Supreme Court Sides With Muslim Woman In Religious Discrimination Case

The Supreme Court ruled in favor of a Muslim woman who was refused a job because of her hijab.

Samantha Elauf Supreme Court

Today, the Supreme Court ruled in favor of a Muslim woman who was denied at job at Abercrombie & Fitch because her hijab violated store policy for acceptable employee dress:

WASHINGTON — The Supreme Court on Monday revived an employment discrimination lawsuit against Abercrombie & Fitch, which had refused to hire a Muslim woman because she wore a head scarf.

“This is really easy,” Justice Antonin Scalia said in announcing the decision from the bench.

The company at least suspected that the woman, Samantha Elauf, wore the head scarf for religious reasons, Justice Scalia said, and its decision not to hire her was motivated by a desire to avoid accommodating her religious practice. That was enough, he concluded, to allow her to sue under federal employment discrimination law.

The vote was 8-to-1, with Justice Clarence Thomas dissenting.

The case started in 2008, when Ms. Elauf, then 17, applied for a job in a children’s clothing store owned by Abercrombie & Fitch at the Woodland Hills Mall in Tulsa, Okla. She wore a black head scarf but did not say why.

The company declined to hire her, saying her scarf clashed with the company’s dress code, which called for a “classic East Coast collegiate style.” After the Equal Employment Opportunity Commission sued on Ms. Elauf’s behalf, the company said it had no reason to know that Ms. Elauf’s head scarf, a hijab, was required by her faith.

In its Supreme Court brief in the case, E.E.O.C. v. Abercrombie & Fitch Stores, No. 14-86, the company argued that job applicants should not be allowed “to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”

After the case was argued in February, an Abercrombie spokesman said the company “has a longstanding commitment to diversity and inclusion, and consistent with the law has granted numerous religious accommodations when requested, including hijabs.”

The Supreme Court ruled that Ms. Elauf did not have to make a specific request for a religious accommodation to obtain relief under the Civil Rights Act of 1964, which prohibits religious discrimination in hiring.

At the trial, Ms. Elauf said she loved movies, shopping, sushi and the mall. “It’s like my second home,” she said. Her experience with Abercrombie, she said, made her feel “disrespected because of my religious beliefs.”

Lyle Denniston summarizes the opinion:

The eight-to-one ruling in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores gave a strong new level of civil rights protection against religious bias in employment.  The case involved a  young Muslim woman who wears a head scarf as a matter of her faith; she sued after failing to get hired at a “preppy” clothing store at a shopping mall in Tulsa seven years ago.

She had won a $20,000 damages verdict against the retailer, but that was overturned by the U.S. Court of Appeals for the Tenth Circuit.  The appeals court ruled that a company does not violate the ban on religious bias in the workplace unless the management actually knows, specifically, that a job applicant needs an exception from a work rule to satisfy religious dictates.  That ruling seemed to impose a duty on a job applicant to explicitly ask for a religion-based exemption from a work rule.

The Justices overturned that ruling, and sent the case back to apply the new legal approach the Court mandated for such cases.

Even if the applicant does not inform the management of a religious practice, the 1964 civil rights law may be enforced against any employer who refuses to make an exception for that worker, when that refusal is based on at least a suspicion or hunch that the worker follows such a practice and wants to keep doing so, even if contrary to company policy.

Justice Antonin Scalia wrote the Court’s main opinion.  In a significant footnote, the ruling left open the possibility that an employer may still violate the law by failing to hire someone who follows a religious practice, even if the employer were completely ignorant of that fact.

The footnote, and its implications, caused one member of the eight in the majority — Justice Samuel A. Alito, Jr. — to object in a separate opinion.  While he supported overturning the appeals court, he did so for his own reasons, rather than those of the Scalia opinion:  he would have made it clear that Abercrombie & Fitch can avoid a damages verdict if it had no knowledge of the young woman’s religious needs.  The retailer does have the option of making that argument when the case returns to the appeals court.

