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Transcript in Case That Was Dismissed Because Plaintiff Muslim Woman Refused to Unveil To Testify:

This case was in the news in mid-October, but I just got a scanned version of the transcript, and I think it's much worth reading. I have a PDF here, but I thought I'd include the full text:

Ginnah Muhammad d/b/a Sisters of Second Chance v. Enterprise Rent-A-Car, Small Claims Hearing before Judge Paul J. Paruk, Hamtramck, Michigan, Oct. 11, 2006:

THE COURT: Hi, good morning, everybody. I am going to handle a small claims matter first and then I'll do a couple of landlord-tenant cases. Is it Ginnnah Muhammad and Enterprise Rent-A-Car? Who is who? I need one person from Enterprise. Come on up and stand over here on the right-hand side, please, for me.

Are you Ginnnah Muhammad?

[MUHAMMAD]: Yes, sir.

THE COURT: You need to stand over there. Ms. Muhammad, did my court officer talk with you about taking your veil off?

[MUHAMMAD]: Yes, sir.

THE COURT: Okay, and what is your suggestion or what are your thoughts on that?

[MUHAMMAD]: I said, "No, I can't."

THE COURT: Well, let me explain to you why I think you have to do it and then you tell me why you don't have to do it and then we'll try and make a decision as to how to proceed.

[MUHAMMAD]: Yes, sir.

THE COURT: One of the things that I need to do as I am listening to testimony is I need to see your face and I need to see what's going on and unless you take that off, I can't see your face and I can't tell whether you're telling me the truth or not and I can't see certain things about your demeanor and temperament that I need to see in a court of law, okay, so you tell me why is it that you don't want to take your veil off.

[MUHAMMAD]: Well, first of all, I'm a practicing Muslim and this is my way of life and I believe in the Holy Koran and God is first in my life. I don't have a problem with taking my veil off if it's a female judge, so I want to know do you have a female that I could be in front of then I have no problem but otherwise, I can't follow that order.

THE COURT: Okay. Well, no, I don't have a female judge. I'm the Judge that's here, okay, and second of all and I mean no disrespect to your religion, but wearing a veil I don't think is a religious thing -

[MUHAMMAD]: Well, that's your preference, sir.

THE COURT: — I think it's a custom thing and --

[MUHAMMAD]: That's your preference.

THE COURT: First of all, hold on. Hold on. It's not my preference. I have no clue about any of this information, okay --

[MUHAMMAD]: That's what I'm saying.

THE COURT: — but this has come up in my courtroom before, and in my courtroom before I have asked practicing Muslims and the practicing Muslims have told me that, "No, Judge, what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing."

[MUHAMMAD]: Well, that's not correct.

THE COURT: Well, this is what they have told me and so that's the way that I am running my courtroom and that's how I have to proceed.

[MUHAMMAD]: And I respect you, Your Honor, and --

THE COURT: Fantastic.

[MUHAMMAD]: — I would like to ask for a change of venue.

THE COURT: Well, you can't have a change of venue. You're the one who decided to file the lawsuit, okay --

[MUHAMMAD]: Yes, sir.

THE COURT: — and so that's where we are today. So you have a couple of options today as far as I am concerned. You can either take it off and you can give me the testimony and after the hearing is all done and over with and if you want to put it back on, I don't have any problems with that but if, in fact, you do not wish to do it, then I cannot go forward with your case and I have to dismiss your case.

[MUHAMMAD]: Thank you, sir. You have a great day.

THE COURT: Okay. Well, first of all tell me what you wish to do.

[MUHAMMAD]: I wish to respect my religion and so I will not take off my clothes.

THE COURT: Well, it's not taking off your clothes. All I am trying to do is ask you to take off the part that's covering your face so I can see your face and I can hear you and listen to you when you testify, and then you can put the veil back on. That's all I am asking to do, ma'am.

[MUHAMMAD]: Well, Your Honor, with all due respect, this is part of my clothes, so I can't remove my clothing when I'm in court.

THE COURT: Okay.

[MUHAMMAD]: Thank you.

THE COURT: You're welcome, ma'am.

Okay. Enterprise, case is dismissed.

My sense is that the judge reached the right result, and reached it the right way. Being unable to testify in court without violating one's religious beliefs is indeed a very serious burden on religious believers: If this situation became widespread, members of that religious group would be easy marks for a variety of predators.

At the same time, the factfinder's ability to observe a witness's face when she is testifying is generally seen by our legal system as important to assessing the witness's candor. Perhaps people overestimate their ability to judge truthfulness based on facial expressions. But our legal system largely rests on the assumption that factfinders are indeed able to helpfully evaluate the witness's demeanor. So long as that's true, then it seems to me unfair to the other side to carve out an exemption from the witness's duty to show her face in court.

