Headscarves and the First Amendment

06/19/2015 04:35 pm ET | Updated Jun 19, 2016

Back in my youth, I thought I understood the First Amendment, at least as it related to religious freedom. It meant that jackbooted police officers could not burst in on peaceable worshippers and start arresting them. It also meant, as I pointed out to my mother, that I couldn't be forced to go to Saturday morning catechism lessons when I would much rather stay at home and watch cartoons. In short, the government could not stop me from expressing my religious beliefs or force me to have any. How this evolved into an obligation of Abercrombie & Fitch to hire a young Muslim women who insists on wearing a headscarf at work is a mystery to me.

For those who haven't followed the case, here are the facts. In 2008, Samantha Elauf, a young Muslim woman from Oklahoma, did well enough in an A&F interview to get a job, but she was rejected because she insisted on wearing a headscarf as an expression of her religion. The headscarf was a violation of A&F's corporate dress code. There was no suggestion that the dress code was religiously biased or discriminatory, something that Elauf did not even allege. On June 1st, the Supreme Court ruled for Elauf and against A&F, in an 8-1 decision, because the company failed to "reasonably accommodate" Elauf's religious expression, which is given "favoured treatment" under the Civil Rights Act of 1964 and its accommodation did not impose "undue hardship" on the business.

It strikes me as reasonable that a company has the right to require a certain "look" of its employees, particularly when selling a style is precisely its business. A prospective employee who doesn't agree with this policy is, of course, free to work (and shop) elsewhere. Which means that Elauf was fundamentally wrong when she stated that "(o)bservance of my faith should not have prevented me from getting a job." Her desire to wear a headscarf did not prevent her from getting a job; after being turned down by A&F, she went on to work as a salesperson at two other retail chains and is now a merchandising manager at a third, all while wearing a headscarf. I don't see anywhere in the First Amendment where it says that anyone has a right to work at a particular company, a right that exists irrespective of that person's desire, religiously motivated or not, to violate the company's rules. I also know that companies that make a habit of rejecting high quality potential employees for frivolous reasons will soon find themselves with the frivolous employees they deserve.

I also fail to see why faith-related expression should be granted "favoured treatment." Certainly, there is no hint of this in the First Amendment, which takes a decidedly neutral stance on religion. The desire of the Founding Fathers was to protect religious practice against government coercion, not to grant it special treatment. It is also a stretch to read the Civil Rights Act of 1964 as intending to confer any such preference. This Act outlaws employment discrimination on the basis of race, colour, religion or national origin. But no such discrimination was even alleged in this case. It is true that Elauf could not work at A&F while choosing to express her religious beliefs with a headscarf, but that is a sacrifice she would have made by her own free choice. Religious conviction, I have been told, is demonstrated by making precisely such sacrifices, even more so than wearing certain headgear. Ms. Elauf should count herself lucky that all she had to do was take a job at a lesser brand and not step into the Colosseum as the afternoon's entertainment.

"Favoured treatment" is inherently unfair. It is unfair to those who have no religious beliefs, but who may nonetheless want to express themselves in ways that do not enjoy the special protections granted religious expression. It is also unfair to those who practise "religions" obscure or personal enough that I doubt they would be afforded the protections granted to more "established" faiths. The English have decided to grant special protection to Druids, provided that their beliefs are "deeply held." I doubt, however, that the Supreme Court would have come riding to the rescue of Elauf if she had expressed a strong belief in Wotan and insisted on coming to work dressed as a Goth. "Favoured treatment" necessarily involves the courts in the unsavoury business of deciding which beliefs are deserving of preference and how deep is a person's religiosity.

And look at the wording of these rules: "favoured treatment," "undue hardship," and "reasonable accommodation." In my professional career, I have always considered it a mark of failure when I negotiated a contract filled with weasel words like these. Yet, this is the type of wording that is inevitable when the government wades into the arena of conflicting "rights," such as it has done in this case. The Founding Fathers wanted clear, bright lines to restrain arbitrary intrusions by the government. This type of wording invites it. And one of the major reasons they wanted to avoid this was precisely for the protection of things like religious freedom. They knew all too well that arbitrary and ambiguous intrusions to "favour" anything could easily be turned in the opposite direction.