CommentaryChristina Abraham [Civil Rights Director, Council on American-Islamic Relations (CAIR) – Illinois]: "The newly adopted amendment to Rule 611 of the Michigan Rules of Evidence (MRE 611) is constitutionally questionable. The portion at issue reads:
The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.
The controversy began after a Michigan judge dismissed a woman's case when she refused to remove her face-veil (niqab), which she said she wore pursuant to her religious beliefs. In response to the dismissal, the woman filed a federal complaint against the judge seeking a declaratory judgment. The federal court refused to exercise jurisdiction over the woman's case, finding that deciding the case would undoubtedly "increase friction in the relationship between our state and federal courts." See Mohammad v. Paruk, 553 F. Supp. 2d 893, 900 (E.D. Mich. 2008). The amendment to MRE 611 was proposed shortly thereafter, and as a direct response to the incident.
The rule raises questions of constitutional validity because, although neutrally worded, its intent was to allow the court to control the religious dress of Muslim women, and is therefore discriminatory. Moreover, the rule is not the least-restrictive means of ensuring that the trier of fact can make credibility determinations or accurately identify witnesses. Further, the rule will likely result in the marginalization of Muslim women, as they will be denied meaningful and fair access to the courts unless they choose to compromise their sincerely-held religious beliefs – a decision no one should have to make.
It is well established that religious freedom is not an absolute right, but nonetheless one of the most important rights enshrined in the Constitution. If the government seeks to curtail such a right in any way, the courts typically subject it to a strict scrutiny standard. This means that the government has the burden of proving that its measures are the least restrictive means to attain a compelling government interest. Under the Michigan Constitution, the government cannot substantially burden a person's religious practice unless the provision can pass the strict scrutiny test. See McCready v. Hoffius, 459 Mich. 131, 143-44 (1998). The Supreme Court has also upheld this standard, although holding in one case that this does not relieve an individual of the obligation to comply with valid and neutral laws of general applicability. Employment Division v. Smith, 494 U.S. 872, 878-79 (1990). It is important to note, however, that the Michigan courts have not chosen to apply this Supreme Court nuance in interpreting the rule.
In any case, it is highly arguable that the new amendment to MRE 611 is neutral. The Michigan Supreme Court itself acknowledged that the proposal came about in response to a case in which a state judge was sued for dismissing a woman's case after she had refused to remove her "hijab" (it was, in fact, a niqab that the woman refused to remove) for religious purposes. See Proposed Amendment of Rule 611 of the Michigan Rules of Evidence, ADM File No. 2007-13 (proposed December 9, 2008). Thus, it is clear that the impetus of the proposal was a desire to permit state judges to require the removal of religious clothing, and particularly those of Muslim women.
The question then remains, is this amendment necessary to achieve a compelling government interest? There is no question that the government has a compelling interest in being able to assess the credibility of witnesses. This is one of the most important functions of the trier of fact. However, there is an abundance of evidence that supports the argument that this particular amendment is not necessary because there are other, less restrictive, means to maintaining the trier's ability to assess witness credibility. In fact, empirical studies have shown that being able to see the face of the testifying witness does not help credibility determinations, and may even hurt them at times. These studies indicate that triers are better able to tell if a witness is lying by focusing on language and voice inflection, rather than on facial expressions.
The other issue raised by the proposal is the court's ability to identify the witness. The niqab covers a woman's face, making it difficult to identify her unless she removes it. Muslim women who practice wearing the niqab are able to remove the veil in the presence of other women. Allowing a woman to be identified in private by a female officer of the court would be a sufficient accommodation. Thus, the proposal is not the least-restrictive means to achieving this interest. In fact, in many cases witness identification has been modified to accommodate national security interests (often for foreign countries such as Israel), protection of witnesses, and other various reasons. Accordingly, providing for accommodation for religious purposes as well is not such an unbearable burden for the court.
The real issue at hand is not whether accommodation is possible – it is possible – the issue is whether the Michigan Supreme Court wants to grant an accommodation for Muslim women wearing niqab. But not accommodating Muslim women will likely result in their disenfranchisement, as they will be more hesitant to bring their legal issues to court. Controversy over Muslim women's dress is a global issue affecting not just the United States, but nations across Europe and the Middle East. Many, including some Muslims, find the practice of wearing niqab unnecessary, unreasonable or even offensive. But this is all beside the point. The point, as the founding fathers made abundantly clear, is that it is not the job of the government to dictate to individuals what and how to believe. My reservations about the niqab do not give me the right to impose my beliefs upon another, at least not through government.
Moreover, marginalizing Muslim women on the basis of their dress will not result in their adoption of mainstream practices. Rather, it will prevent them from having access to fundamental components of society – components they have a right to, and that they pay taxes to fund and support – such as the justice system. This has already been the ironic result of nations that have banned the hijab and niqab in public forums. In their misguided attempt to "liberate" Muslim women by forbidding them to dress according to their religious beliefs, they have further marginalized Muslim women by forcing them to choose between their religious beliefs and their desire to contribute as functioning members of society. In the United States, the courts have long recognized that the two are not mutually exclusive, and that nobody should have to make such a decision unless there really is no other alternative available. For Michigan courts, it appears there are other alternatives; they merely chose to overlook them by adopting this amendment."
