The recent ruling from the U.S. Supreme Court in favor of Samantha Elauf, a Muslim rejected for employment because of her hijab, has excited boundless praise. The New York Times editorial board called the outcome”a good reminder for employers that the best policy is one of inclusiveness and accommodation.”
And here’s the Detroit Free Press: “By celebrating diversity, we recognize, appreciate, and encourage the individual potential of every American.”
But what’s been overlooked in the many paeans to the 8-1 decision in EEOC v. Abercrombie & Fitch is the court’s useful reminder of what it is about religion that often makes others least comfortable: Faith is not simply belief. It’s action consistent with belief.
Why did Elauf wear the headscarf to her interview? Because, wrote Justice Antonin Scalia for the majority, it was “consistent with her understanding of her religion’s requirements.” Suppose the employer had responded that she was free to believe whatever she wanted, as long as she removed her hijab at work? It’s easy to see how that approach would poison her ability to live according to her faith.
Without the freedom to act, freedom of religion becomes meaningless. This crucial understanding undergirds the meaning of discrimination in employment under Title VII of the Civil Rights Act. But the importance of what the Times called “inclusiveness and accommodation” does not apply solely to the workplace. The value of religious diversity is precisely that it challenges our ideas, presenting views of the world that may rest on very different premises than our own. We might agree or disagree with the ideas that religions present, but they have provided, throughout the nation’s history, a crucial source of dissenting energy.
That’s why the recent armed anti-Islam protest outside the Islamic Community Center of Phoenix should be so disturbing. Such behavior threatens religious liberty. But so do government regulations that fail to offer religious exemptions. The threat to liberty is the same whether produced by a private employer or a state or federal agency.
When we think about religious liberty, recent events naturally press our attention toward such deeply contested issues as same-sex marriage. Although disputes involving anti- discrimination law will always draw the interest of reporters hungry for controversy and sound bites, the hard edge of the accommodation problem is the everyday clash of religious claims with the constant intrusions of the administrative state. It’s the prisoner not allowed to wear a beard because of Arkansas prison rules. It’s the church that runs up against zoning laws because the state insists that its pastoral counseling program isn’t religious. It’s the American Indian who wants to use eagle feathers in traditional worship but can’t because the exception in federal law applies only to tribes the government officially recognizes.
Religious liberty, like every freedom, must have limits. To wave our hands and say that the limit is avoiding interference with “the rights of others” is meaningless. Presumably every rule and regulation is intended to protect somebody — otherwise it shouldn’t exist. Working out where to draw the line is a matter of great difficulty and imprecision. That’s why it’s important to adopt policies that force us to make the decision as rarely as possible.
It’s important to remember that Elauf’s belief that she must wear a headscarf does not exist in a vacuum. It emerges from a complex and much-contested theology. The issue cannot be readily simplified, as the secular mind might prefer, into either rule (evil) or choice (good).
Most Muslims, like most Jews and most Christians, are raised in their religion. Rarely will the views of the children mirror the views of the parents precisely; nevertheless, religious upbringing remains the most prominent source of religious diversity.
Thus if we truly believe what we claim to, we should fight fiercely to protect what the Supreme Court some 90 years ago in Pierce v. Society of Sisters called “the liberty of parents and guardians to direct the upbringing and education of children under their control.” Rejecting an Oregon statute that effectively prohibited Catholic schools, the justices offered a crucial reminder: “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
What the Supreme Court saw — what we nowadays too often forget — is that the religious diversity we rightly celebrate does not appear magically. It is nurtured by families and communities who cooperate in the inculcation of a particular set of values in their children.
This is why so many religious parents choose to send their children to religious schools: to make sure that the lessons they teach at home about the life well lived are reinforced through the educational process. Nowadays, it’s common for regulators to seek to influence hiring and curriculum at religious schools. But their interference, however well- intentioned, has the functional effect of reducing the very religious diversity we claim to celebrate. It’s hard enough trying to raise children to stand apart from the dominant secular ethos of our day — as Elauf did — just as in the past it was hard to raise children to stand apart from the dominant Protestant ethos. The state shouldn’t make it harder.
The usual objection to this line of argument is that religious families might raise their children to believe things that “we” know are wrong. Of course they will. That’s the entire point. True diversity doesn’t come from multiculturalism counselors and different days devoted to celebrating different groups in the schoolroom. It emerges from the hard and disciplined work of raising young people to systems of belief that distinguish them from their peers.
That’s the true work of religious liberty, and, potentially, our single greatest source of diversity. If we oppose that work, then we don’t really want diversity. We want people who might choose to wear different headgear but basically all think alike. Whatever sort of society that might describe, it isn’t a democracy.
Stephen Carter is a Bloomberg View columnist and a law professor at Yale.