Sunday, October 16, 2011

The headscarf lawsuit


























Several days ago, the city of Douglasville settled a lawsuit with the American Civil Liberites Union, who filed on behalf on a Muslim woman, Lisa Valentine. In December of 2008, Valentine had accompanied her nephew to the Douglasville Muncipal Courthouse for a standard traffic hearing. Valentine, a practicing Muslim, was told by a security officer that she had to remove her hijab in order to enter the courthouse. Despite explaining the importance of the headscarf in regards to her religious beliefs, Valentine was continually blocked from entering the courthouse. After protesting and attempting to leave, she was arrested and sentenced to 10 days in jail for contempt of the court. Valentine was forced to remove her hijab during her time in jail. Fortunately, due to pressure from the Council on American-Islamic Relations, Valentine was released later that same evening; however the humiliating experience stuck with her. She stated, “Maybe it's hard for some people to understand how I can compare to having to remove my headscarf in public to being disrobed. Wearing the hijab is an expression of my faith and it is a practice that I have adhered to for over 13 years. My headscarf is as much a protective piece of clothing as a shirt or pants or any other article of clothing that one may find embarrassing to be without.”

In December 2010, the ACLU officially filed a civil lawsuit against the city and the officers involved in the incident, claiming that the former parties violated her First Amendment Rights, in particular, her right to free exercise of religion.

Now, nearly ten months after the initial complaint was filed, the two parties have managed to reach a settlement, primarily in favor of Valentine. Douglasville has agreed to allow head coverings in courtrooms if they are for medical or religious reasons, and in the case that a security search is necessary, it will take place privately by an officer of the same sex. Yet despite Valentine’s favorable outcome, cases similar to hers are transpiring throughout the United States. In Michigan, a Muslim woman petitioning for a name change was forced to remove her hijab in court. Likewise, in Georgia, a Muslim man was denied entry to a court for wearing a kufi, religious headgear for Muslim men. For this reason, I think it is important to analyze Valentine’s case, as this has become a recurring issue.

In my opinion, it seems clear that not allowing religious exceptions to the “no headgear” court policy is a fundamental violation of the First Amendment. There are several cases that have created a precedent in favor of the free exercise clause, most importantly, Sherbert v. Verner. From this case, the Sherbert Test arose to determine whether an individual’s free exercise rights have been violated. If the court decides that an individual holds a sincere religious belief and the government is burdening that belief, then the government must show not only that it has a compelling state interest, but also that it has pursued this state interest in the “least restrictive manner”. In the majority opinion of Sherbert v. Verner, the court wrote that compelling state interest refers to “only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” It is apparent that in the case of restricting hijabs in courts, the notion of compelling state interest does not hold up. If this is so, why do courts across the nation continually fail to acknowledge the unconstitutionality of this headgear restriction?

It is interesting to note that throughout my research on this headgear restriction, I never once found a case where a nun was forced to remove her habit. It very well may be that nuns either complied with this restriction or did not find it such a grievous action as to file a suit and thus draw attention to the incident; however it also may be that this restriction is more often enforced in situations with Muslims. This might be a broader reflection on our society and our notions of what constitutes a “good’ religion. The majority of our nation is Christian and we have internalized Christian norms, thus making it difficult to see how forcing a Muslim women to remove her hijab in court might affect her emotionally and spiritually. Furthermore, in many of the cases that have historically dealt with free exercise, a positive outcome for religious freedom normally occurs when the religion is a branch of Christianity. The free exercise of the Amish and the Seventh Day Adventist Church was upheld in Wisconsin v. Yoder and Sherbert v Verner, yet was denied for Mormons and Jews in Reynolds v. United States and Braunfield v. Brown. This unfortunate trend should not be disregarded, and I can only hope that as these head covering restrictions lawsuits continue to be filed, the court upholds free exercise for all religions.

8 comments:

Harry R. said...

