Friday, April 1, 2016
Mississippi 'Religious Freedom' Hareem Pants and Substantive Due Process.
According to an article on Salon, the new Mississippi religious freedom law, just passed in their legislature, isn't only anti LGTB but also might allow any employer or school official to decide whether an employee or student is wearing gender appropriate garb.
A boss could even force a woman to wear more make-up. (So the author claims.)
This comes just a day after an Oxford scholar showed me a picture of a militant suffragette dressed as a man in a working class suit and said "She doesn't really look like a man, does she? She wouldn't fool anyone."
Well, maybe not from our modern post-Hepburn perspective.
In 1910, the era of the suffragettes, it was still illegal for a woman to dress as a man and vice versa, so this slim militant was already breaking the law, even before she threw a rock at an MP's window.
And if women never stepped outside in pants and jacket, maybe the pretty suffragette did fool everyone.
Back then, a woman dressing as a man wasn't merely immoral, it was somehow dangerous to society at large. And, you didn't have to be a militant. That's why it was illegal.
How do I know?
I found this in an article on American legal history. University of Chicago. Law and Morals in Legal Thought by Herbert Hovencamp.) It's a great article.
Quoting a 1890's jurist Tiedeman on Substantive Due Process in a book Police Power:
" It (police action) cannot be called into play in order to save one from the evil consequences of his own vices, for the violation of a right by the action of another must exist or be threatened, in order to justify the interference of law. Applying this principle, he suggested that the state could clearly prevent public nudity, but suggested that it lacked the power to prevent someone from going about in his or her undergarments. Likewise, the state could lawfully prohibit men from wearing women's clothes. However, "it does not follow that a law, which prohibited the use by men of a specific article of women's dress, or to women the use of a particular piece of men's clothing, would be constitutional. The prohibition must be confined to those cases, in which immorality or the practice of deception is facilitated, viz., where one sex appears altogether in the usual attire of the other sex."
So even back then a man might wear women's underwear or a woman could wear hareem PANTS.
So it seems telling people to wear make-up would be unconstitutional, although I'm sure it has already been done many many times in the case of stewardesses and waitresses, etc. But, that could be said to be all about contract, I guess.
In fact, I recall back in the 1980's at the radio station I once worked in, a manager called in a PR person to say she dressed too drably.
The woman didn't make much money so she rotated a few classic outfits. She wouldn't have minded the criticism except that when she asked her boss how she might dress, he cited a cleavage-bearing co-worker as an example.