Ban on Headgear, Including Religious Headgear, in Court:

The Atlanta Journal-Constitution reports:

A Douglasville woman was jailed Tuesday after a judge found her in contempt of court for refusing to remove her hijab, the head covering worn by Muslim women.

Lisa Valentine, also known by her Islamic name, Miedah, 40, was arrested at the Douglasville Municipal Court for violating a court policy of no headgear ....

Judge Keith Rollins ordered her held in jail for 10 days, but she was released Tuesday evening. The reason for the early release wasn't immediately clear....

Other Muslim women said the same judge has ordered them to remove their hijabs....

Halimah Abdullah, 43, said she spent 24 hours in jail in November 2007 after Rollins held her in contempt of court for refusing to remove her head covering....

Valentine said she was accompanying her 19-year-old nephew to address a citation Tuesday morning when she was stopped at the metal detector and told she would not be allowed to enter the courtroom with a head scarf....

Frustrated, she turned to leave and uttered an expletive. She said the bailiff then told her she could take the matter up in front of the judge. She said she was handcuffed and taken into Rollins' courtroom....

It's not clear to what extent the expletive might have been punishable as fighting words (was it, for instance, "fuck you" said to the bailiff, or just a generic "fuck!" said in exasperation?), or to what extent the judge's authority to punish even non-fighting-words vulgarity in court would extend outside the courtroom (I'm inclined to say that it wouldn't be). But in any case, it seems the jail sentence at least in large part stemmed from the refusal to remove the headgear.

As with many religious accommodation questions involving Muslims, this is not a new issue. (I set aside the complicated question of William Penn's hat, and stick with more modern cases.) Judges have, for instance, applied no-hat rules to demand that parties or witnesses remove yarmulkes, see, e.g., Close-It Enterprises, Inc. v. Weinberger, 64 A.D.2d 686 (N.Y. App. Div. 1978), or their Catholic or Episcopalian priestly garb, People v. Drucker, 418 N.Y.S.2d 744 (N.Y. Crim. Ct. 1979); O'Reilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982); Ryslik v. Krass, 652 A.2d 767 (N.J. Super. App. Div. 1995). The priest cases didn't involve headgear, but one can easily imagine similar issues arising as to nuns' habits. There have been other Muslim cases, as well. See, e.g., In re Palmer, 386 A.2d 1112 (R.I. 1978); State v. Allen, 832 P.2d 1248 (Ore. App. 1992).

Some of the cases involved no-hat rules that courts imposed just a matter of general decorum, and others involved prohibitions on wearing religious garb in front of juries justified by a fear that the religious garb would prejudice or otherwise unduly influence jurors. But in all these cases (except one that involved a priest wearing priestly garb as a lawyer, see La Rocca v. Lane, 37 N.Y.2d 575 (1975), a potentially different sort of question), the courts held that the prohibition shouldn't be applied when the garb is seen as religiously mandated.

And this, it seems to me, makes perfect sense, especially when the concern is simply about decorum and not juror prejudice. (Note that this case didn't involve a jury trial.) Whatever might be the symbolism of wearing a normal hat indoors, surely there's no disrespect that's usually intended, or likely to be reasonably perceived, when someone is wearing religiously mandated garb. A judge need not feel insulted by an Orthodox Jew's wearing a yarmulke, or a Muslim woman's wearing a hijab.

So there's no important government interest really being served here. But the burden on the religious objectors is very great: This means that if they are to comply with their felt religious obligations, they can't participate in one of the most important functions of American civic life. In two of the cases discussed in the column, the religious objectors were accompanying relatives to court, itself a pretty important function. But in other cases, the religious objector may be a party, a witness, or even a criminal defendant whose presence may be legally mandated for some purposes. Even if he's not legally forced to be in the courtroom, he may still have to forgo adequately litigating his case, or defending his liberty, as the price of complying with his religious obligations.

This is precisely the sort of situation where religious accommodation makes perfect sense — just as the constitutionally specified accommodation of witnesses and officeholders who refuse to swear, and instead must affirm, makes perfect sense. As I've written before before, requests from minority religious groups for accommodation are a longstanding and respectable part of the American tradition of religious freedom. Where religious pluralism goes, multiculturalism is indeed a traditional American value. To be sure, not all religious beliefs have been accommodated, and not all should be accommodated. But when accommodation is cheap — where the only matter at stake is the judge's sense of decorum, which shouldn't even be seen as undermined by the wearing of religious headgear, as opposed to a baseball cap — and the religious objector's interests in participating in a government function are important, the religious objectors should indeed be accommodated.

To be sure, under Employment Division v. Smith, which I generally approve of, such accommodation probably wouldn't be a constitutional obligation (at least unless some other constitutional right, such as a criminal defendant's right to participate in her trial, or to put on witnesses, is involved). If a judge evenhandedly cites for contempt Orthodox Jews, Catholic nuns, and Muslim hijab-wearing women who refuse to remove their headgear, his actions might not violate the Constitution. But state court systems should aspire to something more than just constitutionally minimal religious accommodation. Most judges throughout the country, I'm pretty sure, are happy to accommodate parties, witnesses, and friends and observers who want to wear religious headgear. It seems to me this judge should do the same.

UPDATE: Avi Schick reminds me of an opinion by Judge Easterbrook — a noted moderate conservative judge on the federal court of appeals for the Seventh Circuit — that I blogged about five years ago, and that Schick also wrote about (emphasis added):

Counsel for James contends that the district judge violated the first amendment by excluding from the courtroom any spectators whose religious beliefs require them to cover their heads. Because James himself did not seek to wear any form of head covering, he lacks standing to raise this contention. None of the spectators was held in contempt, and none has sued seeking a declaratory judgment. But although this appeal does not present an Article III case or controversy on this issue, the judicial branch has an interest in the prudent handling of public relations, and no formal controversy is needed to say a few words on the topic.

The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, see Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). See Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement.

Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority's. The best way for the judiciary to receive the public's respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating.

It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.