I love his crafty-casual unfolding of an absolutely-to-the-point, devastating question, on nice display in EEOC v. Abercrombie & Fitch (which is a case about the store's declining to hire a woman who interviewed in a headscarf):
That's just one example of his style of questioning. That's his long form attack, which tends to come after lying in wait. There's also the delightful short form of attack: "I'm with you only where they correctly believe that, dah, dah, dah, or understand dah, dah, dah, or no."
February 28, 2015
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the more I read about such cases the more respect I have for Amish and Mormons, who instead of seeking accomodation from the society, waved it middle finger, and built their own.
The Amish litigate for their accommodations. One of the most important Free Exercise Clause cases is Wisconsin v. Yoder, where they fought and won the right to take their kids out of high school earlier than was required for other kids.
And the most important Wisconsin constitution free-exercise case involves Amish who didn't want to put the DOT slow-moving vehicle symbol on their slow moving horse-drawn buggies. They fought and won.
So your picture of the Amish as standing apart from demands for legal rights is just plain wrong.
Learn it. Know it. Live it.
De do do do, de da da da.
On accommodation in the Colorado cake wars: Good WaPo article. To say that refusing to bake a gay-themed wedding cake is illegal, while saying it's permissible to refuse to bake a cake saying "God hates gays," is a distinction without a difference -- one that is making many minds explode among the progressives.
Ann, can you help me understand this:
In terms of the law, why would Abercrombie be required to accommodate the religious headscarf girl, but the cake shop would not be allowed to decline to make a cake for a gay wedding? (assuming the shop would serve gay community members otherwise)
If Abercrombe looses - wouldn't this be saying we have the right to our religious liberty IN THE WORK PLACE, and also support the religious rights the bakery/florist/photographer?
LilyBart, IANAL, but it just doesn't seem like the issues are related.
A&F is a publicly traded corporation that has to comply with non-discriminatory employment practices.
Artisanal cake bakers are sole proprietors or closely-held business entities with First Amendment rights.
I am waiting for Breyer to rule against ice cream eaters accomodation.
"In terms of the law, why would Abercrombie be required to accommodate the religious headscarf girl, but the cake shop would not be allowed to decline to make a cake for a gay wedding? (assuming the shop would serve gay community members otherwise)"
The easy answer — and I'm not saying this should be the legal answer (because of the First Amendment defenses) — is that we're talking about statutes that apply to private businesses, and Title VII requires employers to make accommodations for religion whereas in the cake controversy, there's a statute that requires a business not to discriminate against customers and that does not include a provision for a religious exemption for the business (and the statute is interpreted to mean that the refusal to make an ssm cake is the discrimination referred to in the statute).
Just different statutes with different wording. Amend the statutes if you want the rules to be the same.
It's crushingly obvious that Abercrombie is going to lose this case.
There is a difference between demanding legal rights in wanting the government to leave you alone and demanding affirmative accommodations from private employers.
"...there's a statute that requires a business not to discriminate against customers and that does not include a provision for a religious exemption for the business (and the statute is interpreted to mean that the refusal to make an ssm cake is the discrimination referred to in the statute).
Then that interpretation has to be an unconstitutional infringement of the First Amendment, at least in the case of artisan-decorated cakes (as opposed to machine decorated cakes.) Artisans have rights, and should not be compelled to speak in ways that are contrary to their beliefs.
Are you talking "favorite performer during oral argument"?
Or are you talking "favorite writer of precedent"?
Mr. Justice Thomas is a favorite of mine in the latter category, but doesn't compete in the former. They're very different things, of course.
Oh, wow. That case is fucked up.
"Then that interpretation has to be an unconstitutional infringement of the First Amendment, at least in the case of artisan-decorated cakes (as opposed to machine decorated cakes.) Artisans have rights, and should not be compelled to speak in ways that are contrary to their beliefs."
Yeah, my answer accounts for that.
@ Scott: If you're suggesting that "artisans" have some special constitutional rights, I say "baloney" and challenge you to offer a useful and non-problematic definition of "artisan." That can no more done than trying to draw a useful constitutional distinction between a "journalist" and, oh, say, a law professor who blogs in her spare time. (My position is both have exactly the same First Amendment rights, as do the artisan baker and an eighteen-year-old who's never turned on an oven.)
Title VII requires employers to make accommodations for religion
The problem I have with this is when employers are forced to hire someone *because* it would look like not hiring them is not providing accommodations for religion.
And yes, it is obvious AF will lose.
