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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.

NOLA lawyer:
"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."

I disagree. I think he was pointing out in his understanding of Islam, there is no religious mandate to cover the face. Therefore, her claim that she was motivated by her religious beliefs was insincere and undeserving of accomodation.
12.14.2006 2:48pm
JohnAnnArbor (www):

I disagree. I think he was pointing out in his understanding of Islam, there is no religious mandate to cover the face. Therefore, her claim that she was motivated by her religious beliefs was insincere and undeserving of accomodation.

I wonder if the speed of the exchange contributed to this. She had absolutely no chance to explain (or even to think to explain) that different Muslims observe their religion differently.
12.14.2006 2:56pm
Steve:
I don't get it. You seem to be saying that once the judge determines that the objection is sincere, the inquiry ends. But if the court can't look at whether the religious belief is held by co-religionists, doesn't that effectively convert all non-religious beliefs into religious ones? An employer shouldn't be required to accomodate an employee's "religious belief" that he needs a coffee break every 15 minutes - even if the employee is absolutely sincere in claiming that the Bible tells him so. At some point, the court has to be allowed to say "sorry, that's simply not a religious practice," but how can that be done without looking at the beliefs of co-religionists?
12.14.2006 3:12pm
Moshe (mail):
If the judge was indeed doing what Eugene says, that seems fair enough, but it seemed to me that the judge was motivated by a combination of the two factors: the belief that he wouldn't be able to tell whether she is telling the truth along with his feeling that she was being unduly extreme.
12.14.2006 3:23pm
NOLA lawyer:
I think the "beliefs of co-religionists" are certainly useful yardsticks for judges, but they aren't dispositive.

For example, in one case, a Catholic woman wore a button of an aborted fetus to work everyday. Obviously neither the Bible nor the Vatican mandate that you wear a button. But through prayer, etc., she felt that God was commanding her to wear the button. The Court found that it was sincere.

So even though the judge here believes that Islam does not command women to cover their faces, the way in which this particular woman chooses to practice her religion is the more appropriate inquiry.
12.14.2006 3:24pm
Elliot123 (mail):
If a Christain insisted on dragging an eight foot wooden cross into court and onto the witness stand, would we allow that? Suppose he said it was vital to his religious belief and practice to emulate the mortification of Jesus? I doubt the court would accommodate him. Why not? Because the court knows this is not required of Christians.

But when Muslims make a silly claim, we don't know if it is silly or not because we lack the necessary experience and knowledge.

I lived and worked in Saudi Arabia for a number of years. All Saudi women wore an abaya (long cloak) in public. Some wore face covering; some did not. Both options were acceptable.

Every eight weeks I would fly out of Saudi to Zurich. The same thing happened on each flight.

About forty women clad in abaya would board the plane. After the seat belt sign went off, they drifted to the washrooms and emerged sans abaya, wearing the latest in Western, and showing lots of skin. When the plane reached Zurich, only three deplaned wearing the abaya.

The return trip was the reverse. About three would board wearing abayas. Forty deplaned in Dhahran wearing the abaya.

This is a standing joke among the expats in Saudi. It's a con job, and too many people here are looking for an excuse to exhibit their sensitivity and political correctness. The Muslims think it is even more of a joke when we fall for it.
12.14.2006 3:48pm
lucia (mail) (www):
Elliot123, what did you conclude about the beliefs of the 7.5% of the women who wore the abayas when deplaning in Zurich?
12.14.2006 4:10pm
Silicon Valley Jim:
I'd guess that the judge was using the test of whether an action is widely practiced by a religious group as an indicator of whether the belief is, in fact, both sincere and religious.

I think that JohnAnnArbor has a good point, and that it goes in both directions. Given more time, the judge might have proceeded a bit differently, as well.
12.14.2006 4:13pm
ruidh (www):
I don't know why the case was dismissed. Perhaps her case was well documented in paper and didn't rely much or at all on personal testimony. The judge could have heard testimony and discounted her testimony because of his inability to discern its truthfulness. If he admitted to that reason in his decision, then there would be a judgment on the record and at least the woman would have had some opportunity to present a case.
12.14.2006 4:38pm
Harry Eagar (mail):
Professor Volokh, when I apply your reasoning to the anti-mask laws that prevailed in the South when I grew up (I don't know how many, if any, are still on the books), those laws would not seem to meet your test.

The intent of the laws was to restrain KKK terrorism, but since most Kluxers held sincere religious beliefs about their racial purity campaign, presumably they were OK.

