Category Archives: Religion

Rights ch 4, Short Course ch 12

Science and the 6th Amendment

As reported by the Ottawa Citizen, a trial judge, applying a Canadian Supreme Court ruling, ordered a devout Muslim woman to testify in court without her niqab.[1]  She is testifying against men she accuses of sexual abuse while she was a minor.  Her religion dictates that she wears her niqab when facing men who are not relatives.  Below is a graphic from the BBC illustrating two types of Muslim face coverings.[2]


 niqab Conservative choice

The niqab is a veil for the face that leaves the area around the eyes clear. However, it may be worn with a separate eye veil. It is worn with an accompanying headscarf.

The burka is the most concealing of all Islamic veils. It covers the entire face and body, leaving just a mesh screen to see through.

There have been attempts to ban both the niqab and burka in some European countries.



This trial clearly pits the right to confront witnesses and the right to a fair trial against the free exercise of religion.  In Canada, the Supreme Court determined that this issue must be addressed on a case-by-case basis:


“A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained.  Always permitting a witness to wear the niqab would offer no protection for the accused’s fair trial interest and the state’s interest in maintaining public confidence in the administration of justice.  However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable.  The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.”[3]


Essentially, the Canadian Supreme Court set out a four-prong test for lower court judges to use when determining if the niqab interferes with the trial.  As summarized by the CBC, the prongs are:

  • Does she have a sincere belief in her religion?
  • Does wearing a veil create a serious risk to trial fairness?
  • Is there any other way to accommodate her?
  • If no, does what the court called the “salutary” effects of ordering her to remove her niqab outweigh the “deleterious” effects of doing that?[4]

The trial judge applied the test in the remanded case and found in favor of the rights of the accused.  Normally, in Canada or the U.S. this would be the end of the issue and either N.S. would testify without her niqab or the trial would not move forward.  But her lawyer is trying another tactic and using recent scientific evidence calling into question the ability of individuals to discern anything reliably from facial expressions.  This argument is similar to the argument regarding eyewitness testimony and line-ups.[5]  Simply put, humans are not good at remembering facts and faces, we are influenced by context, and we are poor judges of truth despite what we see on “The Mentalist”.[6]

Does this evidence tip the balance?  Would jurors be better judges of truth without seeing facial expressions or posture during testimony?  Are these scientific findings enough to say that due process if fulfilled even if a witness wears a niqab or burka?  And how does this balance with the right to confront accusers? In 1985, the U.S. Supreme Court said:

This Court’s Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination…

The second category of cases is exemplified by Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), in which, although some cross-examination of a prosecution witness was allowed, the trial court did not permit defense counsel to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” As the Court stated in Davis, supra, at 315, 94 S.Ct., at 1110, “confrontation means more than being allowed to confront the witness physically.” Consequently, in Davis, as in other cases involving trial court restrictions on the scope of cross-examination, the Court has recognized that Confrontation Clause questions will arise because such restrictions may “effectively . . . emasculate the right of cross-examination itself.” Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).[7]

Yet, this opinion does not address N.S.’s new argument.  What if the fallibility or emasculation lies with the jurors?  If jurors gain nothing from observing the witness or, perhaps worse make erroneous or unreliable conclusions based upon observing the witness, where does that leave the right to confront?  If evidence continues to mount—creating a nearly irrefutable Brandeis brief—free exercise would likely trump the right to confront.  But in the end, this same analysis would call into question the rationale for including that latter right in the Bill of Rights.

We have seen the Court reinterpret or alter the interpretation of these amendments over the course of our history, but we have not yet dealt with the increase of knowledge undermining the very rationale for an amendment.  In such a situation, what should the Court do?  Stick to avowed legal approaches and continue to interpret this clause fairly literally?  Or can they use founders intent and suggest that the amendment does not do what the founders intended—indeed it may undermine that intent—so we move away from a strict reading of the clause?  Its an interesting conundrum, especially for justices like Scalia who aver originalism.


[1] We wrote about the oral argument in this case back in 2011 (  Here we discussed if the Supreme Court, when it faces this issues because its bound to come up in the U.S., would use the Sherbert or the Employment Division v. Smith test.

[7] Delaware v. Fensterer (474 US 15).


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Religion, privacy, and locator chips: Extralegal factors and decision-making

National Public Radio reported on a new federal lawsuit out of Texas on Monday, December 17, 2012.[1]  On the 17th, a federal judge will hear a case dealing with an experimental program that places locator chips into student IDs.  The motivation for the school is monetary.  Attendance equals dollars and the chips provide more accurate counts of how many students are on school grounds.  For money strapped school districts, this is a way to squeeze a few more dollars out of the federal government.  The school district in Texas estimates gaining 1.7 million dollars out of a program that cost between 260,000 to 500,000, according to the two NPR stories.

However, some students and parents are challenging the use of the locator chip.  One argument is that it violates the freedom of religion.  One evangelical student believes that the chip is analogous to the ‘mark of the beast’ discussed in Revelations.  The chip program is to this family of evangelicals the same as the flag salute or school prayer is to Jehovah’s Witnesses or a school prayer was to Engel (see Minersville v. Gobitas (1940); West Virginia State Board of Education v. Barnette (1943); Engel v. Vitale (1962)).  Other parents and students challenge the chip program as a violation of the right to privacy.

