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.
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