I would tell her that her right to free exercise was subject to the application of general laws. (Free exercise does not give a person carte blanche to flout laws in exercise of their religion.) I would tell her that the state has a compelling interest in the education of its children who are to be its future citizenry. That in furtherance of that interest the state had established schools and required that children attend. I would tell her further that maintaining order and discipline in the schools was of paramount importance to the furtherance of the state’s goal of educating the youth. I would tell her that in order to maintain order and discipline the school had established a dress code. I would tell her that it would be administratively burdensome, intrusive, and costly to the state to conduct an extensive inquiry into the genuine beliefs of every student who might want to request an exception to the dress code, and as a result the school district has decided that there will be no exceptions. No exceptions for any hats of any kind. I don’t expect she would be very happy with that result, but I think it is a fair and neutral one.
Damn, you beat me to it.
I am uncomfortable with this outcome determinative analysis. If the head covering is important to her religion, then wearing it advances the religion. But I don’t think the test should be ex post like that. I think you should have to look at it ex ante and decide whether or not you are treating religion more favorably than non-religion regardless of whether or not the benefit to religion is minor or great. The fact that in this case it is minor doesn’t matter to me. It’s like saying it is only a minor constitutional violation, I don’t think such a creature exists. It also elevates her religious objection above and beyond the non-religious objection, which I find objectionable. Why should “I am a Muslim” be a more valid excuse for wearing a hat than “I am a Raiders fan” or “I like my blue hat”? The answer can’t be that government is more responsive to religious arguments than non-religious.
More fundamentally regarding the inherent tensions of the two religion clauses, I see establishment as being violated whenever government advances religion, or treats religion more favorably than non-religion. Maybe that is not the way the courts view things, but that is how I see it. Free exercise would be violated when there is a law passed intended to target the practice of religion in and of itself. If the plaintiff could show in this case that the hat rule was really intended to target Muslims and that the gang problem was pretextual then she would have a valid free exercise claim in the Rhum Runner court.
I’m talking about your own fucking words dipshit. Reread your own goddamn posts. You said you would be “steamed” if the government treated one religion differently from another. Yet you don’t seem to be concerned about the disparate treatment of religious people when compared to non-religious people. I was simply making that observation. It should have been patently obvious to anyone with an IQ above 70 exactly what I was talking about. Why don’t you go drink some rat poison and curl up and die so that we might save future generations from the disease that is your genes.
From the kid’s perspective, God made a rule. Should she disobey it because some administrator tells her to? I think most folks with firm religious beliefs find that God’s law takes precidence over the local school board.
Except this isn’t the law, it’s administration. The school board and faculty don’t get to legislate. Legislators might give them a certain amount of power to exercise, but I’m pretty sure that modifying constitutional rights isn’t one of 'em.
**
So, you’re okay with modifying someone’s right to otherwise legal religious expression in the name of discipline and order? And you’re further claiming that obeying one’s religious requirements is undisciplined, or causes chaos?
**
An “extensive inquiry”? I don’t think having the local school admins doing background checks for religious beliefs is even legal, let alone in anyone’s interest.
**
Because our faculty has no judgement! Human judgement is unneccessary and inefficient! Instead we have policies, which work much better, except when they don’t. Three cheers for zero tolerance!
**
**
Fair to whom? This kid who thinks she’s breaking diefic law, or to the administrator who can’t be bothered to care about doing his or her job?
**
No, you’re allowed to not practice religion just as much as others are allowed to practice it. If you don’t want to pray in school, the courts have given you that right. If the school required religious headgear for all students, you shouldn’t be required to wear it.
**
I agree there. A violation is a violation is a violation, and that policy is, IMHO, a violation.
**
The answer is that the government is required to allow folks to practice their religion (or not practice any, as the case may be). If you’d like to see this changed, you’re welcome to lobby/vote/run to get the Constitution changed, or to emigrate to a country that bans all religious expression.
I’m certainly not religious, but I recognize that, in the USA, folks have the right to be. It’s one thing I like about this country, because it provides endless opportunities to mock fools.
