THE SIKH Punjabi TURBAN: POST-911 CHALLENGES TO THIS ARTICLE OF FAITH
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Despite the opposition, the government supports visible minorities in their integration
into Canadian society.
286
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After 9/11, the Canadian courts have ruled consistently with this approach. The
Supreme Court of Canada concluded that Sikh students can carry kirpans to schools.
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The Court specifically held
an absolute prohibition against wearing a kirpan infringes the freedom of
religion of the student in question under [section] 2(a) of the Canadian
Charter of Rights and Freedoms [hereinafter Canadian Charter]. The
infringement cannot be justified under [section] 1 of the Canadian Charter,
since it has not been shown that such a prohibition minimally impairs the
student’s rights.
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Similarly, a postsecondary student in Quebec, Canada, “was told to remove her
hijab at College Jean-Eudes[.]”
289
In response, the Quebec Human Rights Commission
ruled that “religious schools admitting students from more than one faith must make
reasonable efforts to accommodate all their pupils’ beliefs”—irrespective of whether they
are public or private institutions.
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A 2006 shooting spree in French-sp eaking Montreal, Canada by an immigrant
Sikh challenged Canada’s multicultural ideal. On September 16, 2006, Globe and Mail
columnist Jan Wong argued that the young man killed because of an alienation from
Quebec’s francophone society, which explains not only this rampage, but also others that
occurred in Quebec’s recent past.
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The Montreal Gazette rejected Wong’s argument in
clear terms:
The foolishness of her deduction was confirmed by the lack of evidence to
support it. In none of the cases . . . was there even the slightest tangible
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See M. Neil Browne & Michael D. Meuti, Individualism and the Market
Determination of Women’s Wages in the United States, Canada, and Hong Kong, 21
LOY. L.A. INT'L & COMP. L.J. 355, 383-386 (July, 1999); Jason R. Wiener, Note,
Neighbors up North: Nunavut’s Incorporation in Canada as a Model for Multicultural
Democracy, 28 SUFFOLK TRANSNAT'L L. REV. 267, 297-98 (2005).
287
Multani v. Comm’n Scolaire Marguerite-Bourgeoys, supra note 21.
288
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289
Private schools can reject hijab, MONTREAL GAZETTE, Oct. 5, 2005, at A5.
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Id.
291
Jan Wong, Get under the desk, GLOBE AND MAIL, Sept. 16, 2006, at A8.
51hint that their actions were spurred by alienation from mainstream Quebec
society. . . . In each case the ethnicity factor was purely incidental.
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C. The State of the Multicultural Union
In the United States, “as in other industrialized democracies, we are seeing the
‘return of assimilation.’”
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In Detroit, Michigan, home to a sizable Muslim population,
a Muslim woman’s case was dismissed after she refused to remove her veil.
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The
judge, Paul Parah, explained that he needed to see the woman’s face in order to assess her
truthfulness
295
, an argument similar to the one made by Britain’s Jack Straw, who
claimed that the Muslim veil hindered effective communication.
A court in Florida upheld a state law requiring an individual’s full face to be
shown on his or her driver’s license photo.
296
A Muslim woman who wanted to wear her
veil for her license photo, sued, arguing in the main that the state law infringed upon her
First Amendment right to free exercise of religion.
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In ruling against the Muslim
woman, the court wrote:
We recognized the tension created as a result of choosing between
following the dictates of one’s religion and the mandates of secular law . .
. . However, as long as the laws are neutral and generally applicable to the
citizenry, they must be obeyed.[Moreover, the law] did not compel [her] to
engage in conduct that her religion forbids—her religion does not forbid
all photographs.
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292
Hubert Bauch, Jan Wong was misguided, maybe. But why the fuss? MONTREAL
GAZETTE, Oct. 1, 2006, at A15.
293
See Yoshino, supra note 131.
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Zachary Gorchow, Veil costs her claim in court, DETROIT FREE PRESS, Oct. 22, 2006,
at 1B.
295
Id. (noting that the judge in question stated that, “[m]y job in the courtroom is to make
a determination as to the veracity of somebody’s claim . . . . Part of that, you need to
identify the witness and you need to look at the witness and watch how they testify.”).
296
Florida appeals court won’t allow veil in driver’s license photo, ASSOC. PRESS, Sept.
7, 2005, available at http://www.firstamendmentcenter.org/%5Cnews.aspx?id=15748.
297
Id.
298
Id.
