[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.]

Government entities often provide accommodations that benefit religious customers, employees, students, or clients, beyond what is mandated by religious exemption regimes. Many such accommodations seek not to create exceptions from rules that forbid religiously motivated behavior (as in the preceding post), but rather to generally make life easier for the religious practitioner. And in the process they make the government entity’s services more appealing or more efficient at serving client needs.

For instance, some public schools in areas with many Muslim students have added some Muslim holidays to their school closing days (rather than just letting students who celebrate those holidays take the day off).[78] Likewise, some universities have provided foot-washing basins for Muslim students, which make it easier for them to wash before prayer.[79] San Francisco International Airport has provided a foot-washing station for cab drivers.[80] Government-run cafeterias might stock halal food.[81] Government lenders have offered to structure loans in ways that formally avoid the payment of interest, while giving the lender an economic return identical to what interest-paying borrowers would provide.[82]

All this has led to complaints about the government supposedly enforcing or following sharia.[83] But, again, these incidents simply involve Muslims following in a long tradition of Christians’ and Jews’ asking for, and often getting, similar accommodations. Thus, for instance, in places where there are many Jewish students and teachers, schools close on Jewish holidays, because that’s more convenient for everyone given the likely absenteeism on those days.[84] Some schools likewise close on Good Friday,[85] and the school calendar of our majority Christian nation automatically provides for days off on Christmas and Sundays.[86]

Some cities let Jewish groups use city property to support an “eruv,” which is basically a string connecting various poles that is seen by Orthodox Jews as giving them more flexibility to do various things on the Sabbath within the boundaries delimited by that string.[87] Likewise, government-run liquor stores might stock kosher wine,[88] and government-run cafeterias might provide kosher food.[89] There is no reason to categorically reject Muslims’ requests for these sorts of accommodations when Jews’ and Christians’ requests are often accepted.

To be sure, one can’t just say here, as I’ve said above, that courts should apply the same existing legal rules for Muslims as for others. The accommodations discussed in this section are implemented not by courts pursuant to some generally available law — such as a Religious Freedom Restoration Act or the Civil Rights Act — but by other government agencies on an ad hoc basis, as the agencies learn of such needs or desires among their students, customers, clients, or employees.

But government agencies can, and should, try to deal with such ad hoc requests without regard to whether they came from Muslims, Christians or Jews. Flexible agencies will generally implement such an accommodation if:

  • many of the employees, students, customers, or clients have a particular preference (religious or otherwise),
  • accommodating that preference will substantially improve customer, client or employee relations, or help better serve the public that the agency is trying to serve (something government agencies generally try to do), and
  • such an accommodation will impose only modest costs on the agency and on other customers, clients or employees.

And decisions to grant such accommodations should not turn on which religion motivated the request for the accommodation.

* * *

[78]. Illinois School District Is Slowly Becoming Sharia-Compliant, Bare Naked Islam (Feb. 2, 2013), http://www.barenakedislam.com/2013/02/02/illinois-school-district-is-slowly-becoming-sharia-compliant/; creeping, NYC Dem Mayoral Candidates Pander to Muslims, Promise Muslim School Holidays, Creeping Sharia (July 16, 2013), http://creepingsharia.wordpress.com/2013/07/16/nyc-dem-mayoral-candidates-pander-to-muslims-promise-muslim-school-holidays/; William J. Murray, Mass. School District to Close Tuesday for Islamic Religious Holiday, Sharia Awareness Action Network (Nov. 7, 2011), http://shariafreeusa.com/mass-school-district-to-close-tuesday-for-islamic-religious-holiday/ (reprinting an article authored by Billy Hallowell for TheBlaze.com).

[79]. Carol Iannone, How Muslim Footbaths Threaten America’s Social Fabric, N.Y. Daily News (Feb. 12, 2008, 7:11 PM), http://www.nydailynews.com/opinion/muslim-footbaths-threaten-america-social-fabric-article-1.311574.