Except that it isn’t. It is the law that must not impinge upon the religion, not the other way around. That is because it is the free exercise of religion that is the right (not the passing of laws), and because the constitution is intended to inhibit/prohibit government action (specifically, infringement on individual rights and liberties), not individual action. So if a person can argue convincingly that the application of general laws infringes on his/her right to free religious expression and the government cannot show a compelling state interest to do so, then her right to free exercise is NOT subject to the application of any general law.
“Carte blanche”? No. “Flouting”? No. It does, however, give them a basis to argue that the government cannot impose the regulation on them.
Of course, at this point you must also explain how prohibiting all head coverings, of any type and without regard to the reason for wearing them, somehow furthers the maintenance of order and discipline – a very, very difficult argument to make.
Except that (a) an independent inquiry as to the genuineness of each and every student’s beliefs is obviously unnecessary and (b) adminstrative cost and burdensomeness are not generally held to be compelling state interests important enough to violate an individual’s fundamental rights. The courts’ reaction to “it would cost too much to respect this person’s rights” generally is “too bad.”
It’s certainly neutral; it hardly seems to be fair. You are exhalting the perceived needs of government discipline and cost over a person’s individual right to free religious expression. I will not say your are necessarily wrong to do so; I will merely point out that only one of those three things is actually enshrined in the constitution, and it’s not the two you’ve decided to favor.
It’s not outcome determinative. The right is either violated or it’s not. The state can either show a compelling state interest or it can’t. The religion is either advanced or it’s not.
How so? How does it “advance” her religion one iota?
I guess I’m not in a position to argue with how or what you think, but that’s not what the constitution is generally interpreted to provide. The establishment clause prohibits the advancement of religion. To successfully argue a violation of it, you must show that religion is, in fact, advanced. Again, the inquiry is not whether religion is being treated “more favorably,” but whether the government can come up with a compelling state interest in imposing a violation of religious freedom on some segment of its populace. If you wish to argue that violation of the establishment clause is that “compelling state interest,” again, you have to be able to argue how religion is advanced in some meaningful way by the government enactment.
This is a philosophic argument. It is not uncommon for two constitutional rights to conflict. For example, a person’s right to privacy in their own home may confict with another person’s right to free expression (as when the names of abortion doctors are posted on the web). When two rights confict, the courts must decide which right outweighs the other, and why. This does not necessarily mean that one violation is “minor” and the other “major,” but it does mean that one right must be considered more important/one violation more egregious in a given context than the other.
As I have already said, it is more responsive to religious arguments than non-religious ones. Why? Because freedom of religious exercise is a fundamental right in the constitution. Where in the constitution do you find any right to wear blue, or to support a sports team? (And before you retreat back to a freedom of speech/expression argument, recall that your speech or expression must be meaningful for the right to attach. You have no right to wear a pink shirt just because you think it expresses the concept “I like pink.”)
Not coincidentally, the government is also “more responsive” to freedom of speech, expression, assembly, etc. – becasue these also are fundamental rights it is explicitly prohibited from infringing.
You can’t just stand on this argument. You have to actually explain how religion is actually advanced if the government does nothing more than allow its free expression – as it is constitutionally required to do - under circumstances when it can’t produce a compelling state interest in infringement. So you can certainly continue to assert that in your mind wearing the hijab advances religion, but you haven’t actually explained how.
But this isn’t the case. The operative inquiry is whether free exercise is infringement by the government enactment, not whether that infringement is intentional or not. Because at the end of the day, who cares? If the right is infringed, it’s infringed, and intent has nothing to do with it (except that cases of intentional infringement are obviously easier to spot and strike down).
I’m kind of happy we don’t operate under the RHUM RUNNER court, where the violation of an individual’s right can be dismissed on the grounds of “discipline” or “cost,” and where such flimsy grounds as those will justify the government’s infringement on a fundamental right. And frankly, I suspect you’d be more likely to agree with me on where the burden of justification and proof should be – on the plaintiff, or on the government – if the fundamental right we were discussing was something other than freedom of religion – something you personally found perhaps a bit more palatable.
My god, such vitriol. Who peed in your Cheerios, dude? I think wishing death on someone is against Board rules, btw. If you’re seriously that angry at me for disagreeing with you in an argument over freedom of religion, you should seek therapy.
