August 31, 2011
Of Amusement Parks and Head Scarves
This controversy hit extremely close to my home. A fight broke out yesterday at Rye Playland Park when a number of Muslim women were told by park staff members that they would not be permitted to wear their head scarves on certain rides. The park had received a number of Muslim visitors who were celebrating the end of Ramadan. A scuffle broke out after the refusal to allow some of the women to ride without removing their hijabs, and there was also some kind of report that a park employee touched one of the women.
The park has a safety policy against the wearing of any "headgear." I've been to Playland a number of times with my own family, and I've been required to take off my hat when I went on some of the faster rides.
What makes this a possible constitutional question is that Playland Park is government owned and operated. It is, in fact, the only such amusement park in the United States! But I cannot see any way in which, should a law suit be brought against Westchester County, the plaintiffs would win. This policy is clearly a law of general application, it is not targeted at any group, and it is overwhelmingly justified by serious safety concerns. The rides to which the policy applies (and those that the Muslim customers report being barred from riding) are extremely fast moving and jerky (I hate "Crazy Mouse" for this reason). Any First Amendment claim would almost surely fail. A sad episode nonetheless.
(Picture of the wonderful 1929 "Dragon Coaster" at Rye Playland Park) (x-posted CLR Forum)
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Although I recognize that the issues are, obviously, not completely on-point analogous, I wonder how people who would argue in favor of a pharmacist's right not to do their job (by refusing to dispense legal, doctor-prescribed medications) by invoking "conscience" come down on this issue.
Posted by: ajesquire | Aug 31, 2011 11:20:32 AM
ajesquire, I'm sorry. I don't think I understand the analogy.
If you are asking how a person who is seeking an exemption on religious grounds from a generally applicable law ought to be treated for constitutional purposes, the answer is that no such exemption is, after the Smith case, required by constitutional law. I do not agree with that rule, but it is the rule.
If you are asking whether as a matter of policy, the government should consider granting exemptions from generally applicable laws for people who offer religious reasons, then it seems to me that there is a very large difference between granting an exemption to a single pharmacist who has a religious objection to prescribing, say, birth control medication, and granting an exemption to somebody who would like to wear a piece of clothing on a roller coaster which would endanger her own life as well as the lives of other people on the ride.
Posted by: Marc DeGirolami | Aug 31, 2011 3:26:59 PM
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I second Marc's response to ajesquire, and add this. Aside from issues of danger to others, and issues of state action vs. private arrangements generally, there is a specific structural difference between those who want to refrain from a transaction and those who want to impose a transaction on an unwilling participant.
In the pharmacist cases, the pharmacist wishes NOT to participate, and to allow the customer to go to another seller. Even if the objection were not religious, I would have more sympathy for someone who simply wants to stay out.
By contrast, the would-be ride riders wish to force the ride owner INTO a transaction, i.e., to let them ride without following the rules that apply to others.
This distinction is critical, to me. I grant that in many cases we have positive laws that require transactions, i.e., to accept all comers, without discriminating. Still, exemptions from such laws are still leaving everyone else to transact.
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