A victory for Samantha Elauf.

Photographer: Chip Somodevilla/Getty Images

Abercrombie Headscarf Case Splits Conservatives

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

Striking a blow not only for religious liberty, but also for diverse standards of beauty, the U.S. Supreme Court decided Monday that Abercrombie & Fitch could not deny employment to a young woman because she wears a headscarf for religious reasons. The court also clarified that the job applicant, Samantha Elauf, didn't have to tell her interviewer that she needed a religious accommodation. If the company chose not to hire her because it didn't want to make an accommodation by allowing her to wear the headscarf, that amounted to prohibited religious discrimination.

So far, so good. The U.S. Court of Appeals for the 10th Circuit had previously held that Elauf’s lawsuit could not proceed because she didn't tell Abercrombie that she would need a religious accommodation; the Supreme Court was correct to reverse that holding.

The decision also revealed a significant and fascinating intra-conservative split. The majority opinion was written by Justice Antonin Scalia. Yet in a concurrence, Justice Samuel Alito argued that the court should’ve have gone further to hold that it wasn’t Elauf’s responsibility to prove that the employer refused to accommodate her.

And Justice Clarence Thomas, the most conservative of them all, wrote a partial dissent to express almost the opposite view, namely that Abercrombie wouldn't be discriminating against Elauf if it denied her the right to wear the headscarf for religious reasons, because it ordinarily doesn't let anyone wear a headscarf on the sales floor for any reason, and so it wasn’t treating Elauf disparately relative to any other employee.

Behold the current trifurcation in conservative views about religious liberty and exemptions. At the most pro-religious extreme is Alito, author of the Hobby Lobby decision and vanguard of the new maximalist conservative position in favor of religious exemptions. In the middle is moderate Chief Justice John Roberts and, in this case, Scalia, trying to follow the civil-rights laws without giving away all the ground to plaintiffs seeking religious exemptions. At the other extreme is Thomas, displaying  -- at least in this case involving a Muslim woman -- the traditional conservative’s skepticism of religious exemptions, a position once occupied by Scalia.

Each of these positions has its own history and logic. Alito’s maximalism grows out of his jurisprudential coming-of-age in the era after religious conservatives, Catholic and Protestant evangelical alike, had begun to depict themselves as minorities vulnerable to oppression. Law professor Michael McConnell (later Judge McConnell, and now professor again, at Stanford) did more of the intellectual heavy lifting for this movement than anyone else. The genius of the approach was twofold: It pushed liberals, who care about religious minorities, to sympathize with religious liberty claims brought by conservatives, and it managed to depict members of the majority religion, most of them also racially white, as vulnerable minorities -- a favored position in our legal and cultural universe.

In the Abercrombie case, Alito's maximalism came out in his insistence that a plaintiff doesn't have to prove the employer didn't make a reasonable accommodation. In practice, that would shift the burden of proof to the employer to show its accommodation was reasonable. In future cases, this would have made it much easier for religious plaintiffs to prevail.

Scalia, functioning in this decision as the moderate conservative, described Alito's position on the burden of proof as “mysterious.” In a case such as Elauf’s, where the plaintiff charges the defendant with failure to hire her, that failure to hire is “synonymous with refusing to accommodate the religious practice,” Scalia wrote, italics included. And the plaintiff has to show exactly that. Scalia's intention was to avoid creating a general rule whereby the burden of showing a failure to accommodate rests on the defendant, which would make religious accommodation suits easier, as Alito wanted. For Scalia, that would be a bridge too far.

To understand why Scalia didn't want to go as far as Alito, you have to think back to when conservatives didn’t like minorities, including religious minorities, to seek exemptions from general rules. One of Scalia's most important majority opinions for the court is Employment Division v. Smith, in which he effectively reversed the older, more liberal norm according to which the government had to make an exemption from neutral, generally applicable laws that unduly burdened religious exercise. There, consistent with his general preference for what he calls “the rule of law as a law of rules,” Scalia declared that the Constitution didn't require such exemptions. That was in 1990, before the McConnell theory of victimized, vulnerable Christians had taken root.

In Monday's opinion, only Thomas channeled the old Scalia. His argument was that the law only prohibits disparate treatment on the basis of religion. But Abercrombie's rule was neutral and generally applicable: It didn't allow anyone to wear headscarf. Therefore, Thomas reasoned, the refusal to hire Elauf needn't have depended upon her religion. It was just a general ban. Thomas's view, in the employment context, exactly parallels Scalia’s Smith decision in the context of general laws. Exceptions are bad.

To be uncharitable, Thomas, who joined the Hobby Lobby decision, may have been unsympathetic to Elauf because of her hijab. He may have in mind more general practices that prohibit headgear, and may not welcome the idea that the hijab could, in principle, become commonplace in the workplace. If so, Thomas's view would be expressing an anti-Muslim strain in contemporary conservative thought. But to be sure, the principle Thomas would've applied is just Scalia’s paleo-conservatism on religious liberty -- a view so old today that even Scalia himself didn't embrace it in this case.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net