Transcript in case dismissed because plaintiff Muslim woman
refused to unveil to testify
Volokh, Eugene
VOLOKH at law.ucla.edu
Mon Dec 18 21:13:20 PST 2006
So how would you handle a religious person who feels a religious
duty to discriminate based on sex, and analogizes to the BFOQ exception,
which lets people discriminate based on sex for privacy reasons, or for
artistic verisimilitude reasons? "My right to practice my religion,"
he'd say, "is at least as important as someone else's right to
discriminate based on sex in casting a play." How do you decide that?
Or say a religious person feels a religious duty not to testify
against a parent or a child (as some Jews do), or against a
coreligionist (as I've heard some claim that some Muslims do). "My
right to practice my religion," he'd say, "is at least as important as
someone's right not to testify against a spouse, or not to testify in a
way that incriminates himself, or not to testify against a patient.
Sure, we want to avoid discouraging people from visiting
psychotherapists; but we should want to at least equally avoid
discouraging people from violating their felt religious obligations."
Or say a religious person feels a religious duty to copy someone
else's private letters, or to make and sell copies of another's
religious work. "My right to practice my religion," he'd say, "is at
least as important as the interests embodied in the sixteen-plus
exceptions to the Copyright Act."
Or say a religious person feels a religious duty to trespass on
someone else's property (for instance, to make a pilgrimage to a site
that he sees as holy; assume that the site is on another's unimproved
land, not in the property owner's backyard). "My right to practice my
religion," he'd say, "should be treated as comparable to any other
necessity defense. I am free to trespass on another's land to, for
instance, escape a blizzard, or even to protect my property from
destruction; I should be equally free to trespass in order to avoid
violating my religious beliefs."
How are courts to decide which analogies work and which fail?
What's the legal test they're supposed to be using?
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 8:27 PM
To: Law & Religion issues for Law Academics
Subject: RE: Transcript in case dismissed because
plaintiff Muslim woman refused to unveil to testify
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
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> >
> >
> > --
> > Prof. Steven Jamar
> > Howard University School of Law
> > _______________________________________________
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