Note that Michigan courts have interpreted the state constitution as mandating religious exemptions from generally applicable laws when (1) the law substantially burdens a religious observer's practice, unless (2) the law is the least restrictive means of serving a compelling government interest. My view is that there is a substantial burden here, but that requiring testimony with the witness's face exposed is indeed the least restrictive means of serving a compelling interest.

Stephen Carter (mail):
Perhaps the problem is slightly more complex. Judges (like juries and other triers of fact) naturally prefer to see the faces of witnesses, in order to assess demeanor. But before we decide that the rights of religious objectors must in this case be trumped by the need to find truth, we must know that the ability to see a face really is necessary. As far as I know, our certainty of the necessity of seeing faces rests on experience. But the experience is at best anecdotal. We have no means of testing the outcomes to discover whether triers of fact actually make better determinations when they can see the faces of witnesses than when they cannot.

Of course none of this matters if we take the view of formal neutrality, under which a religious objection to a legal requirement is no different from an objection of any other kind. But for those jurisdictions (I gather from the post that Michigan is one) that take steps to accommodate religious practice, it is useful to separate rules supported by facts we know to be true from rules supported by facts we believe to be true. Although I am not prepared to say that the judge was wrong, I do wonder whether the need to see the face of the witness might fall in the second category.
12.14.2006 2:03pm
Cathy (mail) (www):
What about the request for a female judge? Should that have been granted? Is that a reasonable accomodation, or would it have opened a pandora's box?

I'm musing more than pontificating (meaning, I'm not sure), but I do think it's an issue worth addressing as part of the analysis.
12.14.2006 2:04pm
BGates (mail) (www):
What do you think about the woman's request to have a female judge instead? Is there a non-slippery-slope argument against that?
12.14.2006 2:04pm
magoo (mail):
"[R]requiring testimony with the witness's face exposed is indeed the least restrictive means of serving a compelling interest."

A less restrictive means to serve this compelling state interest would be to let her try her case before a female judge. I'm not saying that's an ideal solution, but it's one that deserves serious consideration, and it's one that causes the judge's solution here to flunk the LRM test.

This part was precious. She certainly has a sense of humor:

THE COURT: -- I think it's a custom thing and --

[MUHAMMAD]: That's your preference.

THE COURT: First of all, hold on. Hold on. It's not my preference. I have no clue about any of this information, okay --

[MUHAMMAD]: That's what I'm saying.
12.14.2006 2:05pm
VFBVFB (mail):
I think the Judge reached the right decision to dismiss the case, but I take issue with him telling her what her religious beliefs are.

The basis of his assertion that covering the face is a custom but not a religious belief is his statement that "I have asked practicing Muslims and the practicing Muslims have told me that, No, Judge, what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing." It makes no more sense to think that all Muslims think the same way than it does to think that all Christians, or Jews or anyone else thinks the same way. If she is genuine in her belief that she is religiously mandated to cover her face, than what difference does it make that other Muslims feel otherwise? They have no right to interpret religion for her.

Many Judges do not allow head coverings in the courtroom. In my experience, they will make an exception for someone wearing a Yarmulke, because it is religiously mandated. Imagine a Judge telling an Orthodox Jew that his religious beliefs do not require him to wear a Yarmulke, because the Judge knows many Reform Jews who do not think wearing a Yarmulke is required.
12.14.2006 2:08pm
Friedrich (mail):
I'm especially impressed with the judge's efforts to come to an understanding with the Muslim woman, and I think what he did was ultimately correct. Although I'm curious; if this had been a criminal matter, and the muslim woman had been a witness to a serious crime (murder, say), who was crucial to the case, would the judge have been within his rights to order the witness to testify without her veil on, and have the bailiff remove it if she refused?
12.14.2006 2:08pm
Nobody (mail):
... requiring testimony with the witness's face exposed is indeed the least restrictive means of serving a compelling interest.

I'm not saying her request for a female judge should have been honored, but wouldn't it have been a less restrictive means of serving the purported compelling interest?

I wonder whether the judge would have reached the same result with a plaintiff who was required to wear a full-face mask for medical reasons (e.g., Darth Vader :)).

I wonder whether, if the veil wearer had been the defendant, the court would have entered a default judgment against her upon her refusal to unveil.

I'm uncomfortable with a judge telling a person that her (apparently) sincerely held religious belief is a mere "custom," a "non-religious thing." Is that the business judges are in? Deciding which practices are religious requirements and which are merely customary?
12.14.2006 2:08pm
WHOI Jacket:
Would the law be applied differently if she had requsted a Muslim judge as opposed to a female judge?
12.14.2006 2:09pm
lucia (mail) (www):
I'm not a lawyer and don't know how these thigns work, so I'm going to have to ask questions that may have blindingly obvious anwers:

Couldn't the judge have heard the evidence anyway and accounted for his inability to read the witnesses face when making his verdict? (Does he know in advance the woman's evidence won't consist of written contracts, photos etc?)

