veiled4allah: legal issues related to driver's licenses, showing ID, etc

Zack Ajmal said:

Total comments: 112

I knew that the original allowance of nonphoto licenses had nothing to do with Muslims, but I didn't know that it went to the Supreme Court. Wouldn't that mean that this is supposed to be the law all over the US? Or is it only in the 8th court jurisdiction?

Al-Munaqabah said:

Total comments: 996

The thing about the courts is that they don't have any power to enforce. That belongs to the executive branch.

To use an example that I've been learning about recently in my civil rights law class, the Supreme Court ruled in 1954 that segregating schools by race was unconstitutional, but schools continued to segregate and states to make laws segregating schools for many years after that.

The courts can only act when someone brings a challenge and although it is the law of the land, the court can really only enforce it on the two parties to the lawsuit.

Inshallah, I'm going to do some more research into this case to see what's happened since it was decided.

Zack Ajmal said:

Total comments: 112

I am reading all about the desegregation etc. in Taylor Branch's Parting the Waters.

Amy said:

Total comments: 3

someone on the Tacitus blog said that women weren't actually required by Islam to fully veil, another said that so long as she "covered her hair" she should be able to submit a photograph that would be usable to identify her.

Now, in christianity there a huge number of interpretations on "laws" set down in the bible. So, is this just a matter of interpretation? Or are these people wrong? I'm reading two different things on this matter.

Al-Munaqabah said:

Total comments: 996

Thanks for visiting, Amy.

According to the majority of Islamic scholars, a woman is required to cover everything but her face and her hands. A minority of Islamic scholars hold that a woman is required to cover everything but her eyes. However, nearly all of these scholars permit a woman to uncover her face so that her identity can be verified. If you follow the link to my original entry on this topic (face veils and the law) you can find some further information on this.

I personally do not believe that the face veil is obligatory. I wear it out of choice. Even if I did believe it to be obligatory, the school of thought that I follow would permit me to unveil for identification purposes.

Thus, all my photo ID shows my face and I have no problems with being asked to uncover my face so it can be matched against the ID card.

I think that Sultana Freeman is being stupid to want to wear a face veil for a photo ID.

But I also don't think that she should have her license revoked for that reason and be unable to drive. That's what Florida did. I think that Florida should allow Freeman to take a religious exemption and be able to get a non-photo driver's license. This option is available in Illinois and apparently some other states as well, though I haven't found documentation yet on them. The Supreme Court case that I mentioned in this blog entry makes it clear that people are permitted to take a religious exemption and get non-photo driver's licenses.

There's something that I don't know if a lot of people understand. It doesn't matter whether Freeman is the only person in the world who holds that religious belief or if every Muslim does so. The Supreme Court is not, and should not, be in the position of determining what the "correct" positions of a religion are. If it did so, it would be involved in "establishing that religion" by entangling the government in how the religion runs itself.

It simply does not matter whether any other Muslim holds Freeman's beliefs. As long as she can present an argument that her beliefs are based in some way on her religion and that she holds them sincerely (which she clearly does), then that is her "religion" even if it is not the view of any other Muslim. Again, the Court is not going to decide which religious beliefs are valid and which ones are not.

Once Freeman has proved that her ideas are based on her personal religious beliefs, then the court looks at whether the government has a compelling interest that justifies infringing on her exercise of her religion. In 1985, the Supreme Court agreed that the state's interest in photo driver's licenses is not compelling enough to override peoples' religions. The Supreme Court therefore said that the state (in that instance, Nebraska) had to allow the woman (in that instance, a Christian who believed photographs were graven images forbidden by her religion) to get a non-photo driver's license.

As far as I know, that is still good law today. As I mentioned to Zack in a previous comment, I'm doing some research to find out what other courts have upheld the right to a religious exemption and a non-photo driver's license.

If the precedent from 1985 is still good law, then Florida will probably be required to let Freeman have a non-photo driver's license.