Justice Clarence Thomas dissented alone, supporting the Tenth Circuit’s decision.  Thomas, a former chairman of the EEOC, used his opinion to provide a lengthy essay on the evolution of employment discrimination law as it applied to the need to accommodate the religious beliefs of workers or job applicants.  He said Monday’s decision turns a legal ban on a policy that falls more heavily upon workers of one faith than others, into a ban on intentional bias without proof of an intent to discriminate.

The case grew out of a policy that Abercrombie & Fitch enforces in its clothing stores, which cater to a “preppy” or “casual” look.  Part of that rule is a ban on wearing a cap of any kind for those who work as sales clerks.  When seventeen-year-old Samantha Elauf applied for a sales job at a company outlet in Tulsa in 2008, she was wearing a head scarf as part of her Muslim practice.

Although there is a dispute about what the management knew about the applicant’s faith, the Court found on Monday that it had at least a suspicion that she needed a religious accommodation, and yet refused to hire her.  That was enough, the Scalia opinion said, to potentially make the company liable for refusing an accommodation.

As Justice Scalia put it when he read the opinion from the bench today, this really was a fairly easy and obvious decision. It had been established at trial that Elauf was not hired specifically because of the hijab that she wore to the job interview, an interview that by all accounts otherwise went exceedingly well. This is as clear a case of religious discrimination in employment as if Elauf had been a Catholic who wore a crucifix around her neck to the interview and she wasn’t hired because of that. Discrimination in employment based on religion has been prohibited ever since the passage of the Civil Rights Act of 1964 and the case law and administrative decisions that have been handed down in the five decades since it became law make it clear that what Abercrombie & Fitch did here was simply impermissible under the law.

To the extent there was a legal issue here it involved the question of whether or not the fact that Elauf had informed Abercrombie of her desire for a religious accommodation, but even that wasn’t all that complicated based on the facts of this case.  The testimony at trial had established that, after Elauf’s interview, “higher-ups” in the company made the determination that her hijab would be a violation of the existed dress policy for sales models and that they were aware that the headscarf was part of her religious beliefs. Perhaps even more egregious is the fact that the decision was made not to hire her based solely on these determinations and that nobody at Abercrombie had even bothered to try to contact Elauf to determine if there was some accommodation that could be made that would satisfy their concerns about the dress code. Given these facts, the fact that she had not specifically asked for an accommodation is pretty much irrelevant. Abercrombie made a conscious decision to hire her based on something related to her religious faith, and that’s simply not permissible under the law. In the case below, the jury saw that quite clearly and awarded Elauf $20,000 for the violation. That verdict was overturned on appeal, but thanks to the Supreme Court that verdict will now stand. On a final note, it’s worth pointing out that, subsequent to this case Abercrombie changed its policies to allow hijabs to be worn by Muslim employees serving as sales models.

Simran Jeet Singh notes in a piece at The Washington Post that this decision is more than a victory for Ms. Elauf, it’s a victory for everyone:

As the religious composition of our nation becomes increasingly diverse, the decision impacts how we account for these differences and how guarantees of religious freedom extend to our places of work. This is especially true for people who, like Elauf, identify with minority faith communities and maintain visible articles of faith.

The Court’s decision could shape how we think about pluralism and equal opportunity in this country. Government policies on religious freedom deeply influence what Americans perceive to be acceptable.

Our national debates tend to circle around the right to profile communities on the basis of ethnicity, to monitor places of worship on the basis of religion or to strip the rights of individuals on the basis of sexual orientation.

(…)

This case illustrates how we see ourselves as a society. Current policies on workplace discrimination have gaping loopholes that allow employers to not hire applicants on the basis of their appearance. Therefore, the American workforce does not accurately reflect or leverage the proud diversity of this nation. Having a more diverse cross section represented in the workforce would cut against negative stereotypes that contribute to xenophobia and hate violence targeting minority communities.

This case is unique because it is one of the first high profile employment discrimination cases that involves a member of what could be termed a “minority” religion. If nothing else, the result today stands for the proposition that the hijab is entitled to as much protection under existing law as the yarmulke or the crucifix. And that strikes me as a good thing.

