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Univ. of South Carolina School of Law

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Wednesday, August 26, 2009

What Not To Wear, Religious Edition, Take 2: Supreme Court Of Michigan Finalizes Attire Rule Of Evidence, With Lawsuit To Follow

Back in June, I posted an entry about the Supreme Court of Michigan's adoption of an amendment to Michigan Rule of Evidence 611 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.

As I noted at the time, the amendment was crafted after a judge dismissed a Muslim woman's case when she refused to comply with his order that she remove her niqab and was inconsitent with "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."  Well, yesterday, the Supreme Court of Michigan issued the order impliementing this amendment, effective September 1st. And now, the woman, along with the Michigan chapter of the Council on American-Islamic Relations (CAIR), plans to sue the judge in federal court

At the start of this post, I would like to clarify a few points which I didn't realize at the time of my initial post. First, I thought that the niqab obscured large portions of the woman's face, which would have made the judge's claim that he needed her to remove the niqab to observe her demeanor and temperament more plausible. But, as this Youtube clip makes clear, the niqab mostly only covered her hair and did not cover her eyes or face.

Second, I had thought that the plaintiff flatly refused to remove her niqab. Instead, it appears that the plaitiff merely told the male judge that she would only remove the niqab in front of a female judge, with the judge thereafter informing her that no female judge was available. Third, it appears that the plaintiff actually did remove her niqab (allegedly based upon the judge's intimidation), but apparently not at a time or in a way that avoided the judge dismissing her case.

Given these facts, I think that the plaintiff has a solid chance of success in her lawsuit. According to a CAIR staff attorney, "This judge targeted a Muslim woman's religious attire, but he could just as easily have demanded the removal of a Sikh turban, a Jewish yarmulke or a Catholic nun's habit."  Given that the cases I cited in my previous post found that judges could not compel litigants to remove yarmulkes, prayer caps, and othe religious headgear, I don't see how the judge could have ordered the plaintiff to remove her niqab, at least prior to the amendment of Michigan Rule of Evidencd 611 .

Indeed, last month, "the Judicial Council of Georgia adopted a policy allowing religious head coverings in the state's courtrooms." Hopefully, Michigan realizes the error of its ways and reaches a similar conclusion.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/08/what-not-to-wear-religious-edition-take-2-supreme-court-of-michigan-finalizes-attire-rule-of-evidenc.html

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