ACLU, other organizations oppose new rule on courtroom dress

The Michigan Civil Rights Commission is not alone in opposing a new rule proposed by the Michigan Supreme Court that would allow judges to force Muslim women to remove their hijab when testifying in court. The ACLU of Michigan has joined with many other organizations and individuals to file a statement (PDF) with the court in opposition to that new rule as well. In a press release, the ACLU said:

The American Civil Liberties Union of Michigan, with the support of a diverse group of religious, ethnic and domestic violence organizations, submitted a comment today to the Michigan Supreme Court asking the court to change a proposed court rule that would effectively close the courthouse doors to Muslim women who wear a niqab, a veil which covers the lower part of the face.

“Judges should not deny anyone access to justice because of his or her religion,” said Michael J. Steinberg, ACLU of Michigan legal director. “Under the proposed rule, women who were sexually assaulted could not have their day in court without abandoning their religious beliefs. We have come too far as a country to now shut the courtroom doors on women because of their religious clothing.”

The rule of evidence was proposed in response to a lawsuit challenging a Hamtramck District Court Judge’s decision to dismiss a small claims dispute after the plaintiff refused to remove her niqab. The rule authorizes judges to “control the appearance” of parties and witnesses and is intended to permit judges to bar Muslim women who wear a niqab from participating in the court proceedings unless they choose to abandon their religious beliefs.

In its comment, the ACLU and other groups warn that the court rule threatens to unconstitutionally deny individuals their fundamental right of access to the courts based on their religious beliefs. The groups ask the Supreme Court to add a sentence to the rule ensuring “that no person shall be precluded from testifying on the basis of clothing worn because of a sincerely held religious belief. “

The statement, written much like a legal brief, argues that such a rule is unnecessary and a violation of religious liberty. In a separate document, the ACLU argues against the notion that visual observations of someone’s face aids in evaluating their credibility or truthfulness.

There are many instances in which such visual observations are impossible or even misleading, they argue, including “when the judge is blind, when witnesses with disabilities do not have control of their facial movements and when the former testimony of an unavailable witness is simply read to the jury by a third person.”

They also cite studies that conclude that jurors and judges “are generally better able to determine the credibility of a witness by only listening to their testimony as opposed to watching the witness and listening to their testimony.” Relying on non-verbal clues to assess credibility, they argue, can often introduce subjective elements and be misleading rather than illuminating.

The coalition that signed on to the statement is large and diverse. It includes groups like the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and individuals like Doug Laycock of U of M law school, one of the foremost experts on church/state law in the country.