Religious Reasons and Cultural Reasons

What is the legal distinction between a religious reason and a cultural reason when, say, one seeks an exemption from a generally applicable law?  For example, if a circumcision ban were passed in Town X, but Town X included a provision for religious exemption, how would Town X know deep down whether the reason that someone wanted to circumcise their child was really religious as contradistinguished from cultural.  What criteria would Town X use?  It's easy enough if the basis for the requested exemption shows up in the (or a?) core text of the religion, but what if it is more in the nature of a historical accretion to a religious tradition?  Or a (contested) interpretation of the core text?  I can understand the reason that people want to rely on the distinction between religion and culture, because if there is no distinction at all, then protections for religious liberty come to encompass far too much.  But my own view is that the distinction is often at best a matter of degree or perhaps of emphasis, rather than a difference in kind, and that it is a mistake to make it bear any serious weight. 

Some of these problems appear in an interesting recent district court decision, EEOC v. Abercrombie and Fitch, where the plaintiff, a young Muslim woman, alleged that she was not hired as a sales associate because she wanted to wear her headscarf, which (said A&F) did not comport with its "Look Policy."  Likewise, she was not granted an exemption from the Policy.  The feature of the case that interested me most is A&F's claim that the plaintiff wanted to wear the head scarf for cultural, rather than religious, reasons.  This looks like it's an important component of the legal analysis that courts have to undertake -- if it's religious, the discrimination claim survives; if it's cultural, no dice.

A&F relied on an Islamic expert, who testified that the headscarf can be worn "for many different reasons, including cultural, religious, or nationalistic reasons."  (16 n.7)  It also pointed out that the Qur'an does not explicitly require women to wear headscarves, so that must mean that the plaintiff's reason was cultural rather than religious.  Yet relying on the plaintiff's testimony, the court seemed very sure that she wore the headscarf for religious as opposed to cultural reasons.  On the latter point, the court stated that "the broad definition of 'religion' does not require that a belief have a textual basis."  Even further, the court cited to the following passage from a Seventh Circuit decision indicating that for a court to pronounce on what is a religious reason is itself problematic from an entanglement perspective:

[T]o restrict the act to those practices which are mandated or prohibited by a tenet of the religion would involve the court in determining not only what are the tenets of a particular religion, but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion.  We find such a judicial determination to be irreconcilable with the warning issued by the Supreme Court in Fowler v. Rhode Island, 345 U.S. 67, 70, 73 (1953) ("[I]t is no business of courts . . . to say what is a religious practice or activity . . . .").

This is where I have difficulties.  The way that the test is framed, it is in fact exactly the business of courts to say what is a religious practice or activity.  How could it be otherwise?  What courts need to determine -- in fact, the very basis of A&F's challenge here -- is whether this plaintiff's practice of wearing a headscarf was religious or cultural.  And, so the seemingly hard-edged test seems to go, if the decision is cultural, then plaintiff loses.  The plaintiff claimed here that her own, personal decision to wear the headscarf was based on the "Qur'an's teaching that women must display modesty."  (17)  This connection with the religious text, as well as the plaintiff's testimony about her personal feelings, were good enough for the court to conclude (good enough for the court to grant the EEOC summary judgment on the question of A&F's liability) that her desire to wear the headscarf was religious, not cultural.  But what exactly is the nature of this finding?  That in the plaintiff's view, a commitment to modesty could be traced to the Qur'an?  That plaintiff herself believes it to be a religious commitment, and that's good enough for a court leery of inquiring too deeply?

All of this suggests to me that this test is not really at all about any hard distinction between religion and culture (one which courts, in any event, are reluctant to make because another value, excessive entanglement, clashes head on with the entire exercise).  Another question -- even if it is possible to distinguish between a religious reason and a cultural reason, what if one determines that a claimant believes a certain practice is important for both sorts of reasons and is having a hard time keeping the categories conceptually pure?  Should a court decide how much the practice is supported by religious reasons and how much by cultural reasons?  Maybe by assigning percentages?  Or in a looser way, by making a judgment about which category of reason outweighs the other?  If there is a serious distinction to be made between the religious and cultural spheres (and perhaps there is), it may not be one which law is at all well-equipped to make without the risk of misjudgment, misunderstanding, or other sorts of intolerable costs.  

Yet somehow the rhetoric of distinguishing between religion and culture continues to permeate our discussion of these issues, even our legally binding discussions.  It's the kind of distinction which is easy to state as if it were clear, and maybe it is even useful in some skin-deep, throw-away-line kind of way.  It's a rhetorically appealing device which trades sub silentio on a very particular view of the nature of religion.  But scratch at it just a little, and it begins to disintegrate.