German Top Court Upholds Hijab Ban For Legal Interns Involved In Official Proceedings

In a decision handed down last month, but not published until yesterday, Germany's Federal Constitutional Court in a 7-1 decision rejected a challenge by a legal intern to the requirement that she remove her hijab when involved in court hearings.  The full decision in German is here. In a press release, the court summarized the decision:

In an order published today, the Second Senate of the Federal Constitutional Court rejected as unfounded the constitutional complaint of a female legal trainee (Rechtsreferendarin) in the Land Hesse; the complaint was directed against the ban on wearing a headscarf when performing certain official tasks. Under constitutional law, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal trainees must be respected. While this duty amounts to an interference with the complainant’s freedom of faith and other fundamental rights, it is justified. Such an interference can be justified by the constitutional principles of the state’s religious and ideological neutrality and of the proper functioning of the justice system as well as by the negative freedom of religion of others. In the case at hand, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing religious symbols in the courtroom, or to allow her to do so.

Air Force Changes Rules To Accommodate Religious Headgear and Beards

As reported by the Air Force Times, the Air Force earlier this month (Feb. 7) amended its Dress and Personal Appearance rules to allow airmen to request a waiver to permit wearing of conservative religious apparel, (Full text of amended Air Force Instruction.) The amended rules specifically address the wearing of hijabs, beards, and turbans or under-turbans/ patkas with uncut beard and uncut hair. The Army issued similar rules in 2017. (See prior posting.) [Thanks to Scott Mange for the lead.]

Settlement Approved In Muslim Woman's Suit Over Booking Procedures

Minneapolis Star-Tribune reports that a Minnesota federal district court last month approved a $120,000  settlement of a suit brought by a Muslim woman, Aida Shyef Al-Kadi, who was  required by Ramsay County jail officials to remove her hijab after she was arrested on a traffic offense.The report goes on:

Along with the $120,000 payout, the settlement includes having the jail put specific rules in place on how to accommodate inmates with religious headwear during the booking photo process.

The county, while not required by the settlement to admit wrongdoing, further agreed to destroy all hard copies and delete any electronic versions of Al-Kadi’s booking photo. Also, the Sheriff’s Office must train its corrections officers on policies concerning inmates and the religious accommodations they require. County Board Chairman Jim McDonough called the terms “fair and in the best interests of our citizens.”

Appeals Court Refuses Temporary Injunction Against Quebec's Secularism Act

In Hak v. Attorney General of Quebec, (Quebec Ct. App., Dec. 12, 2019) (full text of opinion in French), the Quebec Court of Appeal, by a 2-1 vote, upheld a trial court's refusal to issue a temporary injunction against the enforcement of two provisions of the Secularism Act (Bill 21). The sections at issue bar teachers, as well as various other public employees and officials, from wearing religious symbols in carrying out their official duties, and prohibit various public employees from carrying out their functions with their face covered. The individual plaintiff in the case who is about to graduate as a teacher wants to wear her hijab while teaching French in an English elementary or high school.

Judge Belanger refused to grant the temporary injunction, saying in part:

What the Attorney General invokes in this case and with reason, that is the presumption that the legislation addresses the common good . At this stage of the proceedings, the Court must assume that the Act serves a valid public purpose. Unless it is clear that the law enacted is not intended to serve a public purpose, the courts must take it for granted.

It follows from this principle that the courts will not suspend legislation passed by a legislature without having made a full constitutional review. Accordingly, suspension orders are only issued in clear cases.

We must recognize that we are not in a clear case where we can say right now that the Act is unconstitutional, despite the presence of serious issues.

Judge Mainville would likewise refuse a temporary injunction, saying in part:

[W]hen, as here, questions arise about the relationship between the state and religions, on which deep differences may reasonably exist within a free and democratic society, there is a need for courts to act with caution and circumspection because of the diversity of approaches to these issues and the difficulty of forming a uniform understanding of the meaning of religion in society. The role and impact of religion in society, as well as the forms of public expression of religious belief, are not the same in different times and contexts. They vary according to changing sociological and ideological factors, national traditions and demands imposed by the protection of the rights and freedoms of others and the maintenance of public order in a given society. The conception of the religious symbolism and its place in the public space are not perceived in the same way by each society.The State Secularism Act is a striking example in Canada.

It should therefore be noted that many of the issues relating to the wearing of religious symbols by police officers, teachers, principals and judicial personnel in Quebec - including the legal issues that arise - are complex and do not lend themselves to summary analyzes on the basis of piecemeal evidence, as the appellants ask us to do in this case.....

At this stage of the judicial proceedings, a suspension of sections 6 and 8 of the State Secularity Act can not be contemplated since the Court must presume that the public interest is served by the maintenance in force of these provisions given the presumption of constitutional validity. 

