Yesterday’s media was full of the Supreme Court decision that Abercrombie & Fitch, the clothing retailer, discriminated against a Muslim woman who attended an interview wearing a headscarf by failing to accommodate this religious practice and using it as a reason not to hire her.
Today, Mark Silk, writing for the Religion News Service, examined the case a little more closely.
Back in 1990, Scalia set Free Exercise jurisprudence on its ear when, in Employment Division v. Smith, he rounded up four other justices behind the position that individuals could not claim a violation of their constitutional right to free exercise against a “neutral law of general applicability” — that is, against a law that does not aim to discriminate against a religious practice and which applies to everyone.
In EEOC v. Abercrombie, Scalia wrote for a nearly unanimous court in favor of the view that Abercrombie’s preppy dress code, which precluded headgear-wearing employees (i.e. a neutral and generally applicable rule), violated Title VII of the 1964 Civil Rights Act when it was used to deny employment to a Muslim woman who was understood to be wearing a headscarf for religious reasons.
Silk in turn points to Noah Feldman on the Bloomberg View, who accounts for the differing opinions of conservatives on the court, from Samuel Alito, who came out even more strongly in favor of the need for religious accommodation, through Antonin Scalia, who wrote the majority decision, to Clarence Thomas, the only conservative justice to apply the old principles of the Smith rule.
Behold the current trifurcation in conservative views about religious liberty and exemptions. At the most pro-religious extreme is Alito, author of the Hobby Lobby decision and vanguard of the new maximalist conservative position in favor of religious exemptions. In the middle is moderate Chief Justice John Roberts and, in this case, Scalia, trying to follow the civil-rights laws without giving away all the ground to plaintiffs seeking religious exemptions. At the other extreme is Thomas, displaying — at least in this case involving a Muslim woman — the traditional conservative’s skepticism of religious exemptions, a position once occupied by Scalia.
… To understand why Scalia didn’t want to go as far as Alito, you have to think back to when conservatives didn’t like minorities, including religious minorities, to seek exemptions from general rules.
“That was then,” says Silk.
Now we are in an era when the religious minorities are Catholic and evangelical Protestant individuals and institutions that want exemptions from neutral and generally applicable health insurance and anti-discrimination laws. The Religious Freedom Restoration Acts, about which there has been such fuss lately, would never have been put in place but for Smith.
Silk goes on to wonder how Scalia’s new view will play out in other cases to come before the Supreme Court.
The question is: When will they apply their new/old understanding of religious discrimination to the First Amendment itself? Thus far, conservatives on the Court seem to have been reluctant to reverse Smith for fear of offending Scalia. Now that he’s given up the fight, the reversal could come as early as this month, when the justices deliver their much-awaited final word on same-sex marriage.
Find Mark Silk’s opinion here; Noah Feldman’s blog here.
Posted by Rosalind Hughes