Volokh has obtained the transcript from a hearing in which a small claims judge gave a Muslim woman two choices- testify without her veil, or have her case dismissed. I previously wrote about this in October.
THE COURT: You need to stand over there. Ms. Muhammad, did my court officer talk with you about taking your veil off?
[MUHAMMAD]: Yes, sir.
THE COURT: Okay, and what is your suggestion or what are your thoughts on that?
[MUHAMMAD]: I said, "No, I can't."
THE COURT: Well, let me explain to you why I think you have to do it and then you tell me why you don't have to do it and then we'll try and make a decision as to how to proceed.
[MUHAMMAD]: Yes, sir.
THE COURT: 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 that 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, okay, so you tell me why is it that you don't want to take your veil off.
[MUHAMMAD]: Well, first of all, 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.
THE COURT: Okay. Well, no, I don't have a female judge. I'm the Judge that's here, okay, and second of all and I mean no disrespect to your religion, but wearing a veil I don't think is a religious thing -
[MUHAMMAD]: Well, that's your preference, sir.
THE COURT: — I think it's a custom thing and –
[MUHAMMAD]: That's your preference.
THE COURT: First of all, hold on. Hold on. It's not my preference. I have no clue about any of this information, okay --
[MUHAMMAD]: That's what I'm saying.
THE COURT: — but this has come up in my courtroom before, and in my courtroom before I have asked practicing Muslims and the practicing Muslims have told me that, "No, Judge, what I wear on top of my head is a religious thing and what I wear across my face is a non-religious thing. It's a custom thing."
[MUHAMMAD]: Well, that's not correct.
THE COURT: Well, this is what they have told me and so that's the way that I am running my courtroom and that's how I have to proceed.
[MUHAMMAD]: And I respect you, Your Honor, and --
THE COURT: Fantastic.
[MUHAMMAD]: — I would like to ask for a change of venue.
THE COURT: Well, you can't have a change of venue. You're the one who decided to file the lawsuit, okay --
[MUHAMMAD]: Yes, sir.
THE COURT: — and so that's where we are today. So you have a couple of options today as far as I am concerned. You can either take it off and you can give me the testimony and after the hearing is all done and over with and if you want to put it back on, I don't have any problems with that but if, in fact, you do not wish to do it, then I cannot go forward with your case and I have to dismiss your case.
[MUHAMMAD]: Thank you, sir. You have a great day.
THE COURT: Okay. Well, first of all tell me what you wish to do.
[MUHAMMAD]: I wish to respect my religion and so I will not take off my clothes.
THE COURT: Well, it's not taking off your clothes. All I am trying to do is ask you to take off the part that's covering your face so I can see your face and I can hear you and listen to you when you testify, and then you can put the veil back on. That's all I am asking to do, ma'am.
[MUHAMMAD]: Well, Your Honor, with all due respect, this is part of my clothes, so I can't remove my clothing when I'm in court.
THE COURT: Okay.
[MUHAMMAD]: Thank you.
THE COURT: You're welcome, ma'am.
Okay. Enterprise, case is dismissed.
After reading the transcript, it seems like the Judge was fair and respectful, and as I noted before one's facial mannerisms are vitally important to one's credibility. This is why poker players hide behind sunglasses.
However, I am concerned about the propriety of a Judge deciding what is religious and what is customary. What constitutes religious adherence is, at a certain level, a matter best left to the adherent. Is self-flagellation sacrament or custom? The answer, I would argue, is that it depends on whom you ask.
Courts should not be in the business of deciding what constitutes a genuine religious belief, or whether those beliefs are sincerely held- simply not their bailiwick. I don't know anything at all about the case, and it is hardly a matter of vital importance, but I hope she gets her day in Court.