People should be treated differently based on their religious affiliation. I’m Jewish. I’m a religious minority in the United States. I don’t want to be treated like a Christian. I want to be able to take Yom Kippur off without worrying that my job will be endangered. Thanks to laws protecting my right to freedom of religion, I was able to do exactly that last Monday.
Not all people are exactly the same. Not all people should be treated exactly the same.
Are the “Loony Left” posting in this very thread? Looks like anyone who disagrees with you is nicely packaged into that disparaging category.
Over many months, I have noted that you consistently come into every fucking thread that is remotely connected to Islam and spout unmitigated shit. And, let me be the first to tell you that your loaded one-liners are repulsive.
RHUM, it seems like your argument about “advancing” religion is premised on the school “allowing” some kids (religious kids) to wear hats and not “allowing” other kids (nonreligious kids) to do so.
But this is the wrong way to think about it. Where fundamental rights are concerned, the government doesn’t “allow” shit. You have the rights you have, and the question is whether the government can come up with a good enough reason to infringe upon them.
Now, for kids who can’t claim a violation of a fundamental right, the government’s interests in discipline and cost almost certainly justify infringing upon their “right” to wear hats (which isn’t even a cognizable right in the first place). But for kids who can claim the regulation violates a fundamental right, the government must come up with a very good reason for doing so. This may end up in treating the students disparately, as it has here, but it doesn’t necessarily amount to an advancement of religion. Rather, the government is attempting to impose the rule on everyone, but will likely be told it cannot do so.
So think of the religous and nonreligious kids as standing on the same line. By imposing the regulation on all the kids they can (the nonreligious ones), the school has pulled the nonreligious kids back from that line. But it hasn’t advanced the religious kids over the line at all.
I think that is the thrust of it right there. By allowing the kid to wear the hat or not wear the hat based on religion is granting a privilege to one student because of their religion and denying that privilege to the other kid because of their lack of religion. Doing so elevates the religious child over the non-religious, and therefore gives the appearance that the religious are favored in the eyes of the government.
I guess I see it the opposite way, that the proposed rule would push the religous kid to the front, whereas the current rule keeps them all in a line. I was going to put in some quotes, but instead I will refer you to the best articulation of the view I am trying to advocate. It is found in Rehnquist’s dissent in Thomas v. Review Board of Indiana 450 U.S. 707, 720 (1981). A link if you are inclined to read it.
No, I wasn’t addressed. But, I really hate seeing the posting of such hateful bullshit such as this—especially when directed towards another poster. That was totally uncalled for.
[/hijack]
I didn’t see if this was posted before, but aren’t crucifix necklaces permitted to be worn in school? In which case, what makes them different than a hijab, a yarmulke, or any other articles with a religious significance?
Oh, let’s all get together and have a group hug, m’kay? Can’t we all just get along?
What makes it different is that in this case there is a prohibition on hats and other articles of clothing for the head. No one has mentioned jewelry. See how that might make a difference?
You don’t seem to understand a fundamental difference here. What the so called “loony left” objects to (in general) is people being forced to engage in the worship of a particular religion. So making students say “under god” is wrong. But they should be allowed to say it if they want.
And that is what they are doing. They shouldn’t force christian kids to wear hijabs, but they should allow muslim kids to do so if they want.
Finnaly, I would like to say that I hope your straw man argument was the product of ignorance, rather than an intentional misrepresentation of the position of the “loony left”. I hope that next time you feel like arguing you try to accurately understand the opinions of you opponents before arguing against them. Remember we are here to fight ignorance, not spread it.
What if the girl in question were just a nice average white girl and instead of wearing a hajib she were wearing a scarf because she had lost all her hair to cancer ( which was now in remission but the hair has not come in yet.)
And she is terribly self conscious of her balding head and the stares she gets.
I wonder if this school board would make her go without a scarf.
I bet they wouldn’t allow her, because if you bend it for one - even in special extenuating circumstances - you bend it for all. This would only be the first step, in their righteously narrow minds down a slippery slope. Gangs in Muskogee? That is just so wrong.
I am betting that when this is all over and the lawyers count their money that the school will add an amendment or whatever it is called to allow religious head gear. And it is the lawyers that will be the only winners here, folks.
Or, if the parents of the other students at the school had any balls they would have their kids show up wearing hajibs in support of the girl. I know I would have my kids, husband and dog dress up in support of her.