Al-Munaqabah said:

Total comments: 996

Here's some more information I found. In Veiled Threat (written last year), Jacob Sullum says that under the standard that the Supreme Court used up until 1990, Freeman would probably be able to get a non-photo driver's license under a religious exemption. However, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Supreme Court adopted a new standard which favored government interests over religious exercise to a much greater degree than before. Sullum feels that under the Smith standard, Freeman would be out of luck.

In this blog entry I mentioned an Alabama case about people who believe that social security numbers are the "Mark of the Beast". This case is from 1998 and therefore the plaintiffs have to get around Smith. One of the ways that they do so is to allege that the plaintiffs' rights to free speech are also being limited. They say that in cases involving multiple Constitutional rights, the stricter standard against the government should be used.

The latest development in Freeman's case is that a judge allowed Freeman to proceed with her freedom of religion and due process claims but dismissed her privacy and free speech claims. The due process claim, as set out in her original filing, is that she was deprived of her driver's license without a hearing.

The rejection of the privacy and free speech claims may be fatal to Freeman's case, based on what I wrote above.

Incidentally, I also found a brief by the Maryland Attorney General (PDF) from 1994 in which the AG argued that Maryland citizens do not have a right to get non-photo driver's licenses under a religious exemption. The brief relies heavily on Smith but makes other arguments to distinguish the case from the 1985 case that I first mentioned.

The two other cases directly on point are Dennis v. Charnes, 646 F. Supp. 158 (D. Colo. 1986), and Bureau of Motor Vehicles v. Pentecostal House of Prayer, Inc, 380 N.E.2d 1225 (Ind. 1978). Both cases found the right to a non-photo driver's license under religious exemption. However, both were before the Smith decision.

So the question is really open at this point. Jensen v. Quaring (the 1985 case) has not specifically been over-ruled but changes in the law (i.e., the Smith decision) mean that lower courts can and have argued that they are no longer bound by Jensen.

Right now, Freeman is just at the beginning of her journey through the court system. She is appealing the decision of the licensing department to a trial court in Florida, the Ninth Judicial Circuit Court in Orange County. I think that she will probably get a trial, because of her due process claim. She should not be stripped of her driver's license without due process of law and there was none. In her trial, she will argue that her license was wrongfully revoked in violation of her Constitutional right to free exercise of religion. The court may decide for her and order Florida to restore her driver's license, possibly in a non-photo form, or it may decide against her. Either way, there will probably be an appeal, assuming that Freeman really cares a lot about this.

Her current claim rests on her right to freedom of religion in the Florida state constitution, but she could if necessary allege that her rights under the federal constitution are also being violated. So this case could eventually go to the Supreme Court. However, it's a long, long way from that.

Although I think that Freeman's beliefs are wrong-headed, I think it's probably a good thing that she brought this lawsuit because it could help clarify what the law is.

colin brayton said:

Total comments: 1

Thanks, that's a really useful summary. The same issue has arisen in France recently, where a government official was quoted as saying, "We do not accept that French Muslim women cover their hair while being photographed for identity cards in police stations. Laws related to the Republic should not be violated."

Link to links

note: comment edited to add hyperlink

Al-Munaqabah said:

Total comments: 996

Thanks for visiting, Colin.

I can understand the fuss about face veils. But how is a headscarf a problem? I've never figured that out. Hair is not a reliable indicator of identity. People constantly change their hairstyles. Women especially may change their hair color and hairstyle completely several times while their license is valid. And on a more serious note, what about a chemo patient who no longer has any hair? As long as the face is visible I don't see how there can be any problem with wearing a headscarf. It's just another "hair style".

LauraJ said:

Total comments: 17

Al-M, thisisa great followup. As I mentioned in the last thread, the issue ot photo-Ids has implications for more than Muslim women who veil. And leave it to the fundo Christians toput the issue on the map...

Also, as re: Brown vs.Bd of Ed, just a reminder to everyone that this was in response to Plessy vs Ferguson, 1896, which was a court-order legalization of segregation, for entities-- public, private and governmental -- that wished to practice it. It took 60 years to get this ruling. Yet, in some areas, many school systems did not begin desegregation until the late 70s. Just 20 years later, patterns of resegregation are occurring. Brown was problematic precisely because it was difficult to enforce. It has never really been given the chance to work.

