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.
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