't go as far, although there would be many situations where accomodations would be required. The custom of wigs may possibly reflect a need not to be too visibly obtrusive in oppressive Eastern European societies. The practice of wearing a wig was considered more severe and women who wished to perceive themselves as more part of mainstream American society tended to choose scarfs over wigs. Given that a wig has the practical affect of making one less visible and hence of accommodating intolerant American "liberals" in much the way it used to accommodate Russian anti-semites, and given the symbolic role that head-scarfs (as distinct from wigs) seem to be playing after 9-11, this could change.
6.24.2007 2:55pm
Elliot123 (mail):
ReaderY: "But since Jews and Christians can equally "opt out" of their religion when government law forbids them to exercise it freely in Moslem societies as well as our own, why we should object to government laws that have that affect there either?"

A real world example of what you refer to is the case of Chriatians in Saudi Arabia. The Muslim sabbath is Friday, and the Saudi weekend is Thursday and Friday. The work week is Saturday through Wednesday. Christians have adapted by having their services on Friday rather than Sunday.
6.24.2007 3:23pm
ReaderY:

the Muslim customs interfere with the efficient functioning of society to a great extent


One should be very careful of these sweeping generalizations. Slaveowners used to argue that slavery was a more efficient form of economic management than the Yankee alternative and Christian moral customs shouldn't be permitted to interfere with it.

The question is, efficient at what? "Efficiency" implies some goal that requires resources which permits us to measure the amount of resources used against the extent to which the goal is achieved. The question is, what goal? "Efficiency" is a meaningless term without knowing this. And only external philosophical systems such as religion, morals, etc. can address the question of goals. It's a "why" question, not a "what" or "how" question. Natural and social sciences can only address "what" or "how" questions, not why questions.

Even more fundamentally, in a diverse society people are likely to have different goals in life and for their society, sometimes contradictory goals. Hence, a liberal society, which permits multiple goal-setters (with different goals) to have a say, is often less efficient than a totalitarian one.

Finally, I'd remind about Fisher's Fundamental Theorem - the ability of a population to adapt to new circumstances is inversely proportional to the amount of variation in its adaptation to current ones. This theorem helps explain why business corporations, which are managed for efficiency, tend to have lifespans in decades rather than the centuries or millenia that have historically characterized societies and civilizations. A society which wishes to survive for a longer period of time might wish to do things differently from the "efficient" way. If one does the same things, it would be rational to expect the same results.
6.24.2007 3:42pm
ReaderY:

A real world example of what you refer to is the case of Chriatians in Saudi Arabia. The Muslim sabbath is Friday, and the Saudi weekend is Thursday and Friday. The work week is Saturday through Wednesday. Christians have adapted by having their services on Friday rather than Sunday.


But should our society emulate this example? Claiming that because people will bend to force, they weren't really serious in the first place and their post-bend position is their real one, seems rather an odd argument for a liberal society to be making. After all, given enough pressure most people will sign confessions, won't they? Does this make the confessions more authentic?
6.24.2007 3:46pm
neurodoc:
ReaderY:
Regarding the argument that the Free Exercise Clause should be no more extensive than the Free Speech Clause --would it be acceptable for government to enact a general beautification law that prohibits ugly speech as well as ugly buildings, so long as the prohibition of ugly speech is simply part of a general law against ugliness which is completely neutral as to both speech and non-speech ugliness and specifically single out speech for prohibition?...


But since Jews and Christians can equally "opt out" of their religion when government law forbids them to exercise it freely in Moslem societies as well as our own, why we should object to government laws that have that affect there either?...


I would be happy to engage with what you are saying, if I could understand it. Exactly what point(s) are you trying to make? If others grasp your meaning, perhaps they will answer you, whether to agree or disagree.

If you think Muslims in this country are being mistreated by the government, as some minorities have been at times in our past, would you please cite the most egregious examples of such. In your view, is not permitting this policewoman to wear a khimar one of them?

Finally, you are not well informed about the religious practices of Orthodox Jews, who are a more heterogeneous group than you seem to realize. In particular, you are misinformed as to why some Orthodox woman cut their hair when they marry and wear a wig afterwards, their "accommodations" to the non-Orthodox world, etc.
6.24.2007 4:40pm
Elliot123 (mail):
ReaderY: "But should our society emulate this example? Claiming that because people will bend to force, they weren't really serious in the first place and their post-bend position is their real one, seems rather an odd argument for a liberal society to be making. After all, given enough pressure most people will sign confessions, won't they? Does this make the confessions more authentic"

Note the Christians in Saudi are not forced to have any services at all. It's their choice to hold services on Friday rather than Sunday. Some Christian sects do choose Sunday evening servces; most follow the easy course and go for Fridays.

