53 RI Bar J., No. 6, Pg. 9 (May/June 2005). Headscarves, Skullcaps and Crosses: Does Banning Religious Symbols in Public Schools Deny Human Rights?.

• Author: Eliott Taubman, Esq.

Rhode Island Bar Journal

Volume 53.

53 RI Bar J., No. 6, Pg. 9 (May/June 2005).

Headscarves, Skullcaps and Crosses: Does Banning Religious Symbols in Public Schools Deny Human Rights?

May/June 2005pg. 9Headscarves, Skullcaps and Crosses: Does Banning Religious Symbols in Public Schools Deny Human Rights?Eliott Taubman, Esq.Eliott Taubman, Esq. practices law on Block Island.

France adopted a "Secularist" law in 2004. (fn1) This law has caused worldwide uproar, particularly from Muslims, who see it as infringing their religious rights. (fn2) The French government position is that they are seeking to keep their public schools free from religion and that the law is neutral as to all religion. The Muslim position is they are just following the Qur'an:

O Prophet! Tell your wives and daughters, and the believing women, that they should cast their outer garments over their persons (when abroad): that is most convenient that they should be known (as such) and not molested. And Allah is Oft-Forgiving, Most Merciful." (fn3)

The Secularist law is not the first instance where government has sought to keep religious symbolism from public assembly. This article will explore how the French solution would play under United States law and what this means under other sources of human rights law. This dispute lands right on the divide between laws designed to prevent the Establishment of Religion and to protect the Free Exercise of Religion. (fn4) This is a hard line to draw and the current United States Supreme Court is divided on the issue.

Sources of Law

UNITED STATES

Freedom of Religion

Thomas R. Bender recently explicated the uncertain state of religious freedom law in the United States of America and Rhode Island (fn5) (cite as "Bender"). Rhode Island is interesting because it was where two of the best-known advocates of religious liberty in the American colonies, Roger Williams and Anne Hutchinson, made their mark. (fn6) The Royal Charter from the English King Charles II setting up the colony of Rhode Island and Providence Plantations in 1663, explicitly provides for:

A livelie experiment, that a most flourishing civill state may stand and best bee maintained, that among our English subjects with a full libertie in religious concernments. . . ..[spelling in original]. (fn7)

Bender relies heavily in his discussion on three articles by Professor Michael W. McConnell (fn8) (these will be cited as McConnell I, McConnell II, and McConnell III). The principal thesis of Professor McConnell is that the history of the First Amendment Free Exercise clause and its settled interpretation until 1990, was that was that "no law infringing on freedom of religion" meant that the state had a heavy burden to justify any infringement on religious practice which did not directly interfere with civil order. (fn9) This principle was formerly protected by the "compelling interest" test in Sherbert v. Verner (fn10) (McConnell I). This meant that the government, state or federal, which sought to control behavior had to show a compelling governmental interest to override religious practice.

The United States Supreme Court had previously limited religious practices only when they were beyond the pale of "civil society." Examples are polygamy, (fn11) child labor laws, (fn12) and protection of children's health. (fn13)

The long standing "exceptions" view with the "compelling interest" test was overturned in Employment Division, Department of Human Resources of Oregon v. Smith (to be cited as Smith) (fn14) Justice Antonin Scalia, in a plurality opinion, held that the compelling interest test did not apply to a claim for unemployment compensation where Native American Church employees were discharged for peyote use. Justice Scalia stated:

It may be fairly said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in, but that the unavoidable consequence of democratic government must be preferred to a system in which judges weigh the social importance of laws against the centrality of all religious beliefs. (fn15)

Justice Sandra Day O'Connor, concurring in the judgment in Smith, objected that Justice Scalia:

". . . . dramatically depart[s] from well-settled First Amendment jurisprudence [and is] incompatible with our Nation's fundamental commitment to individual religious liberty. (fn16)

Justice O'Connor continued to object to the new rule announced in Smith in City of Boerne v. Flores (fn17):

The religion clauses of the Constitution represent a profound commitment to religious liberty. Our Nation's Founders (fn18) conceived a Republic receptive to voluntary religious expression. . . Free Exercise is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible government interference, even when a believer's conduct is in tension with a law of general obligation. (fn19)

As Bender notes: "Roger Williams would beg (or demand) to differ. . . with Justice Scalia's notion of a preferred system of government." (fn20) As even Justice Scalia stated:

[The] right to engage in activities necessary to fulfill one's duty to one's God unless those activities threaten the rights of others or the serious needs of the state. (fn21)

Establishment of Religion

In contrast to the position of Justice Scalia in Smith and Boerne, is his position in the Establishment of Religion case of Board of Education of Keryas Joel Village Board of Education v. Grumet. (fn22) In this case, Justice Scalia spoke for a three-member dissent. The majority held, with varying rationales, that where the New York legislature had adopted an act drawing an exclusively Satmar Hassidim district, and the Satmars had a school district that only had one school which served Satmar disabled children in that community, and neighboring communities, that this was an establishment of religion. Justice Scalia's position was that it was a reasonable accommodation for Freedom of Religion. As he states:

This reasoning reverses the usual presumption that a statute is constitutional and, in essence, adjudges the New York Legislature guilty until it proves itself innocent. No party has adduced any evidence that the legislature has denied another religious community like the Satmars its own school district under analogous circumstances. The legislature, like the judiciary, is sworn to uphold the Constitution, and we have no reason to presume that the New York Legislature would not grant the same accommodation in a similar future case. The fact that New York singled out the Satmars for this special treatment indicates nothing other than the uniqueness of the handicapped Satmar children's plight. It is normal for legislatures to respond to problems as they arise - no less so when the issue is religious accommodation. Most accommodations cover particular religious practices. See, e.g., 21 CFR § 1307.31 (1993) ("The listing of peyote as a controlled substance. . . does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church"); 25 CFR § 11.87H (1993) ("[I]t shall not be unlawful for any member of the Native American Church to transport into Navajo country, buy, sell, possess, or use peyote in any form in connection with the religious practices, sacraments or services of the Native American Church"); Dept. of Air Force, Reg. 35-10,

While disagreeing with Justice Scalia in Boerne, Justice O'Connor gives a litany of authority, in her dissent, for the proposition that accommodation for religious practice has been valued in American history:

The practice of the colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice. . . .

[T]ension between religious conscience and generally applicable laws, though rare, was not unknown in pre-Constitutional America. Most commonly, such conflicts arose from oath requirements, military conscription, and religious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest that Americans in the colonies and early States thought that, if an individual's religious scruples prevented him from complying with a generally applicable law, the government should, if possible, excuse the person from the law's coverage. For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or "swear" allegiance to civil authority. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs would have prevented them from participating in civic activities involving oaths, including testifying in court. Colonial governments created alternatives to the oath requirement for these individuals. . . .

Early conflicts between religious beliefs and generally applicable laws also occurred because of military conscription requirements. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. Members of these denominations asserted that liberty of conscience should exempt them from military conscription. Obviously, excusing such objectors from military service had a high public cost, given the importance of the military to the defense of society. Nevertheless, Rhode...