An Amendment divided against itself

Can't they teach?

Oregon may be changing its laws regarding a teacher’s right to wear religious clothing in school. This got me thinking about the tension between two Clauses that deal with religion in the First Amendment of the U.S. Constitution.

The Establishment Clause of the First Amendment prohibits federal and state governments from making laws “respecting an establishment of religion.”  It has been used in “separation of church and state” cases such as prohibiting prominent religious displays on public property.  The Free Exercise Clause of the First Amendment, on the other hand, enjoins Congress and state governments from making laws “prohibiting the free exercise” of religion.

The requirements of the two Clauses thus pose a dilemma for teachers, who are state employees.  Can a religious teacher freely fulfill her religious duty by donning religious attire while on the job?

I am genuinely conflicted on this question.  On the one hand, Oregon’s blanket ban — which prohibits teachers from displaying any type of religious symbol, large or small —  seems too extreme and likely to have undesirable effects.  It is difficult to see why a teacher should not wear a cross or a star of David on her neck or a kippah on his head.  And so what, if she shows up to class in a burqa?  In this day and age, wouldn’t it simply be a lesson in tolerance and respect for her students?

I strongly suspect that such a ban discourages Muslim, orthodox Jews, and devout Christians from applying for teaching positions.  Alas, this may very well have been the original intention of the ban.

But on the other hand, the ban is rooted in the psychologically astute observation that teachers are authority figures, charged with molding young minds.  The ban expresses a concern that when a teacher displays her religious preference, or her preference for religion over non-religion, it would be viewed as an expression of not just private preference, but a preference by the state.

The ban also implicitly endorses an idea that the Establishment Clause seems to endorse: that religion is a private matter that belongs in the private sphere, undisturbed by the powers of the State, but that public spaces, such as schools, should be left secular and neutral.

France, which bans all displays of religious symbols in its schools for students as well as teachers, is one prominent supporter of this idea.  The French idea of laicite, which promotes secularism in civil society and governmental affairs, is strikingly similar to the American idea of the separation of church and state.

The problem, of course, is that the ideas of laicite and the separation of church and state both overlook religion’s tendency to obliterate the boundaries of the private and the public.  A religious command is usually a total command that has no regard for whether the person is acting as a state employee or as a private person.  This is partly what makes religion potentially problematic for civil society.  But it also means that any pretense for “neutrality” in the public space is really a triumph of secularism over religion.  The neutrality necessarily imposes limits and burdens on the rights to “freely exercise” religion, which may violate our constitutional commitment to freedom of religion.

So which of the Clauses should win?  I am leaning towards freedom over neutrality, for now.  It seems that what we are really worried about is not religious clothing and symbols, but a teacher using his position of authority to actively  promote his religious viewpoint.  The total ban seems overly broad, and we should fashion better regulation to deal with the real problem.

What do you think, dear readers?  Please voice your opinion by voting in the poll below.  I would love to hear your comments as well.


3 Responses

  1. It’s definitely an interesting question — I’d lean more towards protecting kids, but I think you’re right about the Oregon blanket ban: it’s too broad. We’ve got an interesting iteration of the problme down here in Tennessee. The ACLU has sued Cheatham County Schools (I did a post on it: based on, in part, displays of personal religious convictions by teachers. Especially in rural Southern communities, the feeling that “everyone goes to church” is pretty widespread, and can act as a bit of a blinder towards the (relatively) few folks that aren’t religious and might be offended. Either way, it’s a tough problem. Great post!

  2. Like the author of this post I’m still undecided about the Oregon ban, but the French ban on headscarves seems extreme and harmful. It applies to students as well as teachers, and it seems to reflect xenophobia and fear of Islam rather than any genuine concern with fairness or neutrality.

  3. Thanks for the comments. NashvilleJefferson, very interesting case with the ACLU in Tennessee. I am still inclined to think that there is a difference between passively donning religious attire and actively promoting a particular religious viewpoint, and that the real concern the Oregon ban is trying to address is the latter.

    But more importantly, I think the total ban, or even a partial ban, may very well be unconstitutional because it violate the Free Exercise Clause. The French, fortunately, do not have that problem. For better or for worse, the kind of civil society that our framers envisioned is not a totally secularized society like that of the French.

    So the question is how to balance the demands of a neutrality that the state must maintain in public life with the private rights of the state’s employees. I’m not sure I have the answer, but my sense is that the balance has swung too far towards the neutrality end of the spectrum.

    And Will, I agree with you that some of the supporters of the head scarves ban were motivated by xenophobia, though I also don’t doubt the sincerity of those who support the ideals of laicite.

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