Sunday, October 29, 2006

Thinly-veiled ethnocentrism or pragmatism?

Last week, Ginnnah Muhammad wore a niqab -- a scarf and veil that cover her head and face, leaving only the eyes visible -- during a court hearing near Detroit. District judge Paul Paruk dismissed the small claims court case filed by the Islamic woman after she refused to remove her veil when she testified. Is the judge being ethnocentric or is he just being pragmatic?

This case is reminiscent of the Sultaana Freeman case from 2003. Freeman lost her Florida driver license after she refused to remove her veil, or hijab, for a photo. She sued the state for violating a Florida statute that says the government "shall not substantially burden a person's exercise of religion," a law drawn from the Establishment Clause. Are the respective governments denying these woment their right to free expression of religion?

The Department of Motor Vehicles is not preventing Freeman from exercising her religious beliefs. She is free to wear her hijab all she likes both at home and in public. She's also free to choose not to have a driver license (as a Muslim woman, most fundamentalists would say the Koran prohibits her from driving anyway). The DMV is simply insisting that the ID issued by the state be able to IDentify the holder. The state even offered to make an accommodation whereby, according to the assistant attorney general:
"The practice has been to ask the men to leave the room. They lift the veil, we take the picture, they get the license, and they put it in their pocketbook and nobody sees it again. We don't care. We just have to have the picture."
The same principle applies to Muhammad. She is free to wear her niqab any time she wants to in private and just about anytime in public. Of course, she was even free to wear her niqab in court. Like Freeman, Muhammad is also free to choose not to bring her law suit. Paruk simply refused to accept her testimony if she refused to show him her face while she gave it.

At first blush, this might seem arbitrary of the judge. However, Paruk's job includes judging the truthfulness of testimony brought before his bench and, in order to do so, "you need to identify the witness and you need to look at the witness and watch how they testify." A law may abridge a fundamental right such as freedom of speech when it is in furtherance of the safety or welfare of the public. It is in the public's welfare for a judge to be able to judge the truthfulness of testimony and it's in the interest of the safety of the public for an officer of the law to be able to positively identify a resident by his or her ID.

Does the law agree? In Freeman's case, circuit judge Janet C. Thorpe upheld Paruk's decision. Thorpe found that Freeman did not prove that "the photo requirement itself substantially burdens her right to free exercise of religion." Thorpe went on to explain:
"Although the court acknowledges that plaintiff herself most likely poses no threat to national security, there likely are people who would be willing to use a ruling permitting the wearing of full-face cloaks in driver's license photos by pretending to ascribe to religious beliefs in order to carry out activities that would threaten lives."
The Establishment Clause does not apply in the Muhammad case either, in this Progressive's opinion. Neither of these cases are about freedom of religion, nor are they about discriminating against the practice of a foreign ethnicity. They are about the government being pragmatic in the protection of the safety and welfare of the public.

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