Malkin: Abercrombie and Fitch Ruling = Sharia Law in America

Professional screecher Michelle Malkin had a predictably hysterical response to the Supreme Court ruling that Abercrombie and Fitch had violated the law by refusing to accommodate a Muslim employee who wore a headscarf for religious reasons. “ZOMG, Sharia law,” she ignorantly screamed from the Newsmax rooftop.

Reflecting on an 8-1 Supreme Court ruling in favor of a job prospect who was turned down by Abercrombie & Fitch over concerns that she would [violate] wear a headscarf, that determined that “an employer may not make a job applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” Malkin insisted that non-discrimination laws, in this case the Civil Rights Act, represent onerous burdens on business.

“We have seen this increasing narrative of capitulating to unreasonable political correctness over and over and over again,” Malkin said, before criticizing “grievance-mongerers” who “pretend they stand up for the religious liberty of Muslims.”

“There’s something much more insidious and nefarious going on,” she said, mentioning the case of a Muslim woman who felt that an airline singled her out during a flight as a security risk: “The grievance-mongering industry has a very good way of forcing this country to apologize for the freedoms that we do have and in essence what we’re talking about here is the tacit adoption of Sharia law in America.”

See, when a Christian demands accommodation from an employer for their religious duty to not work on the sabbath, that’s religious liberty. When a Muslim demands the same thing under the same law, it’s OMGSHARIALAW EVERYONE RUN AWAY! They aren’t even pretending to be consistent, coherent or non-bigoted. The only one doing grievance-mongering here is Malkin, but her grievance is so thoroughly ridiculous that one can only point and laugh.

"You could make a case that the burning and hanging of witches and heretics was ..."

Swanson Thinks Burning Man Wants to ..."
"They want to burn "...literature with liberal, democratic tendencies / attitudes..."Presumably that includes the US ..."

White Supremacists Cancel Book Burning in ..."
"A toddler is a human being. It's not a full grown human being. But it ..."

The ‘We Should Just Ignore Them’ ..."
Follow Us!
POPULAR AT PATHEOS Nonreligious
What Are Your Thoughts?leave a comment
  • jamesramsey

    Just wondering…

    Does Abercrombie and Fitch employ any Orthodox Jewish women?

    Do they object if they wear wigs or other hair covering?

    …. just a thought

  • http://twitter.com/#!/TabbyLavalamp Tabby Lavalamp

    It’s an onerous burden to not discriminate?

  • eric

    @1: dunno. They do have a (vague) dress code, which I think makes it at least arguable that they could have a secular reason for not allowing things which violate it. But I don’t really see that argument as strong: if the government is requiring the accommodation of you and all your competitors, then how can you say its a refection on your business? Isn’t it a reflection on government instead?

  • John Pieret

    what we’re talking about here is the tacit adoption of Sharia law in America

    Because we all know that Justice Scalia, who wrote the decision in the Abercrombie and Fitch case, is just chomping at the bit to impose Sharia law in the US!

  • http://motherwell.livejournal.com/ Raging Bee

    The ruling wasn’t THAT bad — but it was bad enough.

    Generally speaking, a private company can refuse to hire you for any or no reason at all. If they see a typo on your resume, or they don’t like your hair or your tie, or your manner of speaking didn’t appeal to them, you’re out of the running, and there’s no appealing such routine daily unfairness — but a Muslim can appeal such a decision if it’s based on a choice she made because of her religion? That’s not all that consistent or fair.

    Can A&F refuse to hire an atheist woman who chooses to wear the same headscarf to the same workplace?

    Are we really expected to believe that ALL religions — including those really weird-looking Pagans, Asatruar or Satanists — will now have the same leeway to practice their own dress-codes in similar situations? Don’t make me laugh.

  • http://motherwell.livejournal.com/ Raging Bee

    Because we all know that Justice Scalia, who wrote the decision in the Abercrombie and Fitch case, is just chomping at the bit to impose Sharia law in the US!

    Well, he certainly seems to have found himself an opportunity to let his fellow Christians impose their own Sharia law — just let people of another authoritarian religion do it first, then we no longer have any reason to stop the majority religion from doing it.

  • eric

    Generally speaking, a private company can refuse to hire you for any or no reason at all.

    AIUI they can refuse to hire you for any non-illegal reason, but there are still some illegal reasons. If/when the employer says something in the interview or other documentation which cites an illegal reason, then they have a problem. That is why most at-will corporations won’t discuss the details of firing decisions: if you don’t give details, you can’t screw up and accidentally cite an illegal reason for firing.