And what about the anti-blacking masking laws in England in the early 18th century? No religion was involved there, just property rights.
12.14.2006 4:39pm
AdamSteiner (mail):
Why not let her testify and discount the weight of her testimony accordingly? Or would that make the trial too much of a farce?
12.14.2006 4:43pm
arthur (mail):
I question the judge's sincerity in claiming that he needs to look witnesses in the face. what does he do when a witness profers deposition testimony?
12.14.2006 4:44pm
Bill Poser (mail) (www):
To my mind the oddest part of all of this is that such deference is given specifically to religious beliefs, which by definition are irrational. Suppose that I were the plaintiff and that I were familiar with the research showing that facial expression is an unreliable and misleading source of information, so that I demanded to appear with my face masked so as not unfairly to undermine my credibility. Under current law, as I understand it, my position would have no support in law. Why should the irrational belief of a Muslim woman deserve deference (though not granted in this case) but my RATIONAL belief not deserve deference? I have yet to see a well reasoned argument as to why religious beliefs are uniquely deserving of deference. (The only basis that I can think of would be that they are held so deeply that not deferring to them is especially painful. I'm not sure that I would buy this argument.)
12.14.2006 4:50pm
Malvolio:
Every eight weeks I would fly out of Saudi to Zurich. The same thing happened on each flight.

About forty women clad in abaya would board the plane. After the seat belt sign went off, they drifted to the washrooms and emerged sans abaya, wearing the latest in Western, and showing lots of skin. When the plane reached Zurich, only three deplaned wearing the abaya.

The return trip was the reverse. About three would board wearing abayas. Forty deplaned in Dhahran wearing the abaya.

This is a standing joke among the expats in Saudi.
I don't get the joke. Certainly, if I were on a Greyhound bus from Philly to Atlantic City, I wouldn't be surprised if many passengers changed into bathing suits en route or changed back into street clothes on returning. And I wouldn't regard as a hypocrite a woman from that trip who refused to wear a bikini at the office the next day.

Suppose you were involved in a lawsuit on some South Pacific island where the tribal court required witnesses to testify in the nude. Might you not find that embarrassing and humiliating, even if other witnesses did not?
12.14.2006 4:53pm
Redman:
Its been a long time since I read the conscientious objector cases. I remember one of the issues in some cases was whether the objector's religious beliefs were sincere. I don't know if any opinion questioned whether any religion was pro war.

Its tricky, but I dont know how a judge can evaluate a religious belief without some inquiry into how adherents of that religion, in general, adhere to the same or similar beliefs.
12.14.2006 4:56pm
Steve:
I question the judge's sincerity in claiming that he needs to look witnesses in the face. what does he do when a witness profers deposition testimony?

This is exactly why deposition testimony is inadmissible at trial, unless you have an unavailable witness. You don't just get the option of testifying without letting anyone observe your testimony.

The judge certainly could have said "ok, I'll let you testify, but I'm going to draw the negative inference that you would have looked like you're lying," but I really don't see the point of that.
12.14.2006 4:56pm
Malvolio:
Why should the irrational belief of a Muslim woman deserve deference (though not granted in this case) but my RATIONAL belief not deserve deference? I have yet to see a well reasoned argument as to why religious beliefs are uniquely deserving of deference.
The only reason I can think of is historical. In the past, various governments did various horrifying things to dissuade people from their religious beliefs. That practice has been so completely repudiated that we generally try to err firmly on the other side. We hate religious repression so passionately, we go overboard in the direction of religious tolerance.
12.14.2006 5:01pm
Bill Poser (mail) (www):
How is the law in this case related to the law on conscientious objection? During the Vietnam War, I am fairly sure (having had training as a draft counselor) that the draft board was indeed entitled to second guess the claimant's sincerity on the basis that his religion did not require him to object. If you were a Mennonite you had a good chance at receiving CO status because Mennonites are in fact pacifists, but if you were, say, a Roman Catholic, you would not receive CO status because pacifism is not a doctrine of the Catholic Church. Has this changed, or is there for some reason a difference between conscientious objection and other types of accomodation of religion?
12.14.2006 5:10pm
Elliot123 (mail):
Lucia,

I concluded the 7.5% of Saudi women who did not take off their abaya on the plane from Saudi were looking their best as they were.
12.14.2006 5:35pm
Elliot123 (mail):
Malvolio,

The joke is that many Saudi Muslims will say their dress is a sign of their adherence to God and his divine laws as handed to Mohamed. They will also roundly disparage the dress of decadent westerners. However, given the chance, we see their beliefs stop at the Saudi border. The same phenomenon can be seen when they drive across the twenty mile causeway from Saudi to Bahrain. Western clothes, BLT sandwiches, and Johnny Walker Black.
12.14.2006 5:42pm
David Chesler (mail) (www):
Why should the irrational belief of a Muslim woman deserve deference (though not granted in this case) but my RATIONAL belief not deserve deference?

