The Court of Appeals of Minnesota confronted an interesting question yesterday: May a trial court require a defendant to hide a cross that he was wearing, so that the jury couldn’t see it? (The Minnesota Constitution has been interpreted as mandating the government to accommodate religious practices in many contexts; but even under the U.S. Constitution’s current Free Exercise Clause rule, such a requirement may pose problems because it singles out religious symbols for special restriction.) Here’s the relevant excerpt from the opinion:
Before trial, the prosecutor requested that Tate put a cross that he was wearing around his neck inside his shirt so that it was not visible to the jury, arguing that Tate’s cross would be “sending a religious connotation to the jury.” The district court then told Tate “to tuck [the cross] inside [his] sweater.” . . .
Minnesota courts apply a balancing test when analyzing whether a state regulation infringes a right under the Freedom of Conscience Clause of the Minnesota Constitution. Courts must ask if (a) the objector’s belief is sincerely held; (b) the state regulation burdens the free exercise of religious beliefs; (c) the state interest in the regulation is compelling; and (d) the state regulation uses the least restrictive means.
Tate argues that it is clear that the district court’s restriction violated his right to the free exercise of religion because (1) he “strongly objected to the suggestion that he hide his cross, an indication that his religious beliefs are sincere” and (2) the district court failed to conduct its own inquiry into the substance and sincerity of his beliefs. See Joseph v. State, 642 So. 2d 613, 615 (Fla. Dist. Ct. App. 1994) (holding that the Free Exercise Clause entitled defendant to wear sweatshirt and jeans with religious pictures and names when trial court conceded that defendant’s clothing was based on his religious beliefs and there was no evidence to support trial court’s decision to prohibit defendant from wearing the clothing); In re Palmer, 386 A.2d 1112, 1114 (R.I. 1978) (holding that trial court’s refusal to allow defendant to appear in courtroom while wearing a prayer cap unjustifiably infringed on his right to the free exercise of religion because trial court did not attempt to determine the sincerity of defendant’s beliefs or whether such beliefs precluded the removal of the prayer cap in court).
Tate further asserts that the state failed to articulate any compelling state interest in having Tate hide his cross, although the district court expressed concern that if Tate did not hide his cross, the jurors would see it because they were “captives of the system and would not have that same right to express their religious beliefs or the right to refuse to have other’s religious beliefs expressed to them.” Tate maintains that it is unclear what interest was promoted by the hiding of his cross and that, further, no interest in courtroom decorum could outweigh his right to wear his cross. . . .
The court of appeals concluded that “because the district court did not conduct an inquiry into the substance and sincerity of Tate’s beliefs, the district court’s order forbidding Tate from openly wearing his cross was error.” Presumably this means that if the trial court did conduct such an inquiry, and Tate was found to be sincere in his beliefs, he was entitled to wear the cross. But it’s conceivable that the court of appeals is leaving open the possibility that the defendant could still be restricted because of some compelling interest in shielding jurors from religious symbolism. In fact, the court of appeals later characterized the district court’s actions as “arguably infring[ing]” Tate’s religious freedom, so the “arguably” suggests the question may still be open.
But in any event, the court held (probably correctly), that any such error didn’t make Tate’s trial unfair, and thus doesn’t justify giving him a new trial.
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