Posted by Eugene Volokh:
Ban on Headgear, Including Religious Headgear, in Court:
http://volokh.com/archives/archive_2008_12_14-2008_12_20.shtml#1229525304
The [1]Atlanta Journal-Constitution reports:
A Douglasville woman was jailed Tuesday after a judge found her in
contempt of court for refusing to remove her hijab, the head
covering worn by Muslim women.
Lisa Valentine, also known by her Islamic name, Miedah, 40, was
arrested at the Douglasville Municipal Court for violating a court
policy of no headgear ....
Judge Keith Rollins ordered her held in jail for 10 days, but she
was released Tuesday evening. The reason for the early release
wasn�t immediately clear....
Other Muslim women said the same judge has ordered them to remove
their hijabs....
Halimah Abdullah, 43, said she spent 24 hours in jail in November
2007 after Rollins held her in contempt of court for refusing to
remove her head covering....
Valentine said she was accompanying her 19-year-old nephew to
address a citation Tuesday morning when she was stopped at the
metal detector and told she would not be allowed to enter the
courtroom with a head scarf....
Frustrated, she turned to leave and uttered an expletive. She said
the bailiff then told her she could take the matter up in front of
the judge. She said she was handcuffed and taken into Rollins�
courtroom....
It's not clear to what extent the expletive might have been punishable
as fighting words (was it, for instance, "fuck you" said to the
bailiff, or just a generic "fuck!" said in exasperation?), or to what
extent the judge's authority to punish even non-fighting-words
vulgarity in court would extend outside the courtroom (I'm inclined to
say that it wouldn't be). But in any case, it seems the jail sentence
at least in large part stemmed from the refusal to remove the
headgear.
As with many religious accommodation questions involving Muslims, this
is not a new issue. (I set aside the [2]complicated question of
William Penn's hat, and stick with more modern cases.) Judges have,
for instance, applied no-hat rules to demand that parties or witnesses
remove yarmulkes, see, e.g., Close-It Enterprises, Inc. v. Weinberger,
64 A.D.2d 686 (N.Y. App. Div. 1978), or their Catholic or Episcopalian
priestly garb, People v. Drucker, 418 N.Y.S.2d 744 (N.Y. Crim. Ct.
1979); O'Reilly v. New York Times Co., 692 P.2d 863 (R.I. 1982);
Ryslik v. Krass, 652 A.2d 767 (N.J. Super. App. Div. 1995). The priest
cases didn't involve headgear, but one can easily imagine similar
issues arising as to nuns' habits. There have been other Muslim cases,
as well. See, e.g., In re Palmer, 386 A.2d 1112 (R.I. 1978); State v.
Allen, 832 P.2d 1248 (Ore. App. 1992).
Some of the cases involved no-hat rules that courts imposed just a
matter of general decorum, and others involved prohibitions on wearing
religious garb in front of juries justified by a fear that the
religious garb would prejudice or otherwise unduly influence jurors.
But in all these cases (except one that involved a priest wearing
priestly garb as a lawyer, see La Rocca v. Lane, 37 N.Y.2d 575 (1975),
a potentially different sort of question), the courts held that the
prohibition shouldn't be applied when the garb is seen as religiously
mandated.
And this, it seems to me, makes perfect sense, especially when the
concern is simply about decorum and not juror prejudice. (Note that
this case didn't involve a jury trial.) Whatever might be the
symbolism of wearing a normal hat indoors, surely there's no
disrespect that's usually intended, or likely to be reasonably
perceived, when someone is wearing religiously mandated garb. A judge
need not feel insulted by an Orthodox Jew's wearing a yarmulke, or a
Muslim woman's wearing a hijab.
So there's no important government interest really being served here.
But the burden on the religious objectors is very great: This means
that if they are to comply with their felt religious obligations, they
can't participate in one of the most important functions of American
civic life. In two of the cases discussed in the column, the religious
objectors were accompanying relatives to court, itself a pretty
important function. But in other cases, the religious objector may be
a party, a witness, or even a criminal defendant whose presence may be
legally mandated for some purposes. Even if he's not legally forced to
be in the courtroom, he may still have to forgo adequately litigating
his case, or defending his liberty, as the price of complying with his
religious obligations.
This is precisely the sort of situation where religious accommodation
makes perfect sense -- just as the [3]constitutionally specified
accommodation of witnesses and officeholders who refuse to swear, and
instead must affirm, makes perfect sense. As I've written before
[4]before, requests from minority religious groups for accommodation
are a longstanding and respectable part of the American tradition of
religious freedom. Where religious pluralism goes, multiculturalism is
indeed a traditional American value. To be sure, not all religious
beliefs have been accommodated, and not all should be accommodated.
But when accommodation is cheap -- where the only matter at stake is
the judge's sense of decorum, which shouldn't even be seen as
undermined by the wearing of religious headgear, as opposed to a
baseball cap -- and the religious objector's interests in
participating in a government function are important, the religious
objectors should indeed be accommodated.
To be sure, under [5]Employment Division v. Smith, which I
[6]generally approve of, such accommodation probably wouldn't be a
religious obligation (at least unless some other constitutional right,
such as a criminal defendant's right to participate in her trial, or
to put on witnesses, is involved). If a judge evenhandedly cites for
contempt Orthodox Jews, Catholic nuns, and Muslim hijab-wearing women
who refuse to remove their headgear, his actions might not violate the
Constitution. But state court systems should aspire to something more
than just constitutionally minimal religious accommodation. Most
judges throughout the country, I'm pretty sure, are happy to
accommodate parties, witnesses, and friends and observers who want to
wear religious headgear. It seems to me this judge should do the same.
References
1. http://www.ajc.com/metro/content/printedition/2008/12/17/hijab.html
2.
http://books.google.com/books?id=tMyiZjoMdxEC&pg=PA44&lpg=PA44&dq=penn+hat+court&source=web&ots=SmBw47g-Rb&sig=BTBT0XiMzsWJiXXpfvyy90l9YRA&hl=en&sa=X&oi=book_result&resnum=9&ct=result
3.
http://article.nationalreview.com/?q=MWRjNjk2NTdmMThlOWFjYmMzNDMwZmZkYmJmZDg3MDM=
4. http://volokh.com/posts/chain_1218058942.shtml
5.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=494&invol=872
6. http://www.law.ucla.edu/volokh/relfree.htm
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