Maybe they can develop a hijab line marketed to the cool teenagers.
@Beldar
It's boring to have a favorite based on outcomes.
I'm talking style and cutting to the core of things.
If I had to trust one person to make the decisions... well, I don't. There are 9 of them. It's a group project. Each one of them, including Clarence Thomas, would be different if he or she alone had the solo burden of deciding.
All women should start wearing hijabs to retail interviews now. It will say to the employer, "You have to hire me, or I'll sue."
Maybe that's the point of the lawsuit. To encourage hijab-wearing.
Ann Althouse said...
The Amish litigate for their accommodations. One of the most important Free Exercise Clause cases is Wisconsin v. Yoder, where they fought and won the right to take their kids out of high school earlier than was required for other kids
Wisconsin v. Yoder:
Three Amish students from three different families stopped attending New Glarus High School in the New Glarus, Wisconsin school district at the end of the eighth grade, all due to their parents' religious beliefs. The three families were represented by Jonas Yoder (one of the fathers involved in the case) when the case went to trial. They were convicted in the Green County Court. Each defendant was fined the sum of five dollars. Thereafter the Wisconsin Supreme Court found in Yoder's favor. At this point Wisconsin appealed that ruling in the U.S. Supreme Court.
The Amish did not believe in going to court to settle disputes but instead follow the biblical command to "turn the other cheek." Thus, the Amish are at a disadvantage when it comes to defending themselves in courts or before legislative committees. However, a Lutheran minister, Reverend William C. Lindholm, took an interest in Amish legal difficulties from a religious freedom perspective and founded The National Committee for Amish Religious Freedom (partly as a result of this case) and then provided them with legal counsel.
@Beldar: Of course I'm not saying that. I'm saying that artisans have the same rights as everyone else to be free from being compelled to say something they don't believe or support.
Pick another straw dog, please.
@ Prof. Althouse: Thanks for the clarification. I agree that style can be judged apart from results and rationale. Some of my least favorite Justices on the latter do indeed score high on the former.
@ Scott: I also appreciate your clarification, and apologize if you think I was engaged in baiting or straw-dog constructing.
@Beldar: It's okay, you're groovy. :)
The Abercrombie attorney's subsequent answer made a point that parallels why Scott Walker's response question whether Obama is a Christian was appropriate:
I don't think this is like any other case, because you're dealing with -- you're dealing with something -- religious belief, which is inherently personal to the individual.
And to charge employers with -- to charge employers with Title VII liability and require them to come to an understanding of whether a particular practice is religious or not -- [interrupted, again, this time by Sotomayor with the incongruous example of someone who does not want to hire Jews]
Now, Mr. Dvoretzky, suppose an employer just doesn't want to hire any Jews, and somebody walks in and his name is Mel Goldberg, and he looks kind of Jewish and the employer doesn't know he's Jewish.
No absolute certainty and certainly Mr. Goldberg doesn't say anything about being Jewish, but the employer just operates on an assumption that he's Jewish, so no, he doesn't get the job.
Is that a violation?
: That is a disparate treatment violation of Title VII.
But the employer --
That has got to be against the law, right? It doesn't matter whether the employer -- (Laughter.) It doesn't matter whether the employer knows it to an absolute certainty, right?
: Absolutely, because in that situation, because what's relevant is the employer's intent.
:If the employer intends to discriminate on the basis of religion, then that's a Title VII violation. What's going on here, however, is that the employer seeks to apply a religion-neutral dress code.
Religion, according to Johnson --
Except in Title VII, you would be right if all that Title VII did was prevent religious discrimination, but it makes a religious practice, a refusal to accommodate a religious practice is itself a violation of Title VII. So we have -- it's -- and that was done deliberately, was it not, so that religious practices would have to be accommodated.
: Yes, Your Honor, and two points in response to that, if I may.
:One, we're not contending that religious practices don't have to be accommodated.
:What we are contending as an initial matter is that an employer does not intentionally discriminate on the basis of a religious practice by enforcing a religion-neutral dress code that would have been have been enforced --
But the thing about my question was, is that what this statute does is to say that if you are, in fact, wearing a headscarf for religious reasons, that your neutral policy really doesn't matter, it only matters if you -- if there's an undue burden and you really can't make an accommodation, but except for that, it really doesn't matter.
You just have to hire me, even if I'm wearing a headscarf.
Professor Althouse, I think you are right about Justice Breyer in oral argument. Your current example is good, and as you know better than me there are many others.
And now I just have to ask you; do you think Breyer's playful deftness in oral argument time has ever turned a decision?
