The Right to Wear Arms

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Sikhs in the United States have been frequent targets of both bias crimes and police harassment because of the articles of faith associated with their religious practice, including turbans, uncut hair, and kirpans (small swords or knives).

Two pending cases highlight constitutional issues for Sikh religious dress.

In one, Gursant Singh Khalsa has filed a complaint in the U.S. District Court for the Eastern District of assault_rifleCalifornia alleging that California’s bans on assault weapons and carrying loaded firearms in public violate his Second Amendment right to bear arms and First Amendment right to free exercise of religion.

Khalsa argues that Sikh religious doctrine requires him to bear arms to defend himself and others, which, according to his interpretation, means carrying “no less” than a firearm loaded with more than 10 rounds, a violation of California law. Typically, this doctrinal requirement is manifested in the kirpan, rather than the assault rifle. Khalsa’s cited justifications for carrying arms include recent violent attacks against Sikhs — notably the 2012 mass shooting at a Sikh temple in Oak Creek, Wisconsin, carried out by Wade Michael Page. (Noted: Page legally purchased his multiple-magazine semiautomatic handgun.) 

kirpan_rulerIn the second case, Kawaljeet Kaur Tagore’s claim is pending before the Fifth Circuit Court of Appeals. Tagore was fired from her job at the Internal Revenue Service in Houston for refusing to remove or modify her kirpan with a three-inch blade. The I.R.S. fired Tagore for violating agency rules and 18 U.S.C. § 930, prohibiting possession of dangerous weapons in Federal facilities. Judge Sim Lake, writing for the U.S. District Court for the Southern District of Texas, dismissed Tagore’s claims against the I.R.S. of religious discrimination under Title VII of the Civil Rights Act of 1964 and the Religious Freedom Restoration Act.

Khalsa’s claim has reportedly attracted skepticism from the director of his hometown Yuba City Sikh Temple, Tejinder Dosanjah: “He should not involve the Sikh faith directly or indirectly in this lawsuit.” Tagore’s suit, however, has greater appeal, including attracting an amicus brief from the International Center for Advocates Against Discrimination, describing the kirpan as an “inseparable part of the Sikh identity” and “in no conceivable way … a weapon.”

[images via 1 and 2]

Hemlines in Uganda

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According to an article in the Mail & Guardian, the Ugandan government is again considering criminalizing women’s attire “above the knee.”   Certainly, hemlines have fluctuated, as show in the graph below (via).

 

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But the difference between fashion and state mandated attire is a crucial one.  Uganda’s effort is part of an anti-pornography bill that would also censor images in the media and on the internet.

 

 

Marine Dress Blues

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800px-Defense.gov_News_Photo_090522-N-8395K-001This June, Wisconsin high school senior Mac Hamlin might not participate in his high school graduation because school administrators have not sanctioned his desire to don his marine dress blues during the ceremony — a deviation from the traditional cap and gown dress code.

The Hudson School District released an official message about the School’s rumored denial of Hamlin’s wish to wear the uniform. According to the release, the Principal has responded to individual inquiries about the dress code “based on long standing past practice and what the high school ceremony represents – a culminating successful accomplishment of required work during the high school years.” The release suggests if Hamlin were to make an official request, it would be considered in light of its affect on “all future graduation ceremonies.”

In 2010, a similar situation occurred in South Dakota when graduating senior Aloysius Dreaming Bear formally requested to wear traditional Lakota dress to his graduation ceremony. All ten members of his graduating class were Lakota, and nine of them formally supported Dreaming Bear’s request (with one somehow unaware of it), recognizing it would be symbolically powerful and meaningful to them as a community.

Nevertheless, the Principal and school board rejected Dreaming Bear’s request, saying they valued the universal meaning of the traditional cap and gown as “‘academic measures of recognition’ … symbolic of the unity of the 2010 graduating class.” Determined, Dreaming Bear sought a preliminary and permanent injunction against the school board and school district for violating his right to free speech under the 1st Amendment.

The District Judge rejected Dreaming Bear’s claim. Although noting Dreaming Bear’s admirable intentions, the Judge decided that the graduation ceremony was “not a public forum open to public expression of speech” as it is a school sponsored event. The Judge also noted that graduation was for the school and community as a whole and that the traditional cap and gown “is part of the very fabric of the academic experience throughout the nation.”