52 On October 24, 2006, in one of the leading newspapers in the world, The
Washington Post, a columnist argued that Muslim women in America should not wear a
full-faced veil in public because “it [is] considered rude, in a Western country, to hide
one’s face.”
299
While what is considered “rude” is inherently subjective (and thus may
be based on bias, unfounded stereotypes, or class distinctions), the columnist nevertheless
expressed the underlying notion that Western society is uncomfortable with certain
articles of faith and that it is incumbent, therefore, on religious minorities to shed this
attire rather than continue insulting the host majority—a line of thinking again consistent
with recent statements made by British leadership.
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The editors of The Washington Post, one day later, struck a different tone.
Responding to the European fixation and discomfort with the Muslim veil, the editors
noted:
It’s hard to believe that veils are the biggest obstacle to communication
between British politicians and the country’s Muslims; and it’s even
harder to imagine Mr. Straw raising similar objections about Sikh turbans
or Orthodox Jewish dress. True, the Labor Party MP was reflecting—or
maybe pandering to—the concern of many in Britain about the selfsegregation of some Muslims. But veils . . . are not the cause of that
segregation, much less of terrorism. Attacks on Muslim custom by public
officials are more likely to reinforce than to ease the community’s
alienation.
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As noted in the previous section, Sikh Americans have struggled with the legal
system to uphold their religious rights.
302
What if Congress banned the wearing of
conspicuous articles of faith, including Sikh turbans, in public schools? The Supreme
Court has never ruled on such a question. While the legal remedies, particularly
constitutional protections, available to Sikhs if legislation similar to that passed in France
299
Anne Applebaum, Veiled Insult, WASH. POST, Oct. 24, 2006, A19, available at
http://www.washingtonpost.com/wpdyn/content/article/2006/10/23/AR2006102300976.html?nav=rss_opinion/columns.
300
See Amna Saadat, Jack Straw and “Unveiling” Britain, THE GLOBALIST, Oct. 13,
2006 (“Britain’s former foreign secretary Jack Straw . . . recently argued that the
traditional veil worn by Muslim women is a visible statement of their separation from
society. . . . [T]his implies that the multicultural experiment in Britain has failed—and the
blame has been candidly laid at the feet of Muslims.”).
301
Editorial, Europe’s Muslims, WASH. POST, Oct 25, 2006, at A16, available at
http://www.washingtonpost.com/wpdyn/content/article/2006/10/24/AR2006102401148.html.
302
See Section II. G., supra (concluding that “the availability of legal remedies for Sikhs
in various areas, including verbal harassment and most employment discrimination cases,
appears limited.”).
53was enacted in the United States are unclear, there is reason for optimism following
recent Supreme Court pronouncements.
The First Amendment of the United States Constitution provides that “Congress
shall make no law . . . prohibiting the free exercise [of religion].”
303
The Free Exercise
Clause has been interpreted to generally mean that, “the government is prohibited from
interfering with or attempting to regulate any citizen’s religious beliefs, from coercing a
citizen to affirm beliefs repugnant to his or her religion or conscience, and from directly
penalizing or discriminating against a citizen for holding beliefs contrary to those held by
anyone else.”
304
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In the 1963 case of Sherbert v. Verner
305
, the Court identified “strict scrutiny” as
being the appropriate standard by which to examine a Free Exercise claim.
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Accordingly, for the government to prevail in a Free Exercise claim, it would have to
prove that the law is supported by a “compelling state interest” and that alternative forms
of regulation that are less restrictive of the Free Exercise right are unavailable.
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It
would therefore seem that Sikhs, who wear their turban as an expression of their religious
identity, generally enjoy the highest level of protection under the First Amendment for
the manifestation of their faith.
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After Sherbert, however, “the Court has started to move toward a narrower
conception” of the free exercise clause.
309
In 1990, in Employment Division, Department
of Human Resources of Oregon v. Smith,
310
the Court upheld a state statute that
prohibited the use of peyote for religious purposes by Native Americans, ruling in part
that the law was generally applicable, neutral on its face, and evidenced no intent to
discriminate against particular religious groups.
311
Although the Court did not expressly
overturn Sherbert, it limited Sherbert’s ruling to cases regarding the denial of
unemployment compensation: “even if Sherbert possessed any vitality beyond the
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U.S. CONST. amend. I.
304
Donald Kramer, 16A AM. JUR. 2D, CONSTITUTIONAL LAW §424 (1998).
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374 U.S. 398 (1963).
306
Id. at 403.
307
Id.
