Forcing Companies to Let Employees Wear Head Scarves Is Not 'Government Non-Interference'

Nor is it required by the First Amendment.



In an essay headlined "Supreme Court Unleashes Its Inner Libertarian," CNN legal analyst Jeffrey Toobin says two cases decided yesterday "dramatically" illustrate "the libertarian roots of the Bill of Rights, especially the First Amendment." But neither ruling hinges on the First Amendment, and one of them has nothing to do with it. Nor can that decision reasonably be described as libertarian, unless the term has lost all meaning.

In Elonis v. U.S., which Damon Root discussed here yesterday, the Court said mere negligence is not enough to convict someone of violating a federal law, 18 USC 875(c), that makes it a crime to transmit "in interstate commerce any communication containing any threat…to injure the person of another." The case involved Anthony Elonis, who posted on Facebook rap lyrics that other people, including his wife and employer, viewed as threats of violence. Although Elonis raised free-speech claims, the Court did not address them.

Writing for the majority in Elonis, Chief Justice John Roberts says "it is not necessary to consider any First Amendment issues" because the case can be resolved based on the general principle that a defendant's mental state must be considered to convict him of a crime, whether or not that crime involves speech. "There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat," Roberts writes. The Court declined to address the question of whether recklessness would be enough, since "neither Elonis nor the Government has briefed or argued that point."

Toobin not only misconstrues Elonis as a First Amendment ruling; he conflates the tolerance required by the First Amendment with endorsement, which is not the sort of mistake you would expect a free-speech fan to make. After quoting some of Elonis's lyrics—which included references to shooting his wife, cutting an FBI agent's throat, and gunning down a kindergarten class—Toobin writes, "That the court would effectively endorse these deeply disturbing rants illustrates the depth of its commitment to free speech." Defending someone's right to freedom of speech, of course, does not necessarily mean you agree with what he has to say. In any case, this decision explicitly was not based on freedom of speech.

The other decision that Toobin claims reflects the "libertarian roots" of the First Amendment is EEOC v. Abercrombie & Fitch, an employment discrimination case. The Court said it is possible for employers to violate the Civil Rights Act of 1964, which bans discrimination based on religious practices that can be accommodated without undue hardship, even if they are not aware of an applicant's need for accommodation. The case involved Samantha Elauf, a Muslim whose application for a job at Abercrombie & Fitch was rejected because her head scarf violated the clothing chain's employee dress code. 

Toobin's discussion of Abercrombie & Fitch is even more confused than his discussion of Elonis:

In recent years, the government's obligation not to interfere with religion—to allow the "free exercise" of religion, in the words of the First Amendment—has expanded into an obligation to accommodate religion. School officials must allow religious student groups to meet on school grounds, just like other student groups. If schools were going to allow movies to be shown on school grounds, they had to allow religious movies too. If universities are going to subsidize student publications, they have to subsidize religious publications by students as well. 

The question raised by this line of cases is when accommodation of religion becomes "establishment" of religion, which is also prohibited under the other part of the religion clause of the First Amendment. For example, as same sex marriage becomes lawful in most places, do states have to accommodate the religious beliefs of those florists and bakers who object to these ceremonies? That's a question for another day, but it's more relevant than ever because of today's A & F decision.

Toobin does not seem to recognize a distinction between prohibiting the government from discriminating against people based on religion and prohibiting private employers from doing so. Yet that distinction is important to libertarians, who he seems to think should be pleased by the outcome of this case. The distinction is also important in constitutional law, since the First Amendment applies only to government action. Private discrimination is illegal only if legislators decide to make it so.

The sort of accommodation to which Toobin refers when he mentions gay marriage—a religious exception to anti-discrimination laws—is likewise not constitutionally required, according to the Supreme Court's current reading of the First Amendment. In the 1990 case Employment Division v. Smith, the Court said the Free Exercise Clause does not apply to neutral, generally applicable laws that happen to make it difficult or impossible for people to practice their religion. Congress responded to that decision by approving the Religious Freedom Restoration Act, which addresses the burdens that the Court said the First Amendment does not. Many states have adopted similar laws, which is the context of the debate to which Toobin alludes.

Toobin seems to be suggesting that requiring religious exceptions to employers' dress codes and requiring religious exceptions to laws prohibiting discrimination based on sexual preference both raise Establishment Clause issues. If you read the clause as barring the government from elevating religion above nonreligion (as opposed to merely banning official support for a particular sect), there is some logic to that argument, since both policies give people privileges they would not have if they were atheists. But while letting florists and bakers turn down jobs they do not want to take embodies a libertarian principle, forcing employers to change their dress codes does not.

Toobin says the latter policy reflects "our strong national commitment to government non-interference in what Americans believe or what they say." Unless they believe their employees should not wear head scarves and communicate that expectation, in which case this commitment to noninterference somehow requires the opposite. Toobin describes that sort of meddling as "forcing the government to the sidelines." I don't know much about sports, but I am pretty sure that expression does not mean what Toobin thinks it does.