The Marine Corp’s response to Hamlin’s situation in Wisconsin reflects a similar nod of respect for the time-honored cap and gown. But Hamlin seems to take a similar stance as Dreaming Bear, telling reporters “If I’m not going to be able to wear my dress blues, I’m just not going to walk … It’s not about the clothes, it’s about the principle.”

If Marine Hamlin were to seek an injunction like the Lakota Warrior, it would be interesting to see how the court would consider the school’s refusal to sanction the student’s expression of free speech in the context of a military uniform. But it is unlikely Hamlin would need to take such action, because political pressure from the community has proven to be effective in the past for young servicemen and -women who want to receive their diplomas in their newly acquired uniforms.

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Tattoo Taboos

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taboo-tattooLaws restricting tattooing and body modification are in the works in at least three states. Arkansas would ban dermal implants, a procedure where jewelry is implanted under the skin, and update its procedures for licensure of artists and tattooing of minors, including increased penalties and fines. West Virginia would likewise ban tattooing for minors under 16 and specify parental consent procedures for 17- and 18-year-olds, including written consent at the time of tattooing. The Utah legislature has passed a similar bill updating its consent requirements for minors. Meanwhile, a Texas father was reportedly arrested for felony injury to a child and felony aggravated assault for allowing his teenaged daughters to be tattooed.

Certainly, tattoos are an increasingly accepted and widespread form of self-expression.  In holding unconstitutional a municipality’s ban on tattoo parlors, in 2010 the Ninth Circuit Court of Appeals in Anderson v. City of Hermosa Beach held that tattoos were expressive activity and thus protected by the First Amendment.  Applying a strict scrutiny standard, the court concluded that the total ban on tattoo parlors was unconstitutional.  Interestingly, the court found that the expression was not merely the words or images, but the “tattoo itself, the process of tattooing, and the business of tattooing.”  

But whether all courts would accept this rationale, or extend it to other practices such as dermal implants  and scarification is uncertain.  Moreover, given children’s lesser constitutional rights, the government’s ability to regulate tattoos on minors – – – with or without parental permission – – – is also uncertain.   Yet the arrest of a father for allowing teenagers to have “body art” is sure to raise a variety of constitutional questions, not to mention policy ones.

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Should You Care About A Senator’s Hairstyle?

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Perhaps not.

But Mother Jones has a terrific “fluff piece” by Dave Gilson entitled The Greatest Senatorial Hair Cuts of All Time with a punned subtitle ‘do process.

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Most of the hairstyles are also punningly titled, adding to the fun of the 8 featured senators.  Although some, such as John Calhoun (pictured above) need no title, and others rise and fall by their caption.

A companion piece, by Asawin Suebsaeng on Senate Hair Care Services, “the official barbershop and salon of the world’s greatest deliberative body,” is also a terrific read that puts laws, codes, and policies about hair into a different perspective.

Supreme Court to Decide the Meaning of “Changing Clothes”

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Certainly the United States Supreme Court’s current docket has some controversial issues – – – such as affirmative action, voting rights, campaign finance, and same-sex marriage – – – but some of the questions it decides to hear are decidedly less high profile, including a question of statutory construction on the meaning of changing clothes, and indeed, the meaning of clothes.

The Court has granted certiorari in Sandifer v. United States Steel to decide

What constitutes “changing clothes” within the meaning of section 203(o) of the Fair Labor Standards Act?

The section of the Fair Labor Standards Act, FLSA, at issue is a definitional one, defining “hours worked” as excludinwork clothesg

any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

The Seventh Circuit – – – in an opinion by the controversial and colorful Judge Richard Posner – – – found in favor of U.S. Steel that donning and doffing the safety gear was not necessarily changing clothes.  Not for the first time, Judge Posner decided to include an image in his opinion (reproduced at right).  Judge Posner explained:

It’s true that not everything a person wears is clothing. We say that a person “wears” glasses, or a watch, or his heart on his sleeve, but this just shows that “wear” is a word of many meanings. Almost any English speaker would say that the model in our photo is wearing work clothes.

Posner also situates the case in labor relations and the steel industry:

From a worker’s standpoint any time spent on the factory grounds is time “at work” in the sense of time away from home or some other place where he might prefer to be if he weren’t at work. But it is not time during which he is making steel, and so it is not time for which the company will willingly pay. If the workers have a legal right to be paid for that time, the company will be less willing to pay them a high wage for the time during which they are making steel; it will push hard to reduce the hourly wage so that its overall labor costs do not rise. The steel industry is inter- national and highly competitive, and unions temper their wage demands to avoid killing the goose that lays the golden eggs. They don’t want the American steel industry to go where so much American manufacturing has gone in recent years—abroad. The plaintiffs are adverse to their union, to the interests of other steelworkers, and to their own long-term interests.

