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,

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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").

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  1. The purpose of the mug shot is to be able to identify the person. The state has a valid interest in being able to identify the person.

    1. Particularly if the covered areas have distinctive features (tattoos, scars, missing / damaged ear lobes (like fighters cauliflower ears).

    2. The purpose of health care workers is to avoid causing harm to patients. Yet some disaffected, antisocial members of our society push exemption from vaccinations for superstition-based claims.

      Carry on, clingers.

      1. So healthcare isn’t a human right, son?

    3. That’s my reaction, too: How the heck do the police NOT have a legitimate basis for wanting to see somebody’s unobscured face in a mug shot? It’s the very point of taking one!

      1. Let’s test the principle: What about a nurse, doctor, or orderly who wishes to treat patients while unvaccinated, claiming entitlement to avoid an employer’s vaccination standard on religion-based grounds?

      2. That’s my reaction, too: How the heck do the police NOT have a legitimate basis for wanting to see somebody’s unobscured face in a mug shot? It’s the very point of taking one!

        1) As Prof. V says, this is not about a veil. The face remains unobscured.

        2) If the police arrest someone and want to know if it’s the same person as the one they previously arrested, they will check fingerprints, not mug shots. If the police want to compare a person that they see to an earlier photo of that person, then they would want a photo that looks like that person. If the person ordinarily wears a head covering, then you want to compare their image to that of a mug shot with a head covering.

        1. As long as I would not be forced to remove a baseball hat I’m wearing for the photo.

          I wouldn’t, right?

  2. Not that I necessarily mind the result, but I’m not sure I follow the reasoning. This policy fails the rational basis test because individuals like the plaintiffs would spend a lot of time arguing about the policy, and therefore the rational solution for the government would be not to have the policy? That seems like an odd kind of heckler’s veto.

  3. Since mask wearing indoors in public settings is mandatory in many cities, will mug shots be taken with masks on?

  4. The standard applied by the court strikes me as more searching than rational basis review.

  5. This seems pretty obviously wrong. Take for example the argument about the “legitimate interest in having a photographic record of arrestees from which a later identification can be made.” The plaintiff’s argued (and the court agreed) that because the covering will always be worn, an image without the covering looks less like the person being photographed. That entirely ignores the reality that re-identification is most necessary when the person leaves police custody (maybe by escaping). Such a person can easily change his/her appearance by simply removing the head covering. A true picture is easier to identify.

    Consider that drivers licenses and passport pictures now require even those of us who wear glasses 100% of the time to have our pictures taken without them. By the court’s logic, that makes the picture “harder to identify” – yet security experts pretty much everywhere disagree. Glasses can be digitally added to a picture with ease. Taking them out is harder. Changing hair color and style is something that our software currently handles well. Replacing cloth with hair is harder.

    As others have noted already, the quoted sections of the court’s decision look very little like “rational basis” review. This looks more pointed even than the intermediate review.

    1. “drivers licenses and passport pictures now require even those of us who wear glasses 100% of the time to have our pictures taken without them”

      Really? My Ohio drivers license from 2019 has me wearing glasses. In 2001/2002 when I got my passport, also glasses.

      1. Yup. Recent change. I replaced my OH drivers license in 2020 and had to renew my passport this summer. Both required no-glasses photos.

      2. Eyeglasses can reflect the camera flash, which is why they are not always used in a photo.

    2. You write as if rational review is sacred.

      1. They write is if there is still such a thing as rational – – – – –

      2. Sacred? No. Binding precedent on a lower court? Yes.

    3. So, like the government requiring that you not smile for passport photos, because you’re sure not going to be smiling when the TSA looks at your face?

    4. The whole bit about “bald-faced liars” and men without facial hair being suspicious rogues was because they could run away after their crime and grow a beard.

      In this case, rational basis suggests get rid of face coverings. The question is is it sufficient to overcome religious beliefs.

      We’ll ignore for now the pooped-on 1970s feminists who railed against Muslim societies as oppressing their sisters by forcing them to cover up so as to not be temptations to men, the kind of thing the left raged over…until they didn’t, and pointed out ot was cultural and not religious…until it wasn’t.

    5. That entirely ignores the reality that re-identification is most necessary when the person leaves police custody (maybe by escaping). Such a person can easily change his/her appearance by simply removing the head covering. A true picture is easier to identify.

      That argument proves too much. If it’s that hard to match a view with a head covering to one without, then if you take someone’s picture without a head covering, then she can easily change her appearance by simply adding a head covering.

      1. While I agree that what you’re arguing is rational, sadly that level of logic is considerably higher than what “rational basis” requires.

  6. “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”

    How is that “likely”?