LauraJ said:

Total comments: 17

Originally posted by Al-Munaqabah -

There's something that I don't know if a lot of people understand. It doesn't matter whether Freeman is the only person in the world who holds that religious belief or if every Muslim does so. The Supreme Court is not, and should not, be in the position of determining what the "correct" positions of a religion are. If it did so, it would be involved in "establishing that religion" by entangling the government in how the religion runs itself.

Al-M,thisis key. It is something of a paradox because states/governments need to strike a balance between 1- exerting its powers over (or, protecting the veiled individual from ) forces that would move to discriminate against the person who follows an established set of religious proscriptions which leads to veiling, and 2- also avoid becoming entangled in deciding issues of religious dogma, as you said. Sometimes, it can not (or will not try to) do both, simultaneously.

My personal feeling is, if the veiled person is not insisting on every one else following the practice, what is the harm in permitting them to have a provisional, non-picture license, like theone each of us gets while waiting for the pictured one to be develeoped?

Zack- isn't Taylor Branch tha' bomb??

Al-Munaqabah said:

Total comments: 996

LauraJ, thanks for sharing your thoughts. I think we pretty much agree on this issue.

I've been continuing to do some legal research, just to see this question through and because my love of legal research is why I'm studying to become a paralegal.

I mentioned in an earlier comment that there were two other cases "on point", meaning that they deal directly with the issue of non-photo driver's licenses and religious exemptions.

The first case is Bureau of Motor Vehicles of The State of Indiana v. Pentecostal House of Prayer, Inc, 269 Ind. 361 (1978). This is actually the earliest case on the issue that I've found. Like the other cases, it deals with a Christian who believed that photographs were graven images and didn't want a photo driver's license. The Indiana Supreme Court upheld this right.

One point is particularly interesting. The argument of those who oppose religious exemptions is that driving is a privilege, not a right. The Indiana Supreme Court responded to this issue:

The gist of this argument is that there is no "right" to drive in this state, rather, driving is merely a privilege. In other words, the state's position is that no First Amendment problem is raised where a citizen's free exercise right is brought into conflict with a mere privilege. This position was considered and expressly rejected by the United States Supreme Court in Sherbert v. Verner:

"Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege'. It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege"

Thus the trial court correctly found coercive state action in that the photograph requirement of the statute would operate to deny these appellees the ability to drive, regardless of whether this ability is characterized as a right or privilege (citations omitted, emphasis added)

I thought that was really interesting.

The other case on point is Dennis v. Charnes, 646 F. Supp. 158 (D. Colo. 1986). Once again, the plaintiff was a Christian who objected to photographs on the ground that they were graven images. The Colorado district court found for the plaintiff and granted him a religious exemption.

What's interesting about this case is that the first time the judge heard it, he found against the plaintiff. However, while the case was under appeal, the Jensen v. Quaring decision came out. The court of appeals therefore reversed the judge's original decision and remanded the case (sent it back to be re-heard). This time the judge found no difference between his case and Jensen. Therefore he found in favor of the plaintiff. In his decision, he discusses his change of position in a candid manner.

I had run a check of cases that cite Jensen and looked up those that were decided after 1990. Only one of these was related to photo identification. This is In re Miller, 252 A.D.2d 156 (N.Y. App. Div. 4th Dep't 1998). In this case it involved a law requiring pistol permit licenses to have photographs on them. The plaintiff was Amish (a very conservative Christian group) and like all the other plaintiffs, he objected to the photograph as a graven image (apparently many of the people who get so overheated about Sultana Freeman don't realize that all of the cases brought so far on this topic are about Christians not Muslims).