Is this dismissed without prejudice so she can seek to file somewhere else? I know he's the judge present, is there no option where he can defer the case so she can ask for a female judge? (This is small claims, so mightent he advise her how to seek redress given her religious views?)
12.14.2006 2:09pm
Philistine (mail):
Would having a female judge be enough?

Presumbly the courtroom would have to be cleared of all males--which very well might include the other party's representative.
12.14.2006 2:11pm
Gus (mail):
Wrong result—at least without knowing more about the case. He should have let her testify with the veil on, but discounted her testimony by the "appropriate" amount to account for unverifiable truthiness. Yes, demeanor and temperment are important factors in determining credibility. But for all the judge knows, her case doesn't turn on her credibility. Her case could be airtight, and all she's going to do on the stand is provide narrative and foundation for a bunch of self-authenticating evidence.

The more interesting case, it seems, would be a confrontation clause challenge brought by the defendant.
12.14.2006 2:14pm
Sasha Volokh (mail) (www):
I'm with Lucia on her first question. Why not allow her to do what she wants but hold it against her to the extent this becomes necessary? For all we know, there may be no disputed issues of fact.
12.14.2006 2:15pm
NOLA lawyer:
I think Prof. Volokh is incorrect in stating that he reached the result for the right reason. The judge essentially decided that her religous belief was not legitimately held, instead saying it was a matter of custom. She said "God requires me to do this," and he said "No he doesn't. I don't believe your religious beliefs are sincere."

If that's the case, then there would not be any need for a reasonable accomodation at all, no?
12.14.2006 2:17pm
Sarah (mail) (www):
I'm a little confused as to why she couldn't get a female judge. I mean, we let small children, witnesses needing protection, and the sick to have all kinds of special accommodations when testifying, right?

I guess it's just that I find myself a little uncomfortable with "things that are sufficient to deny access to the justice system" including a fashion choice which really strikes me as a the-judge-is-not-comfortable-with-this-display thing, not a this-makes-getting-a-fair-testimony-impossible thing.

It's one thing if I'm stuck between creepy "you must allow people to walk around with a blanket on their head and no one can make any separate conclusions from the use of the blanket, up to an including the defendant, even if that means we can't have any witnesses identifying her" territory and "we have to ban the veil from the witness stand because otherwise how can we see if you're telling the truth." In that case, I'm reluctantly on the side of banning the veil from the witness stand.

But we're not really in that position: some level of accommodation can surely be granted before outright dismissing the case. Especially since most of the very small number of women who wear a full-face veil still allow their eyes to be seen -- isn't that supposed to be where you get most of your "is she telling the truth or not" vibes, anyway?

(Note that I'm also uncomfortable with a judge telling a petitioner that a particular practice isn't really a part of her religious beliefs.)
12.14.2006 2:18pm
Moshe (mail):
I agree with VFBVFB. The judge handled the situation very well in every respect except in trying to make the case on the basis of what he thinks is appropriate in her religion. The other factors he considered were legit and appropriate, though if he could have accomodated her with a female judge that would have been gracious of him.
12.14.2006 2:19pm
gopher:
What's the problem here? If Muhammad took off her veil, obviously the invisible rays from her hair would drive Judge Paruk into a frenzy and he'd rape her right there in the courtroom.

re slippery slopes, step 2 = "I request a Muslim judge." You know it's coming.
12.14.2006 2:20pm
Jeremy A. Blumenthal (mail) (www):
There's little question that as an empirical matter, the legal system's assumption that demeanor (in the sense of facial cues) is a helpful guide to detecting deception is inaccurate. In fact, facial cues are more likely misleading in detecting deception; vocal cues are more helpful. To that extent, asking the woman to testify wearing the veil could have been MORE helpful in determining whether she was telling the truth. See, among others, Blumenthal, 72 Neb. L. Rev. 1157 (1993).

There's also an interesting 2d Cir. case, Moralez v. Artuz (2/8/02, sorry I don't have the cite), in which a witness, out of fear, refused to remove a pair of sunglasses; the Second Circuit ultimately held that was not error (I'm eliding much of the ruling, which was in a habeas-contrary-to-established-law context).
12.14.2006 2:22pm
WHOI Jacket:
I'm not saying that you're wrong Sarah, but what if I go into a courtroom, identify myself as a Methodist, and then proceed to make some accomodation requests that do not fit the normally assumed practices of my religon. Can the judge not be at least inquisitive about my intentions?
12.14.2006 2:22pm
Hans Bader (mail):
Whatever the court does, it is subject to potential problems. If it accommodates the Muslim litigant, it may violate Michigan's Proposal 2. If it doesn't, it may violate the broad religious-freedom guarantees of Michigan's constitution.

