Michigan Muslim woman loses court case over wearing hijab

A federal judge, citing an unwillingness to create friction between state and federal courts, has dismissed a lawsuit filed by a Muslim woman from Michigan over a small claims court judge’s insistence that she remove her hijab before testifying.

Ginnah Muhammad is an African-American Muslim woman whose religion requires her to wear a hijab — a veil that covers her entire face other than her eyes — whenever she is in public or in the presence of men. In the summer of 2006, she had a dispute with a rental car company that resulted in the filing of a small claims court case in Hamtramck, Mich. Small Claims Judge Paul Paruk insisted that she remove her hijab before he would allow her to testify, saying:

“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 [the veil] 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.”

Muhammad replied:

“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.”

Paruk said there was no female judge available, as he is the only judge presiding over that court, and he said that her refusal to remove her veil was not a “religious thing” but a “cultural thing.” Because she would not remove her veil, he dismissed her case. Muhammad subsequently filed a federal lawsuit claiming that Paruk’s actions violated her First Amendment right to free exercise of religion and her civil right to access to the courts.

Continued -Paruk’s response was to claim under several different legal doctrines that he had immunity from such suits and that the federal court had no jurisdiction to hear the case. The federal district court judge who heard the case, John Feikens, rejected all of those arguments. Nonetheless, Feikens dismissed the case, saying that while he could hear the case if he wanted to, a federal law called the Declaratory Judgment Act gives him the discretion not to do so if he finds that hearing the case would “increase the friction between our federal and state courts and improperly encroach on state jurisdiction.”

Doug Laycock, a scholar specializing in religious liberty issues at the University of Michigan Law School, told the Michigan Messenger that Muhammad “plainly was in the wrong court and should have set up an appeal through the state courts,” noting that “her strongest claim is under the Michigan Free Exercise Clause, which has been interpreted along Sherbert-Yoder lines.”

Here he refers to Sherbert v. Verner and Yoder v. Wisconsin, U.S. Supreme Court cases that required giving religious exemptions from generally applicable laws unless the state can show a “compelling interest” that would be threatened by such an exemption. Federal courts can apply that standard to federal laws but not to state laws, but Michigan courts have applied the same standard to state laws here as well. Thus, Laycock said, she stood a better chance of winning in state court than in federal court.

However, Laycock said even though her case would be stronger in state court, he believes most judges would rule against her anyway:

What the (federal) judge did sounds entirely reasonable. It is based on tons of law that the trial judge or jury is the finder of fact because they saw the witnesses live and saw their demeanor. But every psychological study shows that demeanor evidence is generally useless and that fact finders can’t tell who is telling the truth and who is lying just by looking at them. So any serious application of the compelling interest test would result in a win for Muhammad. But if a judge said that, what would he say in the next case when demeanor evidence was at issue on an argument about credibility? My guess is that most judges would adhere to the traditional fiction about demeanor evidence, because recognizing the truth would threaten to unravel too many things. So they would find a compelling interest in accurate fact finding, and she would lose even if they reached the merits.

In other words, he thinks most judges would prefer the agreed-upon fiction that they can tell who is telling the truth merely by looking at them over the reality that they do not possess such powers. He said perhaps judges feel that there’s a compelling interest “in the appearance of equal justice.” Those who go before a court, however, would almost certainly prefer the reality of equal justice over its mere appearance.

Note: the court ruling refers to what the plaintiff wore as a hijab, but hijabs do not generally cover the whole face as described in the article. The correct term would be niqab, which covers the whole face except for the eyes.