Tag Archives: free exercise

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 (https://clcablog.wordpress.com/2011/12/15/battle-of-the-amendments-sixth-versus-first/).  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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Filed under Attorneys, Trials, and Punishments, Discrimination, Religion

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] http://www.statepress.com/2012/03/12/senate -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. (http://reproductiverights.org/en/project/contraceptive-equity-laws-in-the-states 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 http://jezebel.com/5893011/law-will-allow-employers-to-fire-women-for-using-whore-pills 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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Filed under Discrimination, Economic Substantive Due Process, Federalism, Religion, The Right to Privacy