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Georgia Courts Expressly Allow Religious Headgear in Court:

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.

hmonrdick (mail):
It is not clear to me from reading this article whether this policy regarding "headgear" applies to coverings of the entire face, or of the entire face other than the eyes. If it does, it seems to me that it is overly broad, because it essentially precludes fact-finders from considering body language and/or facial expressions in judging the credibility of witnesses who are entitled to wear such "headgear." Some religions do require a covering of the entire face by females. To the extent that the Georgia policy permits that, it improperly intrudes upon the fact-finding process.
7.27.2009 2:05pm
Gonzer Maven (mail):
Have you ever tried to hide a weapon under a yarmulke?
7.27.2009 2:09pm
martinned (mail) (www):
Doesn't this post beg the question of whether a hijab is religious headgear in the first place? AFAIK, a good case can be made that its nature is more cultural than religious, being found traditionally among the Pashtun in Afghanistan, but not among the other ethnic groups in the region who (otherwise) have identical religious beliefs.
7.27.2009 2:10pm
ShelbyC:

If it does, it seems to me that it is overly broad, because it essentially precludes fact-finders from considering body language and/or facial expressions in judging the credibility of witnesses who are entitled to wear such "headgear."


I'm not sure how well I could judge the credibility of someone who was used to having her face covered in public, believed that exposing her face was improper and sinful, and was being forced to testify with her face uncovered, by observing their facial expressions. Would the jury be told that they were used to having their face covered?

That said, "headgear worn for religious reasons" seems pretty broad. Would a baseball cap that says, "Jesus saves" be covered? How 'bout a cap that says "Jesus does not save" There might be 1A problems.
7.27.2009 2:15pm
Steven Lubet (mail):

Obeisance differs from respect; to demand the former in the name of the latter is self-defeating.


That is a great sentence and a great sentiment. It should be posted on the wall of every judge's chambers.
7.27.2009 2:16pm
hillbilly habeus:
Gonzer - perhaps a ninja star or Batarang?
7.27.2009 2:17pm
Eugene Volokh (www):
Martinned: The American rule on religious exemptions is generally pretty well-defined: A practice is seen as religious if the practitioners sincerely believe that it's religious. Courts are neither required nor allowed to second-guess that, or reject a claim of a practice's religiosity because some coreligionists don't view the practice as religiously obligatory. (To be sure, not all sincere religious beliefs have to be accommodated; but the basis for not accommodating them can't be that lots of other Muslims don't view the belief as religious, and that historically the belief has been seen as cultural rather than religious in many places.)

I discuss this further, and cite the leading Supreme Court case on this, here.
7.27.2009 2:18pm
martinned (mail) (www):
@prof. Volokh: Thanks. It does seem tricky to me, to have the court judge the "sincerity" of someone's religious belief. In this context, it probably means that they will tend to believe whatever the person in question claims with a straight face. Then again, I can't really think of a good alternative. (French-style laïceté works for me, but I can see how others might disagree.)
7.27.2009 2:25pm
Eugene Volokh (www):
Martinned: Interesting -- does French law recognize no religious exemptions, or for that matter conscientious exemptions, at all? For instance, back when France had compulsory military service, did it have no "conscientious objector" exemption? Such an exemption, after all, requires either evaluation of the objector's sincerity, or an overt preference for members of certain religious groups over others.

American Supreme Court decisions, by the way, have protected nonreligious conscientious objectors as well as religious ones. But that doesn't eliminate the need of judging "the 'sincerity' of someone's ... belief," which is often a religious belief -- it simply requires such judging in more cases.
7.27.2009 2:29pm
martinned (mail) (www):
@prof. Volokh: I am not an expert on French law. All I know about it is that it gives the state a lot more freedom to enact laws that are facially neutral but that have the effect of interfering with religious practices, such as the famous religious symbols in schools law.

If you want to know more, I'd recommend the ECHR ruling from last december about the headscarf law. (Dogru v France) It takes quite a bit of time discussing the French tradition of secularism, and - being European instead of only French - does so without assuming a lot of knowledge only French jurists would have. Surprisingly, the Court ended up upholding the law.
7.27.2009 2:41pm
DG:
I'm in favor of this, so long as it does not extend to face covering of any sort.

I do think that judges should be able to demand some decorum in this area, however - a friend of mine wears a Grateful Dead kippah, which I do not think would be appropriate to wear in court.

I do think that the question of whether this could influence a jury is a reasonable one.
7.27.2009 2:47pm
martinned (mail) (www):
Correction: The Dogru ruling does not concern the 2004 law on religious symbols in schools. It is about headscarves in Phys Ed class.
7.27.2009 2:51pm
PatHMV (mail) (www):
martinned, I wouldn't call that French law one that is "facially neutral but that have the effect of interfering with religious practices." While it is neutral among religions, it is not neutral as between religious and non-religious practices. It would ban an image of Jesus on a t-shirt, but not an image of Einstein, for example. A necklace with a pendant of the "man" (♂)and "woman" (♀)symbols intertwined would be allowed, while a necklace with a cross pendant would be prohibited.

