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Requirement That People Entering Courthouse Remove Masks or Veils at Security Checkpoint:

"1. A deputy sheriff may require individuals entering the courthouse to remove masks, veils, or other face coverings at the security checkpoint, without regard to whether the individual claims a religious basis for remaining masked or veiled, if the sheriff's office has a neutral and generally applicable policy of requiring removal of face coverings for security purposes.

"2. To minimize potential conflicts between the requirements of courthouse security and the religious practices of individuals entering the courthouse, it would be useful [but not legally mandated] if security details were comprised of both male and female officers and if a private space were available at the entrance of the courthouse for those individuals whose religion discourages removal of a head covering in public."

So opines the Maryland Attorney General. Maryland has no mandated religious exemption regime, so this is clearly right.

About half the states do have such a regime, either under the state constitution's religious freedom cause (as interpreted by state courts) or under a state Religious Freedom Restoration Act; and so does the federal government, as applied to federal action. The Maryland AG says, though, that even under such regimes no exemption from a policy of "temporary removal ... of a head covering," because the policy likely "would survive strict scrutiny [mandated under such exemption regimes] as a narrowly tailored effort to further a compelling interest in courthouse security."

The AG doesn't discuss whether considering sex in assigning guards to the checkpoint (or perhaps even in hiring guards, if not enough female guards are available), or in assigning guard duties at the checkpoint, would violate Title VII of the Civil Rights Act of 1964 or any similar Maryland law. As I discussed in this article, the "bona fide occupational qualification" exception to bans on sex discrimination in employment would generally justify some sex classifications aimed at protecting privacy. I know of no caselaw on whether this would cover accommodating privacy concerns that go beyond normal social privacy norms -- please let me know if you can point me to some such caselaw -- though I'm inclined to conjecture that it probably would.

Soronel Haetir (mail):
What about masks worn for health reasons in stead of religious? IE the person is required to appear yet is very contagious, or alternatively has a severely comprimised immune system? Can they really make someone risk their own or other's safety for such checks?

I would imagine in most cases that the mask does not hide enough to be a problem but can imagine situations where even that would not be true.
6.6.2009 12:34pm
swedishtom:
Eugene, have you considered one additional twist: security checkpoints at a courthouse, in contrast to checkpoints generally, implicate (at least in many instances) the fundamental right of access to the courts. Therefore, even if there is no state RFRA to trigger strict scrutiny, the right of access to the courts makes this facially neutral policy problematic under the rationale described in Tennessee v. Lane. Which is not to say that court security is not a compelling interest, but the narrow tailoring requirement would require the court to make available a private space and female court personnel in order to accommodate visitors with religious face coverings.
6.6.2009 1:11pm
Harvey Mosley (mail):
Does it make a difference if the person is there voluntarily as opposed to appearing due to a court order? Say a spectator to the proceedings on one hand and a witness under subpoena on the other?

Another question, why is it OK to force people to be searched (albeit electronically) if they are ordered to appear in court? Why can the state force me to submit to a search with no probable cause or even reasonable suspicion?
6.6.2009 2:21pm
lycle (mail):
MESSAGE
6.6.2009 2:33pm
Bob from Ohio (mail):

religious face coverings


No such religion exists.

Islam requires women to wear a head covering and modest clothing. Like Orthodox Judaism.

Hands and face are not required to be covered.

The veil is strictly an Arab cultural device.
6.6.2009 3:31pm
David M. Nieporent (www):
The veil is strictly an Arab cultural device.
Then why is it worn in non-Arab countries, like, say, Iran?

Sorry, but no. Some people's interpretation of islam requires them to wear a veil. The fact that some other people's interpretation may not does not mean that it isn't part of Islam.
6.6.2009 4:38pm
troll_dc2 (mail):

The AG doesn't discuss whether considering sex in assigning guards to the checkpoint (or perhaps even in hiring guards, if not enough female guards are available), or in assigning guard duties at the checkpoint, would violate Title VII of the Civil Rights Act of 1964 or any similar Maryland law. As I discussed in this article, the "bona fide occupational qualification" exception to bans on sex discrimination in employment would generally justify some sex classifications aimed at protecting privacy. I know of no caselaw on whether this would cover accommodating privacy concerns that go beyond normal social privacy norms -- please let me know if you can point me to some such caselaw -- though I'm inclined to conjecture that it probably would.