If there is a female judge in the vicinity, and the case can be reassigned to her, then dismissing the case may not be, as Professor Volokh argues, "the least restrictive means of serving a compelling interest."
Thus, dismissing the case raises serious issues under the state constitution's religious freedom guarantee (although not the federal constitution, which does not limit laws of general applicability).

On the other hand, a gender-based referral to a female judge raises issues of its own under the state constitution. Under the federal constitution, gender-based classifications are subject to intermediate scrutiny, not strict scrutiny, and the purpose of taking into account gender here would not be to subordinate women, or give women a preference, but rather to accommodate sincerely-held religious beliefs.

However, Michigan's constitution absolutely forbids gender-based preferences in three limited areas: state employment, contracting, and education (as a result of 2006 ballot Proposal 2, which repealed most state affirmative action programs). It is conceivable that considering the judge's gender might violate Proposal 2's ban on gender-based employment decisions.

Note that what matters for free-exercise-of-religion purposes is whether the belief is sincere, not whether all members of the plaintiff's religion agree with the belief.

Most Muslim women in the world don't wear veils, but some do, and sincerely believe it is dictated by their religion.
12.14.2006 2:23pm
steven lubet (mail):
Based on most of the studies I've seen, it is extremely unlikely that the judge (or anyone else) could really determine whether a witness is truthful based on looking at her face. We all like to think that we can determine credibility based on demeanor, but the reality is almost certainly otherwise. So the judge's insistence on seeing her face (for credibility purposes, not identification) was not justified.

There is an additional problem when the judge attempts to parse a person's beliefs, distinguishing between religion and custom. But custom and religion are often inseparable, and one hopes that the first amendment prohibits judges from determining the content of religious commandments, as opposed to the sincerity of a particular individual's beliefs.

BTW, I have litigated a yarmulke case -- the judge had prohibited them in his courtroom -- in which the judge made a comparable comment, that the yarmulke was not a religious requirement. I am also aware of other cases where judge's have prohibited Sikh turbans in their courtrooms.
12.14.2006 2:25pm
JohnAnnArbor (www):
One thing that struck me was the speed of the exchange, which was clearly quite rapid-fire, which could lead to confusion and misunderstandings by both judge and plaintiff. He didn't slow down at all, it seems, to think about it.
12.14.2006 2:27pm
Jeek:
If she is genuine in her belief that she is religiously mandated to cover her face, than what difference does it make that other Muslims feel otherwise? They have no right to interpret religion for her.

Gee, it's too bad that the religious police feel they have the right to "interpret religion" for millions of women in Iran, Saudi Arabia, and elsewhere. Certainly there is no reason for officials in this country to facilitate the oppression of women, even if some of the women sincerely believe that their oppression is a good thing.
12.14.2006 2:34pm
Houston Lawyer:
The request for a female judge is specious unless she gets to testify outside of the presence of the defendant. We are not required to adopt sexual apartheid to accommodate her professed beliefs. Dismissal was entirely correct for the reasons given.

Nice how her beliefs require the veil but apparently allow her to drive. How convenient.
12.14.2006 2:34pm
SlimAndSlam:
"Perhaps people overestimate their ability to judge truthfulness based on factual expressions."

Prof. Volokh: Did you mean to say "facial expressions"? [EV: Whoops, thanks, corrected it!]

(Actually, I suspect that people overestimate their ability to judge truthfulness based on both facial expressions and factual expressions.)
12.14.2006 2:34pm
KJ:
The judge's decision to deny the woman an opportunity to argue her case is unreasonable and denies the woman her constitutional right to sue. And what sort of a judge decides cases not by evidence but by demeanor and facial expression? He should have allowed the case to proceed and then apply his prejudice at trial not before.

There is no right to request another judge and the request for a female judge was rightly denied as should a request for a black or brown or Muslim or Christian judge.
12.14.2006 2:39pm
Eugene Volokh (www):
KJ: In our legal system, the witnesses' demeanor and facial expression is supposed to be an important part of the evidence that the judge is to consider. Prof. Lubet may well be right that this is scientifically unsound; I can't speak to that myself. But it is certainly part of our judicial system's longstanding operating assumptions.
12.14.2006 2:43pm
RV:
I agree with Houston Lawyer. A female judge would be insufficient if the other party or its attorney is a man (or the court reporter, or baliff, etc.) Surely the defendant or his attorney has the right to face the witness if the judge is going to see her face. And we can't deprive the defendant of the counsel by saying it can't be a man.
12.14.2006 2:48pm
Mike S (mail):
How can the judge telling the plaintiff what is or is not permitted according to her religion be consistent with the First Amendment? One can, and several posters have, argued over whether the judge's need to see her facial expression should override her religious beliefs. Fine. But if the First Amendment means anything, it is that the state cannot decide the tenets or rules of any religion. The judge would seem to have neither the jurisdiction or the competance to determine what is required by religious law, and what is a custom.
12.14.2006 2:51pm
RV:
*typo "...the counsel [of his choice] by saying..."
12.14.2006 2:52pm
AG:
I think the above suggestions that the trier of fact could hear the testimony and let the lack of facial expressions go to weight makes more sense than dismissing the case.