A classroom discussion of this case last week would probably be a good case to discuss the intent of the first amendment and the balancing approach that the courts tend to use when dealing with schools and their role as parens patriae.  The school claims that the chips will be used for attendance and not monitoring students whereabouts on a constant basis.  However, the motivation for the program is monetary and that definitely ranks below the preferred freedoms.

However, while the motivation may have been monetary, in the wake of the tragedy in Newtown, CT, the school district may have a more compelling rationale for keeping the chips—the ability to locate each and every student during a crisis and after a crisis.  Even if the attorneys for the school district did not prepare to argue the safety interest, the facts of the case surely will bring these events to mind and solidify the school district’s interest when balanced against the other fundamental rights.  The safety interest, even more so than a policy to protect students from drugs and the drug culture (Morse v. Frederick (2007), again would be hard to ignore.  This case may, in the end, be an excellent example of extra-judicial factors beyond personal preferences influencing judicial decision-making.


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Is this more than “In God We Trust”?

The Courier-Journal in Kentucky reports on an establishment clause appeal denied by the Kentucky Supreme Court.[1]   Americans for Atheists are taking their chances and appealing the High Court, and this case may have legs.

The justices, back in 2004, elided the constitutionality of the pledge in a case out of the Court of Appeals for the Ninth Circuit (Elk Grove Unified School District et al. v. Newdow, et al. 542 US 1) opting instead to rule that Newdow did not have standing to bring suit.  In 2010, the Ninth Circuit joined many of its brethren in supporting the pledge of allegiance as a patriotic ritual, not a forced prayer.  On the same day, the Ninth Circuit also denied that printing “In God We Trust” on US currency violates the establishment clause.  “Not every mention of God or religion by our government or at the government’s direction is a violation of the Establishment Clause,” wrote Judge Bea.[2]

From these cases, it seems that general and long-standing references to God are allowable even if required by the state.  The case in Kentucky takes this precedent farther.  In the establishing legislation for Kentucky’s Office of Homeland Security (KRS 39G.101(2)(a)), “requires the executive director of the KOSH to:

Publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth.”

The section further instructs that the “training and educational materials” include the legislative findings that state:

The General Assembly hereby finds that:

  1. No government by itself can guarantee perfect security from acts of war or terrorism.
  2. The security and well-being of the public depend not just on government, but rest in large measure upon individual citizens of the Commonwealth and their level of understanding, preparation, and vigilance.
  3. The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth in the public speeches and proclamations of American Presidents, including Abraham Lincoln’s historic March 30, 1863, Presidential Proclamation urging Americans to pray and fast during one of the most dangerous hours in American history, and the text of President John F. Kennedy’s November 22, 1963, national security speech which concluded: “For as was written long ago: ‘Except the Lord keep the city, the watchman waketh but in vain.’”[3]

Additionally, a plaque “prominently displaying” these legislative findings would appear on the entrance of the Emergency Operations Center in Kentucky.

In reversing the lower court, the Court of Appeals of Kentucky likened the legislative findings to a case from the Court of Appeals for the 6th Circuit involving the Ohio state motto (“With God, All Things Are Possible).[4]  Quoting the 6th Circuit that said this motto was merely “lip service to the puissance of God”; there was no coercion.

But is this case truly the same as a motto on a dollar bill or at a state capital?  Is it similar to the pledge?  Or, does this insertion of language into the training and educational materials for a state agency cross the often blurry line between acknowledging the role the Christian God has played in our governmental history and purposely imposing that God on state employees?  Does this go further than the display of the Ten Commandments in Van Orden v. Perry (545 US 677 2005)[5]?  Perhaps the General Assembly’s findings are simply the legislative equivalent of dicta.  And perhaps the plaque itself memorializing those findings for all who enter the government building does not more than “pay lip service” without coercing.  Or, as the Kentucky Court of Appeals argued, it merely “makes reference to historic instances where American leaders have prayed for Divine protection in trying times.”[6]

Perhaps not.  The legislation does more than memorialize or pay tribute to historic references to Divine power.  It requires that all educational and training materials make use of these references.  For state employees, this is tantamount to indoctrination.  To work here, the success of your work is directly linked with a belief in God.  The capitalization of God versus noting the assistance of the divine strongly suggests that a Hindu employee should not invoke Shiva, Vishnu, or Brahma for grace.  The Lemon test is problematic and the Court has been deferential to state displays in various forms, but requiring the inclusion of fealty to God (or any god for that matter) pushes the limits of the establishment clause too far.

[3] Kentucky Office of Homeland Security; and Thomas Preston, in his official capacity as the Director of the Kentucky Office of Homeland Security v. Michael G. Christenson, et al.  No. 2009-CA-001650-MR 2012 page 3

[4] 243 F.3d 289 (2001)

[5] Page 186 CLCA-Rights, Liberties, and Justice 8th edition.

