Constitutional Aspects of Criminal Procedure

¶ … Constitutional Aspects of Criminal Procedure in Freeman v. DMV

France and the England have taken steps to ban head veils for Muslim females, the niqab, in schools on the bases of security and education, stating that while teachers should make every effort to accommodate social, religious, or medical requirements of individual students, the needs of safety, security, and effective learning in the school must always take precedence. In the U.S., Muslim women are required to lift their veils for identification photos such as passports and drivers licenses. This paper provides a review of the relevant peer-reviewed and scholarly literature to demonstrate that such demands are not subjective, unreasonable, and violative of religious freedom as well as the right to privacy and due process, and that the state does in fact have a "right to see your face." A summary of the research and salient findings are presented in the conclusion.

Review and Discussion

Because the United States has traditionally been an extremely tolerant society when it comes to religion and the Constitution has placed such rigorous restrictions on the federal and state governments' ability to interfere with such practices, it would seem reasonable that Freeman would prevail in this matter. The facts of the case, at least, are not in dispute. In early 2001, the plaintiff, Ms. Freeman, a U.S.-born native who had previously converted to Islam in another state, had a photograph taken for a Florida state driver's license with her wearing a niqab, a garment that covers the entire face except for the eyes; however, later in 2001, the plaintiff was ordered to either have her photograph retaken with her face revealed or her driver's license would be canceled. Rather than accept either of these alternatives, Freeman brought suit under Florida's Religious Freedom Restoration Act (RFRA). Following a three-day trial that was publicized on "Court TV," Judge Janet Thorpe rejected her request in June 2003 (Kahn, 2007). According to this author, the judge in the case admitted the plaintiff's religious sincerity and considered Freeman's argument that comparable rights had been extended to isolationist Christian sects in the 1970s and 1980s, but pointed out that much had changed in the intervening decades and that the introduction of technology and new threats to the nation's security. The other arguments used by the plaintiff in support of her position that she had a right to a Florida driver's license without having to submit to a photograph of her entire face were likewise countered by the judge who pointed to the overriding security interests of the state and the innovations in technology that had been introduced over the years. In sum, the judge clearly stated that, "Plaintiff certainly has the right in America to wear her niqab and hijab in public and even while driving, but that is not the same thing as presenting a masked photo for ID purposes" (Freeman v. DMV, p. 12).

Indeed, there would appear to be no gray area here except for the religious objections raised by Freeman in support of her claims that such laws are unconstitutional. In reality, the Florida laws do in fact require some religious adherents to violate their faith by having such photographs taken, but some trade off must be made between the practice of religion and civic law and order. In this regard, Wexler (2002), points out that the "reliance by many deeply religious citizens on religious sources of authority raises important civic problems" (p. 1159). Among these problems is the ability of the state to "see your face" when it comes to providing official forms of identification that are routinely used by law enforcement authorities. Indeed, taken to its logical extreme, other religious adherents could present themselves for driver's license photographs wearing Halloween masks or nothing at all, claiming religious authority for such actions. It is a matter of dispute, however, whether the Koran demands that Muslim women cover themselves. Furthermore, the issue of whether the plaintiff's claims that religious imprecations prohibited her from having her face photographed were carefully considered by Judge Thorpe but were found to either be spurious in the instant case or otherwise open to interpretation. As Weiner (2004) points out, the requirement to wear the niqab remains open to interpretation even by Islamic religious authorities: "One frequently encounters a textual interpretation that is liberal: Modesty is required of Muslims of both sexes, and Koranic references to veiling apply (or, applied) literally only to the wives of the Prophet Muhammad" (p. 49). Therefore, the legal line concerning acceptable photographic content for legal identification purposes must be drawn somewhere and Judge Thorpe firmly - and rightly -- drew it in this case.

Conclusion