Are there any judges that would rule to uphold a hypothetical hijab mandate anywhere in the US?
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  Are there any judges that would rule to uphold a hypothetical hijab mandate anywhere in the US?
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Author Topic: Are there any judges that would rule to uphold a hypothetical hijab mandate anywhere in the US?  (Read 891 times)
I spent the winter writing songs about getting better
BRTD
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« on: August 01, 2023, 01:26:56 PM »

(Note: Pointing out that it's extremely unlikely that any municipality in the US would ever pass a hijab mandate, even a hypothetical Muslim majority one is missing the point. Thought experiments do not require a likely or even plausible scenario.)

So if this hypothetical Muslim majority municipality passed a hijab mandate, the courts would obviously strike it down very quickly and SCOTUS would likely rule 9-0 on it...is there any judge anywhere in the federal courts that wouldn't though? And if so are they liberal or conservative?
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Donerail
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« Reply #1 on: August 01, 2023, 02:04:57 PM »

No. Might be some variation in what they use to strike it down.
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BRTD
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« Reply #2 on: August 01, 2023, 02:13:33 PM »

No. Might be some variation in what they use to strike it down.
I was thinking conservatives might be more likely to use sort of lack of compelling state interest argument instead of the First Amendment.
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Donerail
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« Reply #3 on: August 01, 2023, 03:00:23 PM »

No. Might be some variation in what they use to strike it down.
I was thinking conservatives might be more likely to use sort of lack of compelling state interest argument instead of the First Amendment.

There have been a handful of cases involving municipalities trying to impose dress codes (usually not religiously motivated — sagging pants are the usual target). They've uniformly been struck down.

For one particularly egregious case, decided on Due Process grounds, DeWeese v. Town of Palm Beach (11th Cir. 1987):
Quote
Appellant Allen DeWeese is a male lawyer who lives in the Town of Palm Beach, Florida. He likes to run, and during the hot, humid Florida summers he runs without a shirt on. This activity offended the town fathers of Palm Beach so they passed a law against it.

The instant restrictions cannot be distinguished satisfactorily from a regulation requiring all citizens when appearing in public to wear a brown shirt, or from a regulation prohibiting women from appearing in public in slacks or with bare calves or dresses above the knee, or from a regulation requiring all men appearing in public after sundown to wear a black tie and tails. We are satisfied that such instructions on the liberty interests of citizens at large would not pass constitutional muster, absent identification of some rational basis which has not yet been brought to our attention and which is beyond our present imagination.

I think due process would be the most likely avenue even in the hijab case, just because it's blindingly obvious, but any court would likely present both as alternative holdings.
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« Reply #4 on: August 01, 2023, 05:03:40 PM »

I don't think there would be any federal Judge.

Lot's of places (stupidly) elect local and state judges, so theoretically in the bizzarro world it passes the local judge might support it. It unanimously has no shot anywhere in any federal court.   
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Nathan
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« Reply #5 on: August 01, 2023, 11:21:23 PM »
« Edited: August 04, 2023, 02:50:19 AM by Command of what? There's no one here. »

A hijab ban doesn't have a snowball's chance in hell in federal court, but might have roughly a snowball's chance in hell in state and local courts depending on where in the country it is. A hijab mandate doesn't have a snowball's chance in hell in any federal, state, or local court, even in the handful of Detroit suburbs that are the only places in America that might conceivably pass them.
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Torie
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« Reply #6 on: August 03, 2023, 08:09:59 AM »

A hijab ban doesn't have a snowball's chance in hell in federal court, but might have roughly a snowball's chance in hell in state and local courts depending on where in the country it is. A hijab mandate doesn't have a snowball's chance in hell in any federal, state, or local court, even in the handful of Detroit suburbs that are the only places in American that might conceivably pass them.

As long as it is for reasons of modesty not tied to a religious stricture per se, and perhaps if men were subject to the same requirement, it might just fly. Too big "ifs" I understand. The most analogous example where there  legal activity is extant is going topless in public. From Wiki:

"In the United States, states have primary jurisdiction in matters of public morality. The topfreedom movement has claimed success in a few instances in persuading some state and federal courts to overturn some state laws on the basis of sex discrimination or equal protection, arguing that a woman should be free to expose her chest in any context in which a man can expose his. Other successful cases have been on the basis of freedom of expression in protest, or simply that exposure of breasts is not indecent (or similar terminology).

'Laws and ordinances barring female toplessness are being challenged in federal courts around the nation. Each lawsuit, if it prevails at the appellate level, will legalize topfreedom in the following U.S. circuit courts of appeals (from west to east): 9 (California), 8 (Missouri) and 1 (Maryland). A federal lawsuit in the 7th Circuit (Illinois), was lost at the appellate level and the petition for review by the U.S. Supreme Court was denied. A preliminary injunction in a federal lawsuit in the 10th Circuit (Colorado), was won at the appellate level. In September 2019, after spending over $300,000, Fort Collins decided to stop defending their ordinance and repeal it. That effectively gave females of all ages the right to go topless wherever males can in the jurisdiction of the 10th Circuit (Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma states as well as all counties and cities therein).[94]"

In reality, a state law would be passed overriding such a local ordinance if Hamtramack et al decided to go there long before it got to higher courts. Otherwise, women might get arrested while driving when black uncovered through the town.
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Skill and Chance
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« Reply #7 on: August 08, 2023, 08:36:18 AM »

Justice Thomas has been pretty clear that he doesn't believe the Establishment Clause is incorporated on the states at all.  I expect he would never vote to strike down a state/local law for being too religious.  However, he would probably be the sole dissent if something like this ever reached SCOTUS.
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