Here’s the opinion:

EEOC v. Abercrombie & Fitch by Doug Mataconis

FILED UNDER: Economics and Business, Law and the Courts, Religion, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Matt says:

    I give Scalia some credit for being consistent on this. Clarence Thomas just continues to prove he’s a right wing Christian hack. If this lady had been a god fearing Christian Mr Thomas would of ruled differently…

  2. CSK says:

    I haven’t read the whole decision, but apparently Thomas partially concurred and partially dissenting.

    There are people upset by this decision, but they happen to be those who believe that freedom of religion means “freedom to be a fundamentalist Protestant.”

  3. Jack says:

    I have no problem with this decision. Let this be a reminder to all employers. Don’t dissuade employees for wearing crosses, don’t fire employees for wearing hijabs, and military, please stop prosecuting those that pray in Jesus’ name.

  4. michael reynolds says:

    @Jack:

    please stop prosecuting those that pray in Jesus’ name.

    Example?

  5. edmondo says:

    I can’t wait to tell my boss tomorrow that my religious beliefs prohibit me from working more than 4 hours a day

  6. Neil Hudelson says:

    @edmondo:

    You might be treading a line there. Wouldn’t risk it. Just follow my lead and state that No Pants Wednesday is a sacred tradition.

  7. rodney dill says:

    @Neil Hudelson: Sounds like you’re discriminating against our canine friends.

  8. Rob Prather says:

    I continue to be a little befuddled at Scalia and other conservatives on the court. I half expect them to say these laws are an abuse of power, but they never do. Thomas, on the other hand, doesn’t befuddle me at all.

  9. OzarkHillbilly says:

    I can’t wait to see how they rule in the (soon to be filed) Hobby Lobby v. (name your religious person) case. You know, where HL has to accommodate the religious beliefs of a person of a faith other than theirs?

    PRETZELS!

  10. Jack says:
  11. Jack says:
  12. michael reynolds says:

    @Jack:

    Do you know what the word “prosecute” means? Because it does not mean firing employees who refuse to perform their job in keeping with the policies of their employer.

    Police department employees, and military employees, are required (as are most employees) to conform to their employers’ policies. Right?

    I mean, let’s say you work at Burger King and you’re a Vegan so you decide to greet customers by saying, “Meat is murder, can I take your order?” You do understand that an employer who fires that employee is not violating his rights to free speech, right? Let alone “prosecuting” him.

    So, let’s try again: show me anyone who has been prosecuted for praying.

  13. al-Ameda says:

    @Jack:

    Don’t dissuade employees for wearing crosses, don’t fire employees for wearing hijabs, and military, please stop prosecuting those that pray in Jesus’ name.

    I do not of any person who has been harassed or fired for wearing a cross in the workplace, do you? And if people in my office openly (audibly) recited prayers to Jesus (or Mohammed) I would definitely object.

  14. Rob Prather says:

    @michael reynolds: yep, Jack’s first example (I didn’t check the others) is a big fail. When 70% of this country identifies as Christian (myself included), I don’t see how there is such a persecution complex among people. You have to really define persecution down to think Christians are persecuted in this country.

    Also, I find it fascinating how much of being on the right these days entails tribalism and cultural signaling.

  15. Slugger says:

    I think the court decided correctly, but it is strange to me that a devout Muslim woman would want to work for this company that clearly works to project an image of partially clad, barely legal hotties.
    Also, I remember the old store on Madison and 45th where they sold fantastic bamboo rods that I could not afford. If I had a time machine, I go back and buy out the whole store circa 1968.

  16. DrDaveT says:

    This is as clear a case of religious discrimination in employment as if Elauf had been a Catholic who wore a crucifix around her neck to the interview and she wasn’t hired because of that.

    Well, no, not really. It does matter whether she wasn’t hired because the scarf is a Muslim thing, or whether she was not hired because the shop uniform is bare heads.

    Should Hooters be required to hire a waitress who is going to refuse to wear the t-shirt on duty? Does it matter whether her refusal is tied to a mainstream religion? I don’t think these questions are quite as straightforward as some of the other posters here seem to think.

