The Niqabi Paralegal

Face veils in court

Some more general issues relating to niqab (the face veil) are discussed here. But this story brings up the question of wearing niqab in court:

A devout Muslim, she wore a niqab -- a scarf and veil to cover her face and head except for her eyes -- Oct. 11 as she contested a rental car company's charging her $2,750 to repair a vehicle after thieves broke into it. Judge Paul Paruk said he needed to see her face to judge her truthfulness and gave Muhammad, 42, a choice: take off the veil when testifying or the case would be dismissed. She kept the veil on.

What do Islamic scholars say? Conservative Saudi scholar Muhammad al-Munajjid, who believes that niqab is religiously mandatory, quotes the views of a number of historical scholars on this issue:

Al-Dasooqi said: " When testimony is given concerning a woman who wears niqaab (face-veil), she has to remove her niqaab. This applies in the case of marriage and other matters, such as selling, giving gifts, debts, power of attorney, and so on. This is the opinion favoured by our shaykh." (Haashiyat al-Dasooqi 'ala'l-Sharh al-Kabeer, 4/194).

It is permissible for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is permissible for the qaadi (judge) to look at her in order to know who she is and to protect the rights of all concerned. Shaykh al-Dardeer said: "It is not permitted to give testimony against a woman in niqaab until she uncovers her face so that it may be known who she is and what she looks like." (Al-Sharh al-Kabeer li'l- Shaykh al-Dardeer, 4/194) Ibn Qudaamah said: "The witness may look at the face of the woman against whom he is testifying so that his testimony will speak about her in specific terms. Ahmad said: 'He cannot testify against a woman unless he knows who she is.'" (Al-Mughni, 7/459; al-Sharh al-Kabeer 'ala Matan al-Muqni', 7/348, bi haamish al-Mughni; al-Hidaayah ma'a Takmilat Fath al-Qadeer, 10/26).

It is permissible for a woman to uncover her face in front of a qaadi (judge) who is to rule either in her favour or against her, and in this situation he may look at her face in order to know who she is and for the sake of protecting people's rights. The same rules that apply to giving testimony or bearing witness also apply in court cases, because they serve the same purpose. (See Al-Durar al-Mukhtaar, 5/237; Al-Hadiyah al-'Alaa'iyah, p. 244; Al-Hadiyah ma'a Takmilat Fath al-Qadeer, 10/26).

Thus, like Sultana Freeman, Ginnnah Muhammad was being stricter than is required of her. The judge might have done better to offer a compromise such as allowing her to unveil in private in front of him and a female colleague, or something similar, but he was within his rights to ask her to unveil when giving testimony. Interestingly, Munajjid also says that the rental car company could have asked her to unveil when having financial dealings with her:

It is permitted for a woman to uncover her face and hands when buying or selling, and it is permitted for the vendor to see her face when he hands over the goods and asks for the money, provided that this will not lead to fitnah - otherwise it is forbidden. Ibn Qudaamah said: "If a person deals with a woman when selling or renting, he may look at her face so he knows who she is, and may go back to her when the money is due (a guarantee of the price when the deal is finalized). It was reported that Ahmad said this was makrooh in the case of a young woman, but not in the case of an old woman, and in the case where there is fear of fitnah, or where there is no need for this business deal. But in cases where it is necessary, and there is no wrongful desire, then there is no harm in it." (al-Mughni, 7/459; al-Sharh al-Kabeer 'ala Matan al-Muqni', 7/348 bi Haamish al-Mughni; al-Hidaayah ma'a Takmilat Fath al-Qadeer, 10/24).

Update: In an interesting counterpoint to this story, female British lawyers win the right to wear niqab in court.