I guess we might also ask to what extent the rest of us have any obligation to change our ways to assist someone else in following their religion, regardless of the religion in question. Should I put more people on my payroll, incurring additional expense, so employees can choose the sabbath day that suits them? Should the government do so for their employees?

I would hope religious folks could find jobs that suit them rather than demanding that the a job or work site change to be in accord with their religion.

Along these lines, it's very instructive to follow the Arab News English edition on the internet. The "Islam Section" has a lively Q&A feature where many questions like this are posed and answered. It was much more fun before the internet edition and the heightened scrutiny of the answers, but it still has some very interesting Q&A.
6.24.2007 5:37pm
ReaderY:

I guess we might also ask to what extent the rest of us have any obligation to change our ways to assist someone else in following their religion, regardless of the religion in question. Should I put more people on my payroll, incurring additional expense, so employees can choose the sabbath day that suits them? Should the government do so for their employees?


The Supreme Court's first "too much accommodation" case was an O'Conner opinion striking down on Establishment Clause grounds a Connecticut law permitting employees of sufficiently large firms to take their chosen sabbath off. In my view, while on the one hand I don't believe the Free Exercise Clause requires private actors to accommodate religious observance in private contract, on the other hand I do not believe the Establishment Clause prohibits states from making such accommodations if they wish, and hence I disagree with the Court's entire too-much-accommodation jurisprudence (and look forward to Alito's replacement of O'Conner resulting in a reconsideration of this line).

I certainly acknowledge that in addition to not applying to private actors, there are limits to what a state has to do to accommodate religious belief even under a strong interpretation of the Free Exercise Clause. In particular, a state police officer cannot refuse to enforce generally applicable law because of religious disagreement with it, even if that same individual might be entitled to an exception to it personally (even there, I wouldn't consider accommodating certain requests an Establishment problem either). Regardless of the precise standard to be used, under a strong interpretation of the Free Exercise Clause once sincere belief and other preliminaries are established, accommodation should be presumed and the State needs to prove that it serves a sufficiently vital state interest ("compelling", or perhaps "important and legitimate").

I well understand that courts interpreting constitutional provisions to require accommodation of religion -- including the Supreme Court prior to Smith -- have had great difficulty in articulating a rule or standard that clearly distinguishes legitimate from illegitimate accommodation cases and determining what accommodation is required and when. I certainly don't claim to have solved the problem. In my view, however, the difficulty involved does not justify abandoning the whole enterprise, as I believe Smith did. Difficult boundary cases are common in the law. As Holmes put it, the fact that there is no procise line between night and day -- there are only shades of gray -- doesn't make night and day useless as legal concepts.

What is the state's justification for requiring absolute uniformity in police uniforms? One could easily come up with a hypothetical in which the state interest involved in banning particular religious symbols is quite clearly compelling. A city with gang wars, for example, could well have a compelling interest in not having a police officer wear a religious symbol that was unfortunately also a gang symbol, particularly if there was a previous instance that led to tragedy. (Although even there, if for example the gang adopted the religious symbol for purposes of religious persecution and to cause difficulties within police ranks, I could see a counter-hypothetical). A woman who wishes to wear something that doesn't even resemble a police uniform might similarly represent a problem. However, relatively minor deviations from the standard police uniform that still represent a clear police uniform -- a skirt instead of pants, a headscarf under the cap, a veil -- don't strike me as as being unreasonable I doubt the state interest involved would be compelling. The interest in absolute uniformity strike me as aesthetic and not necessarily compelling.
6.24.2007 6:19pm
ReaderY:

Finally, you are not well informed about the religious practices of Orthodox Jews, who are a more heterogeneous group than you seem to realize. In particular, you are misinformed as to why some Orthodox woman cut their hair when they marry and wear a wig afterwards, their "accommodations" to the non-Orthodox world, etc.


The religious obligation for a married women to cover her hair in public comes Rabbinic interpretation of a passage in the Bible that the priest should uncover a suspected adulteress' hair, interpreted as implying that ordinarirly the hair should be publicly covered. Obviously not everyone observes it. While Eastern European Jewish women traditionally fulfilled the obligation by wearing wigs (and some shaved their heads under the wig), Sephardic women traditionally wore head scarves. For example Rabbi Ovadiah Yosef, the former Chief Sephardic Rabbi of Israel, wrote a religious-law opinion forbidding Sephardic women from wearing wigs as insufficient to fulfill the underlying obligation. "Modern" Orthodox in both the United States and Israel (the folks who tend to wear relatively regular clothes) have tended to prefer head scarves to wigs (among those who cover their hair at all); in "black hat" communities, the practice is more commonly observed and women are more likely to wear wigs.