If we accepted that, however, or even the female judge, would a prosecution witness testifying behind a veil satisfy the defendant's confrontation right in a criminal matter?
12.14.2006 2:53pm
SeaLawyer:

But if the First Amendment means anything, it is that the state cannot decide the tenets or rules of any religion. The judge would seem to have neither the jurisdiction or the competance to determine what is required by religious law, and what is a custom.


In end the judge is deciding the rules of his courtroom. She had the chance to follow those rules or have the case dismissed.
12.14.2006 2:59pm
magoo (mail):
People have been asserting that opposing counsel has an "right" to see the witness's face and independently (apart from the factfinder) assess demeanor. Is there authority for this?

What about someone who is horribly disfigured by burns and, in effect, has no face? Are they disqualified from ever testifying? (I'm not being snarky here; please educate me.)
12.14.2006 2:59pm
SlimAndSlam:
JohnAnnArbor: in my limited experience, small-claims cases tend to proceed very quickly. "Rapid-fire" was probably this judge's default conversational setting in a small-claims case.
12.14.2006 2:59pm
K Bennight (mail):
Regarding the request for a woman judge, note that this is in small claims court. I don't know how such courts are handled in Michigan, but in Texas such courts are before Justices of the Peace, elected officials. You take the judge of the court you file in; there is no other judge.

Whether or not that is so in Michigan, I still think the court reached the right decision. If we are to question the right of the trier of fact and the other party to judge a party's demeanor in this case, what about in others? What about the only eye-witness to a capital crime?

Common sense and my life experience says that some people are better liars than others. I am sure many people could lie to me without my knowing it. But if even 10 to 15% of the population are poor enough liars to show it on their faces, should we not require observation of demeanor?
12.14.2006 3:00pm
Nobody (mail):
In end the judge is deciding the rules of his courtroom. She had the chance to follow those rules or have the case dismissed.

Indeed. If the judge had a rule of his courtroom that women may not testify, as everyone knows they can't be trusted, that rule should be respected as well.

SeaLawyer, what kind of a lawyer are you?
12.14.2006 3:06pm
American revivial:
no accomadation should be given to these people. They need to accomadate themselves to western civilization if they want to live here. if not, they can go back to the shithole country they came from. She is a guest in America, we make the rules not her.
12.14.2006 3:15pm
Ron Hardin (mail) (www):
The case came up in court on November 6, 1965, in a ``Get Smart'' episode :

Smart: I have here, in my hand, exhibit C, the chicken-head mask that I wore on the night in question, and I would like to put this mask on and re-create the events of that evening ...

Defense Atty: Your Honor, I object. He's turning this hearing into a circus ...

Smart: I know what I'm doing, Your Honor.

Judge: Mr. Smart, if you have something to say, remove that ridiculous chicken head so that I can see your face ...

Smart: But Your Honor, I'm sure that if I could ...

http://rhhardin.home.mindspring.com/smartchicken.ram Audio
12.14.2006 3:17pm
Nobody (mail):
American revivial, I must have missed the portion of the transcript that suggests that the plaintiff (a) is not an American citizen or (b) was not born in this country. Can you point us to it?
12.14.2006 3:17pm
American revivial:
She is a muslim is michigan who wears a bag over her head. Doesn't seem like an American to me.
12.14.2006 3:20pm
Nobody (mail):
Touche'.
12.14.2006 3:21pm
American revivial:
Sharia law is closer than you think. Give them an inch, they take a mile.
12.14.2006 3:22pm
Nobody (mail):
Indeed. This revivial can't come soon enough.
12.14.2006 3:25pm
SeaLawyer:

Indeed. If the judge had a rule of his courtroom that women may not testify, as everyone knows they can't be trusted, that rule should be respected as well.


Having to actually show your face is almost comparable to that.
12.14.2006 3:26pm
GetReal (mail):
I am also wondering how it was established that "Ginnah Muhammad" was who she said she was? Was she finger printed prior to appearing in court?
12.14.2006 3:31pm
Stryker:
I could be wrong, but couldn't the plaintiff have gotten around all of this by hiring a lawyer?

