The quintessential aspect of a procedural republic is to affirm rights over goods. That is to say, it is the duty of the court to be not only neutral towards various conceptions of the good but also to restrict programs that would foster particular perceptions of the good which would unduly bias the free choice of the autonomous individuals in question. While this neutrality has been contentious in a variety of different circumstances, perhaps the most enduring has been when the neutrality deals with the topic of religion.
A particularly interesting example of this is Goldman v. Weinberger. Captain Simcha Goldman is an Orthodox Jew and as such he is required both to wear a yarmulke (by his religion) and to adhere to Air Force dress code (by his employer). The Supreme Court ruled that Captain Goldman would have to adhere to Air Force dress code at the expense of his religious sensibilities. Writing for the court, Justice Rehnquist held, “The essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.’” And went on to explain how standardization of uniforms is felt to be an important part of this goal.
What is interesting here is that religious duty is considered to be a “desire”, “interest” or “personal preference”, seemingly unrelated to a context that is broader than the individual in question.
Whether or not you agree with the court decision isn’t what I’m interested in, but rather how you conceive this decision. Do you think that it is consistent with the neutrality principle and of affirming rights over goods? Or do you think, as I do, that the court affirmed the vision of the good as espoused by the military as trumping the good as established by the Jewish religion?
There was a case in London a couple months ago, not exactly the same but I believe it is in principle.
A muslim woman with her headscarf and plain clothing applied for a job at some “funky modern” hair salon. She was rejected. The salon was later charged five thousand pounds when the muslim took the matter to court. If the salon had rejected a woman who shaves her head, the blame would be on the woman and not the salon.
I think religion is often misused in this sense, that people consider it an intrinsic part of themselves. As if not wearing a headscarf would have god strike her down, or not wearing the jewish hat would be sin. Come to think of it, there was also a case with a sikh discus thrower who wouldn’t take off his bangle during official games for religious reasons. Or their turbans.
The solutions are painfully simple. God is not a physical entity. He does not require physical things to “focus” him, or bring one “closer”. England’s policy of tolerance towards other cultures and religions is clearly abused and exploited in this country, and for practical purposes, and keeping in mind that religion is meant to go beyond the physical and holding onto items as religiously affiliated can be considered idolism, I would side with the airforce. Religious people deserve no more preference than anyone else who is forced to give up their own behavioral systems for the demands of their occupation.
In a pluralistic society, the courts must be blind to religious practice (as related to goods) while upholding the right to religious practice (such as the right to pray, attend religious services.) That the court system does this in a seemingly uneven way is simply the difference in perspective of the multiple number of judges. Whether religion or any other behavioral system, society has the right to define what is and what isn’t acceptable. The guy with green spiked hair just might have a problem finding a job no matter how important his hair style preference is to him. We are allowed our individuality in private, but in a social or occupational context, we have to consider other’s sensibilities and needs.
As always, the lines are blurred and usually the courts look at case-by-case situations, but typically, individual “rights” end at the interface of social interaction. It is unfortunate, but quite often, those religious expect a pass simply because of their religion.
The idea of religion as a personal pursuit is a modern concept, one that adherents of religious movements pre-dating modernity (such as Orthodox Jews) are bound to find problematic. Given that, I’m not sure that this can be properly conceived as a “rights” based conversation since instead we have different models of the good in competition with each other. The “neutrality” espoused here is dubious at best. To use another example, a conservative hack recently said that he didn’t understand what all the hubub about gay marriage was from a rights based perception, since gays already have the same right to be married as anyone else. What they want is a special right to marry in a different kind of way. Clearly that argument is foolish, right? The sort of “right” espoused in both situations is essentially the same and rather Fordian, “You can have any color you like, as long as it is black.” Now I think secularism is a good worthy of fostering, so I don’t have a problem with the court’s decision here, but I still don’t think it can be viewed from a rights-based angle very effectively, especially with respect to neutrality.
