I blogged 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 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 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 constitutionally specified accommodation of witnesses and officeholders who refuse to swear, and instead must affirm, makes perfect sense. As I’ve written 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 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 Religion Clause for the pointer.
UPDATE: A commenter asks whether the policy would also apply to face coverings (such as veils) or just to hats and scarves that leave the face visible. I think it wouldn’t.
Literally a veil is indeed part of a “head covering”; in fact, it covers more of the head than a yarmulke or a nun’s habit. But I suspect the courts were using “head covering” in the more common sense of something that covers the top of the head (and perhaps the sides and back), rather than the face. Among other things, face coverings raise various concerns about judging a witness’s demeanor (and ascertaining a person’s identity) that the press release didn’t discuss, and that the judges likely didn’t focus on in making the rule. And of course the case that triggered the adoption of the policy, discussed in the press release, involved a hair covering, not a face covering.
These factors might matter less with a statute or a constitutional provision, which might well be literally interpreted according to its terms. But I expect that Georgia judges will interpret this policy (itself made by Georgia judges) to focus on hair coverings, not on face coverings.