The United States of America has long been a nation that prides itself on the protected freedoms that it provides for its citizens. It is, after all, often hailed as “the land of the free.” Under the First Amendment of the U.S. Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” While the Founding Fathers guaranteed a protection of religious freedoms for all Americans, a huge hole was left spilling over with the seemingly endless supply of unanswered questions regarding the scope of these freedoms and the ability of the government to restrict or rule on any such rights. Since the ratification of the Bill of Rights in 1791, the Supreme Court has been attempting to fill this hole in the understanding and implementation of the First Amendment.
To be able to understand and discuss the changing interpretations of the First Amendment, it is crucial to discuss the doctrines of free exercise and the Establishment Clause that make up the basis of religious freedom. The section of the First Amendment that addresses religious freedom can be broken down into two parts, the Establishment Clause and the Free Exercise Clause. The Establishment Clause, reading, “Congress shall make no law respecting an establishment of religion…” 1 forbids the government from establishing an official religion. It also prohibits the government from preferring one religion to another or from preferring religion to non-religion and vice-versa. The second half of this section, “…or prohibiting the free exercise thereof…” 1 makes up the Free Exercise Clause, which aims to protect the right of American citizens to freely practice and participate in any religion they so choose.
Initially, the implementation and scope of religious freedom in the United States had been relatively ignored as no case came forward to challenge this First Amendment right. The first case to closely examine religious freedom, specifically the Free Exercise Clause, was Reynolds v. United States in 1879, nearly 100 years after the ratification of the First Amendment. This case dealt with a federal law banning polygamy and its confliction with Mormon religious practices of polygamy. The question was whether or not a man could be prosecuted for polygamy when it was in accordance with his religious practices, even though it was against federal law. In hearing this case, the Court had to contemplate the future implications of their ruling. It was feared that if the Supreme Court did not maintain the prosecution of Reynolds for his polygamy it would be providing protection for all sorts of religious practices, including extreme rituals like human sacrifice and be an opening of Pandora’s box of sorts.
Ultimately, the Justices ruled in favor of maintaining Reynolds’ conviction, claiming that the Free Exercise Clause prohibited the government from regulating religious belief, but it did allow the government to regulate practices that were crimes or legal actions, such as marriage. According to the Court, "Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices." A later case in 1990, Employment Division v. Smith, regarding the denying of unemployment benefits to an individual fired for smoking peyote as part of religious practice, would also uphold the idea that the Free Exercise Clause does not protect individuals from obeying the law.
Relatively untouched for another 61 years, the next case to deal with religious freedom, Cantwell v. Connecticut (1940), lead the Court to begin applying the Free Exercise Clause to the states and saw the establishment of an absolute freedom of belief. This absolute freedom of belief was a protection that served to prohibit the government from answering questions regarding the validity of religious truths. Not long after the Free Exercise Clause had been applied to the states, a ruling in Everson v. Board of Education (1947) instituted the application of the Establishment Clause on the states as well. Being able to apply these clauses to the states not only prohibited the establishment of a national religion but also of statewide religions, and ensured that citizens could practice whatever religion they chose within their state borders.
Six years following Everson, the United States saw the establishment of the Warren Court in 1953, along with the adoption of a more expansive view of the Free Exercise Clause. In the sixties, Sherbert v. Verner (1963) created the Compelling Interest Test. In this case it was ruled that forcing an individual to abandon their religious beliefs in order to receive benefits was in violation of the Free Exercise Clause. The Compelling Interest Test served as a means to determine the constitutionality of a law by balancing the interest of the government against the right to freedom of the individual. A law would only be upheld if the government could prove a compelling interest strong enough to outweigh the individual. The creation of the test was applied to the religion clauses of the First Amendment, demanding that religious conduct be accommodated unless a government was able to show a compelling interest.
Another notable contribution to the interpretation of religious freedom involved the case of Lemon v. Kurtzman in 1971. In an 8-1, the Court ruled that Pennsylvania's Nonpublic Elementary and Secondary Education Act, allowing the Superintendent of Public Schools to reimburse private schools (which were mostly Catholic) for the salaries of teachers who taught in these private schools, was in violation of the Establishment Clause and therefore unconstitutional. This court case served as a major ruling in the interpretation of the Establishment Clause, stating that for a law to be considered constitutional under the Establishment Clause, it: must have a significant secular purpose, must not advance or inhibit religion, and must not result in an “excessive entanglement” of government and religion. These three conditions together are referred to as the Lemon test.
