Posted by Eugene Volokh:
Georgia Courts Expressly Allow Religious Headgear in Court:
http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1248717239
I blogged [1]late last year about a Georgia woman who "was jailed ...
after a judge found her in contempt of court for refusing to remove
her hijab, the head covering worn by Muslim women." I'm pleased to
report that the [2]Georgia courts just announced a headgear policy
that expressly allows religious headgear:
The Georgia courts have adopted a new policy on head coverings that
will take effect in every court in Georgia. At a meeting Wednesday
of the Judicial Council of Georgia �- the policy-making body of
Georgia�s courts -� judges from around the state voted unanimously
to endorse the measure permitting headgear in court that is worn
for religious or medical reasons. Other types of head coverings
will continue to be prohibited in courtrooms.
The policy is designed to balance a court�s legitimate security
concerns with a person�s right to practice his or her faith in a
public place. Under the new policy, if a security officer wanted to
conduct a search, the person would have the option of having the
inspection performed in a private area by an officer of the same
gender.
The measure stems from the December 2008 arrest of Lisa Valentine
after she refused to remove her hijab, the head scarf worn by
Muslim women. She said to do so would violate her faith. But Judge
Keith Rollins of the Douglasville Municipal Court found her in
contempt of court and ordered her to serve 10 days in jail. The
incident prompted a formal complaint from the U.S. Department of
Justice. The Anti-Defamation League, Council on American-Islamic
Relations and American Civil Liberties Union also lodged
complaints. On June 12th, Ms. Valentine testified before the
Supreme Court of Georgia Committee on Access and Fairness in the
Courts.
�If this had been a nun, no one would have required her to remove
her habit,� said Chief Justice Carol Hunstein, who chairs the
Judicial Council. �I think this is a good rule, and I think it�s
clear.�
Specifically, the adopted policy states: �Head coverings are
prohibited from the courtroom except in cases where the covering is
worn for medical or religious reasons. To the extent security
requires a search of a person wearing a head covering for medical
or religious reasons, the individual has the option of having the
inspection performed by a same-sex officer in a private area. The
individual is allowed to put his or her own head covering back on
after the inspection is complete.�
As I wrote last December, this not a new or Muslim-specific issue
(just as many of the religious accommodation questions involving
Muslims have arisen in the past with non-Muslims). Trial 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 F.2d 863 (2d Cir. 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. And nearly all the appellate courts
that have considered the matter have expressly held that such rules
should not be so applied to people who wear headgear or religious garb
for religious reasons. For instance, a Seventh Circuit opinion by
noted conservative judge [3]Frank Easterbrook put it well:
The Constitution does not oblige the government to accommodate
religiously motivated conduct that is forbidden by neutral rules,
and therefore does not entitle anyone to wear religious headgear in
places where rules of general application require all heads to be
bare or to be covered in uniform ways (for example, by military
caps or helmets). Yet the judicial branch is free to extend
spectators more than their constitutional minimum entitlement.
Tolerance usually is the best course in a pluralistic nation.
Accommodation of religiously inspired conduct is a token of respect
for, and a beacon of welcome to, those whose beliefs differ from
the majority's. The best way for the judiciary to receive the
public's respect is to earn that respect by showing a wise
appreciation of cultural and religious diversity. Obeisance differs
from respect; to demand the former in the name of the latter is
self-defeating.
It is difficult for us to see any reason why a Jew may not wear his
yarmulke in court, a Sikh his turban, a Muslim woman her chador, or
a Moor his fez. Most spectators will continue to doff their caps as
a sign of respect for the judiciary; those who keep heads covered
as a sign of respect for (or obedience to) a power higher than the
state should not be cast out of court or threatened with penalties.
Defendants are entitled to trials that others of their faith may
freely attend, and spectators of all faiths are entitled to see
justice being done.
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: A
no-religious-headgear rule in court 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 some cases,
the religious objectors might be accompanying relatives to court,
itself a pretty important function. In other cases, they might be
parties, witnesses, or even criminal defendants, whose presence may be
legally mandated for some purposes. Even if they are not legally
forced to be in the courtroom, they may still have to forgo adequately
litigating their cases, or defending their liberty, as the price of
complying with their religious obligations.
This is precisely the sort of situation where religious accommodation
makes perfect sense -- just as the [4]constitutionally specified
accommodation of witnesses and officeholders who refuse to swear, and
instead must affirm, makes perfect sense. As I've written [5]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 Employment Division v. Smith, which I [6]generally
approve of, such accommodation probably wouldn't be a constitutional
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; the
Georgia courts' decision thus strikes me as quite right.
Thanks to [7]Religion Clause for the pointer.
References
1. http://www.volokh.com/posts/1229525304.shtml
2. http://www.gasupreme.us/press_releases/headgear.pdf
3.
http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=02-3424_019.pdf
4.
http://article.nationalreview.com/?q=MWRjNjk2NTdmMThlOWFjYmMzNDMwZmZkYmJmZDg3MDM=
5. http://volokh.com/posts/chain_1218058942.shtml
6. http://www.law.ucla.edu/volokh/relfree.htm
7. http://religionclause.blogspot.com/
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