  • http://motherwell.livejournal.com/ Raging Bee

    eric: So what if the woman in question had been an atheist, who happened to like wearing headscarves, and A&F had refused to hire her for the same reason?

  • Saad

    Raging Bee, #5

    I think I agree with what you’re saying.

    The people at A&F were being jerks for not letting someone practice such a harmless religious attire. What harm would it really do?

    But the court’s decision is a separate problem. It’s a problem of secularism. I find it a really bizarre that we seem to simply grant that if you have the backing of an organized religion, you get to have special rights in the eyes of the government.

    If you have a strong personal preference and can point to a religion as the reason for it, you get different treatment from the government than if you had a similar strong personal preference without religion being behind it. Religion is not a special need.

  • http://www.thelosersleague.com theschwa

    I could swear I was in an A&F store years ago (when I was still in their target demo) and the employees were wearing only swimsuits. Men and women. (Guys shirtless, women in bikinis). Would this woman be required to wear such an outfit, just with a headscarf?

    Maybe those were not normal employees, but models hired for a swimsuit sale or something?

  • tomh

    @ #9

    ” I find it a really bizarre that we seem to simply grant that if you have the backing of an organized religion, you get to have special rights in the eyes of the government.”

    There’s nothing bizarre about it, that’s the way the legal system in the US works, and has for a very long time. Whether it’s taxes, zoning, employment, copyrights, child abuse laws, political lobbying, or any of uncountable other legal areas, the backing of an organized religion grants special privileges. Laws are written that way because that’s how Americans want it.

  • http://motherwell.livejournal.com/ Raging Bee

    theschwa: Good question. I suspect that a Muslim employee would be given an exception of some sort, either overtly or covertly (as in, she gets a day off, or gets to work in the back, on swimsuit-day). Unless, of course, A&F also sold burqinis, which their Muslim employee(s) could model…

  • marcus

    Raging Bee@ 5 and Saad @ 9 Thank you both for your succinct and, most likely, accurate observations.

    Of course we don’t need to worry since Scalia is such a “strict constructionist” with no agenda of his own.

  • erichoug

    I always find religious non-discrimination to be interesting. The head scarf thing is, of course, an obvious one.

    But, what if you owned a restaurant and you wanted to hire a waiter to only work the dinner shift on Friday night or the lunch crowd on Saturday morning. Would it be religious discrimination to not hire an observant Jew who said that he could not work those nights?

    What about not hiring a Muslim to work as a line worker in a pork slaughterhouse if they refused to handle pork.

    I know that many jobs in chemical plants require you to keep your face clean shaven in case you need to wear a respirator. These jobs would conflict with Muslim and Sikh beliefs. What would your responsibility be in that case. You aren’t discriminating based on their religion but their religious obligations would not allow them to work the job. So, hmm.

    I realize that many of these are rare and/or obscure but I do find it interesting where we draw the line on religious accommodation.

  • Saad

    erichoug, #14

    I don’t think it’s that difficult. These issues can be reasonably figured out on a case by case basis. I see all three of your examples as really easy.

    But, what if you owned a restaurant and you wanted to hire a waiter to only work the dinner shift on Friday night or the lunch crowd on Saturday morning. Would it be religious discrimination to not hire an observant Jew who said that he could not work those nights?

    If you’re hiring for that shift specifically and you turn down someone who doesn’t want to work those hours, I don’t see the problem. How is that discrimination? The religious person shouldn’t apply for a job that’s for a time when they don’t want to work.

    What about not hiring a Muslim to work as a line worker in a pork slaughterhouse if they refused to handle pork.

    This one is easy too: “We sell pork. The job requires handling pork.”

    Why would you expect an employer to hire someone who doesn’t want to handle pork to handle pork?

    I know that many jobs in chemical plants require you to keep your face clean shaven in case you need to wear a respirator. These jobs would conflict with Muslim and Sikh beliefs. What would your responsibility be in that case. You aren’t discriminating based on their religion but their religious obligations would not allow them to work the job.

    Same here too. Wearing a respirator (which is a practical, functional part of the job) is not possible with a lot of facial hair. Therefore we can’t hire someone with a lot of facial hair.

    I don’t even understand how this is religious discrimination. You’re not refusing to hire that hypothetical Muslim because they’re Muslim. You’re refusing to hire them because they want to get paid without doing the work (handling pork) of the business you’re in.

