What a Card!

Over at barefooters.org, they have a webpage with what they call “Barefoot Rights Cards”, here. There is one for every state and they generally state that those who go barefoot for religious or disability reasons are protected by the law.

But are they accurate?

When it comes to religion, no.

When it comes to disabilities, I’ve discussed that before. The list is here. To summarize, if you genuinely go barefoot because of a disability (and the definition of that is fairly broad), then businesses are required to give you an accommodation to do so. But the devil is in the details. If you cannot get a business to accommodate you, you have to sue them. And then you have to find a judge who isn’t prejudiced against going barefoot. But theoretically the law supports you.

However, when it comes to religion, almost always the law (either a State’s law or Federal) is interpreted to say that religiously neutral laws (or rules) of general application are still valid and enforceable, regardless.

So, let’s take a look at, for instance, the Arizona card.

AZ Barefooting Rights Card

Now, let’s look at the Arizona Civil Rights Statute. (It starts down there at 41-1401.) For public accommodations, see 41-1442. And right there, in subsection C:

C. Any person who is under the influence of alcohol or narcotics, who is guilty of boisterous conduct, who is of lewd or immoral character, who is physically violent or who violates any regulation of any place of public accommodation that applies to all persons regardless of race, color, religion, sex, national origin or ancestry may be excluded from any place of public accommodation and nothing in this article shall be considered to limit the right of such exclusion.

So, as long as their rule applies to everybody (and an NSNSNS does), you can’t claim a religious privilege.

On the brighter side, though, Arizona does does have a Religious Freedom Restoration Act (see 41-1493), so at least going barefoot for religious reasons is protected against governmental bodies.

Let me do one more example: Michigan. Here’s the card:

MI Barefooting Rights Card

Elliott-Larsen is the name of Michigan’s Civil Rights Act, and you can see the part dealing with public accommodations here.

Except where permitted by law, a person shall not:

(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.

Note that nowhere does it say that they have to make an accommodation, that is, make a special exception for you the way disability law says.

[Word confusion alert! When they say “public accommodation”, that just means a business that’s not private, like say a private golf course. When a business is forced to accommodate a disabled person (like allowing in a guide dog), that’s a different definition of the word “accommodate”.

Also, under Michigan (and Federal) law, it is only the employment portion of the law that requires making an accommodation (e.g., not working on one’s holy days), not the public accommodation law.]

And once again, as long as a rule is religiously neutral and of general application, it can be applied to you despite your religious claims. In a court of law, you actually have to prove that they discriminated against you “because of” religion. And if they have a general rule, they are almost assuredly not objecting to your religion, but to the breaking of their rule.

Let’s look at a hijab/headscarf case in Michigan: Ali v. Advance America Cash Advance Centers, Inc., 110 F. Supp. 3d 754 (E.D. Mich. 2015). The Case Advance Center had a general rule about headgear. They had a sign that said: “Remove Hats and Sunglasses”. Dealing with a lot of money, they wanted to be able to identify everybody. They also considered a headscarf a kind of hat.

The court explained how to analyze such a case under Elliott-Larsen:

To state a claim under the ELCRA, Plaintiff “must first show disparate treatment or intentional discrimination.” Then, Defendants “must establish a legitimate reason for its actions.” Finally, Plaintiff must show “that the reasons proffered are pretextual either by showing they lack credibility or by showing that a discriminatory motive was a more likely reason for the action.” Clarke v. K Mart Corp., 197 Mich. App. 541, 545, 495 N.W.2d 820 (1992) (internal citations omitted).

Them’s the rules. (Now think about that in an NSNSNS context.)

Going further, there was no direct evidence of intentional discrimination. So now the court has to look to see if there is indirect evidence of discrimination. For instance, did the employees, in throwing her out, make disparaging remarks about Muslims? Did they not enforce the rule for others, but did for women wearing Muslim headscarves?

The court then said how to analyze looking for that:

Under the McDonnell Douglas framework, a plaintiff has the initial burden of establishing a prima facie case of discrimination. Once this is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. The plaintiff is then allowed to show that the stated reasons are pretext for discrimination. A party may show pretext by demonstrating that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.

This case was originally dismissed without any actual fact-finding to be able to perform that analysis. So the court remanded to get that evidence.

But we can see how a similar case would go for a barefooter going barefoot for religious reasons. Stores are prejudiced against bare feet, not against any particular religion that requires bare feet. They don’t pick on us “because of” our religion; they pick on us because they have ridiculous non-fact-based fears. But that’s not protected by law. So it is really doubtful we’d get anywhere under Elliott-Larsen.

And I’m afraid that’s probably how it would go in most other states, too.

Sorry.