Confronting the Religious Right to Cover »
The Michigan Supreme Court will be hearing a case this term involving a Muslim woman, Ginnah Muhammad, who has sued a district judge that dismissed her small claims case after Ms. Muhammad refused to remove her niqab for religious reasons. The niqab, not to be confused with the head covering hijab, is worn by a small fraction orthodox Muslims in the United States to cover their entire face.
In response to this specific Muslim woman’s case, the Michigan state legislature passed an amendment that changed Michigan Rules of Evidence 611 to allow district judges more discretion in ordering how parties and witnesses appearing before the court may be dressed. Here’s the key language in the rule:
611(b): Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to:
(1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.
Staff Comment: This proposed amendment would clarify that a judge is entitled to establish reasonable standards regarding the appearance of parties and witnesses to evaluate the demeanor of those individuals and to ensure accurate identification.
Resolution of the case will require reconciling two fundamental constitutional rights: The Sixth Amendment Confrontation Clause guarantee that defendants have the right to confront witnesses to ensure adequate due process and the First Amendment protection of the freedom of religion. If the court can find an alternative to the amendment that is less burdensome on religious rights and does not “unduly interfere” with the government achieving its state interest in identifying a witness and assessing his or her credibility, the amendment will likely fail.
You can read how the ACLU constructs this argument on behalf of the Muslim appellant, here.
It’s important to keep in mind that the court is really in no position to determine whether the niqab is a justified exercise of religious freedom as long as the religious claims are made in good faith. It matters little, for example, that a number of prominent Islamic scholars have determined that covering the face is not compulsory in Islam and that Islamic rules of necessity (darura) and public interest (maslaha) make it permissable to remove religious coverings for official medical and security purposes.
Especially for those not willing to take a culturally relativist position on the matter, the vision of a woman draped in dark cloth with only her eyes exposed to the world is an inherently oppressive one. But it is precisely to safeguard against common negative predispositions like this one that an individual’s right to freely practice his or her religion is constitutionally protected. Leaving it in a judge’s discretion to order the removal of religious clothing seems to increase the liklihood that a judge’s negative biases leak into a court proceeding in the name of due process, ultimately risking perceptual fairness in the final judicial outcome. Even more troubling, the ACLU brief points out that Muslim women are less likely to pursue legal avenues in domestic violence cases if forced to testify in a manner inconsistent with precieved religious dictates. (It’s bad enough that your husband opposes you, but now God?!) Finally, just as a judge may be concerned with a fact-finder’s ability to effectively adduce the truthfullness of a statement made by a woman fully covered on the stand, it’s also more probable that an orthodox Muslim woman would feel more comfortable and, therfore, is more likely to provide honest and accurate testimony if allowed to wear the niqab in court.
In the end, where the religious practice does not “unduly interfere” with the rights of others or that of the state, a liberal democracy like ours demands its free exercise.
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