The reason I ask is because of the long-running insults aimed at Justice Thomas for not doing what Breyer does.
I'd concede that oral arguments could possibly have an impact on a case. I'd even more readily concede that in the high-profile cases on the SCOTUS docket, oral argument may serve a public-education purpose. But they don't ever determine outcomes, and Thomas' habit of listening during oral argument isn't an indicator of much of anything.
"And now I just have to ask you; do you think Breyer's playful deftness in oral argument time has ever turned a decision?"
Or is Justice Thomas right in saying that cases are decided before they get to oral arguments?
My problem with this is Abercrombie was a potential employer.
A potential employer with a dress code. A dress code related to its "lifestyle" branding. A lifestyle branding that has little to do with hijab wearing.
So not hiring her makes sense to their brand. Why should they be forced to hire her simply because she was wearing a hijab?
Sorry, that seems crazy.
@AllenS
The Amish were put in a defensive position when the govt went after them, but they defended themselves. You can't be forced to accept a lawyer.
But, yes, it's different from the Abercrombie case where a woman who found out she was denied a job took the initiative and went to court about it.
Here's the Wisconsin Supreme Court case about the Amish buggies — PDF. That too was a case where the govt came after them, but they fought for their rights (and won).
Re what "turns" decisions:
I didn't clerk at the SCOTUS level, so I have only Fifth Circuit clerkship experience upon which to draw, and there are some important differences between the ways the courts of appeals decide cases and the ways the SCOTUS does that. However:
I cannot recall a single case during my clerkship in which oral argument turned a decision. The oral argument itself was useful as a forum for the judges to muse in public, and as another opportunity (in addition to that created by the briefs) for one side or the other to make a mistake that will show up in an opinion: "As petitioner conceded in his brief/at oral argument, dah dah dah." Every appellate judge at every level loves waivers and admissions that support the result they want to reach.
The main use of oral argument, as I observed it, was that it formed the predicate for the secret conferences of the appellate judges that takes place immediately after. And in very sharp contrast to the argument itself, those conferences can and quite often do change votes.
SCOTUS and federal circuit court clerks don't get to sit in on those conferences. I have friends, though, who clerked instead on the Texas Supreme Court, which does permit its clerks to attend those conferences, and every one of them with whom I've discussed this subject agrees that this offered unparalleled insight into how the sausage -- er, the appellate court's decisions -- get made.
Beldar said...
"Are you talking 'favorite performer during oral argument'? Or are you talking 'favorite writer of precedent'? Mr. Justice Thomas … doesn't compete in the former."
Oh, I don't know, he has a position on it that isn't wholly meretricious. In this very case, the "hot bench" got so hot that justices were cutting off answers so infuriatingly that at one point, even Justice Scalia had to politely ask Justice Sotomayor to shut up and let the advocate finish his answer, and told the advocate to ignore Sotomayor's question and finish answering his.
I should say that I don't usually find anything attractive about Breyer's demeanor in interviews and at argument. He did, however, in this case, make an uncharacteristically-trenchant summation of the respondent's attorney's argument, and I suppose that that's my answer to Chuck: If Breyer "has ever turned a decision" at argument, this may be the case.
I don't think that the outcome is certain. It's a difficult situation: Ordinarily the rule has to be (as the respondents stress) that the employee has to ask for the accommodation. But in this context (as Justice Ginsburg stresses), the interviewee doesn't necessarily know the rules, which might suggest that you flip the responsibility to ask onto the employer, but that isn't tenable either, for as the Chief points out, not every interviewee has such an obvious cue as a beard or headscarf.
This case is not wholly unlike a criminal case (think Kennedy v. Louisiana) where you have a unlikeable defendant who's on trial over an unlovely act that arose from a fairly unlovely background. But we have to remember (and the court knows) that the question isn't "should Abercrombie be punished," the question is what is the rule of law that will govern the lives of millions of people and thousands of lawsuits. I don't think that the equities (or the law) are quite so clear. I wouldn't count on this being a 9-0 case.
"And now I just have to ask you; do you think Breyer's playful deftness in oral argument time has ever turned a decision?"
I think he's giving the lawyer one last chance to come up with an answer that will deflect the decision the Justice has in mind. But Breyer is so far out in front of everything that the lawyer cannot do it. Maybe there's an example in there, and maybe Breyer's presentation is enough to shift another Justice's vote at some point. Who knows?!
Obviously, Thomas has a deeply vested interest in his contention that oral arguments don't matter.
