[mariviw]

This is a question I have for my AP Government class

A Muslim high school student wears her head scarf to school even though the school’s policy bans all head covering. Our student argues that it is part of her religious belief that her head must be covered at all times. She is expelled after refusing to remove the scarf. Is the school violating the Free Exercise Clause? Use an appropriate Supreme Court decision to support your answer.

I am going to answer the questing according to how the book wants me to answer it, which is that it is a violation. But is this situation an actual violation of the Free Exercise Clause?

[woods]

Mine is doubtless considered an old-fashioned answer (by the way, I think this is more a question for the U.S. to 1877 course, since it’s an issue of constitutional interpretation), but I would say no. No one imagined that the First Amendment covered a local school board. It reads “Congress shall make no law….”

[gutzmank]

The case you want is Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In that case, the Supreme Court said that although states may accommodate religious practices and beliefs, they do not have to do so. The First Amendment’s requirement is that they not target those beliefs/practices, but they do not have to accommodate them. A neutral law neutrally applied may have a disparate impact on religious groups, but that is permissible.

[derosa8]

But according to Dr. Woods’ point, wouldn’t it be unconstitutional for the court to strike down a local law that targeted specific religious groups? For example, suppose a policy banning head-covering was spelled out with the intention of deterring Muslim students from looking the part.

Unless you adopt the view of incorporating the 1st Amendment against the states, it does not seem constitutionally consistent (under an originalist view) for the Feds to strike down such a law. No?

[woods]

John, I take Prof. Gutzman to be saying that even under the present (incorporationist) understanding of the First Amendment, the federal government would not strike down such a law.

[gutzmank]

Tom understood me precisely.

[Author]

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