survey of state laws on driver's license photos

The Council of American-Islamic Relations (CAIR) has completed a survey (PDF) of state laws regarding driver's licenses and religious attire. The information was obtained by filing Freedom Of Information Act (FOIA) requests or by writing to the government agencies in each state responsible for driver's licenses. The survey covers the issue of whether people are permitted to wear headgear in driver's license photos, if exemptions are permitted as religious accommodation, if non-photo driver's licenses are available, and how face veils are handled. As the report notes, and as I've noted previously in this space, this is not a question that solely affects Muslims. Many Jewish men wear yarmulkes; Sikh men wear turbans. Jewish and Christian women may wear religiously-prescribed headcoverings. Additionally, a number of Christian groups (especially the Amish) have religious prohibitions against the taking of photographs. Most of the case law on driver's license photos in fact has to do with Amish or other Christian groups who don't want photos to be taken at all. On the specific issue of face veils, three states have what I consider the most reasonable policy, allowing face veiled women to get a non-photo driver's license. These states are Kansas, Pennsylvania, and Indiana. As the survey notes, these states have large populations of Amish and other groups like the related Mennonites who have religious objections to all photos; that appears to be why they're so accommodating. My own state, Washington, allows photos in which the person has their face veiled, but then a notation is put on the license that it doesn't serve as ID. My position is, and always has been, that a face-veiled woman should be able to obtain a non-photo license as long as she is qualified to drive, and that she should obtain a separate photo ID for times when her identity needs to be verified. In a situation where it's only her authorization to drive that's at issue and not her identity, she doesn't have to display the photo unnecessarily. Anyway, the survey is a very good overview of the law in the different states and should be a good reference for those interested in this topic. Added: The survey led to a news story from Kentucky about its driver's license laws.

Follow-up on Sultana Freeman case

Since I was following this case in the early days of this blog, I thought I'd post this follow up story that was in the news recently. It's from the Orlando Sentinel. Freeman's appeal is now being heard. Check out the other posts in my face veils and identification category for my thoughts and perspectives on this case. *** Judges at the Fifth District Court of Appeal heard arguments today for and against a veiled Winter Park Muslim woman who refuses to unveil or show her face for a drivers license photograph. The case of Sultaana Freeman attracted nationwide attention last year by pitting her religious beliefs against the security concerns of the state. At today's hearing attorneys for the state and for Freeman argued for about 15 minutes each before a three-judge panel. The judges may issue an opinion months from now. Howard Marks, Freeman's attorney, argued that the state should not substantially burden his client with the requirement that she appear without her veil on her drivers license. Conversely, Assistant Attorney General Jay Vail relied on the decision last year in an Orange County circuit court that favored the state's argument that 9-11 security concerns must outweigh a person's individual rights. Orange County Circuit Judge Janet Thorpe last year sided with Florida's Department of Highway Safety and Motor Vehicles, which originally had issued her a license with her wearing a veil in 2001, but later suspended it.

Amish refuse to do photo ID

A reminder once again that 95% of all cases where people have problems with photo ID involve Christians, not face-veiling Muslims. From PennLive. Amish couple who refused photographs sues government The Associated Press 4/2/2004, 6:25 p.m. ET

judge rules against Freeman

As most people expected, a Florida judge has ruled that Sultana Freeman must show her face to get a Florida driver's license (CNN, UPI, Reuters, AP). The ACLU, which represented Freeman, has said it will appeal the decision. While her appeal is underway, it appears that Freeman will continue, as she has done since her license was revoked, to refrain from driving rather than submit to something she feels is against her religion (please note that Freeman was not trying to disobey the law or she would have been driving all this time; she was seeking to change the law, something that is every citizen's right in a democracy). (this paragraph edited to reflect latest case information) It will be interesting to see what the repurcussions of this decision are. Fourteen states (Arkansas, Colorado, Idaho, Iowa, Illinois, Indiana, Kansas, Louisiana, Minnesota, Missouri, Nebraska, North Carolina, Oregon, and South Carolina) currently allow religious exemptions and non-photo driver's licenses. Will these states now change their laws? Whatever happens to Sultana Freeman, I don't think this one case will be the end of the photo ID issue. Although most of the attention has focused on Freeman's religious views, this case raises larger questions about the need for photo identification in the post-9/11 world and those questions have not been fully resolved. Update: The judge's decision is available online (MS Word document). Muslim Wake Up has some good commentary from a Muslim point of view. Law professor Eugene Volokh comments.

