Under the Veil

by Eugene Volokh

Religious exemption and Muslims.

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.

1. Legislative choice to provide limited exemptions: To begin with, recall that a form of multiculturalism has been part of the American tradition from before the founding of our nation. I refer here to religious multiculturalism. Many early American religious groups constituted different cultures from the mainstream — some highly separate and some slightly so — sometimes with separate languages and often with significantly different moral codes and attitudes towards the law. (Incidentally, federalism, in the sense of preservation of a considerable degree of state self-government, and localism, in the sense of state law rules protecting the home rule of cities and counties, are other instances of traditional American multiculturalism.)

And from the outset, the law offered religious exemptions to some groups. 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. (The Bible in fact does not specify uncle-niece incest in its list of prohibited forms of incest.) 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.

In the second half of the 20th century, American law went further in protecting religious multiculturalism by offering judicially enforceable religious exemptions to a broad range of otherwise generally applicable rules. The goal here was to maximize religious people’s ability to participate in a wide range of activities without having to violate their own religious principles.

Thus, Congress, amending the Civil Rights Act in 1972, expressly provided that in certain situations religious objectors are entitled to exemptions from generally applicable employer rules. The obvious beneficiaries of these rules were of course overwhelmingly Christians, though other religions (most obviously Jews) were included. Many states have followed suit. And in 1993, Congress enacted the Religious Freedom Restoration Act to provide that religious objectors are also sometimes (but not always) entitled to exemptions from a wide range of generally applicable federal laws. About a dozen states since then have enacted similar religious exemption regimes.

From 1963 to 1990, the Supreme Court interpreted the Free Exercise as constitutionally mandating a religious-exemption regime, and over ten states have implemented such a regime under their state constitutions. But today, religious-exemption law is mostly a matter of democratically enacted statutes.

One could of course argue that such religious exemptions should not be legally required, perhaps because if one exemption is granted, people will demand other exemptions. But Congress and many state legislatures have made the contrary judgment. Their response to the likelihood that one claim will lead to others is that (1) each claim should be considered largely on its own, and (2) future claims should be rejected if they impose “undue hardship” on employers (Civil Rights Act) or undermine “compelling government interests” (RFRA). It is the undue hardship / compelling government interest test that is the barrier to slippage down the slope to too many exemptions. Congress deliberately declined to instead use the barrier of not demanding exemptions at all.

This shows the weakness, under decades-old U.S. law, of the common objections that, for instance, “[T]he need to wear a headscarf is probably not the last accommodation [the policewoman will] need. I wonder about a Muslim policewoman who can’t touch or talk to men? This is quite the can of worms.”

Religious-exemption statutes generally require courts to consider exemption requests one at a time. A court might accept an exemption for wearing religious headscarves, on the theory that it doesn’t impose an “undue hardship” on police employers (presumably because the court is unpersuaded by the argument that exemptions undermine morale or worsen police-citizen relations). But it would surely decline an exemption request for women who can’t touch or talk to men, because that exemption would create a much more tangible and therefore undue hardship. That’s just the normal way exemption requests are supposed to work, for Christians, Muslims, or anyone else.

2. Small sects, and even idiosyncratic religious believers, are as protected as large sects: This flows in part from the multiplicity of American Christian denominations; from the sense that discrimination among denominations is wrong; from the reality of religious disagreement even within denominations (something majority-Protestant nations have long been familiar with); and from the courts’ sensible conclusion that secular courts can’t judge which group within one denomination has the better view of the denomination’s “true beliefs.” Thus, consider the Supreme Court’s opinion in Thomas v. Review Bd., where a Jehovah’s Witness’s exemption claim was based on his objection to working in war production: 

The [lower] court also appears to have given significant weight to the fact that another Jehovah’s Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was “scripturally” acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences ….. [Protection] is not limited to beliefs which are shared by all of the members of a religious sect…. [I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.

Or, from Frazee v. Illinois Emp. Sec. Dep’t, another case involving a Christian claimant: “[W]e reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.”

So this helps us answer the questions, “[Are there any] branches of Islam that allow female police officers acting as a police officer would in this country, yet require a head covering[?] … If such branches do exist, with membership numbering in the hundreds, would that constitute a valid religious group requiring accommodation? How about ten members? Does a religious branch require a recognized authority as a leader?” Under well-established U.S. religious-exemption law, the popularity of a belief doesn’t matter: A claimant need not show that her view is common among Muslims, only that it’s sincerely held by this one particular Muslim.

3. Claimants are protected even if their sincere religious beliefs are newly asserted: This reflects the American tradition of viewing adult religious conversion as quite proper — even as laudable, since it reflects considered judgment and not just accident of upbringing — and the reality that many people return to devoutness after a time of having lapsed in their religiosity. As the Supreme Court held in Hobbie v. Unemployment Appeals Comm’n, “The First Amendment protects the free exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired. The timing of [claimant’s] conversion is immaterial to our determination that her free exercise rights have been burdened [assuming the religious beliefs are sincere].”

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.

4. Claimants are protected even their beliefs seem unreasonable, logically inconsistent, or contradicted by their own religion’s scriptures: This too the Supreme Court held in Thomas, against the backdrop of the history of deep disputes within Christianity itself:

[A religious-exemption case] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others …. The [lower] court found [claimant’s willingness to help produce steel, even when it is a raw product to be used in arms, but not tank turrets] inconsistent with Thomas’ stated opposition to participation in the production of armaments. But … Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.

5. Claimants are only protected if their beliefs are sincerely held: If a court concludes that the claimant is lying about his beliefs, then his claim will be rejected. And courts may often want to scrutinize a claimant’s sincerity when her beliefs seem to coincide neatly with her secular interests, especially secular financial interests.

But the Muslim exemption claims I mentioned at the start likely involve little incentive for insincerity. The claimants went to considerable expense and effort to make claims that would not enrich them in any secular way. It may be that the claims should be rejected because they would be too burdensome on the government, but there’s little reason in these cases to doubt the claimants’ sincerity.

6. So, the bottom line: Exemption requests such as the Muslim women’s requests I note above are legally quite plausible, so long as they are sincerely made. They rest on democratically enacted statutes that have long been used by Christians and Jews (as well as other groups).

The requests may still be rejected by courts, as these requests were, on the grounds that there’s a strong enough reason for enforcing the rule uniformly. The exemption regimes are not absolute, and in practice generally provide only modest protections. 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.

Those who don’t like this can quarrel with the established law of religious exemptions. They might, for instance, argue that the Civil Rights Act and RFRAs should generally be repealed. Or they might argue that these laws should be limited to well-established, broadly held religious beliefs — though they should consider the problems with (and possible unconstitutionality of) letting courts discriminate among denominations, decide what the “official view” of a denomination would be, or become arbiters of the reasonableness or scriptural consistency of religious doctrine.

But they should remember that Muslims are using the same statutes that many Christian groups have used. Muslims are asking for accommodations that are not much different from those that many Christian groups have asked for. (Some Christians, for instance, have demanded and sometimes gotten exemptions from driver’s license photograph requirements. Some Christian police officers and medical professionals have demanded and sometimes gotten exemptions from working on tasks that they find sinful, such as performing abortions, cleaning instruments that would be used in abortions, or protecting abortion clinics.) The Muslim claimants are acting well within the tradition of American religious-exemption law — and American religious multiculturalism — even if some of their exemption requests are being rightly rejected.