I didn't intend to suggest that practice was uniform, only that their interactions with the surrounding society influenced the different communities' historical practices. I also suggested that if our society develops strong prejudices against head scarves -- and I hope it won't -- this could again influence practice.

According to the Wikipedia article http://en.wikipedia.org/wiki/Tzeniut, Conservative Judaism also requires women to wear modest dress and hasn't officially changed the traditional requirements, although the practice of wearing non-standard clothing such as wigs or head-scarves for reasons of modesty may be non-existent.
6.24.2007 6:40pm
Milhouse (www):
Getting back to the actual article:
Rhode Island colonial law exempted Jews from the prohibition on uncle-niece incest, a prohibition that Christians generally enforced but that Jews of the time did not.
This implies, incorrectly, that Jews at this time do enforce such a prohibition. Uncle-niece marriages aren't as common as they were 100 or 150 years ago, but that is entirely for sociological reasons, not religious ones. AFAIK there are no Jews, anywhere on the religious spectrum, who believe that their religion prohibits uncle-niece marriages, or who would object to such a marriage on religious grounds.
The Constitution itself mentions an important religious accommodation: Several of its provisions require oaths, but also offer the option of an affirmation instead. This was necessary to ensure that those religious groups (such as Quakers) that had religious objections to swearing would be able to participate in American political and legal life.
Another example can be found in the history of the Second Amendment. The amendment derives from a proposal at the Philadelphia convention, and the original wording of that proposal was understood by some delegates to require people to keep and bear arms, which would be a problem for religious pacifists such as Quakers and Mennonites. The version that eventually made it into the constitution was amended to prevent that reading.
6.24.2007 6:45pm
Milhouse (www):
PS: Uncle-niece marriage only makes sense when a woman starts having children early, and has her children over a long enough period that her youngest son's age is similar to that of her oldest granddaughter. Such families still exist, but they're much less common than they used to be. That means there are far fewer uncle-niece pairs in the population who would even think of getting married.
6.24.2007 6:56pm
whit:
"What is the state's justification for requiring absolute uniformity in police uniforms?"

are you kidding me? the history of modern police work (although not uniforms in general) dates back to sir robert peel. start there. he lays out some rather compelling arguments for this, among other things. much of how modern police work is conducted and understood - worldwide - stems from sir robert peel.

also, the police are a paramilitary organization, and thus the uniformed forces have much of the same "justification" as a military uniform does. among these are that they are easily identifiable (which is among other things - a safety issue, and also helps in many areas of making good cases due to recognizability etc. (suspect can't claim he didn't know the cop WAS a cop, etc)), that they are unbiased representatives of state power, that they have an esprit de corps that is bolstered by the uniform, etc. military uniforms go back (obviously) much farther than peel does. wambaugh made this very point in labeling some LAPD cops, the "new centurions".

the vast majority of citizen/civilian contacts is with the uniformed division, btw. they are the "face" of the police dept.

all religions for many decades before this case had the exact same restrictions as the muslims have- no VISIBLE identifiers of religious affiliation. i am pretty surprised (not really) that the same types who are such supposedly zero tolerance "seperation of church and state" types can't see the inherent problems in allowing all sorts of problems with having cops REPRESENT their religion via their uniforms which does far more to imply state endorsement of religion than the ten commandments on some wall, for example.

mormons can wear their sacred garments underneath the uniform. catholics can wear a cross underneath the uniform, etc. etc. sikhs can wear their knives, etc. heck, a cop can wear a pentagram, or a big tattoo saying GOD DOESN'T EXIST, AND IF HE DOES, HE SUCKS for all i care.

opening the door to religious expressions in the police uniform is a truly horrible idea, though. we've prohibited it for as long as i've been a cop, and lets not make a special exception for muslims, that we haven't made for christians, jews, or anybody else. and i am well aware of exceptions made in canada, the UK etc. neither of which have the sort of constitutional protections we have, and which have clearly descended into multi-culti hell - such as allowing a muslim cop in england to refuse a duty assignment guarding the israeli embassy.
6.24.2007 7:57pm
ReaderY:
Regarding the Muslim women who wished to testify veiled --

Given that a witness who lives sufficiently far away can testify by deposition and needn't testify in person, the lawsuit-will-be-dismissed-unless-you-take-off-your-veil argument clearly isn't neutral to religion under Alito's interpretation of Smith. Under Alito's interpretation of Smith, a law that refuses to make exceptions for religion is only being neutral to religion if if refuses to make exceptions for anyone else either. But if it makes exceptions for others -- particularly if it makes them easily and readily -- the State can't be taken seriously if it claims it can't make exceptions for religion. (Thus, because the Philadelphia police permit people with skin conditions to wear beards, they must let people with religious conditions wear them as well.)

