The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.