Transcript in case dismissed because plaintiff Muslim woman refused to unveil to testify

[Christopher C. Lund]

The check on all of these is that the religious claimant has to analogize his claim for exception to a preexisting secular exception.  He or she has to convince the court that the secular exception already harms the rule more than the religious claim for exception would.  A religious group arguing for a right to involuntary human sacrifice is going to have a hard time convincing anyone that their claim for an exemption is really like the existing one for self-defense.  A religious individual claiming a right to trespass onto other person's land is going to have hard time analogizing his case to the exception for necessity or for the police.  In the latter case, for example, the exceptions for necessity and law enforcement are narrow doctrines (necessity requiring a showing of greater harm; the "fleeing felon" doctrine being a narrow exception to the warrant requirement) which create rarely used, individual-specific, and context-dependent exceptions to the general rule.  A freestanding religious exemption would be significantly more broad.  I think courts are fully capable of drawing lines to differentiate between those cases and our instant case. To be sure, I do think this will require courts to exercise judgment.  They will have to determine what the concerns are behind the rule, evaluate whether the rule is underinclusive with respect to those concerns, and weigh the harm to the rule of the existing secular exceptions against the potential harm of the religious claim for exception.  Perhaps to some, this invites courts back into the sort of judicial balancing from which Smith meant to depart.  But I think all of this is present in Lukumi and its language about underinclusiveness.  Lukumi was just too easy of a case to have all these details flushed out.
 
None of this should be taken as a defense of general applicability.  I too think it's a poorly calibrated system, although I would also add that I think it severely underprotects religious exercise.  But I don't think the sky is going to fall if a robust version of general applicability is adopted. 



> Date: Mon, 18 Dec 2006 13:39:29 -0800> From: VOLOKH at law.ucla.edu> To: religionlaw at lists.ucla.edu> Subject: RE: Transcript in case dismissed because plaintiff Muslim womanrefused to unveil to testify> > 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.> > > > _______________________________________________> > > > To post, send message to Religionlaw at lists.ucla.edu> > > > To subscribe, unsubscribe, change options, or get> password, see> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw> > > >> > > > Please note that messages sent to this large list cannot> be viewed as> > > private. Anyone can subscribe to the list and read messages> that are posted;> > > people can read the Web archives; and list members can> (rightly or wrongly)> > > forward the messages to others.> > >> > >> > > ________________________________> > > All-in-one security and maintenance for your PC. 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