    We all agree that a pharmacy has a right to not hire someone who says they won’t fill prescriptions for contraceptives, right? So why isn’t it OK to not hire someone who is going to refuse to follow the company dress code?

  17. Matt says:

    @Slugger: It’s strange to you because you have a grossly inaccurate caricature of what you believe a Muslim is like in your head..

    For the rest of us it’s no different from a Christian, Jew or any other follower of Abrahamic religions…

  18. Xenos says:

    @CSK:

    There are people upset by this decision, but they happen to be those who believe that freedom of religion means “freedom to be a fundamentalist Protestant.”

    More than that, they want the freedom to make everybody else who is not a fundamentalist Protestant a second-class citizen, by making themselves some sort or ideological aristocracy that must always be privileged in all public areas and institutions.

    This is retty revolting when you consider where these peckerwoods come from (ie, leaving the UK because the COE deemed them to be second-class citizens because they rejected the religion of the aristocracy).

  19. lounsbury says:

    @al-Ameda:

    And if people in my office openly (audibly) recited prayers to Jesus (or Mohammed)

    Muslims don’t pray to Mohammed mate.

  20. MarkedMan says:

    I find this ruling interesting. Normally the Court in general, and of course the Republican majority, will twist themselves in knots to side with employers. So, for example, they have ruled in the past that women only have so much time to complain about unfair salaries – even if that time expired before they knew about it. Yet here they rule that even though the woman didn’t say anything, it was not credible that they didn’t suspect it was for religious reasons. In other words – common sense.

    So we now know that for this Court, religion trumps business. And everything trumps the working stiffs…

  21. James Joyner says:

    I’m with @DrDaveT with regard to what our public policy should be. It strikes me that Abercrombie (and, yes, Hooters) should absolutely be allowed to require a certain look for its employees so long as the prohibition isn’t motivated by religious animus. If they want everyone bareheaded and in preppy clothing, they should be allowed to ban headscarves consistent with that. And, yes, they ought be allowed to ban the external wearing of a crucifix or any other religious or otherwise expressive symbol.

    Presumably, Scalia believes this is “easy” because Federal law is clear on what our public policy actually is.

  22. MarkedMan says:

    @James Joyner: Interesting point. My guess is that in a lesser court, there might be an element of “you are blatantly lying when you pretend you didn’t understand the hijab wasn’t just a fashion scarf. I am going to punish you for disrespecting the court by lying to us”. Although I think that is appropriate in a lesser court, the Supremes should rise above.

  23. Mikey says:

    @Rob Prather:

    When 70% of this country identifies as Christian (myself included), I don’t see how there is such a persecution complex among people.

    Christianity is about persecution and martyrdom. Since there is really zero persecution of Christians in America today, they have to make it up. That’s why bog-simple stuff like requiring basic adherence to an employer’s reasonable policies gets blown up into something that can get them gnashing teeth and rending garments.

  24. Jack says:

    @michael reynolds:

    Do you know what the word “prosecute” means?

    Do you know what the words Courts Martial mean?

  25. Jack says:

    @Rob Prather:

    You have to really define persecution down to think Christians are persecuted in this country.

    I never used the word persecute, you did.

    Military personnel, especially clergy, are being prosecuted for praying in Jesus’ name.

  26. Jack says:

    @al-Ameda:

    And if people in my office openly (audibly) recited prayers to Jesus (or Mohammed) I would definitely object.

    You are in the military and have the occasion for clergy to be around your workspace, do you?

  27. al-Ameda says:

    @Jack:

    You are in the military and have the occasion for clergy to be around your workspace, do you?

    What does that have to do with normal workplace and employment practices. Frankly, and obviously, the military is not a normal workplace. Even so, I say that military personnel should not be involved in religious proselytizing activities.

    Do you really believe that the workplace is an appropriate venue for open prayer and religious observance? I repeat: if a colleague insisted on praying aloud everyday in our offices I would definitely speak up.

