Muslims, Quakers, and Nothing New Under the Sun

Amina Farah Ali, on trial in federal court for “allegedly funneling money to a terrorist group in Somali” (AP), has been found in contempt of court for refusing to stand for the judge and jury. The judge sentenced her to fifty days in jail: “The Court hereby finds that on this day, October 3, 2011, Defendant Ali failed to rise on ten occasions. Defendant Ali shall be sentenced to five days for each incidence of contempt, to be served consecutively, and after the trial in this matter is completed.” USA Today reports that, “[i]f Ali decides to rise for the court, her attorney can ask that the contempt charges be purged,” which means that her sentence would presumably be lifted.

The judge also revoked her pretrial release, so that she has to stay in jail during the trial: “On August 5, 2010, Defendant Ali was released pending trial, subject to certain conditions, including that the Defendant Ali not violate any federal, state or local law. As Defendant Ali has violated 18 U.S.C. § 401 by failing to rise when Court is called to Order, the Court hereby revokes release.”

Ali had argued that she had a First Amendment right not to stand, because she is “doing this for religious reasons”: “I am not going to stand up for anyone except Allah.” But the judge disagreed:

There is a long‐standing tradition in the court system which requires all participants to stand when the Court is called to Order or called in Recess (referred to herein as the “rising requirement”). The function of the rising requirement is to mark the beginning and the end of the court sessions, to show respect for the court system, to assist judges in maintaining order, and to remind all that attention should be paid to the court proceedings. [The court later quoted a court of appeals case, In re Chase, 468 F.2d 128 (7th Cir. 1972), which gives a bit more detail on the rationale for this requirement. –EV]

The Defendant has refused to comply with the rising requirement [which the court had specifically provided for in an earlier court order –EV], stating that her religious beliefs prohibit such compliance. While freedom of religion is a protected right under the First Amendment, the Defendant has not demonstrated to the Court that her First Amendment rights take precedence over the rising requirement, especially in light of the fact that she is exercising such right inconsistently. Evidently, the Defendant’s professed religious beliefs did not prevent her from standing when she was introduced to the prospective jurors. [Sentence moved: When the Defendant was identified for the prospective jurors … she immediately stood when her name was called.] Accordingly, the Court finds that Defendant Ali’s failure to rise when Court is called constitutes criminal contempt….

Failure to rise when the judge or jury entered the courtroom has been found to constitute criminal contempt, even where the defendant had claimed that his refusal to stand was based on his religious beliefs. In re Chase, 468 F.2d 128 (7th Cir. 1972). See also Evans v. Ciccone, 377 F.2d 4, 6 (8th Cir. 1967) (finding that freedom of religion cannot be made superior to reasonable rules of conduct, in or out of prison).

I suspect the judge’s actions likely violate the federal Religious Freedom Restoration Act (RFRA), because the standing requirement is probably not necessary to serve a compelling government interest (which is the test the Act prescribes). Requirements that people stand as a gesture of respect, like requirements that they salute the flag, also generally violate the Free Speech Clause (see West Va. Bd. of Ed. v. Barnette (1943)). But the rule may be different for in-court behavior, where restrictions on speech and symbolic expression are generally much more acceptable than outside court, and where compulsions of speech and symbolic expression might likewise be constitutional, which is why I think Ali’s strongest claim would likely be under RFRA.

Beyond this, though, I thought it was worth noting the connection between this incident and a famous incident from Anglo-American legal history — the 1670 trial of William Penn, who of course would go on to found Pennsylvania. Penn was a Quaker, and because of his beliefs refused to uncover his head in court. Much like Ali, the Quakers of the era saw such uncovering of the head as a “token[] of reverence due to the Almighty alone.” The court found Penn to be in contempt, and fined him 40 marks. (Penn had actually entered the courtroom with his head uncovered, and an official put the hat back on Penn’s head; but the court’s objection seemed to be to Penn’s refusal to remove the hat at that point.) The jury in the underlying case — the prosecution of Penn for unlicensed preaching — later refused to hand in a verdict that the court saw suitable, which led to the landmark jury rights decision in Bushel’s Case.

This incident doesn’t, of course, dispose of what the rule is or even ought to be in the U.S. today. But it does provide a bit of perspective on how modern-seeming objections by religious groups that are mostly new to the country — such as Muslims — often echo religious objections that have been considered by Anglo-American law for centuries.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.