Bans on all facial hair, or all head coverings, etc., would be facially neutral but have the effect of interfering with religious practices, but that French law is aimed solely and explicitly at religious symbols because of their religious symbolism.

As Eugene suggests, inquiring about the details of a religious belief (to determine whether it is really "religious" or merely "cultural" -- and the line between the two can be very murky) would require courts to act as the ultimate religious arbiters. Tens of thousands of rabbis throughout history have been unable to agree whether long curly locks of hair in front of your ears is absolutely required by Judaic law (as maintained by certain sects of orthodox Jews) or merely some old cultural practice (as inherently maintained by more modern and more common thinking). How could any court ever say which is the "real" Judaism?
7.27.2009 2:58pm
yankev (mail):

That said, "headgear worn for religious reasons" seems pretty broad. Would a baseball cap that says, "Jesus saves" be covered? How 'bout a cap that says "Jesus does not save" There might be 1A problems.
Shelby, there is a difference between religious reasons and expressive reasons. Does your hypothetical cap wearer sincerley believe that that his religion requires him to wear the cap? Note that this is a different question than asking whether he sincerely believes that his religion requires him to display that message.
7.27.2009 2:59pm
http://volokh.com/?exclude=davidb :
It's a good policy, for a host of reasons.

Religous people continue, meanwhile, to be a never-ending source of amazement. Some of them claim to know not only that God exists, but also the type of hat that is most pleasing to Him/Her/It.
7.27.2009 3:06pm
martinned (mail) (www):
@PatHMV: Actually, the necklace would be OK, since it is not an "overt" manifestation of religious affiliation. ("Dans les écoles, les collèges et les lycées publics, le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse est interdit." Code de l'éducation, Article L141-5-1, the article inserted by the 2004 law.)

Indeed, the key distinction between French-style laïceté and the American first amendment is that the French don't treat the absence of religious belief as a religious belief.

Otherwise, you're right that the headscarf law is not an example of a law that is "facially neutral but that have the effect of interfering with religious practices." My mistake. The headscarf rule originally at issue in the Dogru case, however, is a better example. (The rule is "no headscarves in PE class", i.e. no explicit reference to any religious practice.)

AFAIK, that rule would be quite difficult in the US, under the Anatole France approach to discrimination, whereas under French constitutional law the level of scrutiny is much lower.
7.27.2009 3:10pm
einhverfr (mail) (www):
Martinned:

In this context, it probably means that they will tend to believe whatever the person in question claims with a straight face.


Probably that and able to respond to questions such as "why?" And where there is not ready evidence of insincerity about the religious belief. "Your honor: When we met this witness yesterday, she didn't have her hair or face covered" might be sufficient to impeach the good faith too.

However, I can't imagine challenging beliefs on good faith grounds regarding witnesses would be very common.
7.27.2009 3:15pm
PatHMV (mail) (www):
martinned, generally speaking, the Constitution, as currently interpreted by the Supreme Court, does not require religious accomodations to be made to facially neutral laws (see this post by Prof. Volokh). It is American statutory law which imposes requirements (on governments and employers) to make religious accomodations in the face of otherwise non-discriminatory laws. The public could decide to remove such requirements at any time.

I'm not sure I understand your second sentence. Banning the wearing of religious symbols (but not other symbols) would be unconstitutional not because it is imposing another religious belief (the absence of religious belief) on the person who wants to wear the symbol, but because it would be prohibiting him from exercising his own religion. That doesn't have anything to do with whether or not one considers "secularism" (or whatever shorthand you want to use for "absence of religious belief") to be a religious belief.
7.27.2009 3:23pm
Oren:

Martinned: The American rule on religious exemptions is generally pretty well-defined: A practice is seen as religious if the practitioners sincerely believe that it's religious.

You should tell that to the SD FL, who denied plaintiff's sincere belief that eating Kozy Kitten Cat Food is a religious practice (Brown v. Pena 441 F. Supp. 1382 (S.D. Fla. 1977).


Plaintiff's "personal religious creed" concerning Kozy Kitten Cat Food can only be described as such a mere personal preference and, therefore, is beyond the parameters of the concept of religion as protected by the constitution or, by logical extension, by 42 U.S.C. § 2000e et seq.


The DCourt there followed the Supreme Court in defining a religious practice as "not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living." Wisconsin v. Yoder, 406 U.S. 205, 215-6, 92 S. Ct. 1526, 1533, 32 L. Ed. 2d 15 (1971).

In short, I don't think I'll venture to wear my "FUCK" hat into Court despite the fact that I sincerely believe that the creator of the universe mandates that I do so.
7.27.2009 3:30pm
einhverfr (mail) (www):
Oren:

In short, I don't think I'll venture to wear my "FUCK" hat into Court despite the fact that I sincerely believe that the creator of the universe mandates that I do so.


Isn't that the difference though between a personal commandment from God and a structural religious belief closely connected to daily living?