  28. KM says:

    @Jack:

    If you are referring to former Lance Cpl. Monifa Sterling, you’re barking up the wrong tree. Soldiers do not and never had the same rights, privileges and freedoms civilians have – something they are blatantly aware of when given a direct order. A solider who cannot follow a simple direct order such as “don’t post that repeatedly on your computer” is in major violation. She didn’t try to take it further up the chain of command, she didn’t try to accommodate the order and still have her “inspiration”, she didn’t engage the law to win her cause – she willingly broke the law and threw away a 20 for a damn quote.

    Bad solider and a bad example to use. She was prosecuted for failing to meet the most basic tenant of the military service: following legal orders as stated by a higher ranking officer.

  29. Jack says:

    @al-Ameda:

    religious proselytizing activities

    Proselytizing or actively trying to get someone to change their religion or adopt the one you prefer and praying in Jesus’ name are two different things.

    Military chaplains attend seminary school and are recruited into the military because they are, in fact, religious members. To tell this person that he or she can no longer pray in Jesus’ name and to prosecute them for doing so, is ridiculous.

  30. Slugger says:

    @Matt: I apologize if my unfamiliarity led to being insensitive. My comment was more about A&F which clearly markets itself in an erotic manner. Personally, I have been close to one Muslim who was from Kashmir and very secular. I have been acquainted with women from Egypt, Iran, and Bosnia, but I was not close with any of them; however, none of them wore the hijab. I thought that the hijab signals adherence to ideas of modesty that would be fine when working at a Banana Republic but seem strange to me at an A&F. Likewise, I’d be surprised to see a Hasidic woman or a Nun working at A&F.
    I guess the world is bigger than my understanding. I do agree with the court ruling as I said.
    Matt, do you have a good understanding of Islamic rules about modesty? I saw a woman the other day wearing a hijab with eye shadow, mascara, and lipstick that looked quite attention getting; is this a contradiction?

  31. KM says:

    @Jack:

    Military chaplains attend seminary school and are recruited into the military because they are, in fact, religious members. To tell this person that he or she can no longer pray in Jesus’ name and to prosecute them for doing so, is ridiculous

    Name names, man and cite your sources. What chaplains?

  32. Jack says:

    @KM: I never referred to former Lance Cpl. Monifa Sterling. See the links I posted above.

  33. Jack says:
  34. KM says:

    @Jack:
    http://www.christiannewswire.com/news/275958004.html -> Virginia State police, not military. It has a quote from Former Navy Chaplain Gordon James Klingenschmitt (who is actually A CO Representative but that doesn’t have the emotional impact hey are going for) “weighing in” but still not about the military. And considering Klingenschmitt demanded his own court-martial in protest of a restrictive prayer policy about Chaplains’ freedom to pray at a public event while wearing their Navy uniform, he’s a strange choice. You ask to get court-martialled, don’t be surprised you actually get court-martialled and lose. He picked that fight to try and make an example out of himself as his objections were that it was too “Unitarian” . Self-martyrdom, not Big Gov out to crush the little guy

    http://www.cbn.com/cbnnews/politics/2013/June/House-Panel-Rejects-Military-Chaplain-Prayer-Limits/ -> About removing limits, not active prosecution or court-martials

    So all the links are either about Klingenschmitt, who insisted on his own prosecution, or about removing restrictions. Not seeing the issue here of the military actively seeking out and prosecuting Christian Chaplians.

  35. Jack says:

    @KM:

    You ask to get court-martialled, don’t be surprised you actually get court-martialled and lose.

    A commander only takes something to a Courts Martial that he reasonably believes he can win. The fact remains, his leadership was willing to courts martial him to prevent him from praying in Jesus’ name. Being in uniform does not restrict you religious freedom.

  36. KM says:

    @Jack:

    Being in uniform does not restrict you religious freedom.

    Wow, clearly someone’s never served. Yes, being in uniform restricts your EVERYTHING compared to your average civilian – something you are made aware of when you sign that dotted line and every moment after till you are discharged or die. My god, go speak to an actual military member and ask them about their rights. Prepare to be surprised. Are you one of those loons who screams “Support the Troops!!” without knowing a damn thing about the troops in question?

