Headscarves and Holy Days: Should the Law Make Exceptions?
Leah Farish, Civil rights attorney, Tulsa, OK
Marci Hamilton, Cardozo School of Law, Yeshiva University
Jytte Klausen, Brandeis University
Erik Owens, Boston College (moderator)
Date: February 7, 2007
Religious freedom is upheld in the United States and Europe as a fundamental human right, but what exactly does it entail? Does religious freedom mean that all citizens must be treated equally, regardless of their religious or non-religious beliefs, or does it mean that religious citizens (and organizations) are given special status precisely because they are religious? Put another way, when a law conflicts with the religious beliefs or practices of a certain group, should that group be exempted from the law? Does it matter if that group comprises the majority or a minority of a community? These are some of the many difficult questions this panel will consider as they discuss a range of contemporary examples in the United States and Europe, including the regulation of headscarves (and other religious dress) in public schools; the use of illegal drugs for religious rituals; and exemptions from tax, labor and workplace safety laws granted to religious leaders and religious organizations.
On February 7, the Center presented a panel discussion of legal issues pertaining to religious freedom entitled “Headscarves and Holy Days: Should the Law Make Exceptions?” Leah Farish, a civil rights attorney from Tulsa, Oklahoma, began by recounting her successful legal advocacy for a Muslim girl who sought to wear her headscarf in a local public school. Farish spoke of how her Christian faith motivated her to defend the legal rights of Muslims in the U.S., and argued that contemporary First Amendment jurisprudence should be informed by eighteenth-century debates within religious denominations about church and state.
The second panelist, Marci Hamilton, the Paul R. Verkuil Professor of Public Law at the Cardozo School of Law at Yeshiva University, expressed her frustration that courts too often grant religious exemptions from laws but fail to think through the public implications of their decisions. A more sensible approach would ask whether a particular exemption creates a harm to society; if no harm is perceived in that specific context, the exemption should be granted. Thus, for example, exempting headscarves from a ban on hats in a public school would make makes sense when no harm would result, but privileging all communication between a priest and parishioner (not just that undertaken in confession) might wrongly protect discussions of child abuse or other crimes that result in social harms. This approach rejects the possibility of blanket exemptions, since “exemptions given in the abstract are almost always uninformed.”
Jytte Klausen, professor of comparative politics at Brandeis University, spoke last about the legal situation in Europe, where the benefits (and constraints) of the First Amendment do not pertain. Though Europeans enjoy the protections of the Universal Declaration of Human Rights and the European Convention on Human Rights, these conventions do not carry the full weight of law. Each nation has worked out different means of protecting religious freedom, Klausen noted, but exemptions are usually permitted only in the interest of public safety. Given the dramatic demographic changes in recent years, including increased Muslim immigration, the situation remains fluid and difficult to predict.
- Marci Hamilton, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press, 2005).
- Jytte Klausen, The Islamic Challenge: Politics and Religion in Western Europe (Oxford University Press, 2005).
- Catharine Cookson, Regulating Religion: The Courts and the Free Exercise Clause (Oxford University Press, 2004).