Transcript in case dismissed because plaintiff Muslim
womanrefused to unveil to testify
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Dec 18 13:39:29 PST 2006
Would we say that Title VII's ban on sex discrimination in
employment isn't generally applicable, given that it has various
exceptions (for small companies, for bona fide occupational
qualifications, and he past for conduct outside the U.S.)? What about
statutory rape law -- is that not generally applicable, in states that
have exceptions for married couples, or for youngsters who are close
enough in age to each other? What about copyright law, which sets forth
a presumptive prohibition on copying in section 106, and then has (at
least) sixteen exceptions in 17 U.S.C. secs. 107 through 122? What
about the general duty to testify, which is riddled with exceptions?
Murder law, which has exceptions not just for self-defense and execution
of a lawful sentence, but also for provoked killings (which aren't
murder even though they are manslaughter)? Trespass law, which has
exceptions for necessity, government action, adverse possession /
easements by prescription, and so on? Breach of contract law, that has
exceptions for unconscionable contracts, contracts against public
policy, contracts with incompetents, and more (especially when we speak
specifically of the specific performance remedy for breaches of
contract)?
How many laws are there that *don't* have exceptions that embody
value judgments that some secular interests justify the exception?
After Smith and Lukumi, is it really the case that exemption requests
from all those statutes are constitutionally subject to strict scrutiny
-- and the demanding form of strict scrutiny applied by Lukumi to
non-generally-applicable laws, complete with underinclusiveness
analysis, rather than just the weak strict scrutiny applied in Lee, Bob
Jones, and other Yoder-to-Smith cases?
Eugene
________________________________
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher C.
Lund
Sent: Monday, December 18, 2006 1:31 PM
To: Law & Religion issues for Law Academics
Subject: RE: Transcript in case dismissed because plaintiff
Muslim womanrefused to unveil to testify
I think there is a real question as to whether the rule here is
generally applicable. By allowing a witness who is more than 100 miles
away to testify by written deposition, Michigan has made a value
judgment -- whatever the value of demeanor evidence, it is not worth
forcing witnesses to travel more than 100 miles to the courthouse. The
burden of a two-hour drive is enough for Michigan to relax its
insistence on demeanor evidence; the burden of a religious commandment
is not.
Now courts may simply take the rule and the exception as the
government frames them (the rule is a rule about decorum or dress, and
not really about demeanor), rather than looking at the stated concerns
behind the rule and the rule's potential underinclusiveness in
responding to those concerns. But I think that's a mistake, and a poor
reading of Lukumi.
________________________________
> Date: Fri, 15 Dec 2006 11:45:19 -0500
> From: stevenjamar at gmail.com
> To: religionlaw at lists.ucla.edu
> Subject: Re: RE: Transcript in case dismissed because
plaintiff Muslim woman refused to unveil to testify
>
> I think a better alternative would be to listen to the
testimony from
> the veiled plaintiff and then if the court decides that it
can't judge
> her credibility adequately, then she fails to prove her case
by
> failing to carry her burden.
>
> As a former litigator, I think for the most part demeanor was
an
> important part of assessing credibility. But, there were
> cross-cultural problems and other aspects that make it far
less than
> perfect. Some people are very convincing liars. Some seem to
be
> lying even when not. But the fact that judging truthfulness is
an
> inexact art seems to be far way from the idea that demeanor is
> unimportant. In some instances, it is the determining factor,
even if
> one assesses the meaning wrongly.
>
> Though I would have handled it differently, and think the
judge should
> have handled it differently, I don't see a constitutional
violation
> here. A person is bringing a civil suit in civil courts in a
system
> with relatively uniform and accommodating rules of decorum,
dress, and
> procedure. Favoring religion over compliance with obviously
generally
> applicable, neutral rules certainly passes the Smith test.
>
> I wonder, would it matter if she were the defendant rather
than the
> plaintiff? Where she was brought into court and could not
defend
> herself without violating her religious exercise beliefs? It
seems
> that even there, under Smith, we do not have a violation. But
it
> seems that in such a setting the coercive aspect would make it
more
> problematic not to accommodate a defendant than a plaintiff.
>
> It seems that a pre-Smith or RFRA approach here would require
> accommodation for the person both as plaintiff and as
defendant.
>
> Steve
>
> On 12/15/06, Christopher C. Lund <chlund1 at hotmail.com> wrote:
> >
> > I would have liked to see Judge Paruk do a little more to
accommodate
> > religious exercise.
> >
> > I don't understand why the Judge insists that demeanor
evidence is
> > necessary here. I don't know if there is more than the
transcript, but
> > nothing there suggests that the parties get beyond stating
their names. If
> > the case turns on some legal issue (or, indeed, as long as
the case doesn't
> > turn on the Plaintiff's factual account of the events), her
demeanor won't
> > even be relevant. And, even if it is relevant, courts often
get by without
> > evaluations of demeanor. Our system admits whole categories
of hearsay
> > statements, where the underlying declarant is obviously
never observed by
> > the trier of fact. Under Michigan rules, for example, a
witness that is
> > further than 100 miles away from the court can simply
testify by written
> > deposition. And all this is all putting aside the fact that
many evidence
> > scholars altogether reject demeanor as a reliable means of
discerning the
> > truth. See, e.g., Guy Wellborn, Demeanor, 76 Cornell L. Rev.
1075 (1991).
> >
> > And then there is the obvious: Doesn't it seem unfair to
essentially bar a
> > Plaintiff from turning to the judicial system for redress of
her injuries as
> > long as she refuses to compromise her religious beliefs? If
someone
> > attacks her, should her tort claims of assault be dismissed
unless she backs
> > down?
> >
> > ________________________________
> >
> > > Date: Thu, 14 Dec 2006 10:42:50 -0800
> > > From: VOLOKH at law.ucla.edu
> > > To: religionlaw at lists.ucla.edu
> > > Subject: Transcript in case 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 thought I'd pass it
along. I have a
> > > PDF at http://volokh.com/files/ginnahmuhammad.pdf .
> > >
> > > Eugene
> > >
> > >
> > >
> > > 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.
> > > _______________________________________________
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>
> --
> Prof. Steven Jamar
> Howard University School of Law
> _______________________________________________
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