  37. Jack says:

    @KM: I spent 20 years in the military. Did you? I can and did have a bible on my desk. I can and did say prayers in Jesus’ name at Thanksgiving events. I can and did have bible quotes on my desk. I can and did wear a cross under my uniform garb.

    Speak of which you know.

  38. KM says:

    @Jack:

    The fact remains, his leadership was willing to courts martial him to prevent him from praying in Jesus’ name.

    You know, if I had a subordinate who was actively demanding a court-martial and being a right pain in the ass about it, I’d be more then happy to grant their wish. If he’s in violation of regs (which he was and admitted it) and out agitating to be a martyr for his cause, why are you blaming the commander for doing what Klingenschmitt was obviously trying to accomplish? You do know what happens to martys, right? Hint: it doesn’t end well for them.

  39. Mikey says:

    @Jack: A commander can–and often does–offer non-judicial punishment. At that point the servicemember can accept it, or request the matter go to a court-martial.

    Anyway, Klingenschmitt wasn’t court-martialed for praying in Jesus’ name, he was court-martialed for appearing at a political protest in his uniform, something that is specifically prohibited to military members. He disobeyed a lawful order. So your assertion he was “prosecuted for praying in Jesus’ name” is demonstrably false.

  40. Jack says:

    @Mikey:

    political protest in his uniform

    It was not a political protest. It was a public event.

    He was not found guilty of breaking a law, he was found guilty of breaking a Navy policy….a policy Congress later rescinded (SECNAVINST 1730.7C) which had been enforced against Klingenschmitt, restoring rights for all Chaplains.

  41. Mikey says:

    @Jack: @Jack:

    It was not a political protest. It was a public event.

    Bullshit. It was a political protest. He disobeyed a lawful order. Period. You are trying to spin it into something it’s not.

    I did my 20, too. I know how this stuff works.

  42. Jack says:

    @Mikey: He was Courts Martialed NOT for wearing his uniform, he was Courts Martialed for disobeying SECNAVINST 1730.7C, which you can find below.

    http://www.usa-federal-forms.com/navy/3-pdf-forms_pubs/neds.daps.dla.mil/Directives/01000%20Military%20Personnel%20Support/01-700%20Morale,%20Community%20and%20Religious%20Services/1730.7C.pdf

    He was told he could not pray in Jesus’ name. Period. He was supposed to remain sectarian and violated the below.

    Other than Divine/Religious Services, religious elements for a command function, absent extraordinary circumstances, should be non-sectarian in nature.

    As a condition of appointment, every RMP must be willing to function in a pluralistic environment in the military, where diverse religious traditions exist side-by-side with tolerance and respect.

    He was told he may no longer pray in Jesus’ name. Period.

  43. KM says:

    @Jack:

    On March 30, Klingenschmitt wore his uniform at a news conference in Lafayette Square in which former Alabama chief justice Roy S. Moore and others decried President Bush’s lack of action on the chaplain’s complaints. Klingenschmitt maintained that his only participation in the event was to offer public prayers and that he had prior written permission to wear his uniform when conducting “a bona fide worship service or observance.”

    During court-martial proceedings this week at the naval base in Norfolk, a military prosecutor, Cmdr. Rex A. Guinn, said Klingenschmitt had received clear orders from his superiors not to wear his uniform at media events or political protests. The event in Lafayette Square, he contended, was not a true worship service or observance.

    On Wednesday, a jury of five Navy officers found Klingenschmitt guilty of one misdemeanor count of disobeying a lawful order. Yesterday, the same jury determined his punishment: a formal reprimand and forfeiture of pay at the rate of $250 a month for the next 12 months.

    From 2006. A protest and he wore his uniform. Currently reviewing SECNAVINST 1730.7C but a brief review shows no mention of “Jesus”. Will get back to you once I’m done.

  44. Jack says:

    @Mikey: “On March 30, Klingenschmitt wore his uniform at a news conference in Lafayette Square in which former Alabama chief justice Roy S. Moore and others decried President Bush’s lack of action on the chaplain’s complaints. Klingenschmitt maintained that his only participation in the event was to offer public prayers and that he had prior written permission to wear his uniform when conducting “a bona fide worship service or observance.“”

    http://www.washingtonpost.com/wp-dyn/content/article/2006/09/14/AR2006091401544.html

  45. Rafer Janders says:

    @Jack:

    Being in uniform does not restrict you religious freedom.