  • http://www.facebook.com/profile.php?id=1159674804 robertbaden

    Can an employer forbid the wearing of crosses?

    I can imagine the screams of xtian persecution.

  • marcus

    @16 There has been discussion of this. It is legal when a “no-jewelry” regulation is enforced across the board for safety reasons, as Saad pointed out above.

    (And yes, there were screams of “xtian persecution”.)

  • John Pieret

    erichoug:

    The standard is “reasonable accommodation” for an employee’s religious practices. In all your examples there is no reasonable accommodation the employer can make. Say, however, the employer is opening a new restaurant and needs to hire 20 waitresses to handle all the shifts. If some don’t want to work on Sunday or Saturday or Friday for religious reasons and the shifts can be arranged so that those days are covered by people who don’t object to working on each of those days, the employer is required to accommodate their religious practices.

  • Chiroptera

    I wonder ho she feels about the Hobby Lobby decision?

  • Chiroptera

    “how”

  • http://festeringscabofrealityblogspot.com fifthdentist

    Ann Coulter: “Silly Muslims, the religions protections are merely to let your employer make reproductive decisions for you, not to protect you from a holy job creator’s deeply held religious belief that he hates Muslims

  • http://festeringscabofrealityblogspot.com fifthdentist

    Sorry, I referred to the wrong soulless, heartless harpyt. I meant Michelle Malkin, not Coulter.

  • Saad

    John Pieret, #18

    Which is a problem too. (I know you’re just explaining how things are and probably not advocating for that religious accommodation point of view).

    For example, a Muslim person may not want to work the Friday morning shift because they have to be at the mosque for Friday prayers, while a non-religious person may not want to work a Saturday evening shift because their friends have a long-standing routine of playing poker Saturday nights. Either both get the government’s backing or neither do.

  • eric

    Bee:

    eric: So what if the woman in question had been an atheist, who happened to like wearing headscarves, and A&F had refused to hire her for the same reason?

    Well the first amendment doesn’t protect your happen-to-likes, so yes that would be okay. But if a some humanist had an ideological observance of wearing headscarves, then yes the legal protection should apply to them too. Refusing to hire someone because some personal preference (of theirs) contradicts your dress code isn’t illegal. Refusing to hire someone because their 1st-amendment protected religious rights contradicts your dress code can be. Why the difference? Because…1st amendment.

  • http://motherwell.livejournal.com/ Raging Bee

    Well the first amendment doesn’t protect your happen-to-likes, so yes that would be okay. But if a some humanist had an ideological observance of wearing headscarves, then yes the legal protection should apply to them too.

    So all I’d have to do is re-brand my happen-to-likes as “ideological observances,” and I get to ignore the rules that apply to everyone else? Or would I have to run it by a government agency to get a ruling on whose declared observances are “real” religious practices deserving of protection?

  • theguy

    My previous comment got lost. (Friggin’ Internet at my place). Malkin wrote a highly dishonest article for the National Review claiming that Bernie Sanders believes in the same style of socialism you find in Venezuela (Spoiler alert: his beliefs are completely different).

    Instead of apologizing for a dishonest article, Malkin had a whiny, self-righteous meltdown over the picture somebody else chose for the article when it became clear that the picture was of empty Wal-Mart shelves in Texas, and also photoshoppped. (Source: Little Green Footballs)

  • marcus

    John Pieret, #18 Yes. As someone who worked in the service industry for many years and who has continually been asked, “You don’t mind working Sunday morning do you so Sophie can go to church?”*, I can say this is when a religious right becomes a religious privilege.

    *It’s not really a request.

  • http://motherwell.livejournal.com/ Raging Bee

    erichoug #14: the examples you cite are pretty trivial. To see how much worse the whole “religious exception” business can get, think of a pharmacy that sells contraception, hiring a reich-wing Christian whose beliefs forbid him from giving any sort of contraception to a woman, and who claims a right to refuse to do his job — thus placing a REAL burden on a paying customer — because “religious freedom.” This is really happening, and it’s causing real harm to women, whose own “religious freedom” seems to be getting lost in the shuffle.

  • marcus

    Raging Bee @ 28 Agreed. You would think that dispensing prescribed medicines would be a required part of the job, a necessary stipulation before hire, but it’s just more Christian privilege.

  • http://motherwell.livejournal.com/ Raging Bee

    I wonder how she feels about the Hobby Lobby decision?