If it's rational, it can probably stand on its own ("I don't want to do/not do X because the consequence would be Y.") That's the thing about irrational beliefs, they can't be explained that way -- if they could, they would be rational. Adding to what Malvolio said, the system assumes that the vast majority of us have some set of irrational beliefs, or at least adhere to a tribal identity that nominally shares those beliefs. (This leads to other problems, when members of one such tribe try to too closely analogize their beliefs with those of a different tribe ["Chanukah -- that's the Jewish Christmas, right?"] but in practice it works well a lot of the time, and is often extensible. The current case is one where we haven't figured out yet how to extend the system.)
12.14.2006 5:51pm
mls (mail):

Why should the irrational belief of a Muslim woman deserve deference


Ummm, because most religious beliefs don't pass the rationality test, yet our Constitution says government has limited power to question them?

I say this as a sincere Catholic, but I don't expect anyone to view my religious beliefs as RATIONAL — isn't that what faith is about?



The joke is that many Saudi Muslims will say their dress is a sign of their adherence to God and his divine laws as handed to Mohamed. They will also roundly disparage the dress of decadent westerners. However, given the chance, we see their beliefs stop at the Saudi border. The same phenomenon can be seen when they drive across the twenty mile causeway from Saudi to Bahrain. Western clothes, BLT sandwiches, and Johnny Walker Black.


Ah, yes, what we in Texas call situational Baptists. With other Baptists, there's no drinking and no dancing. But get 'em out of town . . . .
12.14.2006 7:58pm
Malvolio:
The joke is that many Saudi Muslims will say their dress is a sign of their adherence to God and his divine laws as handed to Mohamed. They will also roundly disparage the dress of decadent westerners. However, given the chance, we see their beliefs stop at the Saudi border.
Are those the same Saudis? Are the people who claim to be dressing to obey Allah and who call Westerners degenerates the same individuals who spend their vacations drinking whiskey in their Speedos? It strikes me as unlikely on its face, but I have never been to Saudi Arabia and don't know any Saudis.
12.14.2006 9:09pm
markm (mail):
The problem isn't so much with looking into the practices of co-religionists as how the judge did it - apparently he decided that because the Muslims he knew didn't make women cover their face, it wasn't a religious requirement. This was like a judge deciding that a Jewish prisoner could be fed cheeseburgers with french fries cooked in lard because the judge knew some Jews that don't follow the dietary laws. A casual inquiry over a wider sample will show that many Jews would starve rather than eat traife and that there are entire countries where Muslim law is interpreted to require women to cover their face.

Sincerity of belief would be a more fruitful source of inquiry; as someone pointed out on an earlier thread, those versions of Islam also ban women from driving. I think they also ban them from signing contracts, and this woman would have had to do both to get into a dispute with a car rental agency. That's suggestive that, at the least, she's picking and choosing her religious laws. In the Jewish prisoner hypothetical, I would become very dubious about the prisoner's sincerity if he wanted to substitute lobster[1] for cheeseburgers.

[1] As a Gentile, I hope I haven't made any egregious errors about Jewish dietary laws here. My understanding is that lard is banned because pigs are "unclean", shellfish such as lobster is also deemed unclean although regular fish with fins and scales are OK, and cheeseburgers are banned under a different law, that of mixtures, although cheese and properly butchered (kosher) beef hamburgers are both OK if eaten at separate meals. So, while it's conceivable that there would be a practicing Jew that believed he must follow the law of mixtures but not the one against lobsters, it would seem far more likely that something other than religion was the motivation...
12.15.2006 12:03pm
kfh (mail):
I've seen a judge "evaluate" religious sincerity in my practice. In a custody case, where religious belief and education was an issue, the Judge ordered the father a professed Muslim to remove his kufi or headgear while in the courtroom. (The court has a dresscode prohibiting hats, shorts, bare midriffs, etc. in the courtroom) When father's attorney also a professed Muslim and also wearing a Kufi protested, the Judge observed that the attorney was never seen in court of public without his kufi and thus he would not be ordered to remove it but that the father had previously appeared and testified in court without a kufi would not be allowed to wear one on this occasion.
12.15.2006 2:40pm