Monday, April 11, 2011
Adventures in Formal Neutrality
France's ban of the face-covering veil (niqab) has taken effect, with some predictable early returns.
This line of the story caught my eye in particular: "The law is worded to trip safely through legal minefields: The words "women," ''Muslim" and "veil" are not even mentioned. The law says it is illegal to hide the face in the public space." Would a measure like this pass muster in the United States under the Free Exercise Clause (set aside RFRA and other statutes), assuming the wording of the ban was formally neutral in this fashion? I take it that any case advancing the right to wear the veil would not be a hybrid. And I'm also not sure that it rises to the level of the direct targeting in Lukumi Babablu. Do you think so?
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/04/adventures-in-formal-neutrality.html
Comments
You can follow this conversation by subscribing to the
comment feed
for this post.
It's been a while since I've studied these issues, but it seems to me that assuming (1) no hybrid right is involved and (2) Lukumi's direct targeting does not apply, where the ban would be problematic is under the "generally applicable" prong of Smith. Specifically, its constitutionality would depend on whether there are any exemptions from the ban, and if so, for whom.
The last I read, lower courts appeared split on whether the "generally applicable" prong of Smith required religious reasons for exemptions to be treated as well as the worst treated secular reasons for exemption, or as well as the best treated secular reasons for exemption. Thus, assuming the French ban has secular exemptions (i.e. emergency workers wearing masks, etc.), it's constitutionality under the US Free Exercise Clause would depend on whether "generally applicable" requires potential religious exemptions to be treated as well as the emergency worker exemptions, or as well as some other secular reasons presumably not exempted from the ban (i.e. wearing costume masks on Halloween). If you read "generally applicable" to mean religious exemptions be treated as well as the best treated secular reason for exemption, then failing to provide an exemption for wearing the niqab would render the ban unconstitutional. However, if you gave "generally applicable" the alternate reading, failing to exempt the niqab would not hurt its constitutionality.
But like I said, it's been a while since I have followed the doctrinal development of the Free Exercise Clause, so all of this could be moot.