Applying Alito's logic, given that courts readily accept deposition testimony in jury trials, where the demeanor of the witness can't be observed at all by the ultimate finder of fact, and do so under a fairly large variety of circumstances, they are not attempting to apply a law of genuinely general or neutral applicability. Rather, Courts are arbitrarily refusing to include religion in a long list of exceptions which makes a claim of general applicability simply not credible.
6.24.2007 8:05pm
Elliot123 (mail):
Can anyone here define religion?
6.24.2007 9:50pm
Milhouse (www):
Can anyone here define religion?
"We know it when we see it"
6.25.2007 12:45am
K Parker (mail):
Bill Woods, you know the First Law of ID Photographs, don't you?

If you look like your drivers licence/passport photograph, you're not well enough to drive/travel.
6.25.2007 3:14am
CrosbyBird:
your entire post is bunk

Do you deny that their is a history of religious powers justifying horrific behavior because it was 'for the victim's own good'? Preventing an eternity of suffering is a lot of good to weigh against the short-lived unpleasantness of torture or other coercion.

No, Jack Chick isn't putting people on the rack until they convert. He is trying to scare people into following his religion. That's legally permissible and morally repulsive.

let me know who wins the argument presented in this part of your post: "...society should respond harshly and aggressively toward premises that lead toward the justification of such conclusions. Not the role of government to tell people what to believe..."

The two are not interconnected.

Government doesn't tell people what to believe (or it should not), it tells them what acts they can and cannot perform if they don't want to be subject to civil and/or criminal sanction.

Society does tell people what to believe (and it sometimes should). For example, if someone believes a person is a less worthy human being because of a difference in skin color, most societies will (or should) attack that belief as morally unreasonable. If a person believes that the Earth is four thousand years old, society should attack that belief as erroneous.

To bring this full circle to the original topic, the police aren't telling Muslims that they can't believe it is appropriate to cover themselves in a different manner than the base uniform provides. They are simply telling the Muslims that they can't cover themselves in that manner if they wish to be employed as police officers.
6.25.2007 2:07pm
Elliot123 (mail):
CrosbyBird: "They are simply telling the Muslims that they can't cover themselves in that manner if they wish to be employed as police officers."

The Saudis, who are quite well versed in Sharia law and Islam, tell their police the same thing.
6.25.2007 5:01pm
David M. Nieporent (www):
It's not that hard. My contention is that the only time Muslim has to demand a right to dress in what they consider a modest manner is when there is a law or work regulation to the contrary.
Well, yes, I think that's pretty obvious. One only needs to request an exception from a rule -- which is what an accomodation is -- if that rule exists.

What I don't understand is why you think that's responsive to the discussion.

Perhaps you can clarify your position? Are you addressing the general right to dress according to their custom, or are you addressing the particular cases where work regulation or law requires a different dress?
Since the topic of the thread is accomodations, I am addressing situations in which accomodations are required.
6.25.2007 8:18pm
Elliot123 (mail):
David M. Nieporent: "What I don't understand is why you think that's responsive to the discussion."

I was respondng to the following statement you made in the discussion:
"If we lived in a society in which, e.g., women going topless in public was the general custom, then religious Christian women would also be demanding their right to cover up."

Can you tell us why you made that statement? I observed that the religious have the right the dress in a more modest manner than is the general custom, so there is no need to demand anything. Can you understand why someone might respond to statements you make in a discussion? I don't want to be rude, but are you paying attention?
6.25.2007 8:57pm
Eli:
One big difference between religion and "sincerely held beliefs" is the belief that you are required to do/wear/whatever.
Wanting to express a personal opinion through a sticker or pin is not at all analogous to believing the great flying spaghetti monster requires you to wear one.
6.25.2007 10:33pm
David M. Nieporent (www):
I observed that the religious have the right the dress in a more modest manner than is the general custom, so there is no need to demand anything.
And then I explained to you that this entire thread demonstrates that you're wrong; the religious (Muslims) do not have the right to dress in a more modest manner than is the general custom. They're seeking to be allowed to do so, but currently are not.
6.26.2007 12:21am
Elliot123 (mail):
Glad you now understand my comment was responsive to your contribution to the thread. However, the fact remains that religious Muslims in our society do have the right walk down the street in a head to toe abaya. They don't have to demand anything.

This is easily demonstrated by recalling the way Catholic nuns used to dress. Their dress was very similar to the Muslim abaya. It was a head to toe black covering with only the face exposed. They freely walked around in public. This can also be demonstrated by strolling through Mulsim neighborhgoods in the US. We will see abaya clad women who wander around without the need for any demands. US international airports also offer glimpses of the same.

So your notion that women in our sosiety need to demand the right to deviate from the general custom in the direction of modestry is simply wrong. The only issue is, as EV's opening post stated, where law or workplace regulation is to the contrary.
6.26.2007 11:09am