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Quebec High Court Upholds Litigants' Rights to Wear Religious Headgear in Court

Judges may not "rely on the neutrality of the courts alone as a justification for preventing litigants from accessing a courtroom simply because they are expressing sincerely held religious beliefs."

Rania El-Alloul's car was impounded by Quebec authorities, because her son was driving it while his license was suspended. She went to court to challenge the impoundment, and she wore a headscarf, since she was an observant Muslim woman. The judge concluded that this violated the requirement that people appearing before the court "be suitably dressed," a requirement that the judge interpreted as generally forbidding headgear. Last week, the Quebec high court ruled that the judge had erred, and that the decision violated the "freedom of conscience and religion" secured by the Canadian and Quebec bills of rights:

Freedom of conscience and religion — which entails both the right to hold religious beliefs and the right to act upon these beliefs — does not disappear or change when the concerned individual is dealing with courts. No party challenges that the courtrooms of the Court of Québec — and for that matter all courtrooms in Québec as throughout Canada — are spaces of religious neutrality. This does not mean, however, that judges may rely on the neutrality of the courts alone as a justification for preventing litigants from accessing a courtroom simply because they are expressing sincerely held religious beliefs. In Loyola, Justice Abella wrote that the secular nature of the State (or State neutrality in religious matters) does not imply the negation or extinction of religious beliefs, but rather respect for religious differences, insofar as such beliefs do not conflict with or harm overriding public interests ....

It follows that litigants are permitted to express their sincerely held religious beliefs, including with respect to religious clothing, and courts must accommodate the exercise of that right in a courtroom insofar as it does not conflict with or harm an overriding public interest. Freedom of religious expression does not stop at the door of a courtroom.

Freedom of conscience and religion may rightly be restricted in a courtroom if the exercise of that right conflicts with or harms an overriding public interest, provided any such limit is demonstrably justified in a free and democratic society. But the basic constitutional right remains intact, including in the confines of a courtroom....

Restrictions on the practice of sincerely held religious beliefs may, however, be curtailed in a courtroom when the practice conflicts with some overriding public interest, such as another person's constitutional rights.

An example of this is the case of R. v. N.S. There, the accused in a sexual assault criminal trial claimed that the religiously motivated desire of a witness to wear a full-body dress covering the entire body, including the face (niqab), while testifying would violate their constitutional right to a fair trial. In such a situation, where two different constitutional rights conflicted, the trial court was justified to enter into an inquiry to determine if it was necessary to restrict the rights of the individual witness for the sake of safeguarding the rights of the accused. As noted by Chief Justice McLachlin in that case: "[t]he long-standing practice in Canadian courts is to respect and accommodate the religious convictions of witnesses, unless they pose a significant or serious risk to a fair trial." ...

[In future cases], it 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."

In light of the multi-confessional fabric of Québec society, it is usually quite easy for a judge to recognize the difference between suitable religious attire and those cases where the individual litigant or witness is showing lack of respect for the court by his or her choice of clothing. The types of religious clothing worn in Québec are not numerous and are not generally difficult to identify. For quite a long time now, the courts have had little difficulty accommodating these types of attire.

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. Such a case was dealt with in R. v. N.S.

In the appellant's case, however, we are dealing with a head scarf which does not cover the face. It is hard to conceive in which circumstances the wearing of such a religious head dress by a litigant in a courtroom would conflict with an overriding public interest, save those rare circumstances where a physical characteristic of the head (e.g. hair colour or form of the ears) would be a true issue in a trial. In such cases, it is the analytical framework set out in R. v. N.S. which then must be applied....

Sounds right to me, just as I think it's right that American courts generally reach the same result, though at times with a slightly different analysis. (In many American states that lack "Religious Freedom Restoration Acts" or similarly interpreted state constitutional provisions, there's no presumptive right to exemptions from generally applicable rules; but even so, appellate courts tend to conclude that religious garments usually don't violate courtroom dress codes.) And of course, this is relevant not just to Muslim women, but to Orthodox Jewish women, who often wear headscarves, to Jewish men who wear yarmulkes, to Sikhs who wear turbans, to nuns who wear wimples, and so on.