It seems to me that neither the belief in wearing your FUCK hat or the issue in Brown v. Pena passes the snicker test. However, suppose you have an atheist who believes sincerely for deep philosophical reasons that she MUST wear a hijab. THat would seem to be harder to object to.
7.27.2009 3:38pm
Oren:

It seems to me that neither the belief in wearing your FUCK hat or the issue in Brown v. Pena passes the snicker test.

I have no policy problems with the snicker test, I merely meant to point out the Prof. V. was incorrect in saying that the test is wholly subjective* turning on nothing more than the claimant's beliefs. To the contrary, even if the practitioner sincerely believes that the practice is religious, a Court may judge it to be merely a personal preference.

* EV wrote: "A practice is seen as religious if the practitioners sincerely believe that it's religious", perhaps I misunderstood him. As I understand it, the subjective test that he wrote is necessary but not sufficient for establishing that the practice is religious. As usual, please correct me if I'm wrong.
7.27.2009 3:59pm
voo (mail):

court’s legitimate security concerns


Like what?
7.27.2009 4:03pm
Oren:

However, suppose you have an atheist who believes sincerely for deep philosophical reasons that she MUST wear a hijab.

As I understand it, the Court need not permit a variance in the rules for anyone, therefore a fortiori can permit a variance for some but not others.
7.27.2009 4:03pm
Angus S-F:
Sikh men are required to carry a kirpan — a knife — as one of the 5 tenets of their faith. I wonder how that will work in situations where everyone is required to divest themselves of weapons, but religious exceptions are now being made for articles of faith.
7.27.2009 4:49pm
Bill Poser (mail) (www):
Angus S-F:

The kirpan issue has already come u in a number of contexts in several countries. Sikhs reluctantly agree not to wear it when traveling by commercial airliner. In Canadian schools a compromise that has generally worked is that students wear a kirpan that cannot easily be removed from the scabard, so it is symbolically present but not really usable as a weapon. By the way, not all Sikh men wear the kirpan, only Khalsa Sikhs, that is those that have undergone a status-changing ritual somewhat misleadingly referred to in English as "baptism".
7.27.2009 5:33pm
SFH:
Many science fiction cons I go to have a no-weapons policy, but some allow people to buy a sword or other weapon if it is secured so it can't be drawn. It's similar to the Canadian school policy Bill Poser mentioned.
7.27.2009 5:38pm
Bill Poser (mail) (www):
I am curious as to the basis for restrictions on clothing in courtrooms other than those clearly motivated by security concerns, sanitation, and so forth. Judges are little kings in their courtrooms, able to regulate all sorts of things that in other contexts public officials are not permitted to regulate. That they should be able to regulate matters affecting security and the effective operation of the courts is understandable, but their powers seem to go far beyond this. This would be understandable in mediaeval times, but seems very much out of touch with American egalitarian democracy. Is it not an anomaly that judges are permitted so much power to impose their personal views on those in their courtroom?
7.27.2009 5:38pm
D.O.:
@Bill Poser: May be you are right, but "if it ain't broken", why bother. Is there any real problems with "little kingdoms".

From practical point of view I don't see why in most cases judges would have to question anyone's "sincere believe". There is a reasonably sized list of known religious practices and the judge can just assume that if somebody wears a hijab than it is because of the religious reasons. If the practice is little known than some investigation is in order, but also not about sincerety of a particular person, but about the practice in general.

More difficult question is this. Suppose I am a defendent or a witness in a trial that involves some jewish jurors and I want to carry favors with them by wearing a yarmulke. Can such a visible display of my ethnicity/religiosity be allowed or is it prejudicial? Again, in most cases it is easy to check sincerety, just learn whether I follow the practice outside the courtroom. There could be difficult cases though and this is something more important than decorum.
7.27.2009 6:29pm
Floyd the Barber:
Indeed, the key distinction between French-style laïceté and the American first amendment is that the French don't treat the absence of religious belief as a religious belief.

If the absence of religious belief is a religious belief, then not collecting stamps is a hobby.
7.27.2009 7:16pm
einhverfr (mail) (www):
Bill Poser:

Judges are little kings in their courtrooms, able to regulate all sorts of things that in other contexts public officials are not permitted to regulate.


Because court has a ritual framework not present elsewhere in public life. Hammers of Thorr Gavels, robes reminiscent of priesthoods, titles names after pagan goddesses, etc. Formuleic speech with some elements in old ritual and magical poetry, and other elements. Might be a violation of the first commandment amendment, but hey.... it works....
7.27.2009 7:17pm
Bill Poser (mail) (www):
I'm not suggesting a crusade, but I do wonder why this degree of arbitrary authoritarian behavior is accepted in a society that would not accept it in other contexts.
7.28.2009 12:00am
Soronel Haetir (mail):
Bill Poser,

It's simple, the judges have taken it upon themselves to have the power to do so and the legislature is unwilling to force the issue by withdrawing court operating funds. Nice gig if you can get it.
7.28.2009 2:01am

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