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Veiled Women in the American Courtroom: Is the Niqab a Barrier to Justice?

In THE RULE OF LAW AND THE RULE OF GOD (Simeon O. Ilesanmi, Win-Chiat Lee & J. Wilson Parker eds., Palgrave Macmillan 2014)

U of Penn Law School, Public Law Research Paper No. 10-25

25 Pages Posted: 30 Jul 2010 Last revised: 15 Jan 2016

Anita L. Allen

University of Pennsylvania Law School

Date Written: October 20, 2010

Abstract

U.S. courts and policy-makers have recently authorized laws and practices that interfere with the wearing of religious modesty attire that conceals the hair or face in contexts such as courtroom testimony or driver’s license issuance. For example, in response to a court’s dismissal of the case of a woman who refused to remove her niqab in the courtroom, the Michigan Supreme Court decided that judges can exercise “reasonable control” over the appearance of courtroom parties. But what degree of control over religious attire is reasonable? The Constitution will not allow a blanket niqab removal policy based on any of the following needs: to judge demeanor or veracity, to identify witnesses, to compel accountability, or to identify and avert bias. Where the state’s interest in niqab removal is truly compelling, for the sake of religious free exercise it should be protected in the least restrictive manner. I argue that because Muslim women who wear the niqab in the courtroom are neither disruptive nor an affront to the dignity of the court, their religious freedom to dress modestly should be accommodated in straightforward and available ways.

Keywords: Islam, Muslim, religion, women, headscarves, Law and Society, Constitutional Rights, Religious Free Exercise, Courtroom Procedure, Niqab, Hijab

Suggested Citation

Allen, Anita L., Veiled Women in the American Courtroom: Is the Niqab a Barrier to Justice? (October 20, 2010). In THE RULE OF LAW AND THE RULE OF GOD (Simeon O. Ilesanmi, Win-Chiat Lee & J. Wilson Parker eds., Palgrave Macmillan 2014); U of Penn Law School, Public Law Research Paper No. 10-25. Available at SSRN: https://ssrn.com/abstract=1651140 or http://dx.doi.org/10.2139/ssrn.1651140

Anita L. Allen (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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