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  • Eddy||

    NO SPECIAL RIGHTS FOR...wait, it's about traditionally marginalized groups, never mind.

  • Woody Chip Hurrrrr?||

    So I can wear my propeller beanie?

  • Eddy||

    How can you be "suitable dressed" without some sort of headgear?

  • Naaman Brown||

    Quebec law. French law. "suitably dressed".

    Personally I think a sincere Muslim woman wearing a headscarf is "suitably dressed". I think forcing her to appear in public bare headed is unnecessary and might distract or embarrass her from conducting business before the court. Routine court appearances are stressful enough. If you don't like Muslim women's headscraves don't wear one. But don't impose your fashion prefs on others.

    Quebeckers or Québécois are nice people, but their politicians and authority figures are not.

  • Krayt||

    ===How can you be "suitable dressed" without some sort of headgear?===

    A man might wear a hat outside, but removes it inside. A woman doesn't as it is fashion. Unless it's like a baseball cap or something.

    A propeller beanie is the one exception, for men, as it involves freedom of conscience.

  • gormadoc||

    In the link Eugene also mentions Catholic and Episcopalian priests being required to remove their vestments, though this was in the 70s. While Catholics were still traditionally marginalized Episcopalians weren't.

  • Eddy||

    And I bet police coming into court "to show solidarity with their brothers" would be required to be in "civilian" dress, not in their uniforms?

  • gormadoc||

    I don't know about when they are litigating, which is what the question is about. If there's a judge trying to regulate an observer that should clearly be wrong.

    A police officer litigating should definitely be in civilian (or clerical, I suppose) formal wear. I would think it improper to litigate in uniform.

  • Eddy||

    I was thinking more particularly about police sitting in the audience out of "solidarity" when the case affects the police.

  • Eddy||

    (Perhaps spectators weren't affected by this Quebec case)

  • gormadoc||

    From the wording of the case "the Regulation of the Court of Québec dealing with a dress code do not forbid the appellant from wearing a head scarf" make it sound like it was due to the litigant but doesn't mention anything about others in the court room.

    I understood what you meant, and I think it's rather crass of police to do so, but that seems like it should be more up to the police department and less to the courts to decide. Like if an NFL team showed up to a teammates case in uniform, it should be up to the team and the NFL, so long as they aren't being disruptive otherwise. Still tacky, but less so than the police.

  • Eddy||

    Ah, apparently between the trial and the appeal they changed the rule from everyone appearing before the court must be suitably dressed to everyone present in the courtroom must be suitably dressed.

  • gormadoc||

    Looks like you're right.

  • gormadoc||

    Here's the link I meant to attach.

  • Smooth Like a Rhapsody||

    What are you talking about?
    The ruling concerned head covering (which every court in my state routinely asks to be removed, and I've never been present for a religious person asking for an exemption)
    If the police wear their "work clothes " to court , that's not only ok; it's to be expected.
    Just like a lawyer wears a dark suit and a tie, and the judge wears a robe.

  • Smooth Like a Rhapsody||

    Isn't this where Kirkland notes that, "bigots have rights, too"...?

  • Chem_Geek||

    The NPC Kirkland is too busy getting reprogrammed to answer right now. Stand by for some usual bilge-stew shortly.

  • FlameCCT||

    RAK? As in Royal Arse Kisser?

  • D-Pizzle||

    No. Didn't you read the story? She's Muslim, not Christian. Rev's bigotry is selectively focused.

  • John Rohan||

    How would this apply to the burqa or the niqab, which cover the woman's face as well?

  • KenveeB||

    The excerpt quoted specifically mentioned this. That there may be competing interests especially where full-face coverings are included, and the judge can have a hearing and determine that there's a need for the face not to be covered while they're testifying or so they can be identified or whatever. But for something like just wearing a headscarf, a yarmulke, or a priest's collar, there's no justification for making them remove it. That seems completely correct to me.

