Take Off Your Hat!
It's generally considered disrespectful to wear a hat in court. If you fail to remove your hat before the judge enters the courtroom, you're likely to hear those words. If you fail to remove your hat when the judge enters the courtroom, you're likely to hear harsher words. If you fail to remove your hat on order of the court, well, that would be unpleasant…
But where I practice, the majority of people who hear those words are rustic folk, whose hats feature bills and webbing, and are emblazoned with the names of truck or farm equipment manufacturers. What about citizens whose religious beliefs require them to wear a "hat"?
That will be the issue in a case filed by Raneen Albaghdady against Judge William Callahan and the Third Circuit Court of Wayne County, Michigan, a jurisdiction with a substantial population of people whose religious beliefs require a "hat," or in Ms. Albaghdady's case, the hijab.
The lawsuit says Callahan "insisted" that Albaghdady, a naturalized citizen, remove her hijab and that she eventually complied.
It says the judge denied Albaghdady's petition for a name change, saying that she had filed her petition five days too early. No further details were offered.
The lawsuit seeks an order declaring the practice of "forcing Muslim women to remove their hijab as a precondition to appearing in court" unconstitutional and illegal. It asks that the judge and Wayne County not be allowed to "take similar unconstitutional actions."
On the face of it, the Michigan Courts' statewide rule, which requires judges to "exercise reasonable control" over witness appearance, seems neutral in application, assuming all hat, veil, hijab, etc. wearers are treated similarly. But the inquiry may not end there. After all, most people who wear headgear in court are just louts, not acting out of any spiritual obligation. And despite what some claim, the United States is not a constitutionally secular nation, like France, nor is it a constitutionally religious nation. Rather, the First Amendment exists to protect conscience for the believer, of any stripe, and the unbeliever alike.
(It's also worth noting, though miserable CNN from which I draw the story, doesn't, that Ms. Albaghdady's may be a "test case," as she appeared in court the day after the rule took effect, and there was video.)
And while I cannot find a controlling precedent on the issue of religious headgear, particularly as it applies to appearances in court, it's worth noting that most of our case law seems to favor those who have a sincere religious reason for wearing their outlandish attire. Or rather, while the religious objector has a heavy burden to establish some genuine reason for a "special case" deviation from general rules, once that happens, the burden often shifts to the government, especially in relatively trivial cases like those in which a woman wants to wear a veil at a name-change hearing.
Some of the most interesting rules and decisions come not from wearers of the hijab, but from cases involving Sikhs, whose religion requires them to wear a small, harmless ceremonial dagger known as a kirpan, with predictable results from school administrators and the like. And of course, there are situations where allowing a witness to wear a veil or hijab in court might violate other constitutional requirements, such as the right confront an accuser in a criminal case. Defendants, and their lawyers, do enjoy the right to stare at the complaining witness's beady little eyes under the Sixth Amendment.
In this case, my gut is that the judge was being an ass. Ms. Albaghdady wasn't an accusing witness in a criminal case, or a plaintiff seeking blood in a civil case, where confrontation may be constitutionally mandated or cross examination and jury evaluation of credibility may be crucial. She was just a lady who wanted a name change. Her "legal case" was about as important to the interests of society as a parking ticket. And on that note, it's worth quoting this statement, from Judge Frank Easterbrook in the Volokh post above:
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.
As a newly minted attorney, I appreciated the duty of civility and courtesy one owes a judge. But as I've grown older and been around the block, I've come to appreciate the duty of civility and courtesy that judges owe to people who appear in their courts. My personal opinion is that Judge Callahan was an ass and a boor not to let the lady wear her veil for a trivial hearing on an issue of importance to no one except her and her family.
I post this merely out of interest, as it's not my field and I can't say who's right. See this post by Colin Miller (who addresses an earlier Michigan case that may have brought this "test" about) and this by Howard Friedman of Religion Clause (without a doubt the best legal blog on religious freedom and law generally) for more on the topic.
Last 5 posts by Patrick Non-White
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