According to the ACLU, a Sikh man was targeted for his religious attire by both law enforcement and a judge.

In the first part of his ordeal,  Jageet Singh was allegedly harassed for his turban and his kirpan by employees of the Mississippi Department of Transportation.   We’ve previously discussed the wearing of small ceremonial knife of the kirpan as a First Amendment free exercise of religion issue. Yet according to the ACLU report, the kirpan was not the sole issue: “One officer declared that all Sikhs are “depraved” and “terrorists.” They continued to taunt him, and forced Mr. Singh to circle his truck with his hands on his turban while they searched the vehicle.”

The officers’ arrest of Singh for failure to obey an order, however, allegedly led to an even more egregious experience when Singh appeared for his court date at Pike County Justice Court in Mississippi:

Waiting for his attorney in the back of the courtroom, he was stunned when four Highway Patrol officers approached him and ordered him to leave the courtroom. The officers stated that Judge Aubrey Rimes had ordered them to eject Mr. Singh from the courtroom because he did not like Mr. Singh’s turban. Moreover, they told Mr. Singh that Judge Rimes would punish him if he failed to remove his headdress.

The judge subsequently allegedly told Singh’s attorney that Singh needed to remove the “rag” from his head.  Again, according to the ACLU,

“Portrait of a Man,” 1730

The Pike County Board of Supervisors recently recognized that Judge Rimes’s harassment of Mr. Singh was unacceptable. In response to an investigation by the U.S. Department of Justice (DOJ), the Board revised the County’s harassment and non-discrimination policy to explain that religious discrimination includes “requiring an individual to remove a head covering or denying that individual access to a County office, building, program or activity because they are wearing a head covering, if that head covering is worn for religious reasons.”

However, the ACLU stated it plans to pursue the matter with the state judicial commission. 

The judge’s actions bring to mind the famous “transcript” The Peoples Ancient and Just Liberties Asserted, In the Tryal of William Penn and William Mead at the Old Bailey, 22 Charles II 1670, written by themselves.  As discussed in Dressing Constitutionally, Penn and Mead – – – both Quakers – – – honored their religious beliefs and refused to remove their hats and provide the so-called “hat honor” when in an English court and were adjudged in contempt.

The alleged actions of both the law enforcement officers and the judge clearly violate Singh’s First Amendment free exercise of religion rights.  Like the alleged removal of girls’ headscarves by Bronx police officers earlier this month, there is little question of constitutional violations by government actors is the facts prove true.

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The specter of a person testifying with her face obscured by a religious covering has reached a lower court in the UK, with Judge Peter Murphy rendering his 36 page opinion in Queen v. D (R). 

Photo of “D” from BBC

On this side of the Atlantic, the Supreme Court of Canada ruled earlier this year in R. v. N.S. that the decision whether or not to allow the witness to wear her niqab was one that should largely be left to the trial judge, weighing various factors that supply guidance.  Importantly (especially for dissenting Justice Abella), N.S. involved a sexual assault prosecution by the young woman wearing the niqab in which the defendants were members of her own family.   Although Judge Murphy relies upon N.S., he also distinguishes it. 

In the U.K. case, D is the defendant, on trial for “a single count of witness intimidation,” and there is no issue of identification.  Judge Murphy makes clear that his judgment focuses upon D’s role as a defendant in a Crown prosecution.  He acknowledges that D possesses religious rights:

The defendant has the qualified right to manifest her religion or belief pursuant to art. 9 of the European Convention on Human Rights (‘the Convention’). By virtue of the Human Rights Act 1998, that right is cognisable as a matter of domestic law in the Crown Court. By virtue of s.6(1) and (3) of that Act, the Court is a public authority and may not act in a way incompatible with a Convention right. At the same time, the Court may be entitled to place restrictions on a qualified Convention right, such as that under art. 9.

The judge accorded sincerity to D’s belief, but did devote some discussion on whether or not the belief was mandated, and he also discusses the “positive benefits” of the niqab and views it as consistent with participation in a democratic society.  As to D’s defendant status, the judge opined that fairness as to her was not the only – – – or perhaps even primary – – – consideration: the victims, the members of the jury, and public at large are also important.

But like the Supreme Court of Canada suggested in N.S. for the trial judge on remand, essentially Judge Murphy balances the equities.  For Judge Murphy,  D has choices: how to dress and whether to give evidence. Indeed, Murphy considers dress untethered to religion.  In paragraph 73 he writes:

It is rare for the defendant’s manner of dress to be an issue in the conduct of judicial business. Today, the Courts are rightly tolerant of informality or diversity of dress on the part of defendants, witnesses, and jurors. But a defendant’s dress may become an issue. For example, the defendant’s choice of dress may invoke the rules of bad character evidence if, unless corrected, it would give the jury a false impression, for example if the defendant appears at court wearing a clerical collar or military uniform: see Criminal Justice Act 2003, s.101(1)(f). If a defendant were to appear wearing a t-shirt with an obscene, racist, or offensive logo, it cannot be doubted that the Court would be entitled to take steps to protect the dignity of the proceedings. And it the defendant’s dress interferes to an unacceptable degree with the Court’s ability to conduct a trial which is fair to all parties, the Court may similarly have to take action to ensure that the trial can proceed in the manner prescribed by law, and is fair to all parties.

Given the “choice” as to dress, the other choice regarding the giving of evidence (testimony) constitutes the other side of Judge Murphy’s equation.  He rules that should she chose to give evidence, then she must not be wearing the niqab, although she “may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean of a live TV link.”  The judge further ordered that there be no sketching or drawing of D (filming is already prohibited).

For those in the US, it is only a matter of time before this issue will be presented before courts as squarely as in the UK’s Queen v. D and Canada’s R. v. N.S.   To date, there have been several courts that have considered the issue of a veiled witness, including a small claims judge resulting in a reconsideration of the evidentiary rules as is discussed in Chapter 6 of Dressing Constitutionally.  If American jurists look to their colleagues outside The States, these are both important and well-reasoned decisions, even if one disagrees with their conclusions.  More about the case is on Constitutional Law Professors Blog here.

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As Canada’s Globe and Mail reports, “Quebec’s minority government has laid out a plan to crack down on religious accommodation in the province.”  The  article by Les Perreaux and Ingrid Peritz continues that the ban “forbids public servants, with some exceptions, from wearing the Sikh turban, the Muslim hijab, the Jewish kippa or a large Christian crucifix.”

While not yet law, the  article includes an image released by the Quebec government with “dos and don’ts”:

The Quebec Government site with images is here.

Again, the policy is in the proposal stage.   The overall notion seems to be that ostentatious religious symbols are disallowed while un-ostentatious religious symbols are allowed.  Of course, the value judgment of “ostentatious” depends upon cultural conditions and “norms” (as I further argue in Dressing Constitutionally).

Moreover, the problem of measuring even seemingly objective qualities such as size is a fraught one.   The reporters quote the head of a teachers’ union as stating:

The rules about religious attire will impose a burden on school principals. He said they evoke the days when principals went around measuring the length of students’ skirts to ensure they met school rules.

“They will have to make sure: Are these earrings too big? Is that ring too big? This is wasted energy.”

(H/T Sonia Lawrence)