Chief Justice Hesler would have granted a temporary injunction, saying in part:

To sum up, it appears at this stage that the risk of suffering irreparable harm has materialized for certain teachers, all of whom are women, who aspired to a career in teaching. The prejudice will remain for the others who, not wishing to abandon the wearing of a religious sign, will have to give up their choice of career, or even move out of Quebec....

Without prejudging the fate of the appeal, which will be heard in October 2020, it is better to uphold respect for fundamental rights during the proceedings, considering the obligation on the courts to enforce these rights, rather than to deprive people of their fundamental rights, even for a limited time. [All English translations are via Google Translate].

Montreal Gazette reports on the decision.

Suit Challenges Illinois Waiver Form To Allow Drivers License Photo With Head Covering

Suit was filed this week in an Illinois federal district court on behalf of a Muslim woman who wears a hijab challenging the disclaimer that Illinois administrative rules require to be filed in order to allow a driver's license photo to be taken wearing a head covering. The complaint (full text) in Bicksler v. Illinois Secretary of State, (ND IL, filed 8/26/2019),contends that plaintiff's free exercise rights under the 1st Amendment and Illinois' Religious Freedom Restoration Act and the Illinois Human Rights Act were violated when she was required to sign this statement:

In observation of my religious convictions, I only remove my head dressing in public when removal is necessary (such as for a medical examination or a visit to a hair dresser or barber). I do not remove the head dressing in public as a matter of courtesy or protocol (such as when entering a professional office or attending a worship service). I acknowledge that if the Director of the Driver Services Department is provided with evidence showing I do not wear a religious head dressing at all times while in public, unless circumstances require the removal of the head dressing, my driver’s license or identification card may be canceled.

CAIR Chicago issued a press release announcing the filing of the lawsuit.

Bavarian Court Upholds Ban On Judges and Prosecutors Wearing Hijab

In Germany, Bavaria's constitutional court yesterday upheld a Bavarian law banning judges and prosecutors from wearing religious symbols in the courtroom. The court said that officials administering justice have a special obligation to be neutral in religion and ideology.  The ban was challenged a Muslim group that objected to the ban's application to the wearing of Islamic head scarfs. DW reports:

The judge voiced the opinion that the ban, which also forbids officials to wear religious symbols such as crosses or a kippa — or yarmulke — during court proceedings, did not go against laws on religious freedom or equality....

The Islamic group had argued that the ban violated both laws, as the Christian symbol of the cross hangs in Bavarian courtrooms.

This argument was not accepted by the court, which maintained that the presence of crosses was a different matter, as it was determined by the court administration and cast no doubt on the neutrality of individual judges or lawyers.

The court also said the ban did not discriminate against women, as other items of clothing with religious significance that were worn by men were also forbidden.

Suit Over Forced Removal of Hijab To Enter Courthouse Is Dismissed

In Elqutt v. Regalado, (ND OK, Jan. 22, 2019), an Oklahoma federal district court dismissed without prejudice a suit by a Muslim woman who was required to remove her hijab to gain entry to the Tulsa County Courthouse. After setting off metal detectors, sheriff's deputies insisted that Suha Elqutt remove her hijab in front of male deputies. After extensive discussions, she was permitted to remove it in a nearby parking lot while crouching between parked cars with only female deputies present, though she claims men could have walked past her as well.   Dismissing her claim for damages for violation of her free exercise rights, the court held that defendants had qualified immunity because they would not have been put on notice by clearly established law that they were violating her constitutional rights. The court also denied her an injunction because she had not alleged a likelihood that she would return to the courthouse and face similar future actions.  Tulsa World reports on the decision.

Two Muslim Women To Be Sworn In As Members of Congress Today

As the Democrats take control of the House of Representatives today, they will pass a new rules package that includes a provision allowing religious headgear to be worn on the floor of the House.  As reported by ABC radio, this will overturn a nearly 200-year old ban on wearing hats on the House floor. The rule change will allow newly-elected Rep. Ilhan Omar from Minnesota, a Muslim woman, to wear her hijab. Meanwhile, CNN reports more broadly in a piece by Rafia Zakaria:

On January 3, 2019, not one but two Muslim American women will be sworn into Congress. Taking the oath on a Quran that belonged to Thomas Jefferson, Ilhan Omar and Rashida Tlaib will become the first Muslim-American women to serve in the House of Representatives.

Their swearing in will be a historic milestone for the country, but it will be so much more than that for me. A black Somali-American woman who wears a headscarf and pokes fun at Islamophobes on Twitter, Omar crushes stereotypes of what a Muslim woman in a headscarf represents. As an unveiled Muslim American woman, Rashida Tlaib -- who will wear a Palestinian gown to her swearing in -- also dismantles the myth that all "real" Muslim women wear the headscarf.

