Opinion - What happens when religious freedom clashes with personal protections in court?

Yahoo

19-05-2025

On May 7, a devout Muslim was called to give testimony in her ex-boyfriend's criminal case. He was charged with assaulting her and with domestic violence.
What would have been a tragic but routine moment in the justice system took an unexpected twist when the defense asked the judge to order the victim to remove her niqab, the religious attire that completely veils the face except for the area around the eyes. Some Muslim women wear it in places where they may encounter men who are not members of their family.
The defense argued that allowing the victim to testify in her niqab would violate their client's constitutional right to confront their accuser and deny the jury critical demeanor evidence to help them assess her credibility. It was a smart tactic, one used in many different cases, to put the victim in the difficult position of having to choose between her religious convictions and her desire for justice. If she refused to testify, it would have led to a dismissal of the case.
While governments often resist claims for religious accommodations, in this case, the prosecution argued that forcing the woman to remove her niqab would violate her right to practice her religion.
Today, the banner of religious freedom is being raised all over the country, encouraged by a Supreme Court that has given priority to religious values even when they conflict with other constitutional norms.
In each case, religious liberty must be balanced against other values. That means that the front lines in the battle over religion and its place in society will be continually shifting and, however those battles come out, each skirmish will fuel culture wars.
That is why the Boston case made headlines.
The battle was joined when Boston Municipal Court Judge Kenneth Fiandaca ruled that the alleged victim could only testify if she removed her niqab. His ruling was, however, quickly appealed and reversed by the Massachusetts Supreme Court.
Traditionally, religious liberty has been seen as a kind of private right. The government should not tell people whether, when or how to worship. The philosopher John Locke, who influenced the Framers, wrote that 'The care of each man's soul' should not be part of the 'mutual compacts' that create a government of free people. No one, Locke added, 'ought to be excluded from the civil rights of the commonwealth, because of his religion.'
In this understanding of religious liberty, people are free to go to the house of worship of their choice, but religion is not to be brought into the workplace or the 'public square.'
This conception of freedom of religion requires tolerance. And it minimizes conflict between religion and other values of the kind seen in the Massachusetts case.
In our era, another conception of religious liberty has come to prominence. In this view, confining religious practice to the private realm is seen as favoring an impoverished kind of religion.
For people who hold this view, religion is seen as an indispensable part of a person's entire life, not just what someone does in their church, synagogue or mosque. This conception has been exemplified in cases such as that of the Colorado baker sanctioned by the state for refusing, on religious grounds, to make a wedding cake that celebrates a same-sex wedding. Another involved a religious order of nuns that did not want to cover contraception in the health insurance they provided for employees of their group homes for children.
Inevitably, those practices run up against competing rights-claims. Those conflicts are often framed as involving a choice between different ways of life, religious and secular.
Not surprisingly, they become the stuff of intense legal and political debate.
For example, speaking to the Federalist Society in November 2020, Supreme Court Justice Samuel Alito, a longtime proponent of enhanced freedom of religion, observed that 'religious liberty is fast becoming a disfavored right.' In Alito's view, too many Americans do not cherish that liberty or regard it as 'just an excuse for bigotry.'
On the other side, as political scientist Michael Bobic argues, 'When Congress or state governments try to accommodate the sincere religious beliefs of citizens, they risk violating the establishment clause of the First Amendment or the equal protection clause of the Fourteenth Amendment.'
This brings us back to the Massachusetts case.
The trial judge's initial ruling was not surprising, but it was wrong. There are many ways to assess witness credibility, and a long line of cases have held that the right to confront one's accuser is, as Justice Serge Georges of the state Supreme Judicial Court explained, 'not absolute.'
Courts, he said, 'have recognized limited and exceptional circumstances in which a defendant's rights under the Sixth Amendment … may appropriately yield to competing constitutional interests.' Georges directed the lower court to consider whether the religious convictions of the witness are sincere and prohibit her 'from displaying her face to males.' If so, Georges concluded, the 'right to confrontation … including any 'face to face' component, must yield to the witness's First Amendment rights.'
This ruling meant that a Muslim woman could testify in her niqab, rightly vindicating the claims of religious liberty. But, at the end of the day, the jury was not persuaded by her testimony and found the defendant not guilty. Also, we are no closer to healing the deep divides over those claims.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
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