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Monday, May 03, 2010

Dévête-toi!

As France and Belgium march on toward criminalizing headscarves (Religion Clause Blog -- that font of knowledge -- reports that the Belgians are nearly there for the burqa), a federal district court judge in Michigan has dismissed a law suit by a woman against a local judge alleging violations of her religious liberty for related reasons.  The local judge has a "no hats" policy and told the woman to remove her hijab to conform to the policy.  The woman resisted only slightly and eventually removed it, saying something like, "it doesn't matter."  The district court accepted the state judge's representations that he simply didn't know about the plaintiff's religious beliefs, and that there was no evidence that had he known, he would have compelled her to remove the hijab.  That's because the plaintiff didn't protest the demand to take the hijab off.  The plaintiff pointed out various pieces of circumstantial evidence which tended to show that the judge knew all too well what he was demanding (including the fact that Wayne County has "the largest concentration of Arab-American Muslims outside the Middle East" and that the judge had been practicing in Detroit for 22 years.  The plaintiff also pointed out that she rapidly removed her hijab because she did not want to risk prejudicing her case with the court.  No dice, according to the federal court.  The order is here.

My understanding is that the hijab is a scarf that covers the head and the neck; while a niqab covers everything but the eyes.  In a recent Michigan State Supreme Court case, the court adopted a rule giving judges "reasonable control" over what litigants can wear in court -- a rule apparently at least partially responding to a litigant who was prevented from sporting a niqab.

Two interesting features of the case: (1) Is there a meaningful difference between the hijab and the niqab (or the full burqa, for that matter), for these purposes? and (2) Does current free exercise doctrine -- i.e., the post-Smith regime -- encourage what in criminal law some call the issue of "willful blindness," thereby requiring a putative plaintiff to stand on his or her rights or else forfeit them?  My answers, with some more thoughts after the break, are yes and maybe.

1. Setting aside the regrettable state of constitutional free exercise doctrine right now, negotiating the claims of religious liberty against those that oppose them is always a question of getting a little here and losing a little there; the gains are lovely, but they do not compensate for the losses.  The losses remain.  It seems to me that both the niqab and the burqa are not compatible with one of the most crucial functions of courts (and juries especially): that is, the assessment of credibility.  One might wonder whether we ought really to emphasize the physical testimony of a witness as much as we do -- whether this is really the best evidence of credibility or not very good evidence at all.  Indeed, perhaps juries should only be listening for the substance of testimony; focusing too much on what the witness looks like may well be a distraction.  Nevertheless, at least for now, the physicality of testimony remains an important factor in judging credibility.  

But the hijab does not present these problems.  Only the neck and head is covered by the hijab.  The juror or judge assessing credibility can see the witness's face in its entirety.  I assume that no one thinks that the witness's hair or neck are important physical features insofar as credibility is concerned.  That means that a comparable in-court ban on the hijab has to be supported by some other value.  One that springs to mind (and was probably important for the local judge here) is equality of treatment -- no one coming before the court shall have the privilege of wearing anything over their head.  The trouble with this value, stated in these terms, is that it's a lot more onerous for the devout Muslim woman to appear without her hijab than it is for me to forego my favorite Red Sox hat when I get called to the witness stand.  Perhaps one might imagine a judge saying, "Before you testify, please take off your pants and address the jury in your skivvies.  We don't allow people with pants in this forum."  That gets close in some ways to what is claimed by some women to be the embarrassment of being forced to remove the hijab.  And perhaps there are other values at stake here besides equality of treatment (judicial decorum?) but at least for me, there seems to be an important difference between the competing values in the niqab/burqa case and the hijab case.

2.  As for the willful blindness question, the starting point for any free exercise analysis these days is whether the state has implemented a rule of general application that doesn't target any specific religious group.  The judge's no-hat rule seems certainly to meet this standard.  In fact, it does much more than this.  It encourages the judge to be callous.  I'm not really suggesting that the judge had thought through the implications of Smith and said to himself: "I'm going to pretend I don't know whether that hijab is religious or not -- I'm going to call it a hat -- so that I can insulate myself from a FE claim."  Maybe that's what happened, but what's more likely is that the judge thought, "Dammit -- this is my rule.  And rules are rules.  I'm not discriminating against anybody.  I have lots of Muslim friends.  Whatever it is that people want to wear on their heads, I don't want to see it.  Don't bother me with reasons.  Just obey."

In walks the plaintiff with her niqab.  Whether or not the judge was initially alerted to the fact that this might be a garment of religious significance, he just didn't want to be bothered with asking the plaintiff what effect its removal would have on her.  Smith gives him the justification not to care and perhaps even to pretend that he doesn't know any better.  And we are now in the position of relying on the plaintiff's assertion of her rights.  If she for some reason doesn't object (e.g., because she does not want to anger the judge, or to risk an adverse ruling), then she is deemed to have waived her religious liberty.  Again, whether this is "willful blindness" as in criminal law is difficult to know in this situation.  But it does seems to me to be the natural consequence of an impoverished reading of a foundational constitutional right.    

Posted by Marc DeGirolami on May 3, 2010 at 03:25 PM | Permalink

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This is a genuine issue, one I cover in Evidence (usually for more time than I expect, because it energizes the students). But the district court's opinion is a total mess. It completely conflates the standing and First Amendment analysis. For the former, it really did not matter what the state judge thought he was doing, whether he knew there was religious significance to the hijab, whether it was a hat or scarf, or anything else. The only question should have been whether there was a reasonable likelihood that Ms. Albaghdady would have been injured by Judge Callahan's "no-hats" policy in the future. A court will not assume someone will be a criminal defendant or arrestee in the future. Will a court assume someone might be a civil litigant in the future?

Posted by: Howard Wasserman | May 3, 2010 8:53:31 PM

Howard, I agree. The procedural posture of the case is odd -- I'm at a loss to understand why the plaintiff was after a preliminary injunction at all (perhaps because CAIR was behind the suit, and is particularly concerned about this judge?). Also, if she wanted to make a religious liberty claim, I don't understand why she didn't make a claim under the MI state constitution, which (I believe) retains the Sherbert FE standard. Messy claims as well as messy disposition, all of which probably moot the substantive stuff I talk about for this case.

Posted by: Marc DeGirolami | May 3, 2010 9:10:01 PM

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