Prayer and Courts

[Sanford Levinson]

I don't have a good well-thought-out, highly principled way of
distinguishing the cases.  Part of my reason, I suppose, takes us back to
(endless) earlier discussions that the wearer of the cross or yarmulke may
plausibly claim to be acting in the name of religious duty, whereas the
Hmong woman can make no such argument.  I don't think this is simply
privileging established (so to speak) religions as against the Hmong,
because I do assume that no one would defend the right of a Christian to
attempt a courtroom "exorcism" of "demonically-possessed" witnesses or
jurors.  If the defendant in Minneapolis had been a Sikh, who wanted to wear
a ritual knife in the courtroom (in violation of a rule prehibiting the
bringing of "any weapon" into the sanctuary), I would be sympathetic with
the Sikh (though I assume that Smith would make this an easy case as a
matter of positive constitutional law).


><< Someone who ordinarily wears a cross or yarmulke should not be forced, as a
> constitutional matter, to stop wearing it even when participating in a
>courtroom event.  >>
>
>
>But what principle compels this result that does not demand deference to a
>Hmong woman who always conducts the burning ceremony in similar circumstances?
>Inobtrusiveness?  If so, does the yarmulke come off once it is noticed by
>another?  Once it distracts another?  Once another feels threatened by it?
>
>Jim Henderson
>ACLJ
>