Ruan on the Accommodation of Religious Speech in the Workplace

In the fall issue of the Marquette Law Review, Professor Nantiya Ruan of the University of Denver Sturm College of Law has written an interesting article entitled “Accommodating Respectful Religious Expression in the Workplace.”  It is always hard to summarize a serious piece of scholarship in the few sentences that a blog post will permit and I am, of course, likely to emphasize those aspects of the piece that I found intriguing. It is also true, since I have decided to post a response and not a blurb, that I will emphasize those things that I see differently. So, with advance apologies to Professor Ruan, here is how I read the article.

Ruan posits an inconsistency between the emerging willingness of the Supreme Court to protect religious expression in public spaces (as illustrated by the Ten Commandments cases of 2005) and its rather narrow reading of the requirements to accommodate religious expression in the workplace under Title VII, where employers need incur no more than a de minimis burden to accommodate religious expression and practice.

I am sympathetic to Ruan’s arguments for greater accommodation of religious expression in the workplace. She does a nice job of advancing the notion that religion is fundamental to individual identity, although I would have added, as I have in recent papers, the notion that mandated secular spaces harm religion.

But I want to comment on her claim of an inconsistency between the recent trend toward toleration of religion in the public square and the treatment of religion in the workplace.

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Professor Esenberg on Crawford and the Scope of Employee Protections From Retaliation

Rick Esenberg has a new podcast on the Federalist Society website, in which he comments on Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee.  Crawford, currently pending before the United States Supreme Court, deals with the scope of the antiretaliation provisions of Title VII.  Rick’s podcast provides a succinct and helpful summary and assessment of the facts and arguments in the case.

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With Obama Elected, Will This Be the Last Term for Justice Stevens?

Justice John Paul Stevens has long been regarded as a stalwart of the Supreme Court’s liberal wing, but he turns 89 next year.  If he cares about having an ideologically similar successor on the Court, he may want to retire on a timetable that will permit a successor to be confirmed in time for the start of the next October term.  Not only would this permit a smooth transition for his colleagues, but it would also allow soon-to-be-President Obama to take advantage of his party’s large majority in the Senate.  Mid-term elections are notoriously tough on sitting presidents, so it might be risky for Stevens to wait much longer — from the standpoint of maximizing the odds of an easy confirmation for a liberal successor. 

But I hope that Stevens will not act in so transparently political a manner.  The Court’s legitimacy rests to no small extent on perceptions that its members are above politics.  Sure, anyone who is paying attention knows that there are “liberals” and “conservatives” on the Court, and no once can reasonably expect the Justices entirely to suppress their fundamental political values when they decide cases.  But that sort of partisanship is different than trying to control the composition of the Court, which seems to me something considerably crasser.  I hope that Stevens remains on the Court for as long as he feels that he can function effectively — even if that means President Palin selects his successor.

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