Also, the ability to be heard is a large part of the problem that the judge found.
12.14.2006 3:42pm
Philistine (mail):

I am also wondering how it was established that "Ginnah Muhammad" was who she said she was? Was she finger printed prior to appearing in court?


How do you think it is established in ordinary small-claims courts that a litigant is who they say they are? Or, in any civil trial-level case?

Do you think there is a bailiff checking ID's?
12.14.2006 3:48pm
Philistine (mail):
As a practical matter, if someone legitimately feels that strong of a religious compunction that going without a veil would be tantamount to testifying naked, then their demeanor while testifying is probably going to be altered in any event.

Count me in with those who think the judge should have told her that he might discount her testimony if he was unable to determine her credibility from examining her face.

As pointed out, it very well may not have been an issue under the facts of the case.
12.14.2006 3:53pm
Elliot Reed:
Isn't the least restrictive means of accommodation to allow her to testify but discount the credibility of the testimony appropriately? In fact, 'appropriately' is "not at all," since the idea that facial expressions are a guide to truthiness is a total myth. But even if it were, why wouldn't it be less restrictive to allow her to testify but regard her testimony as less credible?
12.14.2006 3:54pm
Humble Law Student (mail):
Jeremy and others are right,

The Commuication Studies literature on the subjects says that seeing a person's eyes or face doesn't actually help a person discern truth from lie. The person thinks they are better at making the decision, but there feelings on it bear no relation to the reality of the situation.

What is marginally helpful is listening to the person's voice -- preferably without being able to see the person. This is the only method that has been shown to help individuals discern another's truthfulness.
12.14.2006 4:17pm
David Berke:
Assume that she were to testify with the veil, and the Judge (quite reasonably) stated that her testimony was somewhat discounted due to an inability to see her face, and that therefore in light of all evidence presented, he must regretfully find against Ms. Muhammad.

Isn't her next step (or perhaps the next step of some dissatisfied muslim organization) to claim that she was unconstitutionally penalized for exercising her First Amendment Rights? At that point, essentially the system has made concessions in an attempt to respect Ms. Muhammad's alleged religious beliefs, the reward for which is further litigation and an attempt to make the United States look anti-muslim.

It seems to me that such attempts to make exceptions to facially neutral law on religious grounds invites further demands for exceptions.
12.14.2006 4:23pm
American revival:
While you liberals worry about being senstive and accommodating to islamists. they are plotting to impose their views and law on you by any means necessary. time to wake up and defend the western judeo-christrian values that America was founded on.
12.14.2006 4:35pm
New World Dan (www):

Isn't the least restrictive means of accommodation to allow her to testify but discount the credibility of the testimony appropriately? In fact, 'appropriately' is "not at all," since the idea that facial expressions are a guide to truthiness is a total myth. But even if it were, why wouldn't it be less restrictive to allow her to testify but regard her testimony as less credible?

Yes, but the defendant in the case also has a right to examine and confront the witnesses against them. Which to me, is where this scenario breaks down: the demand to remove the veil came from the judge, not the defendant. By putting the demand on the defendant, the judge removes any controversy from the decision. The defendant's right to due process, even in a civil matter, trumps your right to cover your face. As a demand from the state, it then becomes a civil rights matter.
12.14.2006 4:37pm
Whadonna More:
This isn't a religion case. It's about judicial discretion.

How about the case of a plaintiff with spastic CP who can't control her facial expressions without medication. Does hizzoner get to dismiss the case if she won't get sedated to testify? Do we just get to assume her spastic smirk is one of distain for the legal process?
12.14.2006 4:38pm
American revival:
nobody,

your lack of critical thinking and intelligence is shown by your focus on spelling instead of substance. typical of those afraid to debate the merit of their viewpoint. easy to explain, i too would be wary of debate when if i was so cowed by the pc police to the point where I could not defend my culture as superior to islamism.
12.14.2006 4:38pm
Philistine (mail):

Assume that she were to testify with the veil, and the Judge (quite reasonably) stated that her testimony was somewhat discounted due to an inability to see her face, and that therefore in light of all evidence presented, he must regretfully find against Ms. Muhammad.

Isn't her next step (or perhaps the next step of some dissatisfied muslim organization) to claim that she was unconstitutionally penalized for exercising her First Amendment Rights?



Isn't that her next step now?

At least letting her testify would have allowed her to put on her case.

There are a number of situations where demeanor cannot be as accurately judged as would be wished--videotaped testimony (say from a hospital bed), bandaged face, stroke victim, read-in depositions, etc.

Surely the rule isn't that if a witness's facial demeanor cannot be closely examined, his testimony can't be received.
12.14.2006 4:44pm
markm (mail):
Maybe everyone should be required to wear a mask while testifying (after identification has been confirmed). Trying to judge truthfulness from demeanor has been proven to be more error-prone than much evidence that is routinely excluded because it might be deceiving.