    What?!?! Um, yes, it most certainly does. If you think that your religious freedom requires you to wear long hair and a beard and to dress in a robe and sandals, to abjure violence, and to not hold a steady job while you wander around preaching peace and freedom and turning the other cheek, being in uniform will most certainly restrict that.

  46. Ebenezer_Arvigenius says:

    @Jack: Sounds to me like he considered himself to be a bit of a barrack-room lawyer and got burned by being too clever by half.

  47. Mikey says:

    @Jack:

    Klingenschmitt maintained that his only participation in the event was to offer public prayers and that he had prior written permission to wear his uniform when conducting “a bona fide worship service or observance.“

    Given the event was not “a bona fide worship service or observance,” but a politically-motivated media event, it’s quite obvious Klingenschmitt disobeyed a lawful order.

    That’s what he was court-martialed for, not for violating the SECNAVINST.

  48. Jack says:

    @Rafer Janders:

    If you think that your religious freedom requires you to wear long hair and a beard and to dress in a robe and sandals, to abjure violence, and to not hold a steady job while you wander around preaching peace and freedom and turning the other cheek, being in uniform will most certainly restrict that.

    Could you be more obtuse? I don’t know any religions that demand that.

    The military has already relaxed its dress codes to allow turbans, scarves, yarmulkes, and beards for religious reasons.

    http://www.huffingtonpost.com/2014/01/23/pentagon-religious-clothing_n_4651050.html

  49. Jack says:

    @Mikey:

    Given the event was not “a bona fide worship service or observance,” but a politically-motivated media event, it’s quite obvious Klingenschmitt disobeyed a lawful order.

    His participation was the “bona fide: worship part of the observance.

    Does the military now get to dictate what is or is not a religious observance?

    And remember, “Congress later rescinded (SECNAVINST 1730.7C) which had been enforced against Klingenschmitt, restoring rights for all Chaplains.” So, apparently there was a problem with it.

  50. Mikey says:

    @Jack:

    Does the military now get to dictate what is or is not a religious observance?

    It doesn’t have to dictate what’s entirely obvious.

  51. Jack says:

    @Mikey: I have seen chaplains provide a Religious Observance at: Change of Command Ceremonies, Grand Opening Ceremonies, Senior Enlisted Induction Ceremonies, Military Graduation Ceremonies, Dining-Ins, Dining-Outs, Ship Christenings, etc. None of these gatherings were a traditional “Worship Service” and the Chaplains attendance was primarily for a blessing (religious observance)…just like Klingenschmitt’s attendance at the public event for which he provided prayers.

  52. Mikey says:

    @Jack:

    His participation was the “bona fide: worship part of the observance.

    This was Klingenschmitt’s assertion. The court-martial saw through like the BS pretext it was.

  53. Mikey says:

    @Jack: Well, then, it should have been pretty simple for the court-martial to acquit him, right?

    But they didn’t, because they knew the whole thing was about him to begin with. It was a public media event, not a military occasion at which a chaplain would be expected to offer an invocation.

  54. Jack says:

    @Mikey: And yet, it was an invocation…which is a religious observance–during which he had prior permission to wear his uniform.

    The mere fact that the Court Martial found him guilty says more about the prosecution and the board members than his actions.

  55. Mikey says:

    @Jack: The invocation was a small religious part of an overall non-religious event, and an event of a type he had been specifically ordered not to attend in uniform. He tried to loophole his uniform into what was essentially a political protest and lost.

    The mere fact that the Court Martial found him guilty says more about the prosecution and the board members than his actions.

    Of course, the military’s anti-Christian persecution complex at work! Why didn’t I see it before?

    Please, spare me. He was found guilty because he WAS guilty.

  56. Rafer Janders says:

    @Jack:

    Could you be more obtuse? I don’t know any religions that demand that.

