Hats off to free exercise? Wearing of religious headgear now a First Amendment issue

FOR many Americans, separation of church and state has long been a heady issue. And now it is literally so, in the light of an ongoing debate over the wearing of religious headgear in the military, schools, and elsewhere in the public sector. The United States Supreme Court seemed to settle the dispute, at least partially, last term. The justices ruled that an Air Force captain who was also an Orthodox Jew had to accede to military regulations and discard his yarmulke (skullcap) while on duty.

This decision, however, carried on a 5 to 4 vote, indicating little consensus among the brethren. And it continues to spur debate among First Amendment champions.

Former Supreme Court Justice Arthur Goldberg, for example, has said that the yarmulke ruling ``makes bad law.'' He holds that it undermines the constitutional commitment to religious pluralism.

And there now is a move in Congress to attach a provision to a military defense bill that would negate the high court's action by allowing religious Jews in the armed forces to wear religious headgear.

Rep. Patricia Schroeder (D) of Colorado, one of the measure's sponsors, says it would permit the wearing of a ``neat and conservative'' article ``so long as it does not interfere with the performance of military duty.''

The Schroeder amendment, although aimed at Orthodox Jews in the military, could have a broader impact, affecting others (in and out of the military) whose religions require them to wear religious apparel on the job.

Early this spring, the Supreme Court sidestepped the issue, refusing to hear arguments in an appeal from an Oregon schoolteacher who was suspended because she wore religious garb in the classroom after becoming a Sikh.

The justices, citing the lack of a ``substantial federal question,'' let stand a state high court ruling that the suspension of Karta Kaur Khalsa (formerly Janet Cooper) did not violate the young woman's constitutionally protected freedom of religion.

Associate Justices William Brennan, Thurgood Marshall, and Sandra Day O'Connor would have given Mrs. Khalsa a Supreme Court hearing - but they failed to muster another vote needed to grant such a review.

The Oregon ruling was based on a 1923 state law forbidding teachers in public schools to wear religious garb under the threat of revocation of their teaching certificates.

Khalsa, a special-education teacher and, at the time, a recent convert to the Sikh faith, had persisted in wearing a white turban and an all-white outfit to class. School district officials barred her from teaching. She, in turn, took them to court.

Oregon's Supreme Court weighed Khalsa's claim to free exercise of her religion against the state's right to ensure non-sectarianism in the classroom. The justices saw no precedent for setting aside the no-religious-garb rule.

State officials argued that the teacher's desire to wear religious clothing had to be subordinated to the state's need for religious neutrality in the public schools.

They said that, as a schoolteacher, Khalsa was acting in the capacity of a government official. Also, they pointed out that the right of religious choice did not allow her to convey an implied government endorsement of her religious convictions.

Khalsa's lawyer had argued, on the other hand, that Oregon's law - and others similar to it - violates the Constitution's religious free exercise and equal protection clauses. Also, he said, such proscriptions as to dress are in conflict with federal antidiscrimination laws.

Further, the schoolteacher's counsel pointed out that the law in question unfairly singles out those few religions that require their adherents to wear distinctive dress.

In unanimously upholding the Oregon statute, the state court said that ``recognition that freedom of religion for all implies official sponsorship of none has grown with the growing diversity of the nation.''

Justice Hans Linde said, however, that the Oregon law does not ban teachers from wearing ``common decorations'' - such as a crucifix or the Star of David. He even allowed that more elaborate religious paraphernalia might be worn occasionally.

This ruling was hailed by many First Amendment advocates. Robert Maddox, executive director of Americans United for Separation of Church and State, said that ``states have a compelling interest in protecting the neutrality and integrity of public schools.''

Meanwhile, the issue has arisen again - this time in Pennsylvania where a Philadelphia public schoolteacher said she was restricted in her assignments for deciding to wear an Islamic headpiece, described by federal officials as a scarf.

Delores Reardon filed a complaint with the Equal Employment Opportunity Commission after unsuccessfully trying to negotiate a settlement with the state and the local school board.

Under an 1895 statute, Pennsylvania bans religious garb in the classroom. This prohibition is also incorporated into the public school code.

The US Department of Justice recently entered this case on behalf of Ms. Reardon - charging illegal religious discrimination by the state and the Philadelphia school board.

Justice officials insist that, unlike the one in Oregon, this case is based on the federal civil rights act - and not on First Amendment religious grounds.

A Thursday column