Identification is another issue. I wouldn't expect a small claims court to make a practice of checking ID's or taking fingerprints, but normally the opposing parties know each other and will call the judge's attention to a "ringer". However, in this case I'd assume that all the defendant ever saw was a burqa and a hand reaching out just far enough to sign the contract, so he'd have no idea if the plaintiff in court was actually the other party to the contract, with or without a veil.
12.14.2006 5:17pm
speedwell (mail):
I'm an atheist, but I think the woman in question is correct in finding that she was unfairly treated. Now she has no right to change the basic conditions of the courtroom; as the Constitution states that the government must not discriminate in law based on religion, all petitioners need to be able to start with fair and equal conditions. But purely as an individual Muslim woman, she would be ashamed and intimidated if forced to reveal her face in a courtroom that had, simply by reason of being public, a male judge, male onlookers, etc.

If I identified myself to the judge as an atheist, and he was a religious man, and he decided to find against me because I refused to swear on the Bible, I think that would be an analogous situation. I could swear on the Bible for form's sake, just to reassure the judge that I was telling the truth, but that has about as much validity as the judge supposedly being able to tell the Muslim woman's veracity by staring at her shame-averted face.
12.14.2006 5:26pm
JohnW (mail):
Hey legal eagles. In your rush to condemn/praise the judge, you seem to have forgotton there is a third party present - the defendant. Why is there little or no concern with the issue that the defendent just might, might, need to see the person who is accusing him? Doesn't the defendant's rights to fairness trump the judges need to see faces? How does the defendant know that the lady-in-a-bag is the one who should be in court? That is where your energies should have gone, instead you are wondering if there is legality in a judge being able to see lips move.
12.14.2006 5:31pm
microtherion:
Given that the other party in this case was Enterprise Rent-A-Car, which by definition is a "faceless corporation", why should one party be compelled to show her face?
12.14.2006 5:35pm
AndersK (mail):
Whatever the court does, it is subject to potential problems. If it accommodates the Muslim litigant, it may violate Michigan's Proposal 2. If it doesn't,
it may violate the broad religious-freedom guarantees of Michigan's constitution.

Maybe I am wrong, but I thought that the Michigan Constitution was only binding on state courts.
Federal judges are only bound by oath to uphold the Constitution and laws of the United States, so how can the broader free exercise right conferred by the Michigan Constitution be relevant?
12.14.2006 5:39pm
Hans Bader (mail):
The Michigan constitution is relevant because, as the post above shows, it involves a Michigan state court case.

Michigan law (as well as federal law) governs the Michigan state courts.

The case isn't taking place in federal court, and doesn't involve a federal judge.
12.14.2006 5:56pm
DG:
I'm under the impression that wearing a kippah (yamulkah) is customary rather than mandated in Judaism. Ask your local Orthodox Sephardim.
12.14.2006 6:41pm
cvt:
EV: Why do you insist that judging credibility based on facial expressions is "part of our judicial system's longstanding operating assumptions" even if it is "scientifically unsound." (I know you don't concede that it is scientifically unsound, but you admit it as a possibility.) A case like this is a good opportunity to revisit such an assumption.

Because the result in the case seems clearly contrary to common sense, I would question any of the steps of reasoning that lead to the conclusion the judge reached.
12.14.2006 7:51pm
James Dillon (mail):
JohnW,

This is a civil case, not a criminal one. The Confrontation Clause does not apply, therefore the defendant has no right to "confront" his accuser. In any event, the right to confront an accuser essentially means the right to hear the accuser's testimony and to cross-examine that witness. It doesn't specifically entail the right to see the witness's face, and I believe there have been occasions in which cooperating witnesses have testified behind screens so as to conceal their identity from a particularly dangerous criminal against whom they were testifying (though I'm not certain about that). Given the judge's reasoning in this case (i.e., that testifying while concealing one's face undermines the ability of the court to evaluate the witness's credibility), I suppose the argument might be made that the Confrontation Clause would require a Muslim witness to remove her veil when testifying against a criminal defendant. Personally, I find that implausible, for the same reason that I disagree with the judge's decision here-- I just don't think that seeing the witness's face really adds much to a court's ability to assess the veracity or reliability of her testimony. How many times each day to we have telephone conversations in which we can't see the other person at all? Is it really impossible to tell when someone is lying over the phone? Not for me, anyway.

American revival,
I have a hard time believing that your "culture" is superior to much of anything. Fortunately, wherever you may be located, your culture is not mine.
12.14.2006 7:59pm
wuzzagrunt (mail):
It is perfectly reasonable for the judge to question whether the veil is, in fact, a religious requirement. If Mohammed wants to assert that her face covering is required by her God, she should be able to cite some recognized text or authority. Litigants should not have the right to change American legal customs on the basis of "because I say so."

