Tuesday, October 21, 2003

Headscarves and the Law

Jack M. Balkin at Balkinization - in a posting entitled "Headscarves and Religious Accommodation" - comments on the Constitutional Law aspect of a head scarf being found to violate an Oklahoma school dress code which prohibits the wearing of any headgear in school, religious or otherwise. The justification for this rule in the school is that it is a safety requirement, so that weapons or other undesirable objects are not bought into the school, hidden under such headgear.


Balkin writes that the 1990 U.S. Supreme Court decision in the Oregon case of Employment Division v. Smith (also found online here) held that:

"rules of general application do not violate the Free Exercise Clause [1st Amendment] even if they impinge more heavily on minority religions".

In the Oklahoma case previously mentioned, there is in fact simply a blanket policy at the school that no headgear of any kind is permitted, religious or otherwise. Hence, it is a rule (but not a state law) of general applicability, which applies to e.g. a motorcycle helmet, a baseball hat, a Jewish yarmulke or a Muslim hijab. We do not go here into the complicated issue of state-implemented RFRA-similar laws, which can be read about at Balkin's blog.

As Balkin further writes, exceptions can be made:

"Generally speaking, the Establishment Clause does not prevent government from lifting a burden on religion it has itself imposed through a rule of general applicability. Such a rule could be unconstitutional if it specifically mentioned particular religions by name for exemption, or if it gerrymandered the exemption with the intention of benefiting some religions for accommodation but not others. But a well drafted rule can usually avoid such problems."


It is interesting to compare the US law with what the German Constitutional Court recently decided in a similar case.

As reported at Deutsche Welle:

"On Wednesday, the constitutional court (photo) stressed in its ruling that though Germany's constitutional law did not explicitly forbid the wearing of headscarves in the classroom in state-run schools in the first place, the possibility remained for states to legally enact such a ban.

The court stressed that the German state's neutrality on religion shouldn't be understood as a strict separation of church and state. Thus, if federal states didn't want to employ teachers wearing a headscarf, they would first need to create unambiguous laws that expressly forbid religious symbols in the classroom, the court said. In Ludin's case, such a legal ban wasn't in place in the state of Baden-Wuerttemberg, it noted."

Essentially, both in the United States and in Germany, the highest courts of the two nations have thrown the issue back to their individual states, saying that non-discriminatory laws of general applicability CAN be passed. In both cases, the wearing of headgear in schools can be prohibited - but the laws making this prohibition must be of "general applicability" - it is nowhere possible to prohibit merely ONE religious symbol. This makes the job difficult for legislators - or simplifies it - depending on your political and religious point of view.


As a practical matter, and quite beyond constitutional discussions, perhaps there is a something to be said for the old English system of uniforms in schools, for both students and teachers - making everyone equal before the "Great Educator".

It is not without reason that we have the phrase: "clothes make the man". Clothes everywhere draw sharp distinctions between their wearers - and these distinctions are generally intended. People through their clothing are consciously or unconsciously exerting their WILL viz. "personality" upon others. Uniforms in schools solve all of these problems. But there is a strong economic drawback - it would not be very desirable for the fashion industry.


From a different perspective, we have to take notice of the fact that clothing is also a part of "individuality", so that if you choose uniforms as the optimal school dress, you also take into account that you may be suppressing a child's personal expression.

So, caveat emptor (buyer beware), no matter what policy regarding "threads" you choose as yours, you can not have everything. Any dress code suppresses individuality to some degree, but the absence of a dress code leads to disorder which is inimical to school education. A sensible Aristotelian middle is probably the best.

Uniformity no.

Boundless individualism no.

The school dress code standard I would apply is that clothing must fit the situation.

Religious clothing is correct for church-going, it is wrong for classrooms in the schools, because it mixes religion and education together in a situation where the mix is not healthy. We have examples enough of this in the world.

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