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Female Judges for Female Muslim Litigants?

Some commenters on the veils in court thread asked what I thought about the veiled Muslim woman's suggestion that the case be tried in from of a woman judge. I'm pretty sure that this won't work as a general matter: In many cases, witnesses have to testify before juries, and there are obvious problems with insisting on all-woman juries as well as woman judges. But even if this proposal is limited to trials before judges, it still won't work.

First, the litigants and lawyers also generally have a right (at least setting aside cases where the witness's life may be in danger) to see the witness's demeanor; and often the litigants and lawyers will be men. And, second, I think the court system has an independent and sufficiently strong interest in treating all judges (and jurors) equally without regard to sex. I realize that some sex-based accommodations are justified under exceptions to antidiscrimination rules, for instance when a woman guard or police officer is used to do pat-down searches and especially body cavity searches of women, and a male guard or officer is used for searches of men. But it seems to me that imposing similar sex classifications for the judges -- who actually preside over cases, and who in nonjury trials decide the facts -- would pose more serious (albeit chiefly symbolic) problems for the legal system, problems that the system can and should resist acquiring.

WHOI Jacket:
What about requesting a Muslim judge? Or a judge of any religon (or lack thereof) in particular?
12.14.2006 2:29pm
magoo (mail):
Chiefly symbolic problems for the legal system should trump sincerely held religious beliefs? I hope not.

I suspect the vast majority of women judges would find a gender-based assignment to this case to be adequately analogous to the assignment of a female police officer to conduct a pat-down search.
12.14.2006 2:37pm
JunkYardLawDog (mail):
Would David Duke be entitled to a judge from the KKK???

Lawyers and defendants/Plaintiffs have a right to observe the facial expressions and demeanor of their accusers in addition to the judge, do they not?

Says the "Dog"
12.14.2006 2:37pm
Hans Bader (mail):
As I noted in my comment to the prior post, although federal law does not prohibit all gender-based classifications in employment, the Michigan State Constitution (as amended by 2006 Proposal 2) probably does (Proposal 2, enacted by Michigan voters in November, outlaws any discrimination, or preferences, in state employment, contracts, and education based on race or sex).
12.14.2006 2:43pm
Hans Bader (mail):
Actually, come to think of it, there is an exception to the ban on sex-classifications in the Michigan state constitutional provision (Proposal 2) that I discussed:

It exempts "bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting" and that are not otherwise prohibited by the federal or state constitutions.

But that exception likely does not apply here (case law has construed narrowly an analogous provision in the 1964 Civil Rights Act), and other federal or state constitutional provisions limiting sex discrimination might also come into play.
12.14.2006 2:49pm
Sarah (mail) (www):
I sincerely hope a bunch of lawyerish commenters don't need a not-quite-finished-with-my-bachelor's-degree intern type to point out that being a member of a belief group, or even a racial category, is different than being male or female. Leaving aside the (extraordinarily rare) transsexual issue (and let me just interrupt myself long enough to point out that Firefox's integrated spellchecker has no problem with "transsexual" but thinks "spellcheck" isn't a word...) there's no comparison: I'm definitely female and always have been, but depending on what year it is, I've been Unitarian Universalist, Mormon, and "ummm, I dunno," religiously.

And depending on which century, which part of my family tree you were most worried about, and which bigot you asked, I might be "white" or "a dirty Jew" (yay Hitler and his charts!) or, I don't know, I've already used "dirty" but there's also the Irish and Lithuanian bits and they've had their "unpopular" phases, too. Being female is, in almost all cases, very easy to verify, very very hard to change, and a classically "inborn" trait. And nearly all cultures, including ours (though some yell quite a bit about it, sometimes) have maintained all kinds of differences in how people are treated, based at least in part on sex (social class and other factors also coming into play at times.) I'm not always a Girl Scout, but I'm always a girl. ^_^

Anyway, asking for a female judge is obviously not the same thing as asking for a judge who's a member of the KKK, and commenters who imply otherwise are I think being deliberately unhelpful.
12.14.2006 2:58pm
Houston Lawyer:
If I have to submit to a body cavity search, I'm going to ask to have a woman do it. I have a sincere religious belief that having my body cavities searched by a man would be wrong.
12.14.2006 3:01pm
WHOI Jacket:
Amen, Houston Lawyer.
12.14.2006 3:03pm
BGates (mail) (www):
Sarah, I was with you until your last paragraph. The plaintiff in the case didn't ask for a different judge because she's a woman, but because she's a Muslim woman. If you don't think a Klan analogy is helpful, what about a Christian Identity woman who insists on a male judge because her religion claims only men should have positions of authority?
12.14.2006 3:11pm
Glenn W. Bowen (mail):
how about a request for sharia law?
12.14.2006 3:18pm
JosephSlater (mail):
The Michigan law Hans Bader quotes raises an interesting although apparently hypothetical question. Suppose the Michigan law did *not* have an exception that basically tracked Title VII's BFOQ language (which permits, e.g., states to hire only women for certain jobs at state prisons).

