As reported, on a weekly basis, Georgia correctional officers force Bryan Kawand Sims to cut his hair and shave his face, an act that Sims alleges violates his Rastafarian faith. So last month, when the prison denied Sims a formal exemption to the prison’s hair prohibition, Sims filed federal suit against the Baldwin State Prison, alleging the policy violates federal law and Sims’s 1st and 14th Amendment rights.

As stated in his pro se complaint, before filing suit, Sims met with the prison chaplain to provide evidence to the prison regarding the sincerity and tenets of his beliefs. Shortly after their last meeting, however, Sims was “locked in a cage” where he refused to shave his chin area because it would “violate his religious beliefs.” In the cage, an officer threatened to deprive Sims of access to the law library and then eventually “muscled down” Sims in order to shave Sims’ “hair and face … by force.”

Sims is now forced to shave or cut his hair on a weekly basis in accordance with the prison’s grooming policy. As stated in the Baldwin State Prison’s Offender Orientation Handbook, the prison prohibits “the growing or wearing of the hair on the head long enough to extend onto the collar of an ordinary shirt, cover any part of the ears or eye brows, or to be longer than three (3) inches on top.” The prison also bans incarcerated persons from having “goatees, beards, and similar facial adornments.”

Sims has alleged multiple claims in his handwritten complaint. First, by denying Sims’s religious exemption, the Prison “refuse[d] to recognize the Rastafarian religious practice of the sacred dreadlocks … and ordered [Sims’s] hair be clipped and chin be shaved, immediately denying defendant to his [federal statutory] rights and his protection under the 1st and 14th Amendments.” Sims also alleges multiple claims for the verbal and physical harassment he has suffered over his refusal to cut his hair, including explicit and blatant disregard for his religious preferences and for the actual or threatened physical force officers use to shave, or force Sims to shave, his head and face.

For relief, Sims wants the prison to recognize his Rastafarian faith, and “specifically provide a religious exemption profile permitting [him] sacred dreadlocks to grow 3-feet and prohibit the cutting of specifically the chin area.” He has also requested compensation for court fees and mental anguish from the constant harassment of the correctional officers. 

As discussed in Dressing Constitutionally, courts have found that in order to avoid violating a person’s constitutional rights, a prison must to make accommodations for religious reasons, but the considerations of those rights will be balanced against any safety and other concerns the prison may put forth, making Sims’s chances for relief uncertain as he begins the second year of his life sentence.  

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Unlike prison policies justifying removal of fake hair, the Fifth  Circuit Court of Appeals has questioned a Texas prison’s prohibition on natural hair to be used in a religious ceremony.

As recently reported, a Texas prison denied William Chance’s request to use two small locks of his deceased parents hair in a Native American ritual known as “Keeping of Souls.” After Chance’s parents passed away, he made the request for the locks in order to “honor them properly” as prescribed by his faith. Housed in a special unit designed for Native American religious believers, Chance is among a population of approximately “85 prisoners who participate in Native American religious activities about twice a month.”  The ceremony would involve “4-inch locks of [his parents’] hair about as thick as pencil lead.”

But the Texas Department of Criminal Justice (TDCJ) denied Chance’s request, saying that he could only possess items available for purchase through an approved vendor or the commissary. Interestingly, unlike the desired locks for the ceremony, Chance was able to secure a medicine bag with horsehair through these “proper” channels.

In response to the denial, the Texas Civil Rights Project took up Chance’s case, arguing that the prohibition “violates the federal Religious Land Use and Institutionalized Persons Act, which bars discrimination or unduly burdensome restrictions on individuals and religious organizations.”

Reviewing the case last month, the Fifth Circuit Court of Appeals decided the lower court erred when it found, on summary judgement, that the prohibition does not violate federal law. Favoring Chance’s argument, the Court said that “a small lock of hair is no more capable of being soaked in drugs than the letters in a prisoner’s mail,” and the hair could be inspected and tested. The Court also noted that “TDCJ permits Native American prisoners to possess such objects as a bone or a tooth, which are apparently not available for purchase from traditional vendors.” So, why then the ban on hair? Subsequently, the Court remanded the case for a lower court to properly decide whether the prohibition of the locks is “the least restrictive means of furthering TDCJ’s compelling interests.” The trial date is set for January.

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Turkey’s Prime Minister Recep Tayyip Erdogan announced a democratization package that includes further relaxing the ban on women wearing headscarves.  Women in universities have been able to wear headscarves, but Erdogan’s announcement extended this ability to women government employees, except prosecutors, judges, and military and security personnel.

Here’s a video of Erdogan’s speech, with English subtitles; the relevant section starts at about 2:19:

http://www.youtube.com/watch?v=XOzlt0rVLKI#t=145

According to the ACLU, a Sikh man was targeted for his religious attire by both law enforcement and a judge.

In the first part of his ordeal,  Jageet Singh was allegedly harassed for his turban and his kirpan by employees of the Mississippi Department of Transportation.   We’ve previously discussed the wearing of small ceremonial knife of the kirpan as a First Amendment free exercise of religion issue. Yet according to the ACLU report, the kirpan was not the sole issue: “One officer declared that all Sikhs are “depraved” and “terrorists.” They continued to taunt him, and forced Mr. Singh to circle his truck with his hands on his turban while they searched the vehicle.”

