Letting Muslims claim broadly available religious exemptions from generally applicable laws or work rules

[This week, I’m serializing my just-published article, Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431 (2014); you can see the posts so far here.]

Many states have legal rules that call for religious exemptions from generally applicable state and local laws.[49] Some such rules are enacted by statute, using so-called “Religious Freedom Restoration Acts.”[50] Other such rules have stemmed from state courts’ interpretations of the state constitution’s religious freedom provisions.[51] Likewise, the federal Religious Freedom Restoration Act mandates similar exemptions from federal laws.[52]

By and large, such “religious accommodation” regimes provide that religious objectors may get exemptions even from generally applicable laws unless denying the exemption is necessary to serve a compelling government interest.[53] So if a government action requires someone to do something that he sees as religiously forbidden (e.g., working on the Sabbath), then sometimes — but not always — the objector will be able to get an exemption.[54] The same is true if a government action forbids someone from doing something he sees as religiously required (e.g., wearing religiously mandated dress or facial hair, or using peyote in a religious ceremony). The federal Civil Rights Act similarly gives employees, public or private, the right to an exemption from generally applicable work rules that interfere with the employees’ religious practices, unless the exemption would work an “undue hardship” on an employer.[55]

Under these rules, Muslim employees could sometimes claim exemptions from some employer dress codes or hairstyle rules.[56] Muslim litigants or witnesses could claim exemptions from court rules that require people to keep their heads uncovered in court.[57] Muslims could ask for time off to pray[58] or days off for religious holidays.[59] Muslim cab drivers could ask for the right to refuse to carry passengers who are visibly carrying alcohol, despite a generally applicable policy requiring cab drivers to take all comers.[60]

But again, the Muslim claimants would simply be seeking an application of American law, though based on their felt religious obligation to comply with sharia. In this respect, Muslims are again just like Christians, Jews, and others. Christians, Jews, and Sikhs have on many occasions claimed exemptions from employer uniform or grooming requirements.[61] Jews and Sikhs have claimed exemptions from requirements that they take off their headgear in court.[62] Christians, Jews, and members of other religions have claimed the right not to work on their Sabbaths and holy days, or even to take religious trips of a week or longer.[63] Christians have at times asked for the right to refuse to do certain job tasks that they see as religiously forbidden.[64]

Of course, not all these claims are accepted. In some situations, a court may conclude that denying a religious exemption is indeed necessary to serve a compelling government interest. Florida, for instance, has a Religious Freedom Restoration Act,[65] but when a Muslim woman who wore a full veil sought an exemption from the requirement that every driver have a license with an uncovered photograph, a trial court found that there was a compelling safety interest in denying the exemption.[66]

Similarly, a court may conclude that denying a religious exemption from a workplace policy would impose an “undue hardship” on an employer. The Third Circuit, for instance, rejected the Title VII religious accommodation claim of a Muslim policewoman who sought to wear a headscarf.[67] Such an accommodation, the court concluded, would pose an undue hardship for the police department, because it would undermine the “image of a disciplined, identifiable and impartial police force.”[68] The uniform, the court said, was an important “symbol of neutral government authority, free from expressions of personal religion, bent or bias.”[69]

Likewise, the Eighth Circuit rejected a headscarf accommodation claim brought by a woman who sought placement as a temporary worker at a commercial printing company.[70] Such an accommodation, the court reasoned, could cause safety problems because the scarves could get caught up in machinery; the accommodation therefore was not required by Title VII.[71] Many objectors will have their accommodation claims rejected, depending on the particular accommodation that is being claimed and the particular burdens it imposes.[72]

Indeed, this helps illustrate why accepting one religious exemption claim — for instance, from a no-beards rule or from an airport cab driver regulation — won’t put us on a “slippery slope” to accepting all exemption claims, such as claims related to spousal rape or female genital mutilation.[73] Courts dealing with Christian and Jewish religious accommodation claims have long drawn lines between claims that should be accepted, because the claims don’t interfere with compelling government interests or pose an undue hardship to employers, and claims that should be rejected. Courts have not slipped down the slope towards accommodating heinous religious practices that seriously harm others. If anything, religious accommodations have generally been granted rather sparingly.[74] There’s little reason to think that there’d be any more slippage towards bad results when it comes to Muslim religious accommodation claims.

Of course, devout Muslims might not distinguish among Muslim religious beliefs, choosing some to follow and some to ignore. Instead they may seek to follow all such beliefs. Likewise, Orthodox Jews sometimes disapprove of a focus on the Ten Commandments, reasoning that the Torah contains 613 commandments, all of them God’s will.[75] But that’s the religious believers’ view; it is not the view of our legal system.

