Veiled Threat

The limits of religious freedom


Anyone who has ever been dissatisfied with his driver's license photo will have to admit there is something to be said for Sultaana Freeman's approach. In her picture, nothing is visible except her eyes and the bridge of her nose. The rest of her head is covered by a black veil.

But Freeman's decision to wear the veil was not prompted by disgust at the quality of DMV photography. As a devout Muslim, she keeps her face concealed from men outside her family.

The problem, as the Florida Department of Highway Safety and Motor Vehicles sees it, is that the veil makes the photo pretty much useless as an identification aid. The department revoked Freeman's license in January after she refused to replace the picture with one showing her whole face.

Now Freeman is challenging that decision in state court, arguing that it violates Florida's Religious Freedom Restoration Act. The act says laws that impose a substantial burden on religious freedom are valid only if they serve a compelling state interest in the least restrictive way possible.

That is the test the U.S. Supreme Court used to apply in determining whether a law violated the First Amendment's guarantee of religious freedom. But in a 1990 case involving the use of peyote by members of the Native American Church, the Court decided that "neutral rules of general applicability" do not run afoul of the Free Exercise Clause.

Under that looser standard, it's pretty clear that Freeman would have to pose for a veil-less picture or stop driving. After all, no one argues that the state of Florida is deliberately singling out Muslims by requiring "full-face photographs" on driver's licenses.

Under the "compelling interest" test, by contrast, Freeman has a chance of keeping her face covered. She argues that the state can use other methods to confirm her identity, such as fingerprints or DNA.

These approaches are rather impractical in the context of a traffic stop, of course. On the other hand, it's doubtful that letting a few women wear veils in their driver's license photos will have a noticeable impact on crime or car accidents in Florida.

Freeman's insistence on her veil is reminiscent of the refusal by members of an Amish sect in Pennsylvania to put reflective orange triangles on the backs of their buggies. State law requires operators of slow-moving vehicles to use the triangles, which the Swartzentruber Amish consider an affront to their value of plainness.

In both cases, public safety concerns are pitted against deeply held religious beliefs, but accommodation seems possible without putting other people in serious jeopardy. A bill in the Pennsylvania legislature, for example, would allow the Amish to use less-garish reflective tape instead of the triangles.

While reasonable people can disagree about the appropriate solutions to these conflicts, there are certain compromises that no civilized society can make in the name of religion. A government committed to protecting people's rights cannot tolerate human sacrifice, for instance, no matter how sincere its practitioners.

At the other extreme are religious practices that violate no one's rights and do not even arguably threaten public safety. These, you might think, would be immune from government interference.

Sadly, they are not, as the legal troubles of Akron, Ohio, landlord David Grey illustrate. Grey, a Christian with traditional moral views, does not approve of sex before marriage. After he refused to rent a house to an unmarried couple, they filed a complaint with the Ohio Civil Rights Commission, which found that he was guilty of illegal discrimination.

The odd thing is that Ohio does not ban discrimination based on marital status. In fact, a landlord is allowed to turn away unmarried couples out of concern that they might split up, thereby jeopardizing his rental income.

But the commission reasoned that because Grey cited his religious beliefs in rejecting the tenants, he was in effect discriminating against them based on their religion. According to this view, Gray's religious motivation means that he cannot use his own property as he sees fit.

"Religion should not even come into play," said Vincent Curry, executive director of the Fair Housing Advocates Association of Akron. "We all have different religious beliefs, but when you're in the business of providing housing, your choice of who gets the residence shouldn't be based on your beliefs."

Religious beliefs are fine, in other words, as long as you don't act on them.