308
See Kathleen Sullivan, The New Religion and the Constitution, 116 HARV. L. REV.
1397 (2003) (providing an in-depth discussion of interpretations of the Free Exercise and
Establishment Clauses).
309
See Walterick, supra note 251, at 264.
310
494 U.S. 872 (1990).
311
Id. at 878-82.
54unemployment compensation field . . . we would not apply it to require exemptions from
a generally applicable law.”
312
As one legal commentator noted, the Employment Division decision leaves
“religious conduct little protection from the effect of a law that is neutral and generally
applicable.”
313
Since a ban on conspicuous articles of faith in public schools would not
intentionally target Sikhs, and Sikhs would thus be seeking an exemption from generally
applicable policy, one would suspect that any First Amendment right that they could
claim to allow them to wear the turban may fail under the Employment Division
standard.
314
A state court case in which the appeal was dismissed by the United States
Supreme Court, Cooper v. Eugene School District,
315
highlights the limitations of
religious dress statutes enacted for public employees when applied specifically to Sikhs.
Janet Cooper was a public school teacher, who converted to Sikhism and began to wear a
white turban and white clothes while teaching her sixth and eighth grade classes.
316
She
was disciplined and her teaching license revoked as a result of a state statute that
prohibited teachers in public schools from wearing any religious dress while engaged in
the performance of duties as a teacher.
317
The Supreme Court of Oregon held that the
religious dress statute did not violate, among other things, the First Amendment, stating
“If such a law is to be valid, it must be justified by a determination that religious dress
necessarily contravenes the wearer’s role or function at the time and place beyond any
realistic means of accommodation.”
318
The court maintained that by excluding teachers
whose dress is a constant visual reminder of their religious commitment, the law seeks to
respect the right of free exercise of the students.
319
Although the court admitted that
Cooper had not been trying to proselytize to her students, it felt that the repetitive and
312
Amarsect S. Bhachu, A Shield for Swords, 34 AM. CRIM. L. REV. 197, 204 (1996).
313
Thomas Berg, The New Attacks on Religious Freedom Legislation, And Why They Are
Wrong, 21 CARADOZO L. REV. 415, 415 (1999).
314
As we will see in our discussion, infra, this standard has made it more difficult for
Sikhs to successfully assert First Amendment claims.
315
723 P.2d 298 (Or. 1986), (appeal dismissed, 480 U.S. 942 (1987)).
316
Id. at 312.
317
Id. at 300.
318
Id. at 307.
319
Id. at 311.
55constant nature of her appearance could have more of a proselytizing effect than she
imagined, and therefore her Sikh regalia should not be permitted in schools.
320
To those that doubt the weight of a State Supreme Court decision such as Cooper,
it should be noted that the U.S. Court of Appeals for the Third Circuit relied on Cooper in
1990, following the Supreme Court’s dismissal of the appeal, in reaching its analysis of a
case brought by Muslim public school teacher under Title VII.
321
Accordingly, as one
commentator noted, prevailing case law “suggest[s] that states can prohibit public school
teachers from wearing religious garb in the interest of preserving religious neutrality
without violating the free exercise rights of teachers as long as the prohibition applies
equally to all religious dress and does not target or burden one religious group over
others.”
322
It may not be surprising, then, that some argue that a ban on conspicuous
articles of faith in public schools is “not completely unthinkable in the United States,”
and that the religious rights of a turbaned Sikh public student after 9/11 are “tentative” at
best.
323
In 1993, however, Congress passed the Religious Freedom Restoration Act
(RFRA), which was designed to reinstate the “compelling interest” Sherbert test for free
exercise claims.
324
The RFRA states that the “Government shall not substantially burden
a person’s exercise of religion even if the burden results from a rule of general
applicability,”
325
unless the government demonstrated that the burden is “in furtherance
of a compelling governmental interest” and “is the least restrictive means of furthering
that compelling governmental interest.”
326
In 1997, the U.S. Supreme Court, in City of
320
Id. at 312-13. Interestingly, Cooper’s decision to manifest her faith at school could
have been recognized by the court as an educational benefit, namely of teaching her
students about the diversity of the society they inhabited and, as such, teaching them to
appreciate and respect those who may not appear to be the same as themselves. The
court, however, assumed that visible religious minorities that are active in their
communities are in essence imposing their faith on others by simply adopting the
symbols of their own personal beliefs.
321
U.S. v. Bd. of Educ. for Sch. Dist. of Philadelphia, 911 F.2d 882, 884 (3d Cir. 1990).