6h Circuit: Police Need Not Give Journalist Booking Photos of Woman Without Hijab

In Schlussel v. City of Dearborn Heights, (6th Cir., Nov. 19, 2018), the U.S. 6th Circuit Court of Appeals rejected arguments by a journalist that the City violated her 14th and 1st Amendment rights when it refused her Michigan Freedom of Information Act request for booking photos that were taken of a Muslim woman, Malak Kazan, that showed her without her hijab.  The City's refusal was pursuant to a privacy policy it instituted in response to a previous suit by brought Kazan after her arrest. In this case journalist Deborah Schlussel argued unequal treatment because booking photos of Kazan had been furnished to Kazan's lawyer before the privacy policy was adopted. The court rejected Schussel's equal protection, as well as her Establishment Clause, argument.

Quebec Appellate Court Allows Litigant To Wear Hijab In Courtroom

A Canadian appellate court has upheld the right of a litigant to wear a hijab in the courtroom.  In El-Alloul v. Attorney General of Quebec, (QCCA, Oct. 3, 2018), the Quebec Court of Appeals held:

[72] Contrary to what the trial judge decided, the provisions of the Regulation of the Court of Québec dealing with the dress code do not prohibit a litigant from wearing a religious head scarf (hijab) in a courtroom when that practice results from a sincerely-held religious belief. It is only where that practice could conflict with an overriding public interest, such as another person’s constitutional rights, that a court may restrict it in a courtroom environment. The provisions of the Regulation of the Court of Québec dealing with court attire, in and of themselves, do not express such an overriding public interest sufficient to restrict the constitutional right to freedom of religious expression....

[91] ... [I]t is not necessary for a trial judge to test the sincerity of religious beliefs and practices each time someone appears in a courtroom wearing religious garments, particularly where such garments are well-known, such as a hijab for a Muslim woman, a Roman collar for a Catholic priest, a kippa for an orthodox Jew, etc. This is also the case for those litigants wearing a pendant or other suitable religious jewelry. Where the religious practice is well known and understood, there is rarely a need to proceed to an inquiry. As rightly noted by Justice Iacobucci in Syndicat Northcrest v. Anselem:  “an intrusive government inquiry into the nature of a claimant’s beliefs would in itself threaten the values of religious liberty”....

[93] Of course, from time to time, there may occur situations which warrant further inquiry; it is incumbent on trial judges to identify these situations by using common sense. An example is the full facial covering, such as the niqab, which raises issues related to the proper identification of litigants, the proper assessment of the credibility of witnesses and the fairness of the judicial proceedings.... 

Lawyer's Daily reports on the decision.

European Court Says Hijab Must Be Allowed In Courtroom

In Lachiri v. Belgium, (ECHR, Sept. 18, 2018) (full text in French), the European court of Human Rights in a Chamber Judgment held that a Belgian court's excluding an ordinary citizen-- not a state employee-- from the courtroom because she refused to remove her hijab infringed her right to freedom of religion guaranteed by Art. 9 of the European Convention on Human Rights. One member of the 7 judge panel dissented and two judges filed a concurring opinion.  A press release from the Court in English provides more details. [Thanks to Paul de Mello Jr. for the lead.]

EEOC Sues New Mexico Diner For Failing To Accommodate Muslim Employee

The EEOC announced yesterday that it has filed a Title VII religious discrimination lawsuit against a diner in Farmington, New Mexico. The lawsuit charges that the Blue Moon Diner refused to accommodate a female Muslim employee who requested to work wearing a hijab. The suit also claims that the diner constructively discharged the employee because of her religion.

Muslim Woman Sues Under Title VII Over Failure To Accommodate Hijab

A lawsuit was filed in a Virginia federal district court last week against a Hanover, Virginia health care facility by a Muslim woman whose employment as a nursing assistant was terminated because she insisted on wearing a hijab. The complaint (full text) in Brooks v. Medical Facilities of America, Inc., (ED VA, filed 5/31/2018) contends that the employer's refusal to provide a reasonable accommodation violated Title VII of the 1964 Civil Rights Act.  The Richmond Times-Dispatch reports on the lawsuit.

Suit Filed By Muslim Woman Forced To Remove Hijab For Courthouse Security Inspection

A lawsuit was filed this week in an Oklahoma federal district court challenging the manner in which courthouse security guards dealt with a Muslim woman's objections to removing her hijab after she set off a metal detector.  The complaint (full text) in Elqutt v. Regalado, (ND OK, filed 5/15/2018), alleges that the objectionable conduct occurred when Shusha Elqutt entered the Tulsa County Courthouse with her attorney from the Domestic Violence Intervention Services finalize her divorce.  Wanding continued to detect metal under Elqutt's hijab.  Authorities refused to allow Elqutt to remove her head covering in private in the presence only of a female deputy.  Eventually security officials allowed Elqutt to go between two parked cars in the parking lot and have two female deputies inspect her there.  Plaintiff contends that this still violated her free exercise rights, arguing:

With only two parked cars for coverage, Ms. Elqutt was forced to crouch down to obtain even the slightest amount of privacy. At any moment, a man could have walked by and seen Ms. Elqutt without her hijab, a fact not lost on her as she squatted, exposed and humiliated, in the middle of the courthouse parking lot.

