Tag Archives: Anti-Discrimination Laws

“Weaponizing”

Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter’s recent post: “What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.”

One might have thought, even relatively recently, that religious freedom was a “civil right.” But no longer: it is now said to be the enemy of “civil rights.” And I suppose that what is “weaponized” will depend on one’s perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state’s interest in vindicating specific sorts of dignitarian harms, that have been “weaponized.” But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.

Here’s how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I’ll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):

The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.

Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.

Free Exercise by Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

Weller et al., “Religion or Belief, Discrimination and Equality”

In May, Bloomsbury Academic Publishing will release “Religion or Belief, Discrimination and Equality: Britain in Global Contexts” by Paul Weller (University of Derby), Kingsley Purdam (University of Manchester), Nazila Ghanea (University of Oxford), Sariya Cheruvallil-Contractor (University of Derby).  The publisher’s description follows:

Religion Or BeliefIn recent years, controversial issues related to religion or belief, discrimination, equality and human rights have come to the fore, especially in the context of public debates around multiculturalism following the ‘social policy shock’ created by the impact of violent religious extremism. For example should there be restrictions on what people can wear in the work place based on their religious identity? Should religious organizations be exempt from aspects of equalities legislation which are not in line with their beliefs and values? How should non-religious identities be recognized?

In the context of increasing cultural and religion or belief diversity, it is vitally important for the future to understand the nature and extent of discrimination and unfair treatment on the grounds of religion or belief, and to assess the adequacy of policies, practices and laws designed to tackle this. This includes the overlap of religion or belief identities with other aspects of people’s identity including characteristics such as age, disability, race, sex and sexual orientation which can also be legally protected.

This volume is a benchmark publication on religion, discrimination and equality. It includes data and insights derived from the fieldwork, focus groups and questionnaire survey of a recent national research project in Britain. Its analysis presents a unique insight into continuity and change in people’s reported experience over a decade of equalities legislation and political and social change of unfair treatment on the basis of religion or belief. Grounded in empirical and contextualized data, its findings are placed in the context of European and international human rights law.

Its findings will be of special interest to both scholars and practitioners working in the specific fields of education, employment, the media, criminal justice and immigration, housing, health care, social services, and funding, as well as in the broader fields of religion or belief, the law and public policy.

Becket Fund on the Hasidic Dress Code Controversy

Eric Rassbach of the Becket Fund writes about NYC’s lawsuit against Hasidic-owned stores in Brooklyn. The city’s lawsuit alleges that the stores’ dress code discriminates against women. CLR Forum covered the story here.

NYC Sues Hasidic Shopkeepers Over Dress Codes

New York City residents have lots to worry about. The city’s outstanding debt exceeds $100 billion. The interest alone exceeds $6 billion annually. The city’s tax base continues to shrink as businesses, fed up with New York’s high rates, flee to lower-tax jurisdictions. The city’s infrastructure desperately needs an upgrade. And Hasidic shopkeepers in Brooklyn are engaged in a blatant campaign to violate customers’ human rights.

At least that’s what the city’s human rights commission argues. The commission is suing Hasidic shopkeepers who have hung signs in their windows stating, “No shorts, no barefoot, no sleeveless, no low cut neckline allowed in this store.” The commission argues that this dress code discriminates against women in violation of the city’s public accommodations law. According to the deputy commissioner, the signs are “pretty specific to women,” and requiring women to “dress modestly if they come into the store” is illegal.

Now, generally speaking, anti-discrimination laws allow public accommodations to have dress codes, as long as the codes don’t discriminate against protected classes. On its face, it’s not clear how this dress code is discriminatory. It treats men and women the same. Let’s say a barefoot woman wearing shorts walks into a store. She may be asked to leave. Let’s say a barefoot man in shorts tries to do the same thing. He also may be asked to leave. Where’s the discrimination? Now, it’s true that the stores might apply a facially neutral dress code in a discriminatory way.  So, for example, if the shopkeepers in practice excluded only women, that would be a problem. According to the stores’ lawyer, though, there’s no evidence that the stores have ever excluded any woman–or man, for that matter– for any reason.

In short, it’s not clear where the illegality lies. But there’s a deeper point. New York is a cosmopolitan city  in which people with very different lifestyles must find some way to get along. Mostly, New Yorkers do that by tolerating things that offend us. That works fine, most of the time. Maybe these religious storeowners should simply put up with dress they find immodest in the interests of a more expressive society. But is it really too much to ask someone to abide by this fairly innocuous dress code before going into a store, if that’s what the store owner wants? Is the injustice really so great that the store owner must be hauled into court and taught a lesson? Aren’t there more important problems for the city to tackle?

Sugary soft drinks, for instance.

Haverkort-Speekenbrink, “European Non-Discrimination Law”

Intersentia Publishing has published European Non-Discrimination Law: A Comparison of EU Law and the ECHR in the Field of Non-Discrimination and Freedom of Religion in Public Employment with an Emphasis on the Islamic Headscarf Issue by Sarah Haverkort-Speekenbrink.  The publisher’s description follows.European Non-Discrimination Law

Contemporary multicultural issues in Europe raise the question whether the overlap between the non-discrimination regimes of the European Union (EU) and the Council of Europe in the field of public employment may lead to conflicting case law. Would the Court of Justice of the European Union (ECJ) and the European Court of Human Rights (ECtHR) address potential sex, race and religious discrimination in a similar manner or would the Courts take a different approach?

This study consists of three parts. Firstly, an analysis is presented of the EU non-discrimination Directives 2006/54, 2000/43 and 2000/78, and the ECJ’s assessment in cases of alleged sex, race and religious discrimination in the public workplace. Secondly, the non-discrimination provisions of the European Convention on Human Rights (ECHR) and the right to freedom of religion are studied. Further, the ECtHR’s assessment in cases involving potential discrimination in the public workplace based on sex, race and religion are examined. In the final part a comparison is made between the provisions and the assessment of the ECJ and the ECtHR.

Besides an examination of European legislation, case law and academic literature, this research also uses a legal case study to explore the similarities and differences between the non-discrimination regimes. Accordingly, the theory is again discussed, but now in light of a much debated issue in Europe: the wearing of the Islamic headscarf in public employment. The result of the study is a detailed explanation of the relevant similarities and differences between the approaches of the two Courts to claims of discrimination.