322
Walterick, supra note 251, at 267.
323
Id. at 269. See also Elliot Taubman, Headscarves, Skullcaps and Crosses: Does
Banning Religious Symbols in Public Schools Deny Human Rights? 53-Jun R.I. B.J. 9, 34
(2005) (“Even with a compelling interest test, when applied in a public school context,
with at least equality of treatment of all religions, then Justice Scalia may say that taking
the entire balance into account, there is a legitimate basis for a ban on obvious religious
symbolism.”).
324
City of Boerne v. Flores, 521 U.S. 507, 515 (1999).
325
42 U.S.C.A. §2000bb-1(a).
326
42 U.S.C.A. §2000bb-1(b).
56Boerne v. Flores, declared that RFRA was unconstitutional as applied to individual
states.
327
However, it held that it is still applicable to First Amendment violations alleged
against the federal government.
328
In 2006, the Supreme Court may have marked an expansion of free exercise
protection. In Gonzales v. O Centro Espirita Beneficente Uniado Do Vegetal,
329
a church
that uses hallucinogenic tea in religious ceremonies claimed the enforcement of the
Controlled Substances Act infringed on the church’s free exercise rights. The Court
unanimously sided with the church, noting that the government must “demonstrate a
compelling interest in uniform application of a particular program by offering evidence
that granting the requested religious accommodations would seriously compromise its
ability to administer the program,” and rejecting the government’s “slippery-slope
concerns that could be invoked in response to any RFRA claim for an exception to a
generally applicable law,” namely, “If I make an exception for you, I’ll have to make one
for everybody, so no exceptions.”
330
The Court indicated that a case-by-case approach to
evaluating exemptions to generally applicable religious laws was appropriate,
331
as was
the case in the 2005 decision of Cutter v. Wilkinson.
332
Acknowledging that “there may
be instances in which a need for uniformity precludes the recognition of exceptions to
generally applicable laws under RFRA,” the Court did not find that the Controlled
Substances Act was immune from exemptions “given the longstanding exemption from
the Controlled Substances Act for religious use of peyote, and the fact that the very
reason Congress enacted RFRA was to respond to a decision denying a claimed right to
sacramental use of a controlled substance.”
333
To the extent that the government may pass a ban on conspicuous articles of faith
to promote secularity or a national identity, such an interest would likely not pass under
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary,
334
which soundly
327
City of Boerne v. Flores, 521 U.S. 507, 536 (1997).
328
See Kikimura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001) (noting that “the
separation of powers concerns expressed in Flores do not render RFRA unconstitutional
as applied to the federal government” and that “when a portion of a statute is declared
unconstitutional the constitutional portions of the statute are presumed severable”).
329
Gonzales v. O Centro Espirita Beneficente Uniado Do Vegetal, 546 U.S. 418 (2006).
330
Id. at 421.
331
Id. at 436.
332
Cutter v. Wilkinson, 544 U.S. 709, 724-26 (2005).
333
Gonzales, 546 U.S. at 436.
334
Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510
(1925).
57rejected a state interest in ensuring homogeneity of American children and achieving
assimilation in public schools. The Court stated, “The fundamental theory of liberty
upon which all governments in this Union repose excludes any general power of the state
to standardize its children[.]”
335
To the extent that a government interest may be based
on fear of fundamental Islam, that interest may be construed as discriminatory animus or
perpetuating stereotypes, which would not please the Court either.
336
Assuming that the federal government can proffer a compelling state interest,
which is highly unlikely, Sikhs may be able to obtain an exemption from a ban on
conspicuous articles of faith without having to run into the “slippery slope” concern of
the government in part because of the fact that Sikhs have been permitted to wear turbans
in the United States since their arrival. An interesting situation arises, however, if Sikhs
are presented with the option of covering their hair, for example, with a school hat as
opposed to the Sikh’s turban. In this instance, a Sikh’s case against the ban may not be as
strong because he is still given an option to cover his kes.
D. Conclusion
In sum, the debate regarding whether conspicuous articles of faith are permissible
in Western society due to security and/or more pragmatic concerns, such as enabling
accurate identification and facilitating effective communication, is primarily a European
phenomenon focused on Muslims and Muslim religious clothing. From this analysis it is
evident that a number of sophisticated countries are engaged in this debate, and that
serious infringements of the ability of Muslims, Sikhs, and others to wear insignias of
their faith have occurred in the years following the 9/11 terrorist attacks.