Could Michigan law override that defense? Title VII's pre-emption rule basically says (I'm too lazy to look up the exact language) that state laws can be MORE protective of plaintiffs, but not less: e.g., Michigan could pass a state anti-discrimination law that forbids discrimination on the basis of sexual orientation; but Michigan could not pass a valid law providing that race or sex discrimination was generally permissable in the state.

I wonder how a court would view the attempt to get rid of the BFOQ defense.

As to the actual subject of the thread, I think EV has the right analysis. I don't think getting a female judge is a good solution. Courts are not like airports, where it is easy to make male and female screeners available at more or less all times. And would we accomodate some fundamentalist Moslem, Christian, Jew, or other who felt that women could not judge men, or some World Church of the Creator type who felt that blacks should not judge whites?
12.14.2006 3:28pm
JosephSlater (mail):
BGates: we were posting the same sort of hypo at the same time!
12.14.2006 3:29pm
GMS (mail):
I'd like to get a Judicial Qualifications Commission ruling on the following campaign commercial for a female judge candidate: "Unlike my male opponent, I won't have to recuse myself every time a Muslim woman testifies."
12.14.2006 3:34pm
Triangle_Man:
I am skeptical that the plaintif's beliefs are based on a doctrine that would simultaneously prohibit women from showing their faces to men but permit them to be judges.
12.14.2006 4:10pm
David Chesler (mail) (www):
I know religiously scrupulous people who (as married women) will allow women, but not men, to see their hair. Other than the not-terribly-noticable sheitel, their usual manner of dress (they do not exercise their right to bare arms) is a lot more suitable for the decorum of a courtroom than mine. (I on the other hand dress more suitably for a day at the beach or a ball field, even at work.)

And I suppose it makes me a closet homophobe, but I prefer being patted and poked and probed by women than men. (Most of my doctors are women: I figure nothing I've got is terribly impressive, and if I can show them something they haven't seen hundreds of times before, they're just going to send it to pathology.)
12.14.2006 4:27pm
New World Dan (www):

Chiefly symbolic problems for the legal system should trump sincerely held religious beliefs? I hope not.

I suspect the vast majority of women judges would find a gender-based assignment to this case to be adequately analogous to the assignment of a female police officer to conduct a pat-down search.

Wouldn't it be just as resonable for someone to have a belief objecting to female judges, at which point we reach an impasse?
12.14.2006 4:44pm
Toby:
"It may take us a 100 years, but in the end, Shari'a will be everywhere..."
12.14.2006 4:53pm
Bill Poser (mail) (www):
Not only would litigants and lawyers, who might be male, have a right to see the witness's face, but we seem to be forgetting that except for very unusual circumstances, the courts are open to the public. In order to ensure that no man saw her face, the plaintiff would not only have to have a female judge and all female lawyers for both sides, but the court would have to be closed. Closing the court may be justifiable in the case of a child witness or an undercover cop, but I am skeptical as to whether it could be justified in a case such as this where the tradeoff is a relatively minor religious right of a single person against the freedom of the press and the integrity of the judicial system.
12.14.2006 5:03pm
JunkYardLawDog (mail):
Houston Lawyer:

If I have to submit to a body cavity search, I'm going to ask to have a woman do it. I have a sincere religious belief that having my body cavities searched by a man would be wrong.


You might change your mind after you get a look at the particular woman assigned to the task ;)

I wonder if there is a correlation between the willingness to remove the veil and the amount of money at stake times the likelihood of a victorious outcome if the case goes forward? Maybe the veil laws are applied in practice like the laws against muslims killing other muslims which seems to be honored more in its breach than anything else, especially when they can get a twofer and kill another muslim during Ramadan or a threefer by killing another muslim during Ramadan while the victim is at, inside, or near a Mosque.

Says the "Dog"
12.14.2006 5:38pm
Sybalsky (mail):
Can we learn something from the cases where witnesses testify from behind a barrier, to protect their identities? (I seem to recall this happens occasionally in organized-crime trials.)

