Sunday, January 25, 2015

Does the removal of a hijab also mean the removal of constitutional rights?

The Dearborn Heights Police Department is now facing a lawsuit after a Muslim woman was forced to remove her hijab while being photographed after being arrested.  Malak Kazan was driving with a suspended license when a police officer pulled her over for a traffic violation and subsequently arrested her.  While she was being booked, the police officer asked her to remove her hijab, which is an optional Muslim head-covering worn to remain modest while in the presence of men who aren’t in her immediate family. Kazan explained that removing this would violate her faith and requested that a female officer instead help her, which would allow her to keep in line with her faith. This request, however, was denied, and the Kazan had to remove her hijab in front of the male police officer in order to be booked. She then decided to sue because they “denied her constitutional rights.”

This case is reminiscent of the recent Supreme Court case where the justices ruled a Muslim prisoner had the right to grow a short beard as a part of his religious faith. Much like that case, Kazan was attempting to exercise her right to practice her Muslim faith. Issues such as this are increasingly important as the United States adjusts to the ever-growing population of religious and ethnic minorities. While the United States has always prided itself on being very religiously tolerant, it seems like recent history puts this to the test much more than the first 200 years of this country did. With more immigration of different groups of people, the US has found itself in a place with more diversity than possibly imagined when it was founded. In regards to the Muslim faith, this has left the country and its tolerance at odds for a variety of reasons. First, there’s the fact that the Muslim religion has become linked to extremism and terrorism. Secondly, there are several more visible practices of the Muslim faith that have been seen as interfering with security practices, such as the growing of a beard in prison and wearing a hijab during a booking. The linkage between Muslims and extremist violence created in the first problem perhaps unfairly exacerbates this security concern. The interaction between law and religion is not one that occurs in a vacuum; as impartial and fair as we would like to believe the system is, personal and societal factors influence it.

With that being said, I believe this case did violate Kazan’s right to exercise her religion. While some may argue that the police were simply doing their job in booking her, it seems like doing this job was done at the sake of her right to freely exercise her religion. It is not that the police forced her to remove her hijab, but that she was forced to do so in front of unrelated men. As law professor Larry Dubin notes in the article, if she had done so in the presence of a woman it most likely would not have resulted in a lawsuit. This leads me to question the refusal of Kazan’s request for a female police officer.  Her right to free exercise would not have been violated if she had been able to remove her hijab in the presence of a female officer. Was there absolutely no female officer available to do the job or was the policeman just trying to finish the booking, which led him to violate Kazan’s religious rights? While it may make the job a little more difficult, I believe that the police department has an interest in making sure constitutional rights are protected, and if that means needing to find a female officer, effort should be put into doing so.

Another point of interest is the fact that other instances that relate to photo identification have been granted exemptions. For example, the article notes that hijabs have been allowed in some licenses and IDs. If other exemptions like this have been made, what makes it ok for a police officer to force the removal of her hijab in the booking process? One may argue that it may have been appropriate because she was arrested, but being arrested does that mean that US citizens automatically lose their constitutional rights. The hijab only covers the hair of the female so it is not something that would obscure Kazan’s face and make it harder to potentially identify her later.

The outcome of this case may have a wider impact that just the booking process. If a federal judge were to rule that hijabs could not be worn for this, other governmental agencies may use this leeway to then make Muslim women remove their hijabs for other forms of photo identification instead of continuing to grant them religious exemptions. If the court rules in favor of Kazan, however, then more protection may be granted to the free exercise of minority religions in the future.

8 comments:

Morgan Manchester said...

In large part, this post reminds me of the discussion we began to have in class in which we questioned whether the equality of religion should be treated on a case by case basis, or if true equality is having a set of rules and requiring everyone to follow them once they are arrested. It may seem easiest to just have everyone follow the same rules, but as you pointed out, "the US has found itself in a place with more diversity than possibly imagined when it was founded". Thus, when guidelines of arrests were made they were thinking with non-muslim practices in mind, which now promotes inequality. Maybe it is time to re-evaluate the system that the police use to make arrests and it is time to establish guidelines or new procedures in order to allow muslims and other religious minorities to not feel that their faith has to be questioned when they are arrested. Having these could avoid possible future conflicts and would show a greater toleration for all religions as they are forced to follow the same guidelines and procedures.