    That’s a damn good question, and it points to a major inconsistency in the interpretation of “religious freedom.” Apparently certain kinds of private organizations get to inflict their owners’ religious beliefs on their employees, but certain other kinds of private organizations have to let SOME of their employees (not all) ignore company rules, based on their own personal beliefs, while on company turf. This is not a consistent or well-thought-out ConLaw doctrine; it’s nothing but a bunch of religious bigots making up rules to suit their own interests on a given day.

  • http://www.thelosersleague.com theschwa

    @14: “I know that many jobs in chemical plants require you to keep your face clean shaven in case you need to wear a respirator. These jobs would conflict with Muslim and Sikh beliefs. ”

    That is easy. Their god(s) will protect them from the chemicals. Do you even know how chemistry works??! God controls the atoms, so he would not let them hurt the worker.

    …unless that worker was the wrong kind of believer.

  • tomh

    @ #29

    About a dozen states have adopted “right of refusal” laws, which allow pharmacists to refuse to fill prescriptions for so-called abortifacient drugs, including birth control, if filling the prescriptions would conflict with their religious beliefs. Other states have a variety of different approaches. Some states have actually imposed an affirmative duty on pharmacists to dispense emergency contraception, but federal courts have found that such mandates violate the Free Exercise Clause of the First Amendment.

  • http://motherwell.livejournal.com/ Raging Bee

    marcus: It’s not just Christian privilege; it’s privilege for a certain very narrow set of Christian beliefs, which aren’t even shared by all Christians. If a Christian pharmacist thinks it’s wrong for a woman to get contraception, and refuses to sell it to a Christian woman who thinks it’s perfectly okay and God wants her to own her own body and enjoy sex with her husband without getting pregnant, whose religious preference is being protected by the Constitution? Only one, which takes us right into “establishment of religion” territory.

  • marcus

    @32 Yes, thank you. I was more or less aware of that, and as I understand it applies to pharmacist who are already employees. I wonder what would happen if they declined to hire someone as “unqualified” if they preemptively refused to perform those duties on religious grounds.

  • http://motherwell.livejournal.com/ Raging Bee

    …and, I almost forgot to add, right out of “equal protection of the law” territory. Seriously, these exemptions and free passes are blatantly unconstitutional, and anyone who reads the WHOLE Constitution should easily be able to see this.

  • marcus

    @33 It’s insidious.

  • erichoug

    @#31 Believe it or not, I have actually heard of people trying this sort of argument and the response from management is usually to applaud their faith but tell them they will still have to be able to wear their respirator in case there is someone else that needs Jesus’s attention at that moment.

  • http://sidhe3141.blogspot.com jy3, Social Justice Beguiler

    Saad (23):

    I wonder if there could be a Universal Life Church equivalent for that sort of thing: “Send us a $5 tithe and we will receive a ‘divine revelation’ that you must spend one day engaged in religious activity. ‘Witnessing’ to the heathen over a game of poker counts.”

  • eric

    @25: you could claim it until someone sued you saying it was a sham or you sued someone else for not treating it as real. Then the court would decide whether it’s a sham or legitimately falls under the first amendment’s protections. Helpful hint: donning it in response to yesterday’s court case and leaving an electronic trail of messages about how you just don’t like religious accommodation is a pretty good indication of a sham.

  • eric

    @32: Tomh, I have never heard of a fed court striking down an affirmative rule saying you have to fill proscriptions. I’d be interested in reading it, if you can point me to the decision.

  • Saad

    eric, #39

    @25: you could claim it until someone sued you saying it was a sham or you sued someone else for not treating it as real. Then the court would decide whether it’s a sham or legitimately falls under the first amendment’s protections. Helpful hint: donning it in response to yesterday’s court case and leaving an electronic trail of messages about how you just don’t like religious accommodation is a pretty good indication of a sham.

    And then he could sue again because this would mean the court is enforcing a list of official United States government approved religions.

    That’s our whole point with all of this. Raging Bee probably knows he’ll lose such a case whereas a Christian or a Muslim would win.

  • Saad

    Raging Bee, I’m sorry if I’ve misgendered you. Should have said “xe”.

  • Evan Brehm

    Between this and her tantrum/”response” to the Bernie Sanders/Venezuela kerfuffle, I think Michelle Malkin is clinically mentally ill. Not only does accuse other people of displaying mentalities and behaviors that she regularly displays herself, but she’s displaying those behaviors while she accuses other people of doing it. She really should not have stopped taking her bipolar meds.

