Last week the Canadian Supreme Court heard a case that pits two rights against one another—the right to confront witnesses and the freedom of religion. The circumstances are just as likely to appear in a U.S. courtroom as a Canadian one. And the issue may trouble the justices here as much as it does in Canada. How do you balance the right to a fair trial (specifically the right to confront a witness) with a religious proscription that requires the covering of one’s face? In the instant case, the witness wears a niqab, or mask, that covers the face. The defense counsel is arguing that the wearing of the religious garment is preventing a fair trial for his client.
In the United States, the Supreme Court has been fairly strict on the interpretation of the confrontation clause as it relates to a fair trial. In Coy v. Iowa 486 U.S. 1012 (1988), the Court determined that a witness cannot be placed behind a screen to avoid the emotional stress of testifying. In Coy, the state was protecting a child from undue or additional emotional stress; the defendant was charged with two counts of lascivious acts with a child. Using a literal approach, Justice Scalia along with Brennan, Marshall, O’Connor, Stevens, and White, found that despite the state’s interest of the ‘presumption of trauma’, the defendant has a right to a face-to-face confrontation and the screen impeded that right.
Two years later, the Court seemed to soften its view on this issue, again dealing with a state’s attempt to protect a witness in a child abuse and sex case. In Maryland v. Craig 497 US 836 (1990), a bare majority of justices allowed Maryland to substitute a closed circuit TV transmission for face-to-face testimony. The jury, the judge, and the defendant would all see the transmission together and the defense would have the ability to cross-examie. For Justices O’Connor, Blackmun, Kennedy, Rehnquist, and White, this modification was sufficient to provide for the right and in her opinion, Justice O’Connor broadened the definition of “confront” from simple face-to-face accusation to include oaths, cross-examinations, and observation of the demeanor of the witness. Thus the Court allowed Maryland this deviation because “[w]e find it significant, however, that Maryland’s procedure preserves all of the other elements of the confrontation right.”
In the case before the Canadian Supreme Court, closed circuit viewing of testimony is not an option. The witness’s face will be covered by her niqab on video or in person. There is no way, save forcing her to remove her veil, to provide the defendant and the jury with the ability to see her face and her expression while she provides testimony. In the prior cases, the Supreme Court was balancing a state’s interest in protecting child witnesses against a fundamental right. Clearly, the Court found the state’s interest to be important; however, the states were not given a lot of discretion in creating alternatives to the right to confront. The right to free exercise of religion is also a fundamental right—one that the Court has held up against strong state interests in cases like Sherbert v. Verner 374 US 398 (1963) and Thomas v. Review Board of Indiana Employment Security Division 450 US 707 (1981). However, the guarantee of a fair trial is certainly more compelling than a desire to stop fraudulent unemployment claims.
Two questions arise from considering this situation in the US context. First, would the Court use the Sherbert line of cases to find that this right to exercise is a fundamental right and employ strict scrutiny or would this case be more similar to Employment Division v. Smith 494 US 872 (1990) with the Court applying the belief versus action doctrine? And, even if strict scrutiny is employed, which right wins this balancing contest?
 Scalia, penultimate paragraph of the Epstein and Walker excerpt. See note 1
 Page 106 of the Civil Liberties text.
 Recall that in Church of the Lukumi Babalu Aye v. City of Hialeah 508 US 520 (1993) the Court found that if a law targets a religion, then strict scrutiny will still be employed. http://college.cqpress.com/sites/clca/cases/church.aspx?site=rights