Freedom of Conscience vs. Freedom of Choice. In A Letter Concerning Toleration, Locke wrote, “it is absurd that things should be enjoined by laws which are not in men’s power to perform. And to believe this or that to be true, does not depend upon our will.” That is to say, conscious dictates whereas choice decides. That brings up the issue of whether we choose our religion and its proscriptions. Does an observant Muslim choose to wear a hijab in the same way she chooses her means of employment? Or is she compelled to wear a hijab by the dictates of her conscience whereas most means of employment are closer to value-neutral in a pluralistic society?
At a philosophical level, perhaps a religious choice should overule any other consideration, but in a social setting, it is no longer philosophical, it becomes a “rights” issue. While a religious person has personal obligations to their God, they also have obligations to the society and culture in which they live. When these obligations conflict, then choices have to be made. Whether to wear the obligated yarmulke and honor the God of Abraham, or to be unemployable in the larger society is a personal choice not to be visited on the larger society. While a benevolent society may be obligated to protect an individual’s private freedoms, it does not follow that the society is obligated to allow those private freedoms to be pressed onto others.
The notion of obligation isn’t a rights based issue, though. That is the problem. Obligation, by definition, details a good as opposed to a right. Had you tried to phrase it with respect to negative vs. positive rights, I think a case could be made (kinda), but I still think that case ultimately boils down to competing conceptions of the good.
I think the ruling is not simply a case of “the court affirm[ing] the vision of the good as espoused by the military as trumping the good as established by the Jewish religion,” but of the former good trumping the latter in the case of military service. If you’re a fundamentalist mormon, you don’t have the right to be a porn-star despite your belief that you cannot be seen naked. Clearly, in that case, the religious belief is preventing the individual from fulfilling the obligation of the occupation in question. For the same to be true in the case of Goldman v. Weinberger, the court is holding that individuality must be sacrificed in order to fulfill the obligations of military service. This isn’t to say that military service is inherently more important than religious beliefs, but if you are voluntary member of the armed forces, you are voluntarily submitting to their rules.
So, I do think decision is compatible with holding rights over goods: you don’t have the right to practice your religion and still hold any position that conflicts with this practice, so there is no right to appeal to. It seems the only confounding issue is that the USAF is a public entity, so it seems to be a restriction by government on a person’s faith. Still, the restriction isn’t about religion, it’s about a practical issue, and the Air Force has every right to limit religious practice among its employees for practical reasons.
I don’t mean to contest the value of religion, or the person’s conscience. It simply comes down to certain standards being set, and the public being subjected to them without discrimination based on race, religion, nationality or whatever other source of prejudice. When we say this muslim has the right to cover her hair in a hair salon, this jew has the right to wear a kippa, we are discriminating against them. We’re saying you’re different, because you believe in this and that, and that because our treatment of your difference with the rest is positive, that’s ok. Discrimination is discrimination. By positive discrimination against religious groups, they’re being given rights not given to society. I don’t see hijab as obligation, it’s a choice and a rights issue, seeing as how it all starts with the religious person’s right to practice their religion, though not at the expense of the needs of society at large.
The employer shouldn’t require certain clothing because the employee’s clothes aren’t important enough to the employee. It requires certain clothing because it has needs that it must address. The employee is free to take up occupation elsewhere; in the same way that a pacifist whose belief is religious, shouldn’t be able to go to a butcher’s shop, ask for a job, and ask that he not be made to do any killing. Go to the army, and ask that you not wear the uniform. Go to a hairdresser and ask that your own hair not be visible. Work at a till at a store half the sales of which are in alcohol and pork, and refuse to touch their packaging! All real life examples, it’s just clear exploitation of the notion of freedom and rights.
A good, if somewhat problematic response. The first, and most obvious question is whether the US Air Force is a normal employer or whether it is an extension of the US government. If we count it as a normal employer, people like you and I are going to throw a shit-fit over the implications of that with respect to faith-based charities (now endorsed by both Presidential candidates). Can a religious charity funded by either federal or state governments require employees to wear particular religious regalia? If not, why is it different from the USAF with respect to the case in question?