Sam Cohen said...

I agree with you in that it was wrong and seemingly unconstitutional for the police to force her to take her hijab off, though for a different reason. Not only was she hindered from freely exercising her religion, but the police did not have a narrow and compelling interest in doing so. What were they achieving by doing so? It appears as if they did not force her to remove the hijab for security reasons, so what interest do they have? It seems as if whatever that interest is, it is not as important as the right to freely exercise one's religion without government interference. The government was targeting one religion and the constitution requires the government to be completely neutral. Thus, not only did they not have a sufficient interest, but they were also being unfair and not neutral.

Mackenzie Y said...

I agree with the author’s opinion that the police department has an interest in making sure constitutional rights are protected, which they did not in this case. Kazan was not refusing to have the photograph taken, only with the fact that it was in the presence of a male who was not in her immediate family. Therefore, there was no security concern that could justify not allowing her to take her hijab off in front of a female officer instead of a male officer and therefore forcing her to violate her religious beliefs.

Alex L. said...

I concur with Mackenzie in that Police Department should have obliged Kazan’s request for a female officer to remove her hijab. I understand why it would be necessary for security purposes for her to take it off for the photo but do not see what the problem would be with having a female officer do it. However, I refute the argument made by others above that this is the targeting of a specific religion. The police have a tough job and are the victims of much criticism. Maybe they were not familiar with this particular religious observance? I am not justifying their actions but do want to frame this one situation into the small incident that it was, where I do not see much harm done. However, I must admit my knowledge of the religious significance of a hijab and its purpose is limited.

Libby W said...

I agree that this was a direct violation of her constitutional rights. It is definitely important to look into the issue of whether or not there was a female officer available at the time. However, the fact that many license photos allow the hijab to be worn supports her right to continue wearing it. The face is still visible so it would not extremely alter the way she looks were she to continue wearing it. A police department is a state-run institution, and they have the right to ensure people are still given their constitutional rights. I personally do no think that being arrested means that one's rights are lost, but I suppose this is up for interpretation.

Will P. said...

After reading this post, I find myself returning to the discussion we had in class regarding the prisoner, and his religious duty to grow a beard. I again propose that this is a slippery slope in regards to what exceptions are being made, and when. While i see no threat in either the hijab or the beard, I disagree with the decision to allow such practices once in custody. I believe that when there is a set of guidelines, they should be followed for all inmates, regardless of religion. The people in question were in violation of a law, which in my opinion voids some civil liberties. Just as a felon is no longer allowed to vote, I believe once placed in custody for the violation of a law, you have voided your rights. I believe this protects the police force from discrimination, by creating a uniform procedure with no exceptions.

Abby Copp said...

In my opinion, the woman's rights were definitely violated. This situation also makes me uncomfortable in that whether it be a hijab or any other article of clothing, by making someone remove said clothing in front of the opposite gender is downright humiliating, and no one deserves that. Just as others have said before me, I think the woman's behavior during these proceedings should certainly be taken into account. She was in no way resisting arrest or being non-cooperative during booking, but instead she was acting on her values that happen to be religious in nature. I also do not at all agree that a person should lose any of their constitutional and/or civil rights just because they become incarcerated, but that is a totally different issue for another time.

Courtney W. said...

This is a difficult case in terms of seeing what is right and wrong. Reading this post reminded me of the conversation we had in class regarding the prisoner with his beard. In terms of constitutionality, I think the guards should have looked into finding a female guard in order to not violate the woman's freedom to practice her religion. However, didn't the woman forfeit her constitutional freedoms when she broke the law and was arrested?