The Supreme Court As Shari'a Enforcer

June 3, 2015 – San Francisco, CA – – We find the U.S. Supreme Court’s 8-1 recent decision [ U.S. EEOC vs. Abercrombie & Fitch Stores Inc.], to be very troubling.

1. It seeks to speak authoritatively based upon facts not in evidence, specifically regarding what constitute a “religious” obligation for Muslims.

2. It negligently expands employment discrimination law to the point where retailers have now apparently lost the ability to present the type of cohesive, positive corporate image the public has come to expect from high end merchandisers. It incorrectly applies the relevant legislative language regarding the matter and leaves retailers at increased risk for Islamist blackmail in the form of lawfare.

As stated in the decision’s syllabus, the plaintiff sued alleging religious discrimination, “…because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy.”

However, there is no Qur’anic basis upon which to base a claim that wearing hijab is a religious requirement for Muslim women. The most relevant passage simply stresses a need for women to dress modestly.

“Tell thy wives and thy daughters, as well as all [other] believing women, that they should draw over themselves some of their outer garments [when in public] this will be more conducive to their being recognized [as decent women]…” [source, Qur’an, Al Ahzab,/Sura 33:59]

Thus wearing of hijab is at best a cultural affectation and can hardly be considered a requirement consistent with being a devout Muslim. Therefore Abercrombie appears to simply have been enforcing its “neutral look” policy which is religiously neutral in its reading and practice.

The sole dissent was written by Justice Thomas, who quickly cut to the heart of the matter…the court was, once again, writing rather than interpreting law.

“Resisting this straightforward application of §1981a, the majority expands the meaning of “intentional discrimination” to include a refusal to give a religious applicant “favored treatment.” But contrary to the majority’s assumption, this novel theory of discrimination is not commanded by the relevant statutory text…”

Instead, Thomas states the decision, “creates in its stead an entirely new form of liability: the disparate-treatment-based-on-equal-treatment . Because I do not think that Congress’ 1972 re definition of “religion” also redefined “intentional discrimination, “ I would affirm the judgment of the Tenth Circuit [ruling against plaintiff] I respectfully dissent ..”

Aside from the establishing, out of whole cloth, another incomprehensible standard regarding employment law, the majority seems to have, in its haste to cater to current ideological trends, given no thought whatsoever to the idea that by deciding this matter in favor of the EEOC, it has transformed the Supreme Court of the United States into an agent of Shari’a enforcement which we consider violative of the establishment clause of the First Amendment.

The incongruity of a finding of “disparate treatment,” based upon provably “equal treatment” is demonstrative of the degree to which even so-called conservative justices have expanded the power of an authority, to which there is no appeal. Furthermore the decision will have the effect of intimidating employers against taking any actions which might in any way offend what is certainly the most litigious group within America, its Muslim population.

This is a huge win for the stealth jihadists and a very sad day for those who seek to preserve the intellectual and legal heritage of the West. This is a classic case of lawfare and should give every American – regardless of religious affiliation, or lack thereof – pause for great concern.

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