If THIS is OK, why isn't it OK for this lady to testify while veiled?
12.14.2006 9:20pm
BruceM (mail) (www):
I can't believe anyone has even academic sympathy for this Muslim woman. Nobody forced her to file a lawsuit. She knew, or should have known, from the outset that she would refuse to take her veil off when testifying (at least before a male judge, presumably she could have nonsuited and refiled until such time as she got a female judge assuming one were available).

If my religion so much as required me to wear a baseball cap, shorts and a t-shirt all day long, I don't know a single judge who would let me testify in his or her court, notwithstanding any "least restrictive means" requirement. This is just a load of PC "let's respect all religions" crap, no different than the Muslims who won't take their veils off for their drivers' license photos. Tough crap, don't drive. Tough crap, don't file a lawsuit.
12.14.2006 11:45pm
NotALegalEagle:
Sarah:

Anyway, asking for a female judge is obviously not the same thing as asking for a judge who's a member of the KKK, and commenters who imply otherwise are I think being deliberately unhelpful.


Outside of assumed differences in worldview and attitude, I can not think of anything that a female bring to the role of judge that is an inherent attribute of being a woman as contrasted with a male judge. So in that case asking for a woman judge is exactly like asking for a member of the KKK as your judge.
12.15.2006 1:45am
Brian G (mail) (www):
I worked for a female judge when a Muslim man refused to acknowledge her authority. After 4 nights in the joint, hia attorney stated that "my client has a new understanding and appreciation of the American justice system" and things got moving finally.

If Muslims don't like our judges, they can seek redress in the courts of Iran, and Saudi Arabia. (Of course, if they are women, they can't get heard anyway)
12.15.2006 2:58am
David Chesler (mail) (www):
Outside of assumed differences in worldview and attitude, I can not think of anything that a female bring to the role of judge that is an inherent attribute of being a woman as contrasted with a male judge. So in that case asking for a woman judge is exactly like asking for a member of the KKK as your judge.

If an individual asks for an intimate medical exam, or a security patdown, by a member of the same sex, would you say the same?

Being without one's accustomed veil or headscarf or skullcap or turban or sheitel is likely not the same experience as being naked or overly intimate, but the rules are the same.
Yarmulkes fall off, and it's no big deal: the wearer just picks it up, shakes it off, and puts it back on. But the people I know who habitually wear a yarmulke (besides being Modern Orthodox and calling it a kippah) would absolutely refuse, on principal, to remove it if so ordered by a judge in his courtroom.

Note also that this particular plaintiff had no problem with the judge or his authority. She felt that her religious obligations did not permit her to comply with a particular request from the judge, but noted that this could be easily worked around by substituting a female judge.

Suppose the judge had ordered the parties to sit down over an (unindicted) ham sandwich and try to work things out, and one or the other of the parties said "I'd prefer to substitute roast beef, because my religion forbids the eating of pork" or "I'd prefer to substitute tuna, because it's Friday and my religion forbids eating meat on Friday." In the second case, going back to an earlier question, would the judge be correct to point out that most Christians don't fee bound by that, and that even most Catholics don't feel bound by that since Vatican II? Or should the judge say "This is America, and if you were a cannibal I wouldn't allow you to substitute human flesh, so I'm not going to allow you to substitute tuna. We eat ham in my court."
12.15.2006 11:22am
NotALegalEagle:
If an individual asks for an intimate medical exam, or a security patdown, by a member of the same sex, would you say the same?


Yes, I would. If we were to allow a Mormon to ask for a Mormon to do an exam or patdown, then we should allow a KKK member to ask for a KKK member to do an exam or patdown.

My point was that the plaintiff was asking for a female judge to fill a role that does not have a physiological requirement (ie. not asking for an egg or sperm donor), but rather based upon the plaintiff's idea of what is appropriate. In which case it is the same for any party in a case to ask for a judge that fits more in line with their personal religious beliefs. If someone believes that God holds white people above black people then asking for a white judge is the same as this muslim woman asking for a woman judge.
12.15.2006 4:05pm
David Chesler (mail) (www):
Mormon isn't a sex.
12.15.2006 5:10pm
NotALegalEagle:
Mormon isn't a sex.


In this case that is irrelevant, which is my point. To be a judge you don't have to have ovaries or testicles. In fact you can have neither and still be a fine judge. Since this is true, a request for a judge of particular physical attributes has everything to do with philosophy and nothing to do with physiology. So Sarah's point is wrong. Asking for a woman to be your judge is exactly like asking for a Free Mason to be your judge.
12.15.2006 11:35pm