miscellaneous updates on Freeman case

Freeman's trial has started. Court TV is carrying it (more background here). Two things bother me about what has occurred so far. First, Freeman's past criminal record has nothing to do with the validity of her religious exercise claim. It should have been excluded. Second, the prosecution is trying to put different interpretations of Islamic doctrine on trial, as if it matters whether Freeman's position is the "official" one of Islam. That should not be a factor; what matters is whether Freeman's belief is religiously based and whether she holds it sincerely. Besides, as I mentioned before, it's not the court's job to decide on religious doctrine, nor should it be. I'm afraid that this is going to turn into a show trial and that there will be more attention given to scoring points with the media than with genuinely seeing justice done. In other notes: ACLU Florida has posted a press release as well as a statement by Freeman. Law professor Eugene Volokh has posted some commentary on the case. Reader Marcia Oddi of the Indiana Law Blog reports that current Indiana law provides: (d) The bureau may provide for the omission of a photograph or computerized image from any other license or permit if there is good cause for the omission. IC 9-24-11-5 (d). It is not clear what "good cause" means or how one goes about seeking the omission of the photograph (Indiana, as you may remember, was the first state I found where the courts recognized a religious exemption for non-photo driver's licenses.) Update 5/29: Court TV coverage of the second day of the trial and closing arguments. A decision is expected by the end of next week. You can also read a filing by Freeman's lawyers. Law professor Eugene Volokh discusses the larger legal issues (also here)

Supreme Court says it doesn't matter if driving is a privilege not a right, and other notes

I've been continuing to do some legal research, just to see this question through and because my love of legal research is why I'm studying to become a paralegal. I mentioned in an earlier entry that there were two other cases "on point", meaning that they deal directly with the issue of non-photo driver's licenses and religious exemptions. The first case is Bureau of Motor Vehicles of The State of Indiana v. Pentecostal House of Prayer, Inc, 269 Ind. 361 (1978). This is actually the earliest case on the issue that I've found. Like the other cases, it deals with a Christian who believed that photographs were graven images and didn't want a photo driver's license. The Indiana Supreme Court upheld this right. One point is particularly interesting. The argument of those who oppose religious exemptions is that driving is a privilege, not a right. The Indiana Supreme Court responded to this issue: The gist of this argument is that there is no "right" to drive in this state, rather, driving is merely a privilege. In other words, the state's position is that no First Amendment problem is raised where a citizen's free exercise right is brought into conflict with a mere privilege. This position was considered and expressly rejected by the United States Supreme Court in Sherbert v. Verner: "Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege'. It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege" Thus the trial court correctly found coercive state action in that the photograph requirement of the statute would operate to deny these appellees the ability to drive, regardless of whether this ability is characterized as a right or privilege House of Prayer, supra at 368 (citations omitted, emphasis added) I thought that was really interesting. The other case on point is Dennis v. Charnes, 646 F. Supp. 158 (D. Colo. 1986). Once again, the plaintiff was a Christian who objected to photographs on the ground that they were graven images. The Colorado district court found for the plaintiff and granted him a religious exemption. What's interesting about this case is that the first time the judge heard it, he found against the plaintiff. However, while the case was under appeal, the Jensen v. Quaring decision came out. The court of appeals therefore reversed the judge's original decision and remanded the case (sent it back to be re-heard). This time the judge found no difference between his case and Jensen. Therefore he found in favor of the plaintiff. In his decision, he discusses his change of position in a candid manner. I had run a check of cases that cite Jensen and looked up those that were decided after 1990. Only one of these was related to photo identification. This is In re Miller, 252 A.D.2d 156 (N.Y. App. Div. 4th Dep't 1998). In this case it involved a law requiring pistol permit licenses to have photographs on them. The plaintiff was Amish (a very conservative Christian group) and like all the other plaintiffs, he objected to the photograph as a graven image (apparently many of the people who get so overheated about Sultana Freeman don't realize that all of the cases brought so far on this topic are about Christians not Muslims). The New York court found against the plaintiff and said that he had to have a photograph on his pistol permit even if it went against his religion. The court closely followed Smith. The interesting point is that the court expressly distinguished between driver's licenses and pistol permits and said that its ruling only applied to pistol permits and therefore was not in conflict with the three driver's license cases. This was because the state's interest in regulating firearms is greater than its interest in regulating the operation of motor vehicles. The court said: Although the governmental interest in requiring photographs on a driver's license for identification purposes is not compelling enough to justify the burden placed on the driver's exercise of religious beliefs, the compelling governmental interest in enforcing criminal laws that involve both the possession and use of firearms and public safety by immediate photographic identification justifies the burden placed upon petitioner's exercise of religious beliefs Miller, supra at 159, 160 (citations omitted). So to the best of my knowledge no lower court has attempted to over-rule the right to take a religious exemption and get a non-photo driver's license. The only court that has looked at a related issue expressly declined to re-visit the issue of non-photo driver's licenses. We'll have to wait and see if Florida will take that step. Added: Law professor Eugene Volokh has some comments on the right versus privilege question.