[80]. Matier & Ross, Airport’s Garage Now Muslim House of Worship, SFGate.com (June 9, 2013, 4:02 AM), http://blog.sfgate.com/matierandross/2013/06/09/airports-garage-now-muslim-house-of-worship/; Thomas Lifson, City of San Francisco Funds Religious Place of Worship, American Thinker (June 10, 2013), http://www.americanthinker.com/blog/2013/06/city_of_san_francisco_funds_religious_place_of_worship.html.

[81]. Emily Smith, Colorado State Dining Halls Now Serve Halal Meat, Collegian.com (Oct. 22, 2012), http://www.collegian.com/2012/10/colorado-state-dining-halls-now-serve-halal-meat-2/15073/; creeper, Sharia Compliant Meals Now Served at Colorado State Univ … for 26 Muslims, Creeping Sharia (Oct. 23, 2012), http://creepingsharia.wordpress.com/2012/10/23/sharia-compliant-meals-now-served-at-colorado-state-univ-for-26-muslims/.

[82]. See, e.g., Murray v. Geithner, 763 F. Supp. 2d 860, 863-64 (E.D. Mich. 2011).

[83]. See, e.g., Iannone, supra note 79; Lifson, supra note 80.

[84]. Kerry Brown, Mount Laurel Moves School Start to Accommodate Rosh Hashanah, Central Record (July 16, 2013), http://www.southjerseylocalnews.com/articles/2013/07/16/news/doc51e555030f34d908743658.txt (quoting a district spokeswoman as saying, “The first day of Rosh Hashanah is a school holiday each year, not specifically for religious reasons, but because of the rate of absenteeism. Traditionally, the second day of Rosh Hashanah is not a high absenteeism day for our district, and it’s never a school holiday.”); Opening of School Term Postponed Because of Rosh Hashanah, JTA (July 23, 1953), http://www.jta.org/1953/07/23/jewish-holidays/rosh-hashanah/opening-of-school-term-postponed-because-of-rosh-hashanah; Portland School Board Revises Calendar to Avoid Rosh Hashanah Conflict, JP Updates (May 30, 2013, 7:01 AM), http://jpupdates.com/2013/05/30/portland-school-board-revises-calendar-to-avoid-rosh-hashanah-conflict/; Stephen Prothero, Should Schools Scrap Religious Holidays?, USA Today, Dec. 19, 2010.

[85]. Good Friday — School Closed, Saddle Brook Sch. District, http://www.saddlebrookschools.org/good-friday-school-closed (last visited Sept. 7, 2013).

[86]. Some Good Friday closing laws have been struck down as violations of the Establishment Clause. See, e.g., Metzl v. Leininger, 57 F.3d 618, 622-24 (7th Cir. 1995). But when schools have a secular justification for the closing, such as the high rate of absences on a particular holiday, the closing is permissible. Id. at 621, 623 (noting that the problem with the law was that “all public schools throughout the state are forced to close on Good Friday regardless of the preference of local school districts and no matter how small the number of students or teachers in a particular district who want to use the day for religious observances”); Granzeier v. Middleton, 173 F.3d 568, 575–76 (6th Cir. 1999) (upholding Good Friday closing, partly because it is proper for government officials to consider the “practicalities of school or court attendance that might otherwise be disrupted”).

[87]. See, e.g., Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 152 (3d Cir. 2002).

[88]. See Festive Wines for Your Passover and Easter Tables, N.H. Liquor Comm’n, http://www.nh.gov/liquor/wineforeaster.pdf(last visited Sept. 7, 2013); Product Inventory: 11296 Herzog Merlot Kosher 750ml, N.H. Liquor Comm’n, http://ice.liquor.nh.gov/public/default.asp?Category=inquiries&Service=prodfindpost&req=11296(last visited Sept. 7, 2013).

[89]. Museum Cafe, U.S. Holocaust Memorial Museum, http://www.ushmm.org/information/museum-cafe (last visited Sept. 20, 2013); Massachusetts State Agency Food Standards, Mass. Exec. Office of Health & Human Servs., http://www.mass.gov/eohhs/docs/dph/com-health/nutrition-phys-activity/eo509-state-agency-food-standards.pdf (last visited Sept. 20, 2013); Metropolitan Food Services, Brooklyn College, http://www.brooklyn.cuny.edu/web/about/offices/metropolitan.php (last visited Sept. 7, 2013).