The constitutional issues surface only in the last portion of Judge Posner’s opinion for the Seventh Circuit.  The Department of Labor, the federal agency charged with implementing FLSA, has altered its administrative determinations regarding the meaning of “changing clothes.”  As Posner writes, this meaning has changed with various Presidential Administrations, explaining in his inimitable prose that “Such oscillation is a normal phenomenon of American politics. Democrats are friendlier to unions than Republicans are . . . .”  He adds that “Naturally the Department of Labor does not acknowledge that its motive in switching sides was political; that would be a crass admission. . .”

Moreover, even as the Supreme Court is set to tell us what “changing clothes” means and within that pronouncement, to define “clothes,” these definitions will occur only within the context of a statute.  Thus, Congress retains ultimate power here; it could always amendment FLSA to include specific (and even contrary) definitions.

NYC Challenges Right of Store Owners to Impose Dress Code on Patrons

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The New York City Commission on Human Rights (CCHR) has filed complaints against seven Jewish Orthodox-owned stores in Williamsburg, Brooklyn, for their conservative dress codes — codes for patrons rather than employees. 

sanders_bakeryThe complaints, including one against Sander’s Bakery (pictured), allege that the stores’ policies violate New York City’s Unlawful Discriminatory Practices Law, proscribing businesses from denying patrons “the advantages, facilities, and/or privileges of a public accommodation based upon their gender and creed.”

As reported, CCHR spokespersons have suggested that these modesty codes not only unlawfully discriminate against women, but also impose religious beliefs on others. Various advocates for the store owners argue that the posted policies of “No shorts, no barefoot, no sleeveless, no low-cut neckline allowed in this store” are permissible.  After all, they do not make any explicit gender or religious classifications.  And indeed, there are many establishments that have policies such as “no shoes, no shirts, no service.”

But the geographic location in this section of  Williamsburg does have a particular valence.  Two years ago, Williamsburg’s Hasidic community made news for illegally posting signs that requested women to step aside when men approached them on the sidewalk. Around the same time, local businesses started publicly adopting dress codes as a push by Williamsburg’s “modesty patrol”, who wish for Jewish businesses and community members to conform with traditional standards of dress and discretion between the genders. Some have commented that such public activism within the community is a desire to differentiate themselves from the neighborhood’s rapidly increasing popularity with younger, more liberal crowds.

As the CCHR suit moves forward, it will certainly be one to watch.  It could have far reaching consequences regarding government’s ability to eliminate dress codes for patrons in stores as balanced against the rights of religious owners of commercial establishments to dictate the apparel of their customers.

For St. Patrick’s Day: Appropriate Attire Please

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665px-St._Patrick_himself_in_Dublin,_OhioSome green is beyond the pale for the Rockland County, New York legislature.

In keeping with previous practices, the body has expressed its displeasure at attire “including hats, shirts and other materials which promote ridicule and seek to degrade any ethnic culture should not be permitted to be sold in a public forum especially where children may be exposed and have access to said materials.”   Presumably, this attire goes beyond bearing slogans such as “Kiss me I’m Irish” and mentioning of an occasional pint of Guinness; there is a specific reference to the “most offensive, derogatory materials now offered for sale at Spencer’s at the Palisades Center, West Nyack, New York, which specifically target members of Rockland’s Irish-American community.”
(Some of Spencer’s St. Patrick’s Day attire is available here.)

Importantly, the County Legislature’s act is a “Resolution.”  Certainly, any enforcement attempts would run afoul of the First Amendment.

The full text of the Resolution is below the jump, page 2.
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Stealth Wear: Defeating Drone Surveillance by Attire

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With continuing controversies about drones, the appearance of apparel that would combat the surveillance capabilities – – – if not the lethal ones – – – of drones is perhaps an obvious development.

Adam Harvey’s stealth wear continues to “explore the aesthetics of privacy and the potential for fashion to challenge authoritarian surveillance.”

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For example, the stealth wear hoodie (pictured above ) is made of “metallized fabric that protects against thermal imaging surveillance, a technology used widely by UAVs/drones” and is available for purchase.   Other stealth wear garments are inspired by the burqa and hijab.

An article in Scientific American declares that the “the science behind the fashion is quite sound” and goes on to explain the process of metalizing fabric.