While I agree with Callie that "no headgear" policies in courtrooms should have religious exceptions, I do not agree that, in the interest of a security concern, it is inappropriate to ask a Muslim individual to remove their hijab or turban so long as this is done in the least public or embarrassing manner possible. There is a compelling government interest in protecting the safety of our citizens and this gains special focus in settings such as courtrooms where security is of the utmost concern. Bombs have been placed inside turbans resulting in the deaths of political leaders in other nations, and this has therefore become a security concern in the United States which should be protected against through the least invasive means possible.
http://news.blogs.cnn.com/2011/09/20/u-s-embassy-staff-in-kabul-ordered-to-take-cover/

Ashley R said...

Harry raises a good point that headgear has been used to conceal weapons. However, upon entering a courthouse, one passes through a metal detector, which would (or at least should) detect weapons. If security experts think more is required, then those who wear religious garments should be asked to remove those items in a private room. Security does constitute a “compelling governmental interest.” Upon being deemed safe to enter, those who wear religious garments must be allowed to wear said garments in the courthouse. To rule otherwise would be a violation of one’s freedom of exercise.

TNTbo said...

I think that for security purposes as well as for identification purposes, one should be asked to remove the headgear in a private setting. This may be a bit of a stretch, but wouldn't a priest have to remove a metal cross around his neck if going through the security lines at the airport? It may be uncomfortable for that individual but it is not intended to embarrass or to ostracize them, its intentions should purely be for the protection of the public. Forcing a muslim or any other religious devotee to remove their headgear in a public setting definitely imposes on their freedom to exercise their religious practices, especially if it is not done for security purposes.

Christopher J. said...

Exceptions for religious garments in courtrooms should be granted so long as those garments do not interfere with security procedures or normal courtroom proceedings. There is a compelling state interest to guarantee the safety of all individuals in the court, as well as making sure courtroom proceedings progress as smoothly as possible. A religious garment that covers the face would not be acceptable because it would hinder the judge and/or jury from being able to accurately judge the person's emotions, tone, etc, preventing them from carrying out their courtroom duties. Such a garment would also be a security issue because it would prevent identity conformation. A garment such as the one in this case, however, does not hinder any compelling state interest in terms of courtroom proceedings, so as long as the wearer is willing to comply with security procedures, it should be tolerated.

Molly Veelguski said...

I believe that for security purposes, headgear should be checked. However, they must be under private inspections of the same sex. I believe it is inappropriate otherwise and unconstitutional to inspect an individual's headgear in a different manner. As Christopher stated, as long as the person wearing the headgear copperates with security, they should be respected and tolerated. Any treatment that is similar to the one in this case is simply a violation of their free exercise of religion.

Allison S said...

Although I recognize the idea that not removing of a headscarf or turban could be seen as a threat to security, I highly doubt that a person entering a state courthouse to settle a traffic violation would be of a serious threat. I think that metal detectors should always be used, but I think spending the time and money to use a private room for inspection is unnecessary on the lower courthouse level. However, I understand that at a national court case where much more is at stake, security precautions should be taken. I agree that it was apparent that the state was a violation of one’s First Amendment rights, but I do not think that the state should spend more money to provide special treatment to inspect those of different religions constantly. If they did inspect every single Muslim person with a turban, those people may feel that they are being discriminated against because of their religion, even if it is for security purposes. This security level could lead to more complications. Ultimately I think it is important to take precautions but inspecting everyone more closely because of their religious garments seems too extreme and possible discriminatory.

Christy said...

I do not believe that those wearing a headscarf should have to remove them in private settings, there are other ways to check the headscarf for security purposes. I understand the compelling state interest in this but we must also remember the right to free exercise. If security suspects that there might be something hiding in the headscarf, then the person should be able to remove it in a very small and private group setting. Both the free exercise and state interest must be kept in mind, keeping the state neutral.

Linda Gough said...

I find it disturbing that she stands on her high horse about how "important" the Hijab is to her personally; yet she clearly states she has only been wearing it for 13 years. Hmmmm, let's see - she has a nephew old enough to be in court so I bet she's not just a 15 year old kid........It's a bogus claim and I think ALL headgear should be removed on ALL people.......If I wore a hat, they would make me remove it specifically to prove I have no bombs, etc.......she should NOT be treated any differently than the country she resides in. If she is so adamant about her religious view and belief, then she can take it back to her home country and play by the rules they have established. I don't believe she would be allowed to be treated "differently" even in her own country were the tables reversed