If a Muslim woman seeks to keep her headscarf on while in court, despite a no-head-covering rule, a court should deal with that request on its own terms and should likely grant it, much as courts have granted similar requests for other religions.[76] If a Muslim woman seeks to have her driver’s license photograph taken with her veil on, a court should deal with that request on its own terms, and may reject it; lower courts dealing with similar claims by non-Muslims have been split on that question.[77] That the courtroom headscarf request is accepted doesn’t mean the license veil request must be accepted, too. That the license veil request is rejected doesn’t mean that the courtroom headscarf request must be rejected as well.

And again the important point is that Muslims are using the same laws to seek religious exemptions that Christians, Jews, and others have long had available. In dealing with Muslim accommodation requests, there’s no need to create special rules, either “pro-sharia” or “anti-sharia.” Rather, all that courts must do is apply the well-established American religious accommodation rules the same way they do for members of other religions.

My point here is not to defend broadly applicable religious accommodation rules or to suggest that they should be broadened further. Some readers may disapprove of such rules and conclude that religious objections shouldn’t entitle the objector to exemption from generally applicable laws or work rules. But my point here is simply that there’s nothing nefarious about applying existing American law to Muslim Americans’ accommodation requests just as it applies to other Americans’ accommodation requests.

* * *

[49]. See, e.g., Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465, 1468 & n.6 (1999).

[50]. Id.

[51]. Id. at 1550 n.272.

[52]. 42 U.S.C. §§ 2000bb to 2000bb-4 (2012).

[53]. See infra notes 65-72 and accompanying text.

[54]. See generally Volokh, supra note 49.

[55]. 42 U.S.C. §§ 2000e(j), 2000e-2(a); see also Trans World Airlines v. Hardison, 432 U.S. 63 (1977).

[56]. See Eugene Volokh, Security Guard’s Right to Wear a Religious Headscarf, The Volokh Conspiracy (Dec. 12, 2011, 6:00 PM), http://volokh.com/2011/12/12/security-guards-right-to-wear-a-religious-headscarf/.

[57]. See, e.g., Tyson v. Damore, No. Civ.A. 03-5297, 2004 WL 1837033 (E.D. Pa. Aug. 13, 2004); In re Palmer, 386 A.2d 1112 (R.I. 1978).

[58]. Haliye v. Celestica Corp., 717 F. Supp. 2d 873 (D. Minn. 2010).

[59]. See, e.g., Press Release, U.S. Dep’t of Justice, Justice Department Settles Religious Discrimination Lawsuit Against Berkeley School District in Illinois (Oct. 13, 2011), available at http://www.justice.gov/opa/pr/2011/October/11-crt-1362.html; Eugene Volokh, $75,000 Settlement for Muslim Teacher Denied 19 Days’ Unpaid Leave for Hajj (Pilgrimage to Mecca), The Volokh Conspiracy (Oct. 14, 2011, 10:05 PM), http://volokh.com/2011/10/14/75000-settlement-for-muslim-teacher-denied-19-days-unpaid-leave-for-hajj-to-mecca/.

[60]. John Reinan, Got Wine at the Airport? It’s Harder to Grab a Cab, Minneapolis Star Trib., Sept. 28, 2006; Eugene Volokh, Cabs and Alcohol, The Volokh Conspiracy (Sept. 29, 2006, 12:31 PM), http://volokh.com/2006/09/29/cabs-and-alcohol/.

[61]. See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (Jewish Air Force psychologist who objected to a no-headgear rule); Jenkins v. N.Y.C. Transit Auth., 646 F. Supp. 2d 464 (S.D.N.Y. 2009) (female Pentecostal employee who objected to having to wear pants); Kalsi v. N.Y.C. Transit Auth., 62 F. Supp. 2d 745 (E.D.N.Y. 1988) (Sikh employee who objected to a hardhat requirement when that interfered with his ability to wear a religiously prescribed turban).

[62]. See Atkin v. Parana, No. CIV-86-1075E, 1987 WL 16459 (W.D.N.Y. Sept. 1, 1987); Close-It Enters. v. Weinberger, 407 N.Y.S.2d 587 (App. Div. 1978); Plaintiff’s Original Petition, Singh v. Cercone (n.d.), available at http://www.aclutx.org/files/070831.SinghFinalPetition.pdf; Dallas County Changes Policy to Settle Turban Case, Sikh Am. Leg. Def. & Educ. Fund (Sept. 30, 2008), http://www.saldef.org/saldef-news/dallas-county-changes-policy-to-settle-turban-case/.