Oklahoma ACLU issued a press release announcing the filing of the lawsuit.

Muslim Woman Sues Over Forcible Removal of Hijab At California Jail

CAIR-LA announced yesterday that it has filed a federal lawsuit on behalf of a Muslim woman who had her hijab forcibly removed by Ventura County, California deputy sheriffs.  The incident occurred at the county jail after Jennifer Hyatt was arrested because of her involvement in a domestic dispute.  Even after she had been searched, deputies refused her request to wear her hijab when men were present, and instead violently pulled off the second part of her two-piece hijab.

German Labor Court Upholds Ban On Primary School Teacher Wearing Hijab

In 2015, Germany's Constitutional Court invalidated a blanket ban on Muslim teachers wearing the hijab (head scarf) while teaching. However it held that hijabs could be banned in individual cases where a concrete danger is posed. (See prior posting.)  Yesterday a labor court judge in Berlin upheld the city's neutrality law that prohibits all religious clothing for public school teachers, police officers and judicial employees, saying that it does not violate a teacher's constitutional right to religious freedom.  The ruling came in the case of a primary school teacher who asserted the right to wear a hijab.  Justice Arne Boyer ruled that neutrality takes precedence over free religious expression.  A court spokesman clarified the ruling, saying that while primary school children should be free of the influence that can be exerted by religious symbols, the teacher could could continue to wear her hijab while teaching older students in a public secondary school.  Deutsche Welle and PressTV report on the decision.

NYPD Sued Over Mugshot Policy For Muslim Women

AP reported yesterday on a lawsuit filed in federal district court in New York against the New York Police Department by two Muslim women who were forced to remove their hijabs to pose for mugshots.  While the NYPD says that its policy allows persons wearing religious head coverings to be taken to  a separate more private facility before removing the head covering to be photographed, apparently that policy was not followed in the case of the plaintiffs in this lawsuit. The women along with the advocacy group Turning Point for Women and Families brought the lawsuit as a class action. [Thanks to Tom Rutledge for the lead.]

Nigerian Lawyer's Group Denies Law School Grad Bar Admission Because of Hijab

According to a report on Friday from Al Jazeera, the Lagos-based Nigerian Law School has refused to allow a Muslim woman graduate to receive her call to the bar (i.e. be sworn in as a lawyer) because she insists on wearing her hijab under her traditional barrister's wig.  On Dec. 12, the Body of Benchers refused to allow Amasa Firdaus Abdulsalam to enter the Conference Centre where the call to the bar is held because she was in violation of the Law School's dress code.

Court Rejects Challenges To Policies Protecting Muslim Women Booking Photos

In Schlussel v. City of Dearborn Heights, (ED MI, Oct. 11, 2017), a Michigan federal district court rejected various challenges by a journalist to a partial denial of her state Freedom of Information Act request for booking photos and videos that were taken of a Muslim woman with her hijab removed.  The city denied the request under the state FOIA's privacy exception.  In the meantime the city had modified its booking procedures-- in response to litigation-- to allow women to continue to wear their hijabs or burkas in booking photos.

The court rejected claims by plaintiff, who was female and Jewish, that her equal protection rights were violated because the photos and videos in question had been released to a Muslim male who was the Muslim woman's lawyer.  The court also rejected a claim that the city's new booking policy violates the Establishment Clause because it applies only to Muslim women.

Suit Over Requirement To Remove Hijab For Booking Photo Moves Forward

In G.E. v. City of New York, (ED NY, Sept. 29, 2017), a New York federal district court refused to dismiss at summary judgment stage a free exercise claim by a Muslim woman who was required to remove her hijab for police booking photos.  Initially at the police precinct she was required to remove the head covering, but was allowed to do so in a private room with only a female photographer present.For a subsequent photo at Central Booking, she was required to remove her hijab with men present, despite her request to do so in a private room without men there.  The court said in part:

The City provides nothing in the way of record evidence (or for that matter, legal support) to explain why there were no alternative means of accommodating an arrestee’s religious beliefs at Central Booking at the time when G.E. was arrested – other than to recite the fact that the Central Booking camera was in a fixed location in view of both male and female detainees and staff. Nor does the City explain any resource, staff or other burdens the City would face were it to consider moving the camera, or providing some other accommodation. Not only are these factors central to the rational basis test itself, they are critical to the analysis here because the City did, in fact, change its policy to provide for such accommodation subsequent to G.E.’s arrest.

Various other claims by plaintiff were dismissed.