Document Type

Article

Publication Date

2008

Abstract

This Article makes the case for judicial recognition of respectful religious expression in the workplace as more consistent with the Court's Establishment Clause jurisprudence and also more true to the legislative intent of the religious accommodation provisions of Title VII. Respectful religious pluralism in the workplace should become the norm through judicial requirements of best practices in the workplace. Such a view should be wholly supported by the majority of the Justices because it is consistent with their expressed views, in the Establishment Clause case law, that religion fosters moral good and that in a pluralistic society religious expression cannot automatically be deemed threatening to those with different views.

This Article examines in Part II how religious observance is an intrinsic and undeniable part of many people's identities, and it argues that refusing to acknowledge observers as religious people and refusing to allow them to express themselves as such is similar to keeping gays and lesbians in the closet. From that viewpoint, allowing religious expression is not an adventurous "accommodation" asking for different or "special" rights.

Next, in Part III, an examination of the Supreme Court's jurisprudence on the public sphere and religion cases showcases the judicial trend of not only allowing, but also promoting certain religious expression in our society.

Part IV details the refusal of courts to protect workers who express themselves religiously in the workplace, even though such protection is mandated by Title VII and consistent with the Court's public sphere Establishment Clause doctrine.

Lastly, Part V attempts to solve this inconsistency by creating a path for the Supreme Court to follow: interpret Title VII's religious accommodation mandates in alignment with its Establishment Clause jurisprudence and with express congressional intent, an intent that is echoed in pending legislation that would expand protections for workers who express themselves in religious ways. Specifically, I propose three paths of judicial enforcement of respectful pluralism, which protect both religious expression and secularist workers from disrespectful expression.

Publication Citation

92 Marq. L. Rev. 1 (2008).

Download

Share

COinS