NYC's Holidays for Muslims Could Be Unconstitutional

We need to be cautious about creating a pecking order of religions where some receive benefits because of growing political clout and others are given second class treatment.
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The separation of church and state is an important civics lesson that many of my Muslim friends on Facebook are ignoring as they celebrate Mayor Bill de Blasio's decision to declare school holidays on the Muslim holy days of Eid-ul-Fitr and Eid-ul-Adha. By recognizing the celebrations of Christians, Jews, Muslims, and the Chinese, but pointedly not Hindus, the New York Public School system has set up a hierarchy of religions that belies the equality of citizenship our children are supposed to be learning in school.

Don't get me wrong, as a first generation Muslim in North America I missed my fair share of classes and had to hand in many assignments early because I chose to take the day off from school on Eid. I acutely remember feeling sorry for my friends who made the opposite decision. It seemed to me that they were being forced to pick school over their religious faith. It affected my identity as a Muslim and I'm sure they felt disadvantaged as well. However in adulthood I've come to realize that there are other ways short of declaring a school-wide holiday that would reasonably accommodate Muslims and those of other faith groups in celebrating their religious observances.

One of the quintessential hallmarks of American democracy is that the government is constitutionally prohibited from favoring any particular religious faith. The lack of a state religion under the Establishment Clause has spared America from the internecine religious conflicts that have torn apart regions like Northern Ireland and the former Yugoslavia where groups came into conflict with each other because of feelings of marginalization. To paraphrase one California court which examined the validity of school closings on Good Friday: by recognizing holidays for some and none for others the De Blasio Administration is sure to arouse feelings of discomfort, differentness, and isolation in non-favored school children, who are even more susceptible to feelings of social alienation than are their parents.

My opposition against schools being closed for religious holidays isn't absolute. There are times when economic realities intersect with religious practice and create valid secular reasons that do justify school closings on religious holidays like Yom Kippur and Rosh Hashanah. The Department of Education doesn't track the religious affiliation of teachers, but given New York's large Jewish population and its historic involvement in the teaching professions its safe to say that there are thousands of Jewish professionals employed in schools. The cost of hiring substitute teachers and para-professionals would be so prohibitive that it's less expensive to keep schools closed for those days. Such a secular purpose however does not exist when it comes to Muslims. Of course there are Muslim teachers but their numbers are much lower.

One can't ignore that the primary effect of having Eid as a school holiday is to advance the Muslim religion, which clearly contradicts the intent of the Establishment Clause. The impermissible effects are twofold. First, the closing of schools imposes on non-Muslims the observance of Eid. While full-time teachers will be paid in accordance with their contracts, those who work on-call will be denied a day of work. In addition parents who cannot obtain childcare will be forced to stay home from work as well and potentially lose much needed income. Second the recognition of Eid but not other festivals like Diwali gives the government's clear stamp of approval and bias in favor of Islam and not to other minority religions. As one Connecticut court observed when it invalidated the state's blue laws: "It has long been recognized that because of the authority and influence of the state, [government] approval of or identification with the tenets or practices of a particular religion clearly promotes that religion."

Finally, having Eid as a school holiday will cause New York City's school administration to become excessively entangled in the religious practices of Muslims. Muslims follow a lunar calendar by which the precise date of Eid is determined by the sighting of the new moon that marks the beginning of the lunar month. Some Muslim religious authorities believe that the moon must be sighted by the naked eye while others believe that the timing of the new moon can be determined by astronomical calculations. Since the setting of a school calendar for thousands of students, teachers and administrators cannot be dependent on the vagaries of lunar observance any Eid date set by calculations will be viewed as invalid by those Muslims who are more orthodox. The Board of Education should not be in the business of endorsing one religious practice over another.

Undoubtedly the needs of religious Muslims students and teachers and those of other faiths need to be reasonably accommodated. However a better way would be to enact an official policy that allows assignments and exams to be rescheduled without penalty. This would avoid students fearing that they are missing an important test. The Department of Education could also allow students and staff to take two floating holidays whenever they want without being noted as absent. This would allow Muslims to celebrate Eid, Hindus to celebrate Diwali, other groups to commemorate whatever day may be of significance to them.

In our multi-culturally diverse city its admirable that the school system would want to recognize the religious practices of non-Christians. However we need to be cautious about creating a pecking order of religions where some receive benefits because of growing political clout and others are given second class treatment.

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