    1. OK, help me out here; which kind of “sincere religious belief” leads to being arrested?
      Why is a woman with a “sincere religious belief” that she needs a head covering even outside of the home, let alone in a position that could lead to arrest. Wouldn’t the male relative or husband prevent her from taking an action that could lead to arrest?

      1. Not those “sincere religious beliefs”, this other one which let’s me publicly and loudly assert it.

        “Cafeteria Muslims” with required head coverings I guess.

  7. I can see the argument for the RLUIPA claim, and I don’t know enough about the NY constitutional rule to offer a helpful opinion. But I am having a lot of trouble seeing how the first amendment can be reconciled with Employment Division v. Smith.

  8. Seems like there was a case 4 – 6 years ago where a college football fan (maybe Alabama or Georgia), was arrested but wanted to wear his ball cap in the mugshot because football was like a religion to him.

    The whole religious thing is absolute bullshit.

    1. These are mathematically the same individuals who would prefer the Supreme Court rule kids cannot wear a cross around their neck in school.

      There is no logic, only vicious attack of the other.

  9. Another jewdicial decision to promote sharia law upon the goy. There is no ‘religious’ practice in clothing for people in police custody, never has been, never will be. Judge Analisa Torres is just doing her masters bidding shoving it in the face of the goy that sharia law will rise above!!!

    Totally bullshit ruling, does not rest on law, merely serves to promote an invading force to undermine an established society. Just like the Talmud sez a jew cannot be put to death for killing of the goy under jurisdiction of rabbinical court, therefore the death penalty is wrong.

    What if sharia law sez that the infidel cannot imprison a muslim. Same logic by nutty judge Torres….must release the religious believer in the name of Islam, interpreted by an hispanic miscreant in a black robe.

    Some of the dumbest minds sit a top a bench in a black robe.

  10. So what if the arrestee normally wears a full face covering like a burqa? Do they have to use that in the mug shot?

    1. My thought, too. I can see allowing a woman to wear a head scarf if that’s her normal religious attire, but a burqa defeats the purpose of having an ID.

  11. Since the police changed the policy, one might reasonably ask why the case was not moot. It turns out that the court concluded that there is a damages remedy under RLUIPA. Maybe so, but what exactly are the damages? Emotional distress?

    1. Actually the plaintiff was an organization, not any individual, so the “damages” are the resources it diverted to combat the policy, a sort of self-inflicted wound that some courts permit to meet the requirements of standing.

  12. You know, if it was a Orthodox Jewish man, I’d bet the reaction in the comments would be completely different.

    You are free to disagree with the reasoning provided for wearing a headscarf. In fact, as someone who grew up with many Muslim people (I’m Indian American, not a Muslim, I know other Indian Americans who are) I find the concept somewhat sexist towards women. Certainly it has sexist underpinnings.

    But it is not as if other religions do not also impose modesty standards. Furthermore, modesty standards are not always bad! Even non-religious people can have reasonable objections to people walking around naked everywhere!

    But the fact is that it is a part of their religion not to take it off, and that ought to be respected. Many Islamic women are proud of the fact they wear headscarves. Sikh men wear turbans. Jews wear kippas. The reason they do so, sexist or not in your view, is irrelevant. It still remains important their right to do so is respected even under investigation.

    If it was a full burka, which does pose security issues, sure! No one said you cannot draw lines! But it is funny how where Christian people are concerned, suddenly the loosest interpretation of Employment Division is still to strict, and wear Muslims are concerned, the strictest interpretation is still much too loose.

    Islam has plenty of problems. And, frankly, that is a discussion that ought to be had more often in Islamic circles. That being said, it is plain wrong to deny people the right to engage in religious activity. Even, if fact expecially, criminals. And it doesn’t help the case of people pointing out those problems to engage in blatant discrimination, which this is.

    1. “part of their religion not to take it off”

      Its not. Its just an Arab custom. Most Muslim women did not follow it until Wallabist fundamentalism surged.

      “Jews wear kippas.”

      Many do but nobody sues the police over it.

      Its also a recent development, the Torah and Talmud talk about covering the head but it was historically hats.

      An old joke from when few Israelis wore kippahs and Pope Paul visited is that one could pick out the Pope because he was the only one wearing a kippah.

      1. “Its not. Its just an Arab custom. Most Muslim women did not follow it until Wallabist fundamentalism surged.”

        It’s not exactly your position to make that call, is it? Certainly people believe its part of their religion.

  13. 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.”

    I like this idea and would like to subscribe to the Second Circuit’s newsletter. I would like to respectfully propose that it be applied to all persons suspected of carrying firearms:


    Indeed, accepting the arrestees’ Second Amendment right to carry a gun would expend fewer resources than “requir[ing] dialogue with arrestees and additional time spent negotiating removal.”

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