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Univ. of South Carolina School of Law

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Thursday, June 18, 2009

What Not To Wear, Religious Edition: Supreme Court of Michigan Adopts Rule Allowing Judges to Exercise "Reasonable Control Over the Appearance of Parties and Witnesses" Based Upon Niqab Case

Yesterday, by a 5-2 vote, the Supreme Court of Michigan adopted an amendment to Michigan Rule of Evidence 611. This amendment created Michigan Rule of Evidence 611(b), which provides as follows:

(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. 

The amendment was crafted in response to a lawsuit brought by Muslim woman Ginnah Muhammad. Muhammad had gone to court to contest a $3,000 charge from a rental company to repair a vehicle that she said thieves had broken into. When Muhammad appeared in court, District Judge Paul Paruk ordered her to remove her niqab, or face covering, but she refused, ostensibly because "[s]ome Muslim leaders interpret the Quran to require that women wear a headscarf, veil or burqa in the presence of a man who is not their husband or close relative." 

Based upon Muhhamad's refusal, Judge Paruk dismissed her case, and she subsequently sued him, claiming that he violated her religious and civil rights (that lawsuit is still pending). Meanwhile, the Michigan Judges Association and Michigan District Judges Association got behind a statewide court rule giving judges "reasonable" control over the appearance of parties and witnesses to observe their demeanor and ensure they can be accurately identified. This was the rule adopted by the Michigan Supremes yesterday.

I'm not sure whether we are going to get anything written from the Michigan Justices. According to the Chicago Tribune, "Majority justices did not comment on their vote Wednesday, but [Justice] Markman said last month that 'judges are not theologians,' and they should not be forced to decide whether a witness is exempted from requirements imposed on everybody else."  Meanwhile, the dissenting Justices (Chief Justice Marilyn Kelly and Diane Hathaway) apparently voted "no" because the rule did not have a religious exception endorsed by the ACLU of Michigan and religious groups.

Meanwhile, there is the question of how discretionary (or mandatory) the rule really is. On the one hand, ACLU attorney Jessie Rossman stressed that the rule "allows -- but does not force -- judges to ask Muslim women to remove their headscarves."  Meanwhile, Eugene Volokh over at The Volokh Conspiracy speculates that the rule may be a mandatory wolf in discretionary sheep's clothing.

I think that it would be unfair for me to address any of these issues without knowing whether and when we will get anything more from the Justices explaining the rationales and intended impact of their ruling. But, regardless of what the Michigan Supremes say, one thing is clear: Their decision cuts against a pretty consistent line of precedent in this country which had established that judges are not entitled to tell witnesses what not to wear when such an order implicates religious liberty.

This much is made clear by the opinion of the Intermediate Court of Appeals of Hawai'i in State v. Fergerstrom, 101 P.3d Hawai'i App. 2004). In Fergerstrom, Harry Fergerstrom appealed from his conviction for automobile-related offenses, claiming, inter alia, that the trial judge violated his right to due process and his right to present a defense by ordering a defense witness to wear western clothing, thus precluding him from wearing only a malo (loincloth) and kihei (rectangular tapa garment worn over one shoulder and tied in a knot).  

The court partially agreed, concluding that

In our view, absent a mode of dress that is obscene, disruptive, distractive, or depreciative of the solemnity of the judicial process, or that will create an atmosphere of unfairness, a party or a witness may decide what to wear in court. We agree with Ryslik that any positive or negative potential bias that might be caused by any other attire worn by the party or the witness can and should be addressed during the jury selection process, the trial, and in the instructions to the jury.

(The court found that there was not enough information in the trial court transcript to determine whether the trial judge acted properly and found that even if the judge acted improperly, such error was harmless).

The Ryslik opinion referenced in this block quote was the opinion of the Superior Court of New Jersey, Appellate Division, in Ryslik v. Krass, 652 A.2d 767 (N.J.Super.A.D. 1995), one of several opinions that the court cited in support of its conclusion. In Ryslik, the court found that the trial court abused its discretion in ordering a new trial based on the fact that a priest testified while wearing clerical garb, finding that the priest should not have been ordered to remove his clerical garb because

Any potential bias that could be caused by defendant's religious garb can be and here actually was addressed during the jury selection process and generally should be reiterated during the jury charge. This is a less intrusive alternative than restricting defendant's manner of dress and impinging on his possible constitutional right to free exercise of religion.