"in there" = in all the cases.
Abercrombie and Fitch have been to Federal court a number of times over its hiring practices. The headscarf issue is just the latest. In their perfect world, all A&F clerks and stock workers would be squinty 18-to-25 year old blond white boys with six pack abs.
"even Justice Scalia had to politely ask Justice Sotomayor to shut up and let the advocate finish his answer, and told the advocate to ignore Sotomayor's question and finish answering his."
I heard 2 places in the oral argument where Sotomayor got pushed back like that.
She has the tendency to insert her own question after somebody else's question, and it's obviously bothering others.
Sotomayor is the worst at oral argument in my view. She often starts to talk and then it's apparent that she doesn't know what to say. It's the complete opposite of Breyer. She'll just voice her confusion and tell the lawyer that it's hard to understand!
"Abercrombie and Fitch have been to Federal court a number of times over its hiring practices. The headscarf issue is just the latest. In their perfect world, all A&F clerks and stock workers would be squinty 18-to-25 year old blond white boys with six pack abs."
They're not clerks. They're "models." That's what they call them. Well, if they are models, can't you pick the models who look the way you want them to look and certainly to wear the clothes the store is selling... which does not include headscarves?
Now, A&F could make that argument, but they are trying to win on a different point.
"I don't think that the outcome is certain. It's a difficult situation: Ordinarily the rule has to be (as the respondents stress) that the employee has to ask for the accommodation."
But the woman was not an employee. She was interviewing for a job and she never got it because they thought she was going to need an accommodation, and now they want to not even be responsible for deciding not to hire her for that reason because she didn't come out and say what they guessed correctly was true, that she was going to need an accommodation.
Prof. A. said: And the most important Wisconsin constitution free-exercise case involves Amish who didn't want to put the DOT slow-moving vehicle symbol on their slow moving horse-drawn buggies. They fought and won.
That would be a consistent position against coercive accommodation. We will not ask for the coercive power of Government to be used on our behalf. We do ask that the coercive power of Government not be used to force an accommodation from us.
This is, IMO, a very admirable and Libertarian position.
They didn't even give her a chance to say that she didn't really need to wear the scarf. They just didn't want to deal with it and they preemptively avoided the problem. And she didn't even know that the look policy required no head coverings. They didn't even say (and don't want to have to say) that we have a no head covering policy, and we would want you not to wear a scarf at work (and thus give her an opportunity at that point to say that it's religious and initiate a conversation).
But the woman was not an employee. She was interviewing for a job and she never got it because they thought she was going to need an accommodation, and now they want to not even be responsible for deciding not to hire her for that reason because she didn't come out and say what they guessed correctly was true, that she was going to need an accommodation
Aren't the two intertwined?
Surely, there are some accommodations they are willing to make. But a headscarf isn't one of them, because the headscarf is not the look they want modeled in their stores.
Prof. A. said: It's crushingly obvious that Abercrombie is going to lose this case.
Probably true.
It *should* also be crushingly obvious that the whole law behind it is BAD LAW.
They didn't like her look and didn't want to hire her. Happens to people in retail all the time, doesn't it?
So if she wins her lawsuit, what does that mean for retail stores being forced to hire people they don't want to hire?
Would this case be different if it were Hooters? Why?
or Scores?
Prof. I consider Justice Breyer also my favorite Justice. He likes to ask a good question. With him, it is always the question. I used to like former Justice Souter also because of his questions.
What do you think of his book, Making Our Democracy Work (2011, paperback edition)?
Fun fact: Justice Breyer is also a critic of Architecture. He has a better understanding about architecture and buildings, than an average NYT/NPR/PBS critic.
". . .nine of them. It's a group project."
As someone who only casually observes SCOTUS, it appears to me that in fact there are three or four who are in lock step. Do they ever differ from liberal orthodoxy?
"It's boring to have a favorite based on outcomes. I'm talking style and cutting to the core of things."
OK, fine. But "active liberty" has no real core; it's all about achieving currently convenient progressive outcomes. Leaving oral argument heroics aside, actual rule of law should be quite boring.
"They just didn't want to deal with it." In a free country, they wouldn't have to.
Suppose, just suppose, A&F has a new sub-store coming up all over the country.
There is one store, right, in the Madison, near the Capitol building, next to Best Western.
It is called A&F Blonde Edition.
Basically, it just caters to blondes. You walk in the store, there are images of famous blondes. All staff members are blondes (or may have dyed). Nothing in the store is for brunettes, red-heads, etc. etc.