[6] Supra n. 3 page 9

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New Arizona bill allows employers to deny contraceptive coverage based on moral objections

The State Press[1] reported (March 13, 2012) on Arizona House Bill #2652.  Majority Whip Debbie Lesko (R) introduced this bill that grants employers the power to deny health care coverage for contraception based upon the employer’s religious beliefs.  This bill, passed out of the Arizona Senate Judiciary Committee 6-2, is a clear reaction to the federal controversy over requiring employers to provide health insurance coverage for birth control.  In the case of the federal legislation, after Catholic bishops expressed outrage, the Obama Administration offered a compromise that allows institutions, such as charities or hospitals, that are run by the Catholic Church to opt out; insurance companies themselves would still cover contraception.[2]   The bishops are not satisfied with the compromise and are pushing for a broader exemption to include all businesses owned by Catholics.[3]  House Bill #2652 essentially implements this religious exemption to the contraceptive mandate included in the Affordable Care Act at the state level.

The Arizona bill, if passed, broadens that state’s 2002 Contraceptive Equity Law.[4]  Supporters of the measure frame this bill as protecting religious freedoms, arguing that employers should not have to violate their religious beliefs in order to run a business.[5]   This argument clearly places free exercise of religion on one side of a scale in terms of judicial balancing.  However, what do we place on the other side of the scale?  Would this law violate the equal protection clause?  The only employees subject to this restriction and required to share their medical records, information that potentially places them at risk for dismissal for their personal sexual behavior, are women.  It is a state law that provides employers with a reason to deny coverage and demand ‘a doctor’s note’; is this state action?  The situation is somewhat reminiscent of Shelley v. Kraemer (1948).  In Shelley, the Court determined that restrictive housing covenants were unconstitutional under the equal protection clause; the contracts were private, but the enforcement mechanism was the state judicial system.  This connection provided a basis for sufficient state action to bring the private contracts within the reach of the equal protection clause. Likewise, without the support of the state law, employers would not be able to demand medical records for all female employees seeking coverage for their contraceptives.   So, perhaps the equal protection clause can be balanced against the free exercise clause.[6]

Given that the law allows employers to ask for proof of non-reproductive use for insurance coverage of contraceptives, is there also a right to privacy claim vying against the free exercise claim?  Does one person’s religious objections outweigh medical privacy?  This aspect of the right to privacy is one of the least controversial.  You have a right to refuse medical treatment and, under the Health Insurance Portability and Accountability Act (2003),  you have a right to preserve the privacy of your medical records.  The only people with access are ones that you approve.  Under this state law, women would have to provide access to their employers, whether they wanted to or not, if they want coverage for non-reproductive birth control.[7]

My final thoughts about this proposed law and its implication for women’s rights is whether the right to free exercise or prohibition against the establishment of religion rests on the other side of the scale.  Lesko stated that, “We don’t live in the Soviet  Union…So government should not be telling organizations or mom and pop employers to do something against their moral beliefs.”  But under the proposed Arizona law, employers may gain access to their female employees’ private medical records to determine if their health insurance claims include the cost of contraceptives.  This knowledge might well have consequences for the employee, if the employer does not approve of the implications of such information.  In these cases, does the employee have similar rights?  Or does an employee, in order to have the benefit of income and insurance, have to live by the moral standards of their employer?  How far does that standard extend?  Dress codes, drug testing, and general professionalism are all deemed acceptable infringements on rights in most contexts, but can an employer demand that her workers attend church or a specific church?  Fire or refuse to hire divorced individuals?   Is the state, by empowering the moral or religious beliefs of the employer over the employee, supporting or endorsing one religion over others?

[1] -judiciary-committee-endorses-controversial-contraceptive-bill/

[4] This law provides a limited exception to contraceptive coverage for religious employers that employ or service like-minded individuals or non-profits.  Prescriptions for contraceptives for treatment of diagnosed conditions (i.e. endometriosis) cannot be curtailed. ( accessed on March 15, 2012.)

[5] Additionally, it has been suggested that since Arizona is an ‘at will’ state in terms of employment, women could be fired for seeking contraception unless it’s for a medicinal purposes. (see accessed in March 15, 2012.)

[6] There is also the issue that only employees with employers posing religious objections would be subject to the additional scrutiny.

[7] Of course, this leads to an additional question of federal pre-emption.  Has the federal government left any room for state authority given the breadth and scope of both HIPAA and the ACA?  This question cannot be fully addressed until after the Court decides if the ACA and/or the individual mandate are constitutional.

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Battle of the Amendments: Sixth versus First

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)[1], 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’[2], 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.”[3]

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)[4] and Thomas v. Review Board of Indiana Employment Security Division 450 US 707 (1981).[5]  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)[6] with the Court applying the belief versus action doctrine?  And, even if strict scrutiny is employed, which right wins this balancing contest?

[2] Scalia, penultimate paragraph of the Epstein and Walker excerpt.  See note 1

[4] Page 106 of the Civil Liberties text.

[6] 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.

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