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By Root 802 0

argues from a liberal perspective that multiculturalism should not be permitted to destroy our common identity as Americans, and that we should recommit ourselves to values of “assimilation and integration.” His prescription, made most recently in 1998, is part of what sociologist Rogers Brubaker calls the “return of assimilation.” Looking at the United States, France, and Germany, Brubaker maintains that the “differentialist turn” of prior decades—which encompassed open immigration, the autonomy of indigenous peoples, difference feminism, and the affirmation of alternative sexualities—may have exhausted itself. We are seeing a renaissance of the melting pot ideal.

The Supreme Court has explicitly cited identity proliferation to justify limiting its protections. The early cases in which religious minorities were accommodated—such as those protecting Seventh-day Adventists in 1963 and the Amish in 1972—represented an age of innocence. By the 1980s, the Court realized the complexity of granting such accommodations. In the yarmulke case, some justices reasoned that if the Court accommodated the Jewish rabbi’s yarmulke, it would soon be confronting the Sikh’s turban, the yogi’s saffron robes, or the Rastafarian’s dreadlocks. In the 1990 peyote case, the Court observed that in “a cosmopolitan nation made up of people of almost every conceivable religious preference,” accommodating religious drug use would “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”

The Court is raising the bugbear of common law adjudication—the slippery slope. The commitment to treating like cases alike means that if the Court protects one group behavior, it must protect all analogous group behaviors. The Court has solved this problem by moving toward protecting no behaviors, safeguarding only the immutable aspects of identity. “Immutability” is the word scrawled on the wall the judiciary has built across the slippery slope.

While weighty, this slippery slope concern cannot justify depriving groups of protection against covering demands. To see this, we must think about the “end” of civil rights law in a different sense, looking back to its purpose rather than forward to its demise. Civil rights law has always sought to remedy subordination—the subordination of racial minorities by whites, of women by men, of gays by straights, of religious minorities by religious or secular majorities, of people with disabilities by the able-bodied. Covering demands are the modern form of that subordination: racial minorities must “act white” because of white supremacy, women must hide parenting responsibilities at work because of patriarchy, gays must hide displays of same-sex affection because of heteronormativity, religious minorities must downplay their faith because of religious intolerance, and the disabled must mute their disabilities because of a culture that fetishizes the able-bodied. If civil rights law fails to protect these groups against coerced conformity, it will have stopped short of its end.

We should not slide to the bottom of the slippery slope, where outsider groups would always win their cases. But we should require what I will call a reason-forcing conversation, making the state or the employer justify burdens placed on a protected group. The state or employer can demand conformity so long as it backs the demand with a reason rather than a bias. Far from fostering a culture of complaint, this paradigm encourages a culture of greater rationality. Rationality should replace immutability as the wall across the slippery slope.

To speak concretely about how rationality might help us balance the interests of the individual against those of the state or employer, consider the internationally contested issue of whether Muslim women should have to remove their veils or head scarves. (This is a covering demand that requires uncovering.) In a 2003 case, a Florida state judge rejected a woman’s request to have her face covered by a veil in the photograph on her driver’s license.