  • tomh

    @ eric #40

    Federal Court in Washington, Stormans Inc. v. Selecky(2012); Americans United has a summary and updates to this case.

    https://www.au.org/our-work/legal/lawsuits/stormans-v-selecky

    In Illinois, Menges v. Blagojevich, (2006), (A regulation mandating all pharmacists be required to fill Plan B prescriptions was negated and a compromise was reached that allowed individual pharmacists to opt-out for religious reasons.)

    The American Bar Association has a brief summary on the Spread of Conscience Clause Legislation, ranging from providing abortion services (47 states), to education, to adoption.

  • boadinum

    I wonder how the courts would deal with a Pastafarian who insisted on wearing a colander at all times.

  • eric

    @41:

    And then he could sue again because this would mean the court is enforcing a list of official United States government approved religions.

    No, it would mean the court is smart enough to tell the difference between a blogger who has no sincere headwear-wearing ideological practice, and a sincere believer who does. They are allowed to look at actual facts on the ground. Past behavior. Things you’ve said and done. Whether your prom picture has you in a headscarf or not. They do not have to take Bee’s word about her belief, and they don’t, and that’s a very good thing for us secularists because for every secular protestor like Bee who might get shot down in their attempt to show the unfairness of religious privilege, there are 100 state senators who will try to pass some blatantly religious-favoring law while claiming they have secular motives – and the exact same court practice (looking at facts and history to assess whether a stated motive is legit or a sham) skewers them too. So be glad Bee can’t win such a suit. It means the system is working the way it should.

    Now, on your broader issue of whether the courts fairly protect minority religions such as wicca or non-religious ideologies such as humanism. I agree with you that they probably do not. However, humanism doesn’t require Bee wear a hat, so that’s really a different issue.

  • eric

    @44: Thanks! Those are interesting.

    But the one case cited did not turn out the way you imply. The courts have not struck down the law. In ’round 1′ the state won the right to enforce the practice. In round 2 they lost on a different matter (the question of whether pharmacies can choose not to stock a drug), appealed, and the appeal is still in the works. So its not settled. Your second link was written at least a year or possibly more behind your first link, so while it says the case is a loss, that probably refers to the first (currently being appealed) result of round 2.

    Anyway, thank you for the links. They are both good reads.

  • Saad

    eric, #46

    Ah, I see what I got wrong. You’re talking about the sincerity of the claim, not the substance of it. I agree.

    But the issue of religion being favored over non-religion still remains. Why should a personal preference for wearing a hat at work be considered unworthy of government protection while a religious preference for the same be protected? That says if your preference can be traced back to some superstition, we’ll protect it.

  • http://motherwell.livejournal.com/ Raging Bee

    No need to apologize, Saad, you actually got my gender right. Most respondents seem to think I’m female. Not sure why, though in many cases it sounds like a deliberate (attempted) put-down.

  • StevoR

    @ ^ Raging Bee : Almost all bees (various eponymous hymenoptra species esp. honeybees) are female – the male drones are rarely seen. The usual honeybees especially those that sting and defend the hive are generally female although also sterile with only the queen bee – hidden deep in the hive usually – reproducing. That may have something to do with your common misgenderment perhaps?

  • http://motherwell.livejournal.com/ Raging Bee

    StevoR: Thanks for the info, but I’m pretty sure that’s not what’s driving any commenters, here or elsewhere, to mistake my gender. Most of that lot probably can’t even pronounce “hymenoptra,” let alone understand that it’s not a reference to female anatomy.

  • StevoR

    Via facebook :

    https://www.facebook.com/video.php?v=10153348483906800&set=vb.7976226799&type=2&theater

    John Stewart on this the good and bad – “Halal things considered.”

  • samgardner

    Keep in mind this isn’t a first amendment case per se, but a CRA case. The CRA doesn’t protect personal preference.

    I don’t think that’s really that bad. Yes, religious belief gets favored in some respect, but otherwise you have the choice of not allowing any exceptions (thereby treating everyone the same by giving companies complete authority over all clothing choice), or allowing any exception at all (thereby destroying the ability odd any company to have any dress code except for safety reasons).

    Religious beliefs go to the core of what a person believes about themselves. I mean, even as an atheist I don’t mind wearing a you’re to work but would probably object to a yarmulke (at least, assuming the prospective employer had no rational reason for wanting me to wear it).