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Second-Guessing a Claimant's Religious Beliefs:

A commenter noted that the judge in the veiled litigant-witness case seemed to be second-guessing the claimant's religious beliefs in some measure. A judge can't reject a claimant's religious objection to some law because he thinks the claimant's objection is irrational, not broadly held by her coreligionists, or an unsound interpretation of her scriptures. The judge could hold that, as a matter of law, no religious exemptions are available (either because the state takes a general no exemptions view, or because denying the exemption is the least restrictive way of serving a compelling government interest). The judge could also find as a matter of fact that the claimant is insincere in her claimed religious belief; that's often a troublesome form of inquiry, but necessary for any religious exemptions regime to work. But he can't say, for instance, that this Muslim claimant should lose because most Muslims don't hold the views that this claimant says she holds.

On the other hand, I think that a judge may probe the claimant's beliefs by bringing up attitudes that the claimant's coreligionists hold, and to see if the claimant might ultimately acknowledge that she too would go along with those views. (I say "I think" because I've seen no caselaw on the subject, so this is my sense of where the broader precedents tend to point.) The line between cultural traditions and religious mandates is often unclear, and even some religious believers might at first confuse the two. Occasionally, some probing will lead the believer to sincerely acknowledge that something that she at first thought was religiously forbidden is not actually forbidden, but just unfamiliar or distasteful.

If the believer sincerely comes around to this view -- which is to say expresses a willingness to accommodate the government's interests -- the result could be a win-win situation: In this case, the court could decide the case on the merits, and the woman could testify without feeling that she's violating her religious obligations. Conversely, I don't think that a judge has an obligation to just stop questioning the moment the religious claimant raises a religious objection, and make a decision based on the claimant's initial formulation of her objection (which may be the broadest possible formulation, and broader than what the objector herself would come to after some conversation and reflection). It's true that this sort of discussion might sometimes lead to the claimant feel unduly pressured, or might lead to the judge impermissibly rejecting an objection because he finds it irrational or uncommon. But on balance, it seems that this sort of probing of the witness's beliefs is permissible.

Of course, if the believer continues to assert that she has a religious objection, because she doesn't share other Muslims' less restrictive views about the veil, then the judge has to take her beliefs as she sincerely describes them to be (unless the judge concludes that she's lying). That's what I read the judge to have done here. He tried to persuade her to accommodate the legal system's position, by explaining the rationale for the position and by pointing out that other Muslims are willing to accommodate it. But when she insisted that her religion forbade her from removing her veil, he denied the exemption request on the grounds that granting it would unduly undermine the factfinding process.

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