  • Soronel Haetir||

    You just have to love the Little Tyrants of the Bench. I would say as long as it is not violating some generally applicable law (basically public decency) or the rights of another party (the full face covering discussed in relation to other cases) judges should have to take people as they come. Courts like all other arms of government are to serve the people not the other way round.

  • Jerry B.||

    Oh, boy!!. Now if I go to court, I can wear a colander if I'm a Pastafarian.

  • FlameCCT||

    As long as the colander is made from tin! ;-)

  • Martinned||

    Recent case law in Germany and, at the highest level, in the Netherlands says that the Church of the Flying Spaghetti Monster is satire, not a religion, and therefore not protected except under general free speech protections.

  • Krayt||

    In the US, atheism suffers all the protections of religion, in addition to the protections of free speech.

  • Martinned||

    So you guys have atheist prayers next to the Catholic and protestant ones?

  • Matt L||

    If I recall correctly, there was a dispute in the Canadian province of B.C. in which a Pastafarian objected to being made to remove his colander for his drivers license photo. I'm not sure it if made it to court, but from what I remember, the drivers license issuing authority accepted that Pastafarianism was a religion. But they still made him remove it because they only permit mandatory religious headwear in photos and while the colander may be religious headwear, Pastafarianism does not mandate wearing one so being made to remove it for a photo was not forcing him to violate his religious beliefs.

    It sounds like the Quebec courts are a little more permissive and don't require that the religious headwear be mandatory.

  • Voize of Reazon||

    Sounds right to me

    Should we assume this signifies alignment with a universal notion of justice, or has Prof. Volokh expanded the scope of his constitutional expertise to include the Canadian variety?

  • nonzenze||

    Nations are permitted, but not required, to take note of decisions in other nations and to discuss them normatively.

    Anyway, while Canadian and US notions of religious freedom are not at all identical, they are also not entirely disjoint.

  • Krayt||

    It's fine to talk about what other countries are doing, and their reasoning. God knows there's no shortage of articles about how rotten other countries can be.

    This included elected officials in this country using their bully pulpit to exhort about how cool some other country is and why it should be done here.

    The problem comes with Supreme Court decisions based on living constitutionalism and they quote changes in other countries.

    If living constitutionalism and the changing values of the people has any meaning (funny, I thought that was what speech, and the legislature, and the amendment process, and slamming one's fist down on the table and exclaiming, "There oughtta be a law!" was for) as an end run around amendments, then it only has meaning with reference to changes in the US population.

  • Martinned||

    The same exact question, with the same exact outcome, arose in last month's ECtHR judgement in Lachiri v. Belgium (unfortunately only available in French at the moment).

  • apedad||

    FYI, Larry Flint wore a Fuck This Court t-shirt in the Supreme Court.

  • ReaderY||

    According to this article, the current bill in the Quebec legislature to prohibit government employees from wearing/displaying religious symbols invokes the Notwithstanding Clause of the Canadian Charter of Rights and Freedoms, which permits provincial parliaments to override certain parts of the Charter (including religious liberty) for five years (renewable every five years) by invoking the clause.

    There is a large full crucifix (including Jesus) in the Quebec legislature. The bill's proponents say the bill will not apply to the crucifix because it is a historical symbol, not a religious one.

  • Martinned||

    If legislatures in the US can have prayer before every day's work, I don't see why the same logic wouldn't apply north of the border.

  • Krayt||

    ===which permits provincial parliaments to override certain parts of the Charter (including religious liberty) for five years (renewable every five years)===

    WHAT?!?!? Laws that auto-expire and must be explicitely renewed?!?!?

    I thought that was just a fevered dream of mine.

  • ReaderY||

    http://globalnews.ca/news/4539417/ legault-religious-symbol-ban-meeting-trudeau/amp/

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