The officers’ arrest of Singh for failure to obey an order, however, allegedly led to an even more egregious experience when Singh appeared for his court date at Pike County Justice Court in Mississippi:

Waiting for his attorney in the back of the courtroom, he was stunned when four Highway Patrol officers approached him and ordered him to leave the courtroom. The officers stated that Judge Aubrey Rimes had ordered them to eject Mr. Singh from the courtroom because he did not like Mr. Singh’s turban. Moreover, they told Mr. Singh that Judge Rimes would punish him if he failed to remove his headdress.

The judge subsequently allegedly told Singh’s attorney that Singh needed to remove the “rag” from his head.  Again, according to the ACLU,

“Portrait of a Man,” 1730

The Pike County Board of Supervisors recently recognized that Judge Rimes’s harassment of Mr. Singh was unacceptable. In response to an investigation by the U.S. Department of Justice (DOJ), the Board revised the County’s harassment and non-discrimination policy to explain that religious discrimination includes “requiring an individual to remove a head covering or denying that individual access to a County office, building, program or activity because they are wearing a head covering, if that head covering is worn for religious reasons.”

However, the ACLU stated it plans to pursue the matter with the state judicial commission. 

The judge’s actions bring to mind the famous “transcript” The Peoples Ancient and Just Liberties Asserted, In the Tryal of William Penn and William Mead at the Old Bailey, 22 Charles II 1670, written by themselves.  As discussed in Dressing Constitutionally, Penn and Mead – – – both Quakers – – – honored their religious beliefs and refused to remove their hats and provide the so-called “hat honor” when in an English court and were adjudged in contempt.

The alleged actions of both the law enforcement officers and the judge clearly violate Singh’s First Amendment free exercise of religion rights.  Like the alleged removal of girls’ headscarves by Bronx police officers earlier this month, there is little question of constitutional violations by government actors is the facts prove true.

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The specter of a person testifying with her face obscured by a religious covering has reached a lower court in the UK, with Judge Peter Murphy rendering his 36 page opinion in Queen v. D (R). 

Photo of “D” from BBC

On this side of the Atlantic, the Supreme Court of Canada ruled earlier this year in R. v. N.S. that the decision whether or not to allow the witness to wear her niqab was one that should largely be left to the trial judge, weighing various factors that supply guidance.  Importantly (especially for dissenting Justice Abella), N.S. involved a sexual assault prosecution by the young woman wearing the niqab in which the defendants were members of her own family.   Although Judge Murphy relies upon N.S., he also distinguishes it. 

In the U.K. case, D is the defendant, on trial for “a single count of witness intimidation,” and there is no issue of identification.  Judge Murphy makes clear that his judgment focuses upon D’s role as a defendant in a Crown prosecution.  He acknowledges that D possesses religious rights:

The defendant has the qualified right to manifest her religion or belief pursuant to art. 9 of the European Convention on Human Rights (‘the Convention’). By virtue of the Human Rights Act 1998, that right is cognisable as a matter of domestic law in the Crown Court. By virtue of s.6(1) and (3) of that Act, the Court is a public authority and may not act in a way incompatible with a Convention right. At the same time, the Court may be entitled to place restrictions on a qualified Convention right, such as that under art. 9.

The judge accorded sincerity to D’s belief, but did devote some discussion on whether or not the belief was mandated, and he also discusses the “positive benefits” of the niqab and views it as consistent with participation in a democratic society.  As to D’s defendant status, the judge opined that fairness as to her was not the only – – – or perhaps even primary – – – consideration: the victims, the members of the jury, and public at large are also important.

But like the Supreme Court of Canada suggested in N.S. for the trial judge on remand, essentially Judge Murphy balances the equities.  For Judge Murphy,  D has choices: how to dress and whether to give evidence. Indeed, Murphy considers dress untethered to religion.  In paragraph 73 he writes:

It is rare for the defendant’s manner of dress to be an issue in the conduct of judicial business. Today, the Courts are rightly tolerant of informality or diversity of dress on the part of defendants, witnesses, and jurors. But a defendant’s dress may become an issue. For example, the defendant’s choice of dress may invoke the rules of bad character evidence if, unless corrected, it would give the jury a false impression, for example if the defendant appears at court wearing a clerical collar or military uniform: see Criminal Justice Act 2003, s.101(1)(f). If a defendant were to appear wearing a t-shirt with an obscene, racist, or offensive logo, it cannot be doubted that the Court would be entitled to take steps to protect the dignity of the proceedings. And it the defendant’s dress interferes to an unacceptable degree with the Court’s ability to conduct a trial which is fair to all parties, the Court may similarly have to take action to ensure that the trial can proceed in the manner prescribed by law, and is fair to all parties.

Given the “choice” as to dress, the other choice regarding the giving of evidence (testimony) constitutes the other side of Judge Murphy’s equation.  He rules that should she chose to give evidence, then she must not be wearing the niqab, although she “may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean of a live TV link.”  The judge further ordered that there be no sketching or drawing of D (filming is already prohibited).

For those in the US, it is only a matter of time before this issue will be presented before courts as squarely as in the UK’s Queen v. D and Canada’s R. v. N.S.   To date, there have been several courts that have considered the issue of a veiled witness, including a small claims judge resulting in a reconsideration of the evidentiary rules as is discussed in Chapter 6 of Dressing Constitutionally.  If American jurists look to their colleagues outside The States, these are both important and well-reasoned decisions, even if one disagrees with their conclusions.  More about the case is on Constitutional Law Professors Blog here.

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