The United States, as a host for hundreds of thousands of Muslims and Sikhs, is
necessarily involved in the enterprise of determining where on the integration-passive
multiculturalism spectrum its society lies—and consequently determining the extent to
which the Sikh turban will be tolerated or challenged not only as a symbol of terrorism,
but as an assault on American identity and solidarity. From the Sikh perspective, the
legal framework available to Sikhs is still emerging, though recent developments support
the contention that this framework may adequately protect Sikhs if Congress were to pass
a ban on conspicuous articles of faith in public schools, as the French did in 2004.
335
Id. at 535.
336
See Larson v. Valente, 456 U.S. 228, 252-54 (1982).
58IV. Conclusion
As noted at the outset, this Article aims to draw attention to the state of the Sikh
turban through an analysis of how the turban has transformed from an article of religious
devotion to a cue for violence and object of marginalization. Indeed, in various contexts
and settings, Sikh-Americans have been subject to an unfortunate backlash in which their
distinct appearance has been used as a proxy for the identity of a terrorist or terroristsympathizer. Broader efforts to achieve integration by eliminating conspicuous articles
of faith from the public sphere have also challenged the Sikh identity on indirect grounds.
In this Article, we have observed that the American legal system is unlikely to
protect Sikhs from the most common form of discrimination—verbal insults such as “bin
Laden,” “raghead,” and “terrorist”—though the nation’s laws may protect Sikhs from a
more drastic and wide-reaching policy of prohibiting Sikhs from wearing turbans in
public schools. Sikhs, however, must continue to utilize non-legal methods to ensure that
discriminatory activities do not occur in the first place, primarily by educating individuals
who are unfamiliar with the Sikh turban or who are likely to associate it with terrorism.
Because redress through the courts takes significant time and is not certain to produce
desired results, a preventative approach—where Sikhs educate others of their identity and
commitment to fundamental American principles—is likely to be the more effective
means by which Sikhs are seen as a distinguishable, but still a welcomed, part of the
American race.
337
337
See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J.,
concurring in part and concurring in the judgment) (“In the eyes of government, we are
just one race here. It is American.”).
5960
Through non-legal avenues, such as awareness and outreach efforts,
338
the
discrimination experienced by this minority community, one that espouses basic
American values of equality and civic involvement, will hopefully cease and will not
remerge with increased fervor if there is another act of terrorism on American soil. As
Circuit Judge Frank Easterbrook noted in 2003, “[T]hose who keep heads covered as a
sign of respect for (or obedience to) a power higher than the state should not be . . .
threatened with penalties.”
339
Nor should they be threatened with marginalization,
physical injury, or even death because of a superficial resemblance with our real shared
enemy.
338
In the aftermath of the 9/11 attacks, Sikhs were forced to organize to respond
effectively to threats to the Sikh community and in particular to the Sikh appearance.
Subsequent efforts led to significant achievements in the ability of Sikhs to maintain their
religious identity and to defend their rights when and if that identity is challenged. For
example, Sikh civil rights organizations have kept the Sikh community informed of its
rights and published guidelines explaining how to respond to racial profiling or
harassment in airports or other public space, see, e.g., Sikh Media Watch and Resource
Task Force, SMART Advisory Memorandum on the issue of Illegal Turban Searches at
Airports, SSe More All INFO http://www.punjabiturban.com/
available at http://www.sikhmediawatch.org/pubs/SMART_Advisory_Memo_on_Turban
_Searches_at_Airprots.PDF; Press Release, EEOC Provides Answers About Workplace
Rights of Muslims, Arabs, South Asians, and Sikhs, Equal Employment Opportunity
Commission, May 15, 2002, available at http://www.eeoc.gov/press/5-15-02.html (the
EEOC published guidelines for employers and employees specifically detailing the
workplace rights of Muslims, Arabs, and Sikhs); and the federal government published
posters informing security officials, particularly airport screeners, of how a Sikh turban
and kirpan may be identified; see also DOJ Poster, Sikh Americans and the Kirpan, U.S.
Department of Homeland Security (2006), available at
http://www.saldef.org/anm/articlefiles/1604-SALDEF_DHS_Kirpan_Poster.jpg; see also
USA Patriot Act §1002(a)(5) (These groups also lobbied for a congressional resolution
recognizing that Sikhs have a “distinct religious and ethnic identity” that has become the
target of attacks.). See, e.g. id. at §1002(b)(2), available at
http://www.sikhcoalition.org/Legislative.asp (The resolution notes that Congress
“condemns bigotry and any acts of violence or discrimination against any Americans
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