Again, the government does not “grant the privilege” to practice your religion freely. It’s not a privilege, it’s a right, and the government doesn’t grant it, you just have it. The government has to come up with a damn good reason to take the right away, and if it can’t, then it can’t. So the very fact that you continue to discuss this as the “grant” of a “privilege” indicates to me that you are fundamentally misunderstanding the entire basis of the constitutional protection of rights. I don’t say this to insult you at all or imply you are not intelligent – you obviously are – but because I can see no other reason for your continued insistence in couching the argument in terms of the grant of a privilege, when what we have is the proposed infringement on a right.
Moreover, the question of whether there is an “appearance” of “favoritism” is entirely irrelevant; the operative inquiries (again) are: (1) Is there a fundamental right at issue? (2) Is it arguably being violated by a government enactment? (3) Does the government have a compelling state interest justifying the infringement? (4) Is the infringement the least restrictive means of accomplishing the goal of the enactment? “Appearance” enters into it not at all.
You have still not explained how religion is actually advanced; you appear to only repeat your argument that is it.
But the problem is that in this case, unlike in Thomas, we are not dealing with the grant of a benefit (to which the person is not otherwise entitled) on the basis of religion. (The plaintiff quit his job voluntarily; he applied for and was denied unemployment. But for his religion, under the same circumstances – quitting – he would not have received the benefit.) It is the affirmative grant of a benefit that in Rehnquist’s opinion advances religion – which is why he would dissent not just in Thomas but in any case which used religion as a basis for granting a person something they otherwise would not receive, on the basis that such an affirmative grant does advance religion and violate the establishment clause. It goes past the free exercise clause to the establishment clause, because the free exercise of the man’s religion did not require or even involve the receiving of unemployment benefits, which he could have forgone if he chose.
As it happens, I don’t disagree with this myself, but it’s not the same as the issue here. Here, the girl is not asking the government to give her something, and she did not have the option of electing not to receive some benefit in order to choose the free practice of her religion instead. Now, the Supreme Court has held that even that – forcing a person to choose between the free exercise of their religion and receiving a public benefit – is itself unconstitutional (seeEverson v. Board of Education, 330 U.S. 1 (1947), but even if that were okay – this girl didn’t have that choice. This case is therefore factually quite different from Thomas.
Furthermore, even if you look at the issue for an establishment clause problem, instead of a free exercise problem you reach the same result: Violation of free exercise? Yes. Violation of establishment? No.
As set forth above, the test for free exercise is this:
Is there a fundamental right at issue? Yes, free exercise of religion
Is it arguably being violated by a government enactment? Yes, she cannot wear her hijab, which she wears for religious reasons.
Does the government have a compelling state interest justifying the infringement? Maybe yes, maybe no. If the absolutel prohibition on all headcoverings can be reasonably related to the safety of students, yes. But it is unlikely the school could successfully make that argument.
Is the infringement the least restrictive means of accomplishing the goal of the enactment? No. If the purpose of the regulation is to prevent the wearing of gang-related garb, the regulation can be more narrowly tailored to do so without prohibiting clothing that no one asserts is ever associated with gangs.
So, on balance, IMO the regulation is likely to be held to violate the girl’s right to free expression of religion.
Now, the test for the estabalishment clause is more up in the air, but probably is this:
Does the statute or enactment or regulation serve a secular purpose? Yes, it is intended to prohibit the wearing of gang-related garb.
Does the s/e/r have a “primary effect” that neither advances nor inhibits religion? This is the part at which you would argue yes, and I would argue no, except that you haven’t explained how it advances religion, you’ve merely asserted that it does.
Does the s/e/r avoid excessive entanglement with religion? Yes, it touches on religion only peripherially, in those cases when a person asserts a right to wear religious garb.
I believe *all the (female) suicide bombers in the Middle East over the past year have worn the hajib. And I would certainly calssify them as members of a ‘gang’.
To me, this comes down to this girl asking for special privileges because of her religion. Sorry, but I don’t think our government should be doing that.
I believe *all the (female) suicide bombers in the Middle East over the past year have worn the hajib. And I would certainly calssify them as members of a ‘gang’.
To me, this comes down to this girl asking for special privileges because of her religion. Sorry, but I don’t think our government should be doing that.
