Michigan Supreme Court Says Judges Control Witness Attire, Even for Veiled Muslim Women?

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By Javier Lavagnino, Esq. on June 17, 2009 12:28 PM

Can a Judge Tell You What to Wear in Court?

The Michigan Supreme Court has voted 5-2 to give judges across the state control over what witnesses wear in court, which could very well include the veil Muslim women sometimes wear, the AP reports. The issue came up after Ginnnah Muhammad, a Muslim woman, refused to remove her niqab and had her case dismissed by a judge. The AP piece noted that the dispute over Muslim veils in court is a "cutting-edge issue" likely to recur elsewhere in the country, so Michigan's high court may have set an important example.

The proposed amendment to Michigan's Rules of Evidence suggested adding the following language to the existing Rule:

"(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons."

In essence, that language gives judges discretion to impose "reasonable" restrictions on what people wear in court, so that those people can be properly identified in court, and also so that the judge and/or jury can evaluate their "demeanor". Some examples of the latter might be whether a witness or party is: telling the truth, nervous, or having particular reactions to questions.

The ACLU of Michigan (and others) had argued against the amendment, suggesting via comment on the proposed Rule that it closes "the doors of the courthouse to Michigan citizens based upon their religiously-mandated dress." It argued the amendment should at least include a "religious exception" to prevent that from happening, and that there were other ways of assessing a witness's credibility than via visual cues. For what it's worth, two of the justices reportedly agreed that a religious exception was necessary.

The issue is one that is important both inside and outside courtrooms across the nation, as there are sometimes competing, and difficult to reconcile, interests at issue. The rules and laws governing courtroom decorum and attire vary by jurisdiction, and quite frankly, it's not unusual for counties and/or individual judges to decide what they allow to be worn in their courtroom(s). Further, they may also determine whether certain articles of clothing must be removed while going through security. These rules might even be enforced via contempt powers, in extreme cases. As far as attire required by religion goes, Michigan appears to be taking a stand that judges can even limit that clothing in a "reasonable" manner, but future litigation on the issue certainly seems likely.