The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Religion and the Law

Muslim Women Have First Amendment Right Not to Remove Head Covering for Booking Photos

The same logic would apply to Orthodox Jewish women, and to men who wear religious headgear,


From Clark v. City of New York, decided Friday by Judge Analisa Torres (S.D.N.Y.)

In this action, two Muslim women and a not-for-profit organization challenge the NYPD's former policy of requiring arrested individuals to remove religious head coverings …. {During the pendency of this lawsuit, the NYPD changed its policy such that arrestees are now permitted to wear a religious head covering when sitting for a mug shot.} …

Pursuant to the [former] Policy, arrestees were required to remove their religious head coverings for an official photograph …. [The Policy] requires that where an arrestee indicates a preference to retain her head covering for a mug shot, the arrestee will be transported to One Police Plaza, where the "arrestee can remove their religious head covering and have their photograph taken in private." At One Police Plaza, a "member of the service of the same gender [as the arrestee]" must be available to take the photograph.

Additionally, arrestees who are transported there "will be informed that their arrest processing may be delayed due to operational requirements." The resulting Booking Photographs, which depict arrestees without religious head coverings, are "integrated into other law enforcement databases, including the NYPD's so-called 'Forensic Imaging System,' that use sophisticated facial recognition software." Plaintiffs allege that this practice "increases the likelihood that images of arrestees without their religious head coverings will be viewed by many people long after the Booking Photograph is taken." …

The Second Circuit has held that "[i]t is not a violation of the Free Exercise Clause to enforce a generally applicable rule, policy, or statute that burdens a religious practice, provided the burden is not the object of the law but merely the 'incidental effect' of an otherwise neutral provision." "Where the government seeks to enforce a law that is neutral and of general applicability … then it need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices." …

When prisoners challenge restrictions on their religious liberty, courts apply the rational basis test by evaluating (1) "whether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective," (2) "whether prisoners have alternative means of exercising the burdened right," (3) "the impact on guards, inmates, and prison resources of accommodating the right," and (4) "the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests." In analyzing claims that the NYPD's failure to provide a religious accommodation with respect to arrest booking lacks a rational basis, courts in this Circuit have found "guidance in the body of caselaw addressing free-exercise claims brought by prisoners seeking accommodation of their religious practices in the penological context." Plaintiffs argue that when applying the rational basis test to arrestees—as opposed to prisoners—a court should more closely scrutinize the City's justification for its policy.

But, even if the Court were to evaluate Plaintiffs' cause of action using the standard applied to prisoner claims, where courts tend to accept the City's stated justification for a policy, the Court would conclude that the Policy violates the First Amendment.

Both parties agree that the City has a legitimate governmental interest in maintaining a photographic record of arrestees. But, Clark and Aziz have no alternative means of exercising their right to wear a hijab in public, at all times. The Policy, although sometimes inconsistently applied, still requires that Clark and Aziz remove their hijabs and makes their photographs available to men. The Court agrees with Plaintiffs that permitting observant Muslim women to wear a hijab while being photographed as part of booking procedure would have reasonably accommodated their beliefs and also would be less burdensome on the NYPD. Indeed, snapping a Booking Photograph of an arrestee with her religiously compelled covering would expend fewer resources than "requir[ing] dialogue with arrestees and additional time spent negotiating removal."

Finally, the City contends that it has a legitimate interest in "having a photographic record of arrestees from which a later identification can be made." But Plaintiffs point out that the Policy requires the arrestee to alter "her ordinary appearance before she is photographed (i.e., remove the hijab she customarily wears, will replace immediately after she is photographed, and plans to wear while in custody)," making a later identification more difficult. Allowing an arrestee to maintain her ordinary appearance in a Booking Photograph does not undermine the legitimate interest of keeping a photographic record of arrestees.

The United States Department of State, the USCIS, and the New York State Department of Motor Vehicles all allow religious head coverings in photographs used for identification. Police departments in Michigan, California, Minnesota, and Maine also allow arrestees to wear religious head gear while sitting for a mug shot. Plaintiffs correctly observe that arrestees who do not wear a head covering are equally capable, if not more capable, of making changes to their appearances after a Booking Photograph by switching hairstyles or facial jewelry. In fact, photographing the arrestee in her ordinary appearance likely furthers law enforcement's interest in identification—rather than impeding such interest—because arrestees who have a sincere religious belief that requires them to wear a head covering are likely to be wearing that same covering when the need to identify them arises.

In sum, Plaintiffs have alleged facts that establish that requiring the removal of a hijab does not rationally advance the City's valid interest in readily identifying arrestees.

Note that the case involved a hijab ("a garment worn by many Muslim women that covers the ears, hair, and neck, but leaves the entire face exposed") and not a niqab ("a veil that covers the face").