[63]. See, e.g., Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452, 455 (7th Cir. 2013) (concluding that an employer may have had a duty to accommodate an employee’s request for a three-week unpaid leave coupled with a week of accrued vacation, so the employee, who apparently adhered to a mix of Christianity and local Nigerian practices, could return to Nigeria to perform funeral rites for his father); Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 683 (9th Cir. 1998) (involving a request for accommodation of a two-week-long pilgrimage to a visitation of the Virgin Mary, but concluding that this particular claimant didn’t show that she had a religious obligation to go on this pilgrimage at this particular time); EEOC v. Universal Mfg. Corp., 914 F.2d 71, 74 (5th Cir. 1990) (concluding that an employer may have a duty to accommodate a Christian employee’s religious obligation to not work during a seven-day holiday period).

[64]. See, e.g., Am. Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 776-77 (9th Cir. 1986) (concluding that the postal service had a duty to reasonably accommodate, through transfer to a comparably paid job, postal workers who had a religious objection to processing draft registration forms); Gavin v. Peoples Natural Gas Co., 613 F.2d 482, 483-84 (3d Cir. 1980) (discussing, but not resolving, a Jehovah’s Witness employee’s objection to part of his job tasks, which involved having to raise and lower a flag); Haring v. Blumenthal, 471 F. Supp. 1172, 1182 (D.D.C. 1979) (concluding that the IRS had an obligation to exempt an employee from having to work on tax-exempt status applications from abortion clinics and other organizations that the employee thought it sinful to deal with); Best v. Cal. Apprenticeship Council, 207 Cal. Rptr. 863, 868 (Ct. App. 1984) (concluding that an apprentice training organization — which was treated by state law as an employer — had an obligation to accommodate an apprentice’s religious objection to working in a nuclear power plant); David Haldane, Panel Backs Fired Vegetarian Bus Driver, L.A. Times, Aug. 24, 1996, at A18 (discussing a case in which the EEOC concluded that a transportation agency must accommodate a vegetarian bus driver’s religious objections to “hand[ing] out coupons for free hamburgers as part of a promotion to boost ridership”); Felhaber, Larson, Fenlon, & Vogt, P.A., Bits and Pieces, Minn. Emp’t L. Letter, Sept. 1997 (reporting that the case against the transportation agency was settled for $50,000).

[65]. Fla. Stat. §§ 761.01-.05 (1998).

[66]. Freeman v. State, No. 2002-CA-2828, 2003 WL 21338619, at *6 (Fla. Cir. Ct. June 6, 2003), aff’d on other grounds, 924 So. 2d 48 (Fla. Dist. Ct. App. 2006). For litigation involving non-Muslims who likewise sought a religious exemption from the photograph requirement, compare Valov v. Dep’t of Motor Vehicles, 34 Cal. Rptr. 3d 174, 184 (Ct. App. 2005) (denying exemption because granting exemption would undermine the compelling interest in safety), and Johnson v. Motor Vehicle Div., Dep’t of Revenue, 593 P.2d 1363, 1366 (Colo. 1979) (same); with Quaring v. Peterson, 728 F.2d 1121, 1127 (8th Cir. 1984) (2-1 decision) (granting exemption on the theory that the government had other means of adequately promoting this interest), aff’d by an equally divided court sub nom. Jensen v. Quaring, 472 U.S. 478 (1985), Dennis v. Charnes, 646 F. Supp. 158, 163 (D. Colo. 1986) (same), and Bureau of Motor Vehicles v. Pentecostal House of Prayer, Inc., 380 N.E.2d 1225, 1229 (Ind. 1978) (same).

[67]. Webb v. City of Philadelphia, 562 F.3d 256, 264 (3d Cir. 2009).

[68]. Id. at 261 (quoting the unchallenged testimony of Sylvester Johnson, police commissioner).

[69]. Id.

[70]. EEOC v. Kelly Servs., Inc., 598 F.3d 1022, 1033 (8th Cir. 2010).

[71]. Id. at 1032.

[72]. See, e.g., Eugene Volokh, Intermediate Questions of Religious Exemptions — A Research Agenda with Test Suites, 21 Cardozo L. Rev. 595, 642-52 (1999) (giving many examples).

[73]. I generally think slippery slope arguments are often sound and need to be taken seriously. See generally Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026 (2003). But they have to be evaluated in light of the risk of slippage in each particular scenario, and in this instance, it seems to me that the risk of slippage is slight for reasons given in the text.

[74]. See, e.g., Christopher L. Eisgruber & Lawrence G. Sager, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245, 1247 (1994); Christopher C. Lund, Religious Liberty After Gonzales: A Look at State RFRAs, 55 S.D. L. Rev. 466, 481-82 (2010); James E. Ryan, Note, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407, 1427-28 (1992).

[75]. See, e.g., A List of the 613 Mitzvot (Commandments), Judaism 101, http://www. jewfaq.org/613.htm (last visited Sept. 20, 2013).

[76]. See supra notes 57, 62.

[77]. See supra note 66.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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