CNN flags a First Amendment clash.

 
(Image source: wikimedia commons)

Can a Muslim woman wear a burka/niqab while testifying in court? Michigan small-claims court judge Paul Paruk said no, ordering Ginnah Muhammed to remove her religious head covering so that he could observe her temperament and demeanor during her testimony.

Muhammad refused, saying that she was a practicing Muslim and would take off the veil only in front of a female judge.

Paruk said a female judge was not available and told Muhammad she could remove the niqab or have her case dismissed — she chose the latter, according to court documents.

She sued the judge in federal district court, which declined to exercise jurisdiction over the case. Muhammad has since appealed to the 6th Circuit Court of Appeals.

Yesterday, the Michigan Supreme Court issued an order instituting a rule change allowing courts to exercise reasonable control over the appearance of parties and witnesses for the purpose of observing demeanor and assuring proper identification. 

I think this will play out thusly:

Even under the most strict scrutiny applied by the United States Supreme Court to Constitutional issues, Muhammed’s argument – that the Michigan rule violates her First Amendment right to be free from laws prohibiting the free exercise of her religion – will fail. 

She may believe that the rule IS interfering with her religious beliefs, but the rule isn’t targeted at her or her religion. It’s aimed at head coverings in a courtroom setting, and for very practical (and essential) purposes. The government has a fundamental and compelling interest in the equitable administration of justice, and this incidental infringement will be allowed.

There is no less restrictive means. The request for a female judge fails on at least two grounds. First, it would institutionalize gender discrimination in these cases, there being no rational basis for distinguishing between a male or female judge in this situation. Second, it’s an affront to the principle of judicial economy. Already-crowded court dockets would be further confused by attempting to rearrange assignments for the purpose of obtaining a female judge. What if there were no female judges available in the jurisdiction? Absurdity results.

In America, you’ve never had to check your religion at the courthouse door. Oaths are taken on the religious text of your choice, or simply sworn to. But if your religion interferes with the long established procedures and practices essential to the fair and equal administration of justice, you are materially and adversely affecting other Americans, and thereby crossing the Constitutional line.

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