I have been away from the Title VII field for a while, but you might want to take a look at the private-duty-nurse cases, which involved the problem of whether male nurses could be barred from being assigned to female hospital patients.
6.6.2009 5:03pm
Bob from Ohio (mail):

Then why is it worn in non-Arab countries, like, say, Iran?


It migrated. Just like it did in Afgahnistan, which took it far further than even the Arabs. Though the Taliban version is being adopted by the Arabs too.

Its not about religion, its about keeping women controlled.

Some people use religion to veil their hatred of women. Not a value we are required to honor.
6.6.2009 6:23pm
Matthew Carberry (mail):
The Arab tribes brought Islam, and their particular pre-existing tribal cultural beliefs, to all the areas they conquered, which includes Persia.

Those areas with longer occupation and more assertive direct control may have adopted or adapted those tribal cultural beliefs, along with Islam, to a greater or lesser extent for any number of reasons; more intolerant local Arab rulers, forcible assimilation, access to power or simple convenience.
6.6.2009 6:39pm
Baelln1:
"...policy of requiring removal of face coverings for security purposes "

______


... what exactly are these vague "security purposes" that absolutely trump all other considerations and citizen rights (??)
6.6.2009 6:41pm
Baelln1:
"... policy of requiring removal of face coverings for security purposes."



What exactly are these vague "security purposes" that somehow trump all other considerations and citizen rights (??)
6.6.2009 6:51pm
DG:
{What about masks worn for health reasons in stead of religious? IE the person is required to appear yet is very contagious, or alternatively has a severely comprimised immune system? Can they really make someone risk their own or other's safety for such checks? }

They are mostly useless. The surgical masks so frequently seen in Asia don't protect the user. They do protect other people from the user, if the user sneezes or drools - thats why physicians wear them.
6.7.2009 12:48am
ReaderY:
If government provides exemptions in other cases — if for example it doesn't require head injury patients to remove casts or breathing apparatus, or provides an exception for police or court personnel — then its policy simply isn't generally applicable. In order for a policy to be generally applicable, there can't be any exceptions. If government allows exceptions for any reason, it does not have a generally applicable policy, and hence it must permit religious exceptions also.

So said then-Judge Alito in the 3rd Circuit case Police v. City of Newark.
6.7.2009 3:53am
luagha:
Face masks also provide a strong protection to the user from the user - they prevent you from touching your own nose and mouth with a bare, infected hand.
6.7.2009 4:03am
ReaderY:
See Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999).

The opinion's explanation of why tbe differential treatment of medical and religious exemption is indicative of anti-religious discrimination is worth a read:


It is true that the ADA requires employers to make
"reasonable accommodations" for individuals with
disabilities. 42 U.S.C. S 12111(b)(5)(A) (1994). However, Title VII of the Civil Rights Act of 1964 imposes an identical
obligation on employers with respect to accommodating
religion. 42 U.S.C. S 2000e(j) (1994). This parallel
requirement undermines the Department's contention that
it provides a medical exception, but not a religious
exception, because it believes that "the law may require" a
medical exception. Brief in Support of Defendants' Motion
to Dismiss at 11. Furthermore, it is noteworthy that the
Department has clearly been put on notice of Title VII's
religious accommodation requirements. See EEOC
Determination Letter, Charge No. 171970408 (attached to
Plaintiffs' Letter Brief in Response to Defendants' Cross
Motion for Summary Judgment); App. at 83 (Plaintiffs'
Complaint) (citing Title VII). In light of these circumstances,
we cannot accept the Department's position that its
differential treatment of medical exemptions and religious
exemptions is premised on a good-faith belief that the
former may be required by law while the latter are not.

We also reject the argument that, because the medical
exemption is not an "individualized exemption," the
Smith/Lukumi rule does not apply. See App. at 19 (Dist. Ct.
Op. at 12). While the Supreme Court did speak in terms of
"individualized exemptions" in Smith and Lukumi, it is clear
from those decisions that the Court's concern was the
prospect of the government's deciding that secular
motivations are more important than religious motivations.
If anything, this concern is only further implicated when
the government does not merely create a mechanism for
individualized exemptions, but instead, actually creates a
categorical exemption for individuals with a secular
objection but not for individuals with a religious objection.
See generally Lukumi, 508 U.S. at 542 (1992) ("All laws are
selective to some extent, but categories of selection are of
paramount concern when a law has the incidental effect of
burdening religious practice.) (emphasis added). Therefore,
we conclude that the Department's decision to provide
medical exemptions while refusing religious exemptions is
sufficiently suggestive of discriminatory intent so as to
trigger heightened scrutiny under Smith and Lukumi.
6.7.2009 4:13am
David Schwartz (mail):
Can that really be right? Suppose I have a bona fide religious objection to discussing business issues with women -- can I insist on a male IRS auditor?
6.7.2009 5:00am
David McCourt (mail):
Preventing this sort of thing seems to be reason enough for the rule:

From The TimesJuly 10, 2007
Muslim juror 'listened to iPod under hijab'
A woman juror has been arrested after she was allegedly caught listening to an MP3 player hidden beneath her hijab during a murder trial [at Blackfriars Crown Court in central London].
http://www.timesonline.co.uk/ tol/news/uk/crime/article2051212.ece
6.7.2009 11:35am
ReaderY:

Can that really be right? Suppose I have a bona fide religious objection to discussing business issues with women -- can I insist on a male IRS auditor?



That would depend on whether there is a right to insist on a male IRS auditor for secular reasons. Is there a case or context where one can insist on a male IRS auditor for some secular reason?

If not, this would seem to be an example of a genuinely generally applicable rule under Police, and hence where a right to a religious exception wouldn't apply.
6.7.2009 1:53pm
Dan Hamilton:
People can we get a little sanity here?

For the purposes of Identification (if nothing else) face covering need to be removed. Sorry, you have no right to hide your face.

If you are injured or something, bandanges need to remain in place but then other ways of making sure of their identify must be used.

So please let us be sane. Covering you face is NOT something we really want to allow or encourage. Please THINK about this and what it could lead to.

People could be allowed to where maskes all the time any time. Do you want to allow THAT? Get Real. Down this road is chaos.
6.7.2009 7:08pm
Fub:
Harvey Mosley wrote at 6.6.2009 2:21pm:
Another question, why is it OK to force people to be searched (albeit electronically) if they are ordered to appear in court? Why can the state force me to submit to a search with no probable cause or even reasonable suspicion?
I've often wondered, but have never seen a case, whether such searches could cause some bizarre new exception to whatever is left of Fourth Amendment protections. It's easy to frame a hypo.

Def was wounded in a robbery attempt. He was the robber. But Def was not identified by the victim, other witnesses or forensic evidence. The police only know details of the robbery, and that the victim claims he shot the robber with a specific caliber and type of bullet in a specific part of the body.

So Def was not arrested, or even implicated by any available evidence, or even noticed by police in their never-ending dragnet for the robber. After being wounded, Def simply laid low and recovered.

But Officer Dudley always suspected Def on "general principles". The particulars of the robbery MO just seemed like something Dudley thought Def might try. So, Dudley goes to prosecutor Snidely for advice on how to search Def for bullet wounds without a warrant. Snidely says "That's easy! I'll just ask Jury Commissioner Thumbscale to put Def on the jury duty list next month."

So, Def shows up for jury duty, and walks through the courthouse X-ray machine with all the rest. Officer Dudley observes the X-ray screen, notices a bullet that appears to be the right caliber and type embedded in the right part of Def's body. Dudley arrests, and Snidely files charges on Def for robbery.

What constitutional result? Would the constitutional result change if Dudley had instead asked Tax Collecter Cheatem to send Def a tax bill with an error (costing Def lots of money) that could only be resolved by a trip to the courthouse?
6.7.2009 7:31pm
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6.8.2009 6:44am
Ahcuah (mail):
Exactly what security purpose is satisfied by removing a mask or head covering? Identification?

If you've gone through the metal detector, or any of the other devices that look for dangerous things, what does it matter who you are?

Or are there no-courtroom lists, just as there are no-fly lists? And if so, how can you get any sort of justice if you are not allowed to enter a courtroom?
6.8.2009 7:38pm
einhverfr (mail) (www):

They are mostly useless. The surgical masks so frequently seen in Asia don't protect the user. They do protect other people from the user, if the user sneezes or drools - thats why physicians wear them.


Ok. Individual actually has an illness (say, H1N1 flu) and is wearing a mask for the protection of others. I would argue that if the court allows that individual to remain masked, then it has to allow folks with religious objections as well.

The mask may not prevent the wearer from getting sick, but they may prevent the wearer from spreading the illness. The latter is MUCH closer to their designed usage.
6.8.2009 7:50pm

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