the current state of the law in regard to non-photo driver's licenses

Here's some more information I found. In Veiled Threat (written last year), Jacob Sullum says that under the standard that the Supreme Court used up until 1990, Freeman would probably be able to get a non-photo driver's license under a religious exemption. However, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Supreme Court adopted a new standard which favored government interests over religious exercise to a much greater degree than before. Sullum feels that under the Smith standard, Freeman would be out of luck. In blog entry on legal issues, I mentioned an Alabama case about people who believe that social security numbers are the "Mark of the Beast". This case is from 1998 and therefore the plaintiffs have to get around Smith. One of the ways that they do so is to allege that the plaintiffs' rights to free speech are also being limited. They say that in cases involving multiple Constitutional rights, the stricter standard against the government should be used. The latest development in Freeman's case is that a judge allowed Freeman to proceed with her freedom of religion and due process claims but dismissed her privacy and free speech claims. The due process claim, as set out in her original filing, is that she was deprived of her driver's license without a hearing. The rejection of the privacy and free speech claims may be fatal to Freeman's case, based on what I wrote above. Incidentally, I also found a brief by the Maryland Attorney General (PDF) from 1994 in which the AG argued that Maryland citizens do not have a right to get non-photo driver's licenses under a religious exemption. The brief relies heavily on Smith but makes other arguments to distinguish the case from the 1985 case that I first mentioned. The two other cases directly on point are Dennis v. Charnes, 646 F. Supp. 158 (D. Colo. 1986), and Bureau of Motor Vehicles v. Pentecostal House of Prayer, Inc, 380 N.E.2d 1225 (Ind. 1978). Both cases found the right to a non-photo driver's license under religious exemption. However, both were before the Smith decision. So the question is really open at this point. Jensen v. Quaring (the 1985 case) has not specifically been over-ruled but changes in the law (i.e., the Smith decision) mean that lower courts can and have argued that they are no longer bound by Jensen. Right now, Freeman is just at the beginning of her journey through the court system. She is appealing the decision of the licensing department to a trial court in Florida, the Ninth Judicial Circuit Court in Orange County. I think that she will probably get a trial, because of her due process claim. She should not be stripped of her driver's license without due process of law and there was none. In her trial, she will argue that her license was wrongfully revoked in violation of her Constitutional right to free exercise of religion. The court may decide for her and order Florida to restore her driver's license, possibly in a non-photo form, or it may decide against her. Either way, there will probably be an appeal, assuming that Freeman really cares a lot about this. Her current claim rests on her right to freedom of religion in the Florida state constitution, but she could if necessary allege that her rights under the federal constitution are also being violated. So this case could eventually go to the Supreme Court. However, it's a long, long way from that. Although I think that Freeman's beliefs are wrong-headed, I think it's probably a good thing that she brought this lawsuit because it could help clarify what the law is.

on religious exercise issues, it doesn't matter if she's the only one that believes that