The New York court found against the plaintiff and said that he had to have a photograph on his pistol permit even if it went against his religion. The court closely followed Smith. The interesting point is that the court expressly distinguished between driver's licenses and pistol permits and said that its ruling only applied to pistol permits and therefore was not in conflict with the three driver's license cases. This was because the state's interest in regulating firearms is greater than its interest in regulating the operation of motor vehicles. The court said: Although the governmental interest in requiring photographs on a driver's license for identification purposes is not compelling enough to justify the burden placed on the driver's exercise of religious beliefs, the compelling governmental interest in enforcing criminal laws that involve both the possession and use of firearms and public safety by immediate photographic identification justifies the burden placed upon petitioner's exercise of religious beliefs (citations omitted).

So to the best of my knowledge no lower court has attempted to over-rule the right to take a religious exemption and get a non-photo driver's license. The only court that has looked at a related issue expressly declined to re-visit the issue of non-photo driver's licenses.

We'll have to wait and see if Florida will take that step.

Zack Ajmal said:

Total comments: 112

Originally posted by LauraJ -

Zack- isn't Taylor Branch tha' bomb??

Definitely. His book is great. Very detailed.

natasha said:

Total comments: 19

An interesting discussion, as always. I can't remember where I was reading it, but there was an article a while ago that summed up the state vs. religion article in roughly the following manner: It's wrong to criticize the state for not being like a church. It's wrong to criticize a church for not being like the state.

The two institutions have fundamentally different purposes, and wherever it does not harm other citizens, freedom of personal belief should prevail. Even when it seems a little odd to the rest of us. And yet, this tolerance is damaged by precisely those people who would like to make the state a reflection of the church. In a multicultural (yay diversity) society like America, no group's micro-level beliefs can be projected into law without making life intolerable for others.

It's been explained to me that in the UK, this issue wouldn't even come up. So far, that country views it as an infringement on personal liberty to force anyone to have a photo ID that they must carry at all times and while driving, even if they wouldn't be bothered by having a picture taken.

Al-Munaqabah said:

Total comments: 996

I've been a bit surprised to see how many people are in favor of requiring citizens to carry photo ID at all times and present it whenever they wish to exercise a legal right or privilege (e.g., voting or driving). There hasn't really been much debate about whether that's a good idea. Do we really want to live in a society where the government is constantly checking up on us like that?

That's the assumption behind requiring Freeman to have a photo driver's license, after all. I wonder if people would find it easier to think about these questions if it weren't about those strange Muslims with their strange customs. Sometimes the face veil seems to inhibit clear thought on the part of those who view it, not of those who wear it.

Zack Ajmal said:

Total comments: 112

A-M: I have no problems with a national ID. I have one from Pakistan with a photo as well as a thumb print. Though it should not be demanded without reason, I have no issues with showing a photo ID whenever proof of identity is needed.

Americans in general however are against national ID cards. So I am not sure why most people have a problem with Freeman.

colin (blogal villager) said:

Total comments: 1

This really has been a good thread of discussion. One thing I wanted to add, from the perspective of an outsider who's studied Islam a bit (and tell me if I have this right): "There is no coercion in Islam." This may not always been observed in practice, much as we Christians have not always done unto others as we would have them do unto us. But it remains an admirable first principle, and Muslims I know are always eager that it be understood: This is not a law imposed on one, but which one to which one surrenders oneself, with the aim of living a happy, moral life, and with the help of a loving community of people whose duty it is to actively and critically explore the meaning of this law as it pertains to daily life. It's not exactly Western individualism, okay, but it's not experienced as an oppressive moral code by those who joyfully take part in embodying it. As a historically minded and rather bookish person, I'm very aware of how much European culture was enriched by the spirit and rational methods of collaborative enquiry pioneered for this purpose by the Muslim world during the so-called "Dark Ages." That awareness gives me some hope, even if things look pretty messed up right about now! I think the advertising campaign that CAIR is doing now is very on-message in this respect.

Al-Munaqabah said:

Total comments: 996

Zack, you've put your finger on it exactly. In these threads, we're not having a debate about national ID cards or treating driver's licenses as the equivalent. When it comes to Freeman, people seem to take the idea for granted. And, to be honest, I'm not sure they really support it as much as their positions on Freeman would lead one to believe. But that's just my suspicion.

Colin - Thanks for sharing your thoughts. You've expressed very well how I feel about Islam.

OTM