The Volokh Conspiracy

I've written before about Muslim requests for religious exemptions from generally applicable rules — chiefly to point out how similar these often are to non-Muslim requests for such exemptions, and to argue that we shouldn't get particularly exercised about them (though neither should we categorically accept them, any more than we should accept such requests from Christians, Jews, or others).

Reader Stephen St. Clair pointed me to the latest such request in the news (from the Washington Post):

Juashaunna Kelly, a Theodore Roosevelt High School senior who has the fastest mile and two-mile times of any girls' runner in the District this winter, was disqualified from Saturday's Montgomery Invitational indoor track and field meet after officials said her Muslim clothing violated national competition rules.

Kelly was wearing the same uniform she has worn for the past three seasons while running for Theodore Roosevelt's cross-country and track teams: a custom-made, one-piece blue and orange unitard that covers her head, arms, torso and legs. On top of the unitard, Kelly wore the same orange and blue T-shirt and shorts as her teammates.

The outfit allows her to compete while complying with her Muslim faith, which forbids displaying any skin other than her face and hands.

As one of the other heats was held, two meet officials signaled to Kelly and asked her about her uniform. Meet director Tom Rogers said Kelly's uniform violated rules of the National Federation of State High School Associations, which sanctioned the event, by not being "a single-solid color and unadorned, except for a single school name or insignia no more than 2 1/4 inches."

Rogers then told Kelly she was disqualified....

Now there is some controversy about whether the officials' objection was simply to the uniform's not being suitably single-colored, or to the uniform's covering the head. If the track and field organization only wants to impose color rules, to which to my knowledge Kelly and other Muslims wouldn't object, then there'd be no problem with that in general. I do think it was needlessly cruel to bar the girl from running in this event, based on what sounded like an honest mistake; it's not like her violation of the color rules would give her some unfair advantage over other runners. Still, insisting on compliance with such rules for the future wouldn't be at all objectionable.

But if an organization does insist on enforcing some rule (if there is one) against head coverings, that strikes me as wrong — likely not illegal or unconstitutional (unless it's motivated by hostility to Muslims, which I doubt), but needlessly harmful to young athletes. Just as male Orthodox Jews' desires to wear head coverings should be accommodated even in the face of otherwise uniform restrictions on athlete headgear (assuming there's no safety problem caused by the head coverings, for instance if they are sufficiently securely attached), and just as Sikh men's desires to wear turbans should be accommodated, so should Muslim women's desires to wear headgear and long pants.

Here's the basic problem: There are some restrictions that are of only modest importance to the government (or an educational organization or an employer or others), but are implemented because they impose only a slight burden on the average person. Yet for people in some religious groups, they impose a much greater individually felt burden, which is why they ask for an exemption.

Our society has a long, honorable, and generally highly beneficial (though not perfectly adhered to) tradition of accommodating a wide range of religious beliefs — of trying to make sure that people can have, whenever reasonably possible, all the rights and opportunities available to other members of American society without having to give up their religious views. This dates back over 200 years, with exemptions from oath requirements for Quakers and other groups, exemptions from military service for pacifist religious sects, and a wide range of other kinds of exemptions from otherwise generally applicable laws.

This doesn't mean we accommodate every request, no matter how burdensome to others. If an exemption would somehow hurt others, or substantially increase the burden on others, that will often be a good reason to deny the request. (Exemptions from military service, for instance, are understandably controversial on this score, and have always been limited in some measure.) It may even be proper to deny the exemption if the exemption would risk substantially hurting the exempted person; the organization involved might not want to be a party to such possible accidents. If there was reason to think that any garment required by the Muslim girl would either seriously risk heatstroke or tripping, or unacceptably cut off her peripheral vision so she would stumble or run into others, that might be reason to reject the request.

But I see no reason why there would be such an inherent danger here (at least if the garment is properly designed). And when an exemption is very cheap for the organization, and the main barrier is just an insistence on following the rule — a rule usually made without any real consideration of the stark burden it imposes on some religious observers — relaxing the rule strikes me as the right thing to do.

Again, this is not necessarily a legal obligation (employers are generally required to accommodate religiously objecting employees when doing so is very cheap, but other institutions usually aren't) and certainly not a constitutional one: the organization involved here may well be a nongovernmental one and thus not bound by the constitutional religious freedom provisions, and in any case it's likely that the constitutional provisions don't mandate exemptions in these sorts of cases even when the rule is government-made. But I do think that granting an exemption from a no-headgear policy would be the right thing to do, especially for an organization that is aimed at trying to encourage young athletes.

Finally, I realize that some might specifically object to Muslim head covering claims, on the pragmatic grounds that such coverings tend to reinforce the subjugation of women, and are therefore potentially harmful to society. I don't think that's generally a good enough reason to reject an exemption request; but here it strikes me as particular counterproductive.

Here is a Muslim girl who is engaging in an activity that is far from stereotypically feminine or subjugated. If she succeeds, and other devout Muslims girls follow her example and become more involved in sports and in competition, I think this help those girls, and incidentally help them undermine whatever norms of female subservience might exist in their communities. Conversely, if devout Muslim girl are excluded from such activities, I doubt they're likely to just set aside their head coverings and become good gender-egalitarian secularists (or Muslim reformers); rather, most of them are likely to retreat into more traditional pursuits. Religious accommodation thus strikes me as the practically wise thing to do, as well as the kind thing for the girls who seek the accommodation.