The second is slightly more legalistic. Adair v. United States and Coppage v. Kansas both ruled in accordance with what you are suggesting, but instead of a religious context they presented similar arguments in economic terms, ruling against yellow dog contracts and minimum wages for women. Do you agree with the implications of your position when phrased this way? The New Deal Court overturned both of those cases (rightly so, I think). Chief Justice Charles Evans Hughes wrote, “What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law.” Indeed, he went so far as to argue that the position of the woman and the worker is, “relatively weak, and they are the ready victims of those who would take advantage of their necessitous circumstances.” Can we separate economic and religious happenstance in this situation?
This becomes especially problematic when we view the problem through the lens of a crisis of conscious between religious duty and patriotic duty.
Rouzbeh,
Your position amounts to a “nah-uh!” with respect to Locke’s quote. While I’m sympathetic to a certain amount of existentialism, heck, a good deal of existentialism, I’m not sure that dooming people to be free is a sound principle of jurisprudence. Should hairdressers undergoing chemotherapy be fired? Does having (visible) hair in any way affect one’s ability to cut hair?
The religious inclinations of people are again and again and again surpressed by government contextually, which is hard to see as any real contradiction or problem in those contexts.
Religious freedoms are great but when it comes to say, trying to be a doctor and refusing to wash your hands for religious reasons, theres real legal reasons envolved for why they can’t do it, and why thats more important than their religious rights.
I think, well I know, its pathetic to see some of these people win legal cases against restaurants. We’re talking about proper public saftey here right, washing your hands and using hair-nets, everyone gets fired for that, everyone adheres to a strict military code.
is it discrimination against a specific group if it applies to everyone or just a concern about y’know, military effiency that *everyone must abide too or like public saftey. (when washing hands or restaurants come into play)
Xunzian,
The first problem doesn’t seem to be a problem. The government can have jobs that will impose requirements that not all religions allow their adherents to fulfill (especially considering that Jehovah’s Witnesses aren’t allowed to participate in governemnt at all). Look, the freedom of religion gives you the freedom to worship whatever faith you see fit. However, if that faith entails sacrifices, you can’t make the sacrifices without making the sacrifices. If your religion doens’t let you take off your hat, freedom of religion neednn’t guarantee a job where you can’t where a hat, government or otherwise.
The example of federally-funded, faith-based charities isn’t really fair. My problem with faith-based charities isn’t that they’re only employing members of a certain faith. I don’t think that’s your problem with them either, but I could be mistaken. It’s more interesting to consider private faith-based organizations. I don’t think it’s a problem for a church to deny folks like me a position on staff, because faith is actually a practically significant attribute in that profession.
As for the legal decisions, I would have sided with Holmes on the latter two cases. The significant difference is why there are these rules for these professions. The railroad companies were making the rules specifically to disenfranchise the workers in negotiations with the company. The USAF is making the rules to maximize the coherency of the military. In the first case, the ability of the company to exploit its workers is not something that the state has an interest in preserving; in the second, the ability of the military to maximize coherence is, not because the military is state run, but because it is a practical requirement.
I’m not sure I fully understand the distinction between rights and goods. It seems like rights are what simply putting certain individual goods over public goods. If that’s the case, it’s always a matter of competing goods, public and private. I personally don’t see the problem with this, and I doubt that it’s even possible to somehow avoid “foster[ing] particular perceptions of the good”. That’s largely what the Legal Realism movement was about, a movement which began during the Lochner era, and which defined significant amounts of modern jurisprudence (although the current court is reversing that tradition).
Xunzian, your point similarly amounts to “what the conscience dictates (in this case as the conscience itself is dictated by a book), it is no longer a right but an obligation”. Well, the ability to carry out the obligation depends on the person’s right to do so. Where people don’t have rights to their religion, for example the Baha’is in Iran, their ability to be “obligated” to do anything also diminishes. When some muslim girl comes into my university wearing a burqa, in the one of the world’s centers of commerce, she is exercising her right to do so, whereas in Turkey, she would be refused entrance.
