The Niqab in the Courtroom: Protecting Free Exercise of Religion in a Post-Smith World

44 Pages Posted: 20 Apr 2010 Last revised: 1 May 2011

See all articles by Adam Schwartzbaum

Adam Schwartzbaum

University of Pennsylvania Law School; Brandeis University - College of Arts and Sciences

Date Written: April 20, 2010


The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, neutral, generally applicable laws will sometimes conflict with individuals’ religious practices. In Employment Division v. Smith, the Supreme Court concluded that in most of these situations, the secular goals of the state override the religious objections of the individual so long as the government can advance a rational basis for its legislation. However, Smith itself acknowledges that in certain limited circumstances, even neutral, generally applicable laws are subject to strict scrutiny. This Comment explores the idea that a ban on the niqab in the courtroom is one such case. It analyzes the division amongst the Courts of Appeals regarding the “hybrid-situation,” and argues that Muhammad’s case exemplifies precisely how the doctrine should work in practice, because such a rule violates a Muslim woman’s Free Exercise rights and her corresponding right of access to the courts. It then reviews the interests advanced by the state as compelling reasons for the ban, and presents legal and empirical evidence suggesting that these are not sufficiently compelling and narrowly tailored enough to overcome strict scrutiny. By showing why even individuals at the outer edges of the law still have a strong claim for a religious exemption, this Comment attempts to make jurisprudential space for the vast majority of religious adherents to enjoy fair and equal treatment within the halls of American justice.

Keywords: Free Exercise, Niqab, Demeanor, First Amendment, Religion, Hybrid, Smith, Islam, Constitutional Law, Access to the Courts

Suggested Citation

Schwartzbaum, Adam and Schwartzbaum, Adam, The Niqab in the Courtroom: Protecting Free Exercise of Religion in a Post-Smith World (April 20, 2010). University of Pennsylvania Law Review, Vol. 159, No. 5, 2011, Available at SSRN:

Adam Schwartzbaum (Contact Author)

Brandeis University - College of Arts and Sciences ( email )

415 South Street
Waltham, MA 02453-2783
United States

University of Pennsylvania Law School ( email )

Philadelphia, PA 19104
United States

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