In State v. Allen, 832 P.2d 1248 (Or.App. 1992), the Court of Appeals of Oregon reversed a defendant's conviction for theft in the second degree because the trial court refused to allow her husband to testify while wearing his religious headgear, finding that

Although considerations of proper attire may go beyond the mere maintenance of a dress code, a trial judge's desire simply to maintain a general dress code cannot justify an infringement of a criminal defendant's right to present an exculpatory witness, unless the attire worn by a witness would be disruptive or would create an atmosphere of unfairness.

In Close-It Enters., Inc. v. Mayer Weinberger, 407 N.Y.S.2d 587 (N.Y.A.D. 1978), the New York Supreme Court, Appellate Division, Second Judicial Department, reversed a trial court's ruling that the defendant could not wear a yarmulke in front of the jury, concluding that

The defendant should not have been placed in the situation of having to choose between protecting his legal interests or violating an essential element of his faith.

And in In re Palmer, 386 A.2d 1112 (R.I. 1978), the Supreme Court of Rhode Island noted that the trial court had precluded the defendant from wearing a takia, a prayer cap which covers the top of the head and is a religious symbol among Sunni Muslims indicating that its wearer is in constant prayer. The Rhode Island Supremes found that,

assuming that the petitioner's beliefs are sincere, the state would bear a heavy burden of establishing how such actions threaten any compelling interest that the state may have in maintaining decorum in the courtroom.

Of course,  it could be argued that, unlike in these cases, judges have a compelling interest in having a witness remove a niqab because the finder of fact cannot observe the wearer's face and determine her credibility. 

There are at least two responses to this potential argument. The first is that the decision of the Michigan Supremes might still be out of line with precedent from across the country. Last December, the Fifth Circuit decided Boyd v. Texas, 2008 WL 5129645 (5th Cir. 2008). In Boyd, Karwana Boyd claimed that a trial judge in Texas' Second Administrative District ordered her to leave his courtroom because she refused to remove a head scarf that she was wearing in observance of hijab. Boyd quickly sued the judge, and the Chief Judge of the District just as quickly sent a letter to all of the judges in the District

reminding judges to be sensitive to the constitutional rights of people in the courtroom and specifically noting that people who wear religious clothing or head wear are not required to remove their religious clothing or head wear upon entering the courtroom. 

Second, the validity of the demeanor rationale is questionable. I direct readers to Aaron J. Williams excellent comment, The Veiled Truth: Can the Credibility of Testimony Given by a Niqab-Wearing Witness be Judged Without the Assistance of Facial Expressions?, 85 U. Det. Mercy L. Rev. 273 (2008), for a full and fair discussion of the issue.

-CM

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Comments

The hijab (headscarf) and niqab (face veil) are two separate and distinct items of clothing and are treated differently in Islamic Law. The religious scholars of Shia Islam, for example, are nearly unanimous in declaring the face veil to be optional. In Sunni Islam, only the Hanbali madhhab considers all of a woman's body a private thing which needs to be covered. The Salafists do, too, but their sect is rejected by all other schools of Islamic thought.

It would help so much if the ambiguous term "veil" were dropped. Everyone starts jumping because they assume that one aspect or another of Islamic dress is being banned - and more often than not, the assumptions are baseless. "Veil" causes much confusion. "Headscarf" and "face veil" leave hardly any doubt about the article of clothing in question.

Demanding that a practising Muslim woman remove her headscarf is most certainly an affront to her modesty. Those who wear a cloak are generally not dressed in such a way that they could take off the cloak, either. However, those who cover the face really need to work with our legal system to comply with requests for identity verification and other legal purposes.

In any case, if a woman needs to be identified, it should be possible to have a female authority identify her in such a way that the woman's modesty is not compriomised.

Posted by: Pink Muslimah | Sep 15, 2009 1:27:52 PM

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