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Under the Veil
Religious exemption and Muslims.


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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.

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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.”



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