An Analysis of Federal and State Law Governing Public Schoolteachers’ Religious Garb in Pennsylvania and Nebraska Under the Free Exercise Clause of the First Amendment

This study is based on a narrow legal examination of the two contemporary state bans on public schoolteachers’ religious garb in Pennsylvania and Nebraska. Legal research and legal analysis are the primary methods used to investigate whether these two statutory bans meet the judicial and legislative tests under the Free Exercise Clause of the First Amendment to the U.S. Constitution and the Pennsylvania Religious Freedom Protection Act. The study applies the Sherbert standard as articulated by the U.S. Supreme Court—a three-part judicial test that courts use to apply the strict scrutiny standard to Free Exercise cases. The study also applies the U.S. Supreme Court’s Smith standard, also known as the general applicability test, which requires that government regulations involving religion must be “neutral and generally applicable,” and cannot “target religious conduct for distinctive treatment.” The study identifies that religious garb is legally defined as “any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.” This study examines the 123-year history of legal bans on public schoolteachers’ religious garb, with special attention to Pennsylvania’s current anti-religious garb statute was the first of its kind in the United States. It was enacted in 1895 in response to the Pennsylvania Supreme Court ruling that held Catholic nuns were permitted to wear religious garb (habits) while teaching in public schools. Nebraska’s anti-religious garb law, a replica of Pennsylvania’s ban, was first enacted in 1919 and repealed in 2017. Although at the time this study was published (May 2018), the study notes that earlier attempts to repeal it failed. The study concludes the following: Pennsylvania’s and Nebraska’s statutory bans on teachers wearing religious garb in public schools (1) failed the general applicability test under Smith and (2) substantially burdened religions, as defined under the provisions in Sherbert and the Religious Freedom Protection Act (RFPA). The statutes (3) partially met the rational basis test, but when faced with strict scrutiny, the statutes (4) failed to meet the compelling interest and (5) narrowly tailored tests.