The following a guest post from Karen Lugo
Earlier this week in New York there was outrage from a Muslim American Society group over the no-headgear policy of the Rye Playland amusement park. Some members of the group had come to the amusement park to mark the end of Ramadan, and though they had been forewarned of the park’s safety policy with regard to headgear, some cried discrimination at not being allowed on certain rides while in hijab.
Now, publicly commenting on Muslim female headgear can be a risky proposition. In my case, a statement regarding a hijab-wearer who filed an EEOC action against Disneyland contesting Disney’s refusal to allow her hijab as part of a costume led to charges of hate speech on leftist blogs and became a rallying point for demonstrations demanding my termination as a visiting law professor. However, the point remains that Fourteenth Amendment equal protection for ethnic and religious groups was not designed as a platform to compel preferential treatment. If non-discrimination policies mean anything, they mean that discrimination, whether against -- or for -- specified groups, is not tolerated.
This business of demanding that rules or employment contracts bend to accommodate one group when the regulation is written in terms that apply equally to all does not comport with American constitutional intent. Nor does it sit well with most Americans. To the point of this particular controversy, the idea of demanding a change in an amusement park rules also is not likely supported by many American Muslims; probably a majority. One of the Muslims at the Rye Playland event even acknowledged that “the point could be a safety issue.”
Simply stated, Americans have not voted for an affirmative action program on behalf of women in hijab. Even if we did, many affirmative action programs do not survive constitutional review in the courts on the very premise that they call for favorable treatment of one group over another.
The alternative of imposing the foreseeable (key word in proving liability for damage awards) risk of fly-away hijabs on the park management would invite a jury finding of negligence in light of the 2005 fatal accident at Rye Playland, as well as other known incidents including the Australian go-kart death of a burq- clad woman. Even worse, rather than wearing the closely wound hijab on this day at the park, most of the women shown in news footage were wearing loose, waist-long scarves that would likely provoke a safety-conscious operator of a fast ride to object – whether or not there was an official rule in place.
Apparently the amusement park welcomed the Muslim group, but with the stipulation that Muslim American Society (MAS) activity organizers were aware that there was a prohibition of headgear on risk-related rides. Hijab-wearing women were not excluded from entrance to the park or enjoyment of most rides; nor were they singled out for different treatment. In fact, a Jewish woman told reporters that she had no problem with the way that ride operators asked her three sons to remove their yarmulkes for certain rides. And in a final display of conciliation, the park offered those who expressed surprise and anger over enforcement of the rule a refund of their admission costs.
The bottom line is that these women simply had to make the same decision that an observant nun would make: Is the religious observance more important that the ride? People of faith make similar principled decisions every day - that is, when the choice is a matter of principle and not of stagecraft.
Considering all of the above facts, the park melee begins to look like an unfortunate grievance play. In the tradition of the Flying Imams, victimization episodes are becoming tedious and they serve to undermine legitimate claims when there is true religious discrimination or persecution.
It is also noteworthy that the MAS, an organization described as part of the Muslim Brotherhood's infrastructure in the United States, was well aware of the rule and, thus, may have been more interested in a controversy than it was in planning a successful mass Muslim outing to celebrate the end of Ramadan.
Stay tuned. The last act has likely not been played since videotape has been promised. The Muslims complaining of excessive police force say that the footage will confirm their claims. In the meantime, park management and law enforcement have no way to address the charges or counter the public relations campaign waged on all television networks by enraged Muslim women.
Finally, there is a simple solution that has been perfectly acceptable to Americans for centuries: When the rules are legally sound but not personally appealing, vote with your feet and your pocketbook. Plan the next group outing to a park like Six Flags Great Adventure, where the roller coaster policy is less restrictive of women in hijab.
Karen Lugo is co-director of the Center for Constitutional Jurisprudence and founder of the Libertas-West Project.