The judge was wrong about it being a "custom thing", though. The veil is a "political thing".
12.14.2006 8:53pm
Jay Myers:
First, I think the judge was out-of-bounds to tell the plaintiff what her religious beliefs are. It is true that the Koran does not require, or even mention, wearing a veil, but many religions and denominations have articles of faith that are not in their central holy text. If they believe something is a religious requirement then it is one for their particular faith.

On the other hand, most jurisdictions have statutes against the wearing of masks or otherwise obscuring the face while in public. The public seems to have a valid interest in making sure that people can be recognized by witnesses and their identities verified. Because the infringement of religious liberty is so narrow in scope and neccessary to acheiving the government's legitimate end, I think there's a fair chance that SCOTUS would allow enforcement of such a law against someone in burka.
12.14.2006 9:30pm
neurodoc:
The judge told her that he wouldn't grant her a change of venue because she had filed with this court and the matter was assigned to him. Had she been the defendant rather than the plaintiff, would it have mattered for purposes of granting or denying her request for a change of venue?

Would it have mattered with respect to the veil issue whether she was the party who brought the action, and thus exercising a choice to pursue this case, rather than a defendant hailed into court about someone else, forced to be there? As a D rather than a P, should the judge done anything more to accomodate her?

In these sorts of things, does it matter how many other people see this as a religious obligation? Suppose a psychiatrist would testify that she was deluded but sincere in the belief that her own practices, though not those of any religion professed by others, were divinely dictated. Would it matter with respect to how far the court should go in accomodating her? (Assume she is mentally competent for purposes of the law, but that she and her sincerely held "religious beliefs" are truly singular.)
12.15.2006 12:02am
Bill Logan:
Stryker, people who sue in small claims courts are not allowed to have lawyers represent them in court. The idea is that small claims courts are supposed to be simpler, quicker, and more informal proceedings than the higher-jurisdiction courts. This is usually accomplished by limiting them to certain dollar amounts (e.g. under $5000), or not allowing certain remedies if you win (e.g. only monetary damages but not injunctions), or not allowing the full range of pre-trial discovery that you could otherwise get in a higher-jurisdiction court. There are trade-offs compared to the higher-jurisdiction courts, but the plaintiff can choose to file in small-claims court or in "regular" court.

That said, even if she had had a lawyer represent her, that wouldn't have helped her out because she would still have had to testify to the judge (or jury).
12.15.2006 1:17am
Thought I read:
I could be wrong, but I have a vague recollection of a case where a Muslum woman sued DMV for not allowing her a license because she refused to unveil for the photo. If memory serves, she won the lawsuit. I have no idea anymore where I read this; but if my memory is right, how might this affect the case?
12.15.2006 2:10am
Brian G (mail) (www):
I can't believe we don't just establish a separate justice system for Muslims. I am sure that our current system violates Equal Protection. What kind of country do we have when we don't offer a diversity of court systems, and atick everyone in the same courts and sunject to the same laws, without taking into accounts our own personal cultures and religions? After all, equal protection mean special treatment for certain groups. The 9th Circuit says so again and again.
12.15.2006 3:03am
JohnW (mail):
James Dillon -
Thanks, I appreciate you bringing up that difference between civil and criminal. However, the phone analogy is not a particularly good one, as most of the time I can hang up on someone I think is lying... But I did once get deposed over the phone in a civil matter.
12.15.2006 6:17pm
Mr777:
Should the truthfulness of dark-skinned witnesses and women wearing blush makeup be somewhat discounted because the observer can't tell if they are actually blushing?
12.16.2006 1:39am
fishbane (mail):
Should the truthfulness of dark-skinned witnesses [...]

Jugding from some of the remarks voice upthread, I'm afraid of the answer you'll get...
12.19.2006 1:24am
dsesq67 (mail) (www):
I agree that it is scientifically unproven whether facial clues are useful in the disposition of a matter. I will also say that the judge, after attempting to reach a reasonable accommodation, properly disposed of the matter. It was clear that Ms. Muhammed was seeking a special accommodation and placing Sharia law above the secular law of our courts. I think that by allowing her to stay veiled, you begin a slippery slope of additional accommodations for people with all sorts of requirements based on religious dictates and perhaps even personal idiosyncrasies. I admit to not understand what is or isn't required by Sharia as far wearing a hijab or a full on burka, but it seems that if Sharia tolerates one or the other (as Orthodox Jewish women wear the schaidel, then why couldn't she have simply donned the hijab, thereby maintaining a level of modesty and complying with the judge's rule?

Regardless, she filed her lawsuit with the Michigan small claims court seeking to avail herself of that civil process. It was incumbent upon her to comply with the procedures mandated by the judge in his courtroom.
12.19.2006 10:54am