The Limits of Religious-Freedom Protections

The Supreme Court rules that a woman should not have been denied a job over her head scarf, but a Muslim chaplain says her hijab made her a target of discrimination on an airline flight.

Samantha Elauf, right, and her mother outside the Supreme Court after oral arguments in her case against Abercrombie (Jim Bourg / Reuters)

The Supreme Court hasn’t been shy recently about protecting religious freedom. In an 8-1 decision released Monday morning, the justices ruled that Abercrombie and Fitch violated Samantha Elauf’s rights when it denied her a job at a store because Elauf, an observant Muslim, wore a headscarf. But that ringing decision arrived against a backdrop of disturbing incidents that demonstrate the persistent gap between the legal protections afforded to religious minorities in America and the functional discrimination many still face on a daily basis.

Abercrombie contended that its dress policy wasn’t discriminatory, because it applied to all head coverings and not just religious ones, and that Elauf should have requested accommodation. But the Court resoundingly rejected that reasoning in an opinion written by Justice Antonin Scalia. The decision was nearly unanimous: Justice Clarence Thomas concurred in part, but dissented in part as well.

The ruling wasn’t exactly unexpected. In a series of recent opinions—Hobby Lobby, Holt v. Hobbs, and now Abercrombie v. EEOC—the justices have read religious-freedom laws broadly. The idea that Americans can practice any religion they desire freely is deeply ingrained in the national ethos—and, the Court confirms, the law. That’s a marked contrast from religiously repressive societies, but it’s also very different from some secular democracies. Last week, The New York Times reported:

More than 10 years after France passed its first anti-veil law restricting young girls from wearing veils in public schools, the head coverings of observant Muslim women, from colorful silk scarves to black chadors, have become one of the most potent flash points in the nation’s tense relations with its vibrant and growing Muslim population.

In France, secularism per se is a reason for the laws. (Like Abercrombie, proponents of head-scarf bans tend to note that the rules apply to everyone, a somewhat spurious diversion.)

Meanwhile, a story circulating widely at the same time recounts allegations of religious discrimination made by a Muslim chaplain at Northwestern University. Tahera Ahmad says she was on a United flight from Chicago to Washington, wearing a head scarf, when she requested an unopened can of Coke for “hygienic reasons.” The flight attendant told her she was not permitted to hand out cans because they could be used as weapons. When the same flight attendant handed the man next to her an unopened beer can, Ahmad says she repeated her request. In response, she says, the attendant hastily opened the man’s can.

Appalled at the double standard—and assuming that her head scarf was the reason—she complained to passengers around her, asking if they had witnessed the discrimination. At that point, she says, a man yelled at her, saying, “You Muslim, you need to shut the f— up.”

It’s tough to know exactly how accurate Ahmad’s account is. No other passengers on the flight seem to have come forward. United issued a statement that seemed to confirm that some sort of incident had occurred, but it didn’t offer enough detail to confirm or rebut Ahmad’s account, simply referring to what happened as a “misunderstanding.”

But one reason that Ahmad’s story resonated is that it fits within a pattern of incidents in which Muslims report discrimination because of their dress or appearance—though it’s often hard to prove definitively that dress is the reason. Sometimes the incidents are simple name-calling, like the passenger on Ahmad’s flight, but in other cases it seems built into systems.

Air travel produces a special concentration of incidents where name or appearance seems like a major factor. Ask almost anyone with a traditionally Muslim name and they can offer anecdotes about being frequently called (randomly, of course) for extra screening. There are other, more disruptive cases on the record, too. In 2011, two imams were kicked off a Delta flight from Memphis to Charlotte, reportedly because the captain had refused to take off with them aboard. The men had been cleared by TSA. Ironically, they were attempting to reach a conference where Islamophobia was a topic of conversation. In 2006, a group of six imams were kicked off a plane in Minneapolis after passengers raised concerns about supposedly suspicious behavior. The men sued and settled with U.S. Airways out of court.

Tahera Ahmad is a surprising figure to end up at the center of a such a controversy. Like the imams in 2011, she was traveling to a conference on interfaith dialogue. President Obama has invited her to the White House for recognition, and she’s worked with Secretary of State John Kerry on faith issues. In 2013, she became the first woman to recite the Qur’an at the annual conference of the Islamic Society of North America, a somewhat controversial and unusual appearance.

So if the Supreme Court decision in Abercrombie is a reminder of the robust legal protections extended to the free exercise of religion in the United States, the Ahmad case is a reminder of the practical limitations of those protections.

First, winning legal vindication is a lengthy process. Elauf applied to work at Abercrombie in 2008, when she was 17. That was seven years ago, and it’s unlikely she’s interested in that mall job anymore. (The clothing company, by the way, has since changed its policy on head coverings.) Second, legal recognition of the right to wear a head scarf doesn’t banish very real discrimination from everyday life.

That discrimination may not always be as serious as being denied a job. But being kicked off a plane because of religious dress, or being subjected to shouted slurs, carries its own price. These small incidents co-exist with evidence of discrimination against mainstream Muslims: attempts to block the construction of mosques, vandalism, intimidation, and threatening marches outside existing mosques. Not all of these actions are illegal, nor should they be, but they serve as a reminder that real equality for Muslims in American society will require more than just the recognition and extension of legal protections in the workplace—it will require attitudes to change, too.