In walks, a red-head wanting a job. The store manager says: Well, look here, you are the perfect for our store - you look like a model. Now, you realize that we cater to exclusively to blondes. We just don't care for the rest of the world - just blondes. Are you okay with it? This will basically mean that your red-hair will have to become blonde. See mine used to be black, but is blonde."
The applicant screams. Gets a lawyer. Sues A&F. A&F makes a settlement. The applicant is now attending Stanford by paying her own way.
-------------
What do you think?
Breyer was an employer once. He didn't pay the Social Security taxes for his kids' nanny. Now he's telling employers what to do.
Obey the law if you agree with it or think you might get caught and think the penalties aren't worth the risk.
Otherwise, do what you want. We are nation of men, not laws.
Ann Althouse said...
"But the woman was not an employee. "
Yes, I'm aware of the facts of the case—as I said (although I was less clear than I should have been), "in this context (as Justice Ginsburg stresses [in a question pointing out the informational asymmetry of the employment interview), the interviewee doesn't necessarily know the rules...." (Emphasis added.) That's why, as I said, it's a difficult case. It's the marginal case where two clean contexts meet, messily.
"She has the tendency to insert her own question after somebody else's question, and it's obviously bothering others. ¶ Sotomayor is the worst at oral argument in my view."
Yes. But—I think this is the logical endpoint of the trend toward an ever-hotter bench, which is why Thomas' reticence might have some unexpected appeal, and why I find some grim irony in Our Hero, of all people, saying (in effect) "[d]o you think he knows that the rest of us are here?"
"She often starts to talk and then it's apparent that she doesn't know what to say."
Breyer strikes me as often starting to talk without any clear, straightforward idea of how to get to what he wants to say. He typically asks long, rambling questions that drive the lawyers nuts, and that seems to be his MO. When he and Scalia debated a decade ago on CSPAN, the contrast was so striking and gave me a decisive push toward Scalia's camp, because Breyer's position was not only plainly incoherent nonsense, the way he expressed it, endlessly talking around the point without just making it, struck me as repellant. He should consider a job writing documents for the Catholic Church, the Vatican has the same house style.
"They didn't even give her a chance to say that she didn't really need to wear the scarf. They just didn't want to deal with it and they preemptively avoided the problem."
Quite so. And there's no attractive solution, because even in the formulation offered by Justice Alito, the conversation that petitioners want is unattractive at best and opens them to litigation at worst (as Breyer astutely grasped).
America's Politico said...
"I used to like former Justice Souter also because of his questions."
I miss Justice Souter. He was one of the best writers on the court, and it's a touch ironic that he was replaced by an overrated hack, while Justice Kagan—truly a worthy heir to Souter in every way—replaced an overrated hack.
America's Politico said...
"Suppose, just suppose, A&F has a new sub-store … called A&F Blonde Edition … In walks, a red-head wanting a job. The store manager says: … your red-hair will have to become blonde … The applicant screams. Gets a lawyer. Sues A&F."
Title VII doesn't protect hair-color. That's the difference.
"When he and Scalia debated a decade ago on CSPAN, the contrast was so striking and gave me a decisive push toward Scalia's camp, because Breyer's position was not only plainly incoherent nonsense, the way he expressed it, endlessly talking around the point without just making it."
I remember that, and same here. Seems to go over well with law profs though.
Perhaps Abercrombie & Fitch forgot to pay their protection money or otherwise fell into disrepute with the Democrat-oriented social complex. It may have been enough that they are an American interest.
Forcing someone to provide selective accommodation that can be reasonably provided by another entity or agent should be considered a hate crime. The Muslim (homosexual et al) leaders have learned well how to exploit the civil racket industry and well-intentioned laws designed to prevent wholesale discrimination of individuals.
Neither assimilation nor integration, and, in fact, dissimilation/dissimulation and disruption, and profit. They could not do that in their homelands, but Americans are tolerant to a fault.
Sebastian, I've sometimes pondered: What would have happened had the styles been reversed—if I'd watched that debate and Scalia had spoken like Breyer, or Breyer taken the position that Scalia took. We tend to assume that FedSoc types are very direct and straightforward; today they look to Scalia and Easterbrook for stylistic cues, a generation ago, Roberts and Alito grew up looking to Rehnquist and Bork for stylistic cues; and I suppose that Rehnquist and Bork took their cues from Robert Jackson and Learned Hand. But that direct style isn't a given; there's no reason why someone with, say, Alito's jurisprudential views couldn't have Breyer's style, and as Kagan demonstrates, there's no reason why someone with Breyer's jurisprudential views couldn't have that crisp, direct, dry "FedSoc style."
