Coming Soon to a High Court Near You



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Michael Graziano

The Roberts Court turns ten on Monday. With a new term about to begin, I thought it would be helpful to preview upcoming cases that might be of interest to readers of the blog. The previous term provided no shortage of data for scholars interested in the legal construction of religion in the United States (most notably in Greece v. Galloway and Burwell v. Hobby Lobby), and this term promises to continue that trend. Last term witnessed an increased emphasis on the protection of religious exercise, and it is clear that the Court will continue dealing with similar issues in the months ahead. Instead of looking at religious corporations, though, the Court will be dealing with prison law and, well, Abercrombie and Fitch. Both of these cases involve the religious exercise of American Muslims, and it will be interesting to see how expansive this renewed protection proves to be.


Holt v. Hobbs 
Holt v. Hobbs offers the clearest parallel to Hobby Lobby. Gregory Holt, a Muslim prisoner in Arkansas, requested a religious exemption from the prison’s grooming policy, which forbid facial hair unless medically necessary. Holt is requesting permission to grow a half-inch beard, which he argues is a compromise between his religious dictates and security concerns at the prison. His request was denied by the Arkansas Department of Corrections. The case wound up at the high court under the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law descended from the legal tit-for-tat between Congress and the Supreme Court after the Court’s decision in Employment Division v. Smith (1990).


I bring up the response to Smith since, looking to the Court’s upcoming term, we still see its effects. Winnifred Sullivan wrote about this several years ago, arguing that “There is a sense in which Smith’s comprehensive rejection of religious reasons invented religion anew.” An emboldened sense of free exercise was part of this invention—or perhaps re-invention—in Hobby Lobby, and it is what makes watching these new cases so interesting. For if we take this framework seriously, we should not be surprised that the Becket Fund for Religious Liberty—which  represented Hobby Lobby—is now representing the Muslim prisoner Holt in his quest to grow a half-inch beard.

Holt will be an interesting test case to see whether this renewed appreciation for free exercise extends to plaintiffs who are both non-Christian and imprisoned. This case may also provide developments in free exercise law particularly as it relates to those incarcerated in federal institutions (or federally-funded institutions, as is the case in Holt). For those interested, Amy Howe has a very helpful post with more information over at SCOTUSblog.

E.E.O.C. v. Abercrombie & Fitch Stores
Another case which is already drawing media coverage is Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores. The case stems from 2008, when then seventeen-year old Samantha Elauf applied for a job at Abercrombie in a Tulsa, Oklahoma mall. Both sides contest certain facts in the case (including whether Elauf has “a sincerely held religious belief in Islam”), but the simplest narrative is that Elauf interviewed for the job (while wearing a headscarf) and was not hired. She was later told that she did not receive the job because her headscarf was not acceptable under Abercrombie’s style policy, which called for “a classic East Coast collegiate style of clothing.”

Abercrombie maintains that it was the prospective employee’s duty to inform the company of any potential conflicts between an employee’s religion and the company’s style policy. Furthermore, Abercrombie argued that hiring an employee with a headscarf (in breach of the style code) would have “imposed an undue hardship” on the company. If this seems an odd choice of words for 2008, keep in mind that Abercrombie’s CEO has helpfully explained why his clothes are only for “cool people" (the “young, old, fat, skinny” need not apply).

The EEOC used past president of the AAR John Esposito as an expert witness, and the United States Court of Appeals for the 10th Circuit looked closely  at Esposito’s testimony. Central to the disagreement was how necessary wearing a hijab was to being a Muslim, or whether a hijab was necessary at all. Esposito testified that, “although some Muslim women wear hijabs for religious reasons, those are not the only reasons that Muslim women wear hijabs; for example, some do so for cultural reasons…” The court seems to have found this unconvincing, and ruled in favor of Abercrombie:
Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing a hijab was based on her religious beliefs and (because she felt religiously obliged to wear it) that she would need an accommodation for the practice, because of a conflict between it and Abercrombie’s clothing policy.
The EEOC appealed, and the high Court will now have to sort out the issue. Of interest is how the law conceptualizes religion as a form of identity, and whether this kind of identity receives legal protection. If religion is not visible in the same way that (presumably but problematically) race is, must the prospective employee declare their beliefs before they are hired? What happens if, as in this case, the employer and prospective employee dispute whether the prospective employee’s belief is “sincerely held”? It will be interesting to see how this case is settled alongside existing anti-discrimination legislation.

One other note of interest about the Court’s upcoming term is that we have little new information about the fate of same-sex marriage cases that have been appealed to the Court. This could change as early as Monday morning, when the Court may announce further engagement with the issue. In an interview last month, the Notorious R.B.G. (side note: there is an entire tumblr devoted to the Ginsburg/Biggie meme, and it is as wonderful as it sounds) made it seem as if the Court may wait until divided rulings at lower levels force the issue.

Regardless of what (if any) movement takes place on same sex marriage, the next few months promise more developments, and more data, for those interested in American religion, law, and how each will continue to be constructed.

*Image courtesy flickr user Phil Roeder.

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