According to the majority of Islamic scholars, a woman is required to cover everything but her face and her hands. A minority of Islamic scholars hold that a woman is required to cover everything but her eyes. However, nearly all of these scholars permit a woman to uncover her face so that her identity can be verified. There's a link in the original blog entry about Freeman about this. I personally do not believe that the face veil is obligatory. I wear it out of choice. Even if I did believe it to be obligatory, the school of thought that I follow would permit me to unveil for identification purposes. Thus, all my photo ID shows my face and I have no problems with being asked to uncover my face so it can be matched against the ID card. I think that Sultana Freeman is being stupid to want to wear a face veil for a photo ID. But I also don't think that she should have her license revoked for that reason and be unable to drive. That's what Florida did. I think that Florida should allow Freeman to take a religious exemption and be able to get a non-photo driver's license. This option is available in Illinois and apparently some other states as well, though I haven't found documentation yet on them. The Supreme Court case that I mentioned in the legal issues entry makes it clear that people are permitted to take a religious exemption and get non-photo driver's licenses. There's something that I don't know if a lot of people understand. It doesn't matter whether Freeman is the only person in the world who holds that religious belief or if every Muslim does so. The Supreme Court is not, and should not, be in the position of determining what the "correct" positions of a religion are. If it did so, it would be involved in "establishing that religion" by entangling the government in how the religion runs itself. It simply does not matter whether any other Muslim holds Freeman's beliefs. As long as she can present an argument that her beliefs are based in some way on her religion and that she holds them sincerely (which she clearly does), then that is her "religion" even if it is not the view of any other Muslim. Again, the Court is not going to decide which religious beliefs are valid and which ones are not. Once Freeman has proved that her ideas are based on her personal religious beliefs, then the court looks at whether the government has a compelling interest that justifies infringing on her exercise of her religion. In 1985, the Supreme Court agreed that the state's interest in photo driver's licenses is not compelling enough to override peoples' religions. The Supreme Court therefore said that the state (in that instance, Nebraska) had to allow the woman (in that instance, a Christian who believed photographs were graven images forbidden by her religion) to get a non-photo driver's license. As far as I know, that is still good law today. If the precedent from 1985 is still good law, then Florida will probably be required to let Freeman have a non-photo driver's license. Added: Law professor Eugene Volokh comments on this question.

legal issues related to driver's licenses, showing ID, etc

Here are the results of my preliminary research into what the courts have said about non-photo driver's licenses and about whether people can be required to present ID. In 1984, the U.S. Eighth Circuit Court of Appeals in Quaring v. Peterson, 728 F.2d 1121 (1984), heard a case in which a Christian woman requested a non-photo driver's license because she considered the photograph to be a "graven image" forbidden by her religious beliefs¹. Summarizin the court's holding: (1) Nebraska driver's licensing requirement that applicants submit to having color photograph taken for affixing on the license unconstitutionally burdened subject applicant's free exercise of her sincerely held religious beliefs, supported by historical and biblical tradition and implemented in her daily life, that the taking of her photograph would violate the Second Commandment's express forbidding of the making of any graven image or likeness of anything in creation, and (2) requiring that applicant receive her license without complying with photograph requirement was reasonable accommodation of her religion and did not violate establishment clause. The U.S. Supreme Court affirmed this ruling in Jensen v. Quaring, 472 U.S. 478 (1985). Thus, the objections to photo driver's licenses are neither limited to face-veiling Muslims (or to Muslims in general) nor are they specious: the right to take a religious exemption from having a photo driver's license has been recognized by the Supreme Court. As an aside, while I was looking for information about this case, I came across a lawsuit filed in Alabama alleging that a law requiring people to present a social security number to obtain a driver's license violates their freedom of religion because: ...they have a sincerely held religious belief that the federal social security number is the "Mark of the Beast" described in the Bible's Book of Revelation... It seems that Sultana Freeman is not the only person in this country who holds some rather interesting religious beliefs. So that's the photo driver's license question. A lot of people, in objecting to the idea of non-photo driver's licenses, argued that having a photo driver's license is required for identifying oneself to the police upon request. While looking for further information, I discovered to my own surprise that the U.S. Ninth Circuit Court of Appeals held only a year ago that people are not required to identify themselves to police officers, and that Nevada laws that made failure to provide identification a criminal offense were unconstitutional. Carey v. Nevada Gaming Control Board, 279 F.2d. 873 (2002) (PDF file). As law professor Eugene Volokh reported last December, the Nevada Supreme Court has since upheld those same laws, creating a conflict in the law. Professor Volokh thinks that this issue is headed for the Supreme Court. Local coverage of the Carey decision was provided by the Las Vegas Sun and the Las Vegas Review-Journal ¹Some Muslims might attempt to make this same argument against the use of images. However, even conservative Saudi scholars have held that Photographs which are essential are permitted - such as those required for identity documents... And in any case, a partial image, such as a head and shoulders shot, is generally OK. More about the Islamic rules of picture-making is available here.