After this case, employers will have to pry into potential employee's religious practices based on HR's Wikipedia research into what the various religions and subsects require or suggest. I'm sure the EEOC will provide helpful guidance as to what religions require.
One of the first questions will now be, if you ar religious, pleas list for us all religious practices you have that may be burdened by your employment with us. Please refer to the 25 page single spaced handout as to all potential duties you might have, the times of day they may have to be performed, the days of the week they may need to be performed, the days of the year they may need to be performed.
One of the first questions will now be, if you ar religious, pleas list for us all religious practices you have that may be burdened by your employment with us.
Yeah, it's funny how these things go in circles. People were being discriminated against because of their religion, so we made it so potential employers couldn't ask about religion.
And we made it so employers had to accommodate for the religious practices of it's employees.
And now a company doesn't want to make what is possibly a religious accommodation not on religious grounds, but because they are a garment store and the religious garment a potential employee wants to wear doesn't fit their image.
But not hiring her is not enough to get past this. They are being sued for not hiring her, and for not finding out if her image-busting garment will require a religious accommodation.
So what is the remedy? Well, apparently they have to try to suss out what religious accommodations people will make before they even interview them.
And if it is a plainly obvious one- like a headdress- they are supposed to ask if it's religious.
It's insane.
It's reminds me of the way feminists argued women need to be at formerly all-male colleges, women needed to not be in separate dorms, women need to be able to have free sex, and drink, and are now basically saying women who drink and have sex aren't safe around men at college.
Circular. All of it.
"there's no reason why someone with Breyer's jurisprudential views couldn't have that crisp, direct, dry "FedSoc style.""
True, but the historical correlation does seem to point to an elective affinity.
I wouldn't call Scalia's style "dry," though.
Sebastian said...
"I wouldn't call Scalia's style 'dry,' though"
Scalia isn't a product of the Federalist Society, he's one of its godfathers. He was a mature man, already a lawprof, months away from an appointment to the D.C. Circuit when the Society was founded.
"It's crushingly obvious that Abercrombie is going to lose this case."
I don't know how they could win either. They can't ask the applicant's religion. And this applicant didn't ask for a religious accomodation.
If I walked into a retail store and the person who the company sent to wait on me was wearing a hijab or keffiyeh, I would walk the hell out.
Missing here somewhere is the obvious trap that was set for Abercrombe. First of all there is no store clerk job worth all this legal hassle snd expense - and everybody knows that Abercrombe employees wear the outfits that they sell - which would totally violate Muslim dress codes.
It is indeed odd that religions can impose dress codes but employers cannot. If Abercrome made a mistake, it was in not advertising the conditions under which they hire people. Let me point out that thirty-something and above age groups do not work in Abercrombe stores and nobody has ever cared!
Missing here somewhere is the obvious trap that was set for Abercrombe. First of all there is no store clerk job worth all this legal hassle snd expense - and everybody knows that Abercrombe employees wear the outfits that they sell - which would totally violate Muslim dress codes.
It is indeed odd that religions can impose dress codes but employers cannot. If Abercrome made a mistake, it was in not advertising the "modeling" required as a condition of employment. Let me point out that thirty-something and above age groups do not work in Abercrombe stores and nobody has ever cared!
Althouse said:"It's crushingly obvious that Abercrombie is going to lose this case."
Ask this, say she wanted to be hired by Hooters, or any other place that required a uniform? Or in this case the store wanted to convey and image so as to promote there business.
If this was your business that was getting impinged upon I am certain you would not be so cavalier.
The State with the help of out of control courts and Lawyers like Althouse, who seem to have absolutely no scruples or respect for private rights. They construct arcane laws with language that means what ever they want it to mean to suit their purpose.
I say fire them all.
In response to "google is evil":
This post is really about Althouse's admiration for Breyer's style, not the merits of the case before the Supreme Court.
But, if activist Muslims really wanted to subvert the American system without resorting to violence, it seems they could certainly upset some apple carts by sending their women to seek jobs at Hooters and insist on dress-code accomodations of their religious beliefs.
If Abercrombie loses, I wonder how long it will be before Sister Mary Theresa shows up, application and credentials in hand, at a Planned Parenthood office wearing her nun's habit.
Scott,
Artisanal cake bakers are sole proprietors or closely-held business entities with First Amendment rights.
Not according to "progressives" and, more importantly, not according to the courts.
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