I blogged last week about a Georgia judge’s refusal to let a Muslim man wear a kufi (a sort of cap) in court. The man believes the headgear is religiously required, and the Georgia judicial system’s announced policy is to allow religious headgear — whether Muslim, Jewish, or related to any other religion — but the judge nonetheless didn’t let the man wear the cap.
Now the Atlanta Journal-Constitution reports that the judge has changed his mind:
“The Court finds through its own research that there is a basis in the Quran for both men and women to cover their heads as a religious observance,” Judge James T. Chafin wrote in an order obtained by the AJC. “Accordingly, the Court will permit the defendant to wear his hat in the courtroom as a valid religious observance.”
But while I think the result is right, for reasons I mentioned earlier, the judge’s reasoning strikes me as flawed (assuming the newspaper article accurately captured that reasoning). It’s not the job of secular judges to “find through [their] own research” whether “there is a basis” in a religious book for a religious practice. Rather, when a person asks for a religious accommodation, the question is whether that person sincerely holds the religious belief; a judge may not try to decide for himself what the religious belief is consistent with a religious book. As the Supreme Court has held, “Courts are not arbiters of scriptural interpretation.”
And this has to be the case, unless you want judges to determine whether there is a basis in the Torah for a prohibition on eating chicken with cheese (there isn’t, though Orthodox Jews treat such mixtures as not kosher) or for a mandate to wear a yarmulke (there isn’t, though Orthodox Jewish tradition for centuries has been to wear headgear when out in public), or whether the Bible can be reasonably interpreted as requiring that one observe Sunday as the day of rest, or a wide range of other religious questions. Our legal system has rightly concluded that secular judges ought not be making such decisions.
Of course, even if a religious belief is sincerely held, this doesn’t mean that it must or should be accommodated. A judge may reject such a request on the grounds that granting the request would substantially impair a compelling government interest, or would unduly burden an employer, or — in many states — would violate a religion-neutral generally applicable law. But that too is true regardless of whether a court thinks “there is a basis” for the religious practice in a religious book; accommodation requests may and should be denied (under the standards I just noted) even for clearly scripturally grounded religious practices. The question is whether the rule substantially burdens a sincerely held religious belief, and whether there’s a sufficient secular reason for the burden, not whether the Bible or the Koran supports the religious belief.