Though I wouldn’t support the removal of religious rights in any country the way it is practiced in Turkey, I also cannot support the removal of the rights of employers in choosing employees based on their needs. The “funky modern” hairdresser example. Every business advertises itself depending on its market. The “modern” hairdresser needs people who don’t mind spending a good deal of money to get the newest hairstyles. The muslim hairstyle, the headscarf and the reason for which it’s worn, dates to approximately 1400 years ago. Yes the muslim woman is not from then, but the headscarf doesn’t tell the customer base that “this is a funky place where you can do crazy stuff with your hair, just look at the hairdresser”! Regardless of whether or not you agree with it, it is the employer’s right to expect me to come into their office as an engineer wearing a suit looking fresh, not a loose white robe hanging from my shoulders to my feet with a whole untrimmed beard. It’s simply their right to not to give me special privileges.
The question is just where do you draw the line for the religious to impose their obligations on others. It’s funny, in Iran, office workers can waste more than an hour in preparing for their prayers and then doing them. Few of them are religious, but it’s a paid hour to not do work, and then of course it’s lunch time. This is just wasted labor, and how would you even know if the man is genuinely pious or not. It is the company’s right to not employ me if I refuse to do my job at a certain time. I’m far from religious, but I could do the same here, claiming that it’s prejudice that the company won’t hire me because I will be unavailable twice in my shift due to religious obligation. The secular system, and the religious system, where these things are concerned, simply can’t mix.
Anyways, that turned out much longer than I thought, and probably has a bunch of my thoughts mixed up. Chances are though, that if that same case had taken place in the English justice system, the court would’ve ruled in favor of the soldier.
On a side note, keeping in mind that there isn’t a single street in all of London clean of dog crap, here’s an article recently printed that I found amusing: dailymail.co.uk/news/article … s-hat.html
To me that seems to set-up a rather nasty slippery-slope. As soon as the government is able to make rules that demand sacrifices on the part of certain groups and not others, the notion of equality before the government goes out the window. It allows for sneaky means of disenfranchisement, such as the various oath tests that were employed in Medieval Europe to keep heretics at bay. What is to stop, say, Arnold in California from writing an executive order that all state employees need to kill a chicken as a requirement for employment so that he can eliminate the strong leftist veggie contingent from holding office? Absurd? Sure, but there are no doubt craftier means that a majority of either party could impose. Think of it as a new form of gerrymandering.
Actually, that is my primary objection to them. I actually think that faith-based charities are very effective charitable organizations but by their very nature their employment is selective along religious grounds. For a private organization that boarders on unacceptable (though in the case of Churches I am willing to make an exception), but for an organization receiving public funds that is absolutely unacceptable. It is essentially giving money to one particular ideological group at the expense of others.
I dunno about that. I mean, it seems perfectly rational to me that things like unions and minimum wages reduce the efficiency of companies, at least insofar as the capitalist is concerned. How is that different from coherence in the military, except as an expression of value. And if these are specific values, as your statement, “the ability of the company to exploit its workers is not something that the state has an interest in preserving,” then it follows that a value judgement has been made in these cases. On the one hand, we (rightly) do not value the ability of companies to exploit their workers and we also (rightly) value coherence in the military. But in each case, we have proactively decided that one set of goods (those espoused by the workers in one case and the military in the other) is superior to another (those espoused by the capitalists and the religious).
Rights are focused on means whereas goods are focused on ends, as a general rule of thumb. The right to marriage, for example, does not say what a marriage ought entail, nor does it desire/demand that certain people be married. It simply means that people can engage in marriage as they see fit. Marriage as a good, on the other hand, does detail what a marriage ought entail and who can/should engage in it.
Now, I do agree that it is impossible for us to avoid fostering particular perceptions of the good. The problem with this is that is that the principle of neutrality is so often invoked in Constitutional Law nowadays. If this principle is, in fact, impossible, we are in some trouble, yes?
Rouzbeh,
I still think you are presenting this in a volitional scheme, which I do not think makes sense for the reason of the quote I gave. Despite what the post-modernists will tell you, we have very little choice with respect to what we believe. We can modify our beliefs by degrees, possibly, but all too often belief is imposed from without.
