Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [76]
My agreement with the judge in this case, however, does not commit me to giving the state carte blanche on the head scarf issue. In the fall of 2003, a student in Oklahoma was suspended for wearing a head scarf in a public school. The school’s stated rationale was that the scarf violated its dress code. In my view, this reason, which presumably relates to uniformity or neatness, is not sufficient to require the student to mute her religious affiliation. Permitting the preservation of a common culture to stand as a justification for coerced covering would make the reason-forcing conversation pointless, as demands for assimilation can always draw on that justification. I was heartened that in 2004, the school district and the Justice Department (which intervened on the girl’s behalf) reached a six-year settlement agreement. The district changed its dress code to allow exceptions for religious reasons, and the student, Nashala Hearn, is back in school with her head scarf.
This leaves a thornier question unanswered—would the preservation of a secular culture (as opposed to a more generic common culture) be sufficient to force Muslim women to lift their veils? France and some German states have categorically prohibited head scarves in public schools. The 1994 instruction from the French education minister frames the issue as a prohibition on flaunting, banning “ostentatious display of religious allegiance.” Proponents of the ban underscore its importance to the separation of church and state, an ideal that has its American embodiment in the Establishment Clause of the U.S. Constitution.
The case for permitting secularism to trump religious observance might rest on the distinction between coerced assimilation to a secular norm and coerced assimilation to a state religion. Muslim women are not being asked to submit to Christian norms, but rather to the relatively neutral norms of public secular life. A parallel could be drawn to the “melting pot” ideal, under which racial minorities are in theory not being asked to assimilate to a white identity, but to a neutral “American” identity. Assimilation to an identity to which all have contributed is less pernicious than assimilation to a dominant group’s norms.
Even under that formulation, however, the individual religionist has a grievance. The Muslim woman is still required to remove her veil. Moreover, a ban on “ostentatious displays” will have a greater impact on religions that require adherents to wear visible paraphernalia. It will also disfavor less familiar religions, as the ordinary practice of those religions will be more likely to be seen as ostentatious, in the same way that a gay couple holding hands will be seen as more ostentatious than a straight couple engaging in the same action. Because even a ban that seems neutral will in practice fall harder on certain religions, I come down against it.
A useful lesson of the religious apparel cases is that no one argues that the covering demand is trivial. Opponents of the law see the demand as a profound injury, with radical Muslims going so far as to hold French journalists hostage in an unsuccessful attempt to have the law repealed. Proponents of the French prohibition on head scarves also feel a great deal is at stake, arguing that if this accommodation is made, others—such as single-sex education for Muslim women—will follow. Religious appearance-based covering is much less likely to be cast as trivial than racial or sex-based analogues. It is a useful thought experiment to consider whether some racial minorities