Most recently, 2015 saw a major decision by the Supreme Court regarding the entanglement of religious beliefs and its effects on employment. In 2008, Samantha Elauf, a 17 year old in Tulsa, Oklahoma was applying for a job at her local Abercrombie & Fitch. When interviewed, Elauf was wearing a headscarf for reasons unspecified. Heather Cooke, the interviewer, was impressed with Samantha, but also had some concern over the headscarf. Cooke reported to the manager that Elauf was wearing a scarf during the interview, presumably for religious purposes, but the manager of the store said that employees were not permitted to wear hats at work (due to the company’s “Look Policy”), so Samantha was not to be hired. Catching wind of this, the EEOC decided to sue Abercrombie & Fitch on Elauf’s behalf, and this resulted in a federal district court rewarding Samantha $20,000 in damages. The 10th U.S. Circuit Court of Appeals later reversed the decision of the federal district court and ruled in favor of Abercrombie & Fitch stating that Elauf did not provide her prospective employer with information about her need for an accommodation. The case then went to the Supreme Court.
The key players in this particular case, each bringing their own unique perspectives to the table, were the Council on Islamic-American relations, CATO, the EEOC, and the Chamber of Commerce. In this trial the Council on Islamic-American relations sided with the EEOC and Elauf, and CATO and the Chamber of Commerce’s arguments were in favor of Abercrombie.
In defense of Samantha Elauf, the EEOC asserted that Abercrombie & Fitch was in violation of Title VII of the Civil Rights Act of 1964 by refusing to hire Elauf on the basis of her headscarf. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers “…based on race, color, religion, sex, or national origin.” By this token, the EEOC believed that not hiring Samantha based on the appearance of her headscarf, which Heather Cooke assumed to be an outward representation of religion, was discrimination hinged upon religion. The EEOC asserted that the actual knowledge standard, requiring that employees provide explicit awareness of such personal information, is not the proper rule in dealing with religious accommodations.
Supporting the argument presented by the EEOC, the Council on Islamic-American relations implored that the Court should renounce the actual knowledge rule. The Council believed that the actual knowledge rule placed “…unreasonable burdens on individual job candidates and employees who outwardly display their religion through dress and grooming practices.” They believed that the responsibility to predict a need for religious accommodation with respects to dress or grooming fell on workplaces and employers, as these institutions are more familiar with their rules and policies than potential employees would be. Furthermore, the Council on Islamic-American relations made the claim that the actual knowledge rule would effectively counter Title VII of the Civil Rights Act of 1964 and ultimately permit discrimination by “…allow[ing] more employers to engage in facial discrimination against religious employees and applicants without any legal consequences.”
On the opposite side of the argument and supporting Abercrombie & Fitch were both CATO and the Chamber of Commerce, but their reasoning took different approaches. CATO asserted that employers could not be held responsible for violating Title VII without having actual, solid knowledge of the potential need for a religious accommodation. Identifying the need for and requesting religious accommodation should thus fall on the employee, argues CATO, as it is the employee whom has a richer knowledge of the religion and can therefore better identify conflicts their religion may have with the employers. “Employers are not mind-readers.” They “…shouldn’t have to rely on crude stereotypes or pry into employees’ personal lives,” CATO continues. Further supporting the notion that employees must provide their employers with actual knowledge of a conflict between workplace rules and religious practices, CATO pulls on the familiarity of the actual knowledge standard. It is, they assert, a widely known rule by employers, and one that is perfectly capable of protecting employees’ beliefs or needs and is successfully utilized in ADA-accommodation situations as well. Additionally is the fact that the EEOC dismisses the actual knowledge rule as a proper one but declines to give an acceptable alternative to the problem.
Separate from CATO, the Chamber of Commerce’s argument is rooted in the claim that the concept of intentional discrimination under the provisions of Title VII, has been limited to discrimination due to a protected trait, not due to implementing a neutral policy that has discrimination as an accidental side effect. They argue that it was not the intention of Abercrombie & Fitch to be discriminatory in nature. The company was applying a neutral “Look Policy,” based on maintenance of a consistent uniform, that it uses on every single employee.
The case given by the EEOC suggests that
With respect to the Free Exercise Clause, both CATO and the Chamber of Commerce’s arguments