The Sikh Turban: Post-911 Challenges to This Article of Faith

constant nature of her appearance could have more of a proselytizing effect than she
imagined, and therefore her Sikh regalia should not be permitted in schools. 320
To those that doubt the weight of a State Supreme Court decision such as Cooper,
it should be noted that the U.S. Court of Appeals for the Third Circuit relied on Cooper in
1990, following the Supreme Court’s dismissal of the appeal, in reaching its analysis of a
case brought by Muslim public school teacher under Title VII. 321 Accordingly, as one
commentator noted, prevailing case law “suggest[s] that states can prohibit public school
teachers from wearing religious garb in the interest of preserving religious neutrality
without violating the free exercise rights of teachers as long as the prohibition applies
equally to all religious dress and does not target or burden one religious group over
others.” 322 It may not be surprising, then, that some argue that a ban on conspicuous
articles of faith in public schools is “not completely unthinkable in the United States,”
and that the religious rights of a turbaned Sikh public student after 9/11 are “tentative” at
best. 323 In 1993, however, Congress passed the Religious Freedom Restoration Act
(RFRA), which was designed to reinstate the “compelling interest” Sherbert test for free
exercise claims. 324 The RFRA states that the “Government shall not substantially burden
a person’s exercise of religion even if the burden results from a rule of general
applicability,” 325 unless the government demonstrated that the burden is “in furtherance
of a compelling governmental interest” and “is the least restrictive means of furthering
that compelling governmental interest.” 326 In 1997, the U.S. Supreme Court, in City of
320 Id. at 312-13. Interestingly, Cooper’s decision to manifest her faith at school could
have been recognized by the court as an educational benefit, namely of teaching her
students about the diversity of the society they inhabited and, as such, teaching them to
appreciate and respect those who may not appear to be the same as themselves. The
court, however, assumed that visible religious minorities that are active in their
communities are in essence imposing their faith on others by simply adopting the
symbols of their own personal beliefs.
321 U.S. v. Bd. of Educ. for Sch. Dist. of Philadelphia, 911 F.2d 882, 884 (3d Cir. 1990).
322 Walterick, supra note 251, at 267.
323 Id. at 269. See also Elliot Taubman, Headscarves, Skullcaps and Crosses: Does
Banning Religious Symbols in Public Schools Deny Human Rights? 53-Jun R.I. B.J. 9, 34
(2005) (“Even with a compelling interest test, when applied in a public school context,
with at least equality of treatment of all religions, then Justice Scalia may say that taking
the entire balance into account, there is a legitimate basis for a ban on obvious religious
symbolism.”).
324 City of Boerne v. Flores, 521 U.S. 507, 515 (1999).
325 42 U.S.C.A. §2000bb-1(a).
326 42 U.S.C.A. §2000bb-1(b).
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