    I do. It’s my religion, and my religious faith demands it. Now, supposing that I enlist tomorrow in the Army, they have to allow me to wear keep that hair, wear those robes, and walk around preaching that, don’t they? According to you, that is?

  57. Rafer Janders says:

    @Jack:

    I have seen chaplains provide a Religious Observance at: Change of Command Ceremonies, Grand Opening Ceremonies, Senior Enlisted Induction Ceremonies, Military Graduation Ceremonies, Dining-Ins, Dining-Outs, Ship Christenings, etc. None of these gatherings were a traditional “Worship Service” and the Chaplains attendance was primarily for a blessing (religious observance)…just like Klingenschmitt’s attendance at the public event for which he provided prayers.

    Those events were all non-partisan, non-political military events for which a chaplain’s attendance in uniform is entirely proper and expected. The Moore presss conference, however, was a partisan, political, civilian event at which a military chaplain’s attendance in uniform, thereby giving the false imprimatur of military support, was entirely improper.

    It was the attendance in uniform at a political event, not the prayer qua prayer, that was the real issue.

  58. Rafer Janders says:

    @Jack:

    And yet, it was an invocation…which is a religious observance–during which he had prior permission to wear his uniform.

    The US Armed Forces say he didn’t.

  59. KM says:

    @Jack:
    You’re doing an awful lot of tap-dancing around the main point. All the ceremonies you mentioned were either military in nature or military-affiliated. Thus, it is entirely appropriate the military dictates what their employee (ie the chaplain) does or does not do on company time at a company function (ie uniform and whether its a command function or Divine/Religious service for example). Where he was went this went down? NOT a military function but an expressly civilian and political in nature one. He should have been off-the-clock and not in official garb at the very least as since not doing so would have signified he was there under the auspices of the military – he was not, was explicitly told not to do it and got slapped for it when he dared them to do something about it. He fought the law and the law won.

    Klingenschmitt got burned because he wanted his at-work persona/authority as represented by the uniform at a decidedly not-work venue against a direct order. What, he couldn’t be a religious officiant unless he was in his dress uniform? Why did he have to be a “military chaplain” at that point instead of just someone invoking God’s blessing? Jesus does not care what clothes you wear so it really didn’t matter.

  60. Lenoxus says:

    Jack:

    Rafer Janders:

    If you think that your religious freedom requires you to wear long hair and a beard and to dress in a robe and sandals, to abjure violence, and to not hold a steady job while you wander around preaching peace and freedom and turning the other cheek, being in uniform will most certainly restrict that.

    Could you be more obtuse? I don’t know any religions that demand that.

    Nobody spoil it by telling him the reference, please…

  61. al-Ameda says:

    @Jack:

    Military chaplains attend seminary school and are recruited into the military because they are, in fact, religious members. To tell this person that he or she can no longer pray in Jesus’ name and to prosecute them for doing so, is ridiculous.

    So, who is telling a Chaplain that he cannot pray? Ummm …. That would be no one.

  62. Mikey says:

    @Rafer Janders:

    The Moore presss conference, however, was a partisan, political, civilian event

    Indeed it was, and Klingenschmitt’s prayer didn’t transform it into a bona fide religious event.

    The assertion his little piece of it could be considered such even if the rest wasn’t is risible.

  63. Matt says:

    @Slugger: The thing is the “rules’ come down to personal interpretations. This occurs in every religion and is how you end up with Buddhists being terrorists. I mention the Buddhist terrorists because the one thing that would be completely against the teachings of Buddha would be killing innocent people in the name of Buddha. Somehow though those people manage to convince themselves it’s all fine under their religion.

  64. stonetools says:

    @James Joyner:

    Gonna agree with James here. I’m a bit worried with the idea that religion trumps everything, including even corporate dress policy. Suppose a woman shows up appying for a waitress position at Hooters wearing an abaya. Can Hooters then turn her down, if she says she can’t wear the Hooter’s uniform on religious grounds?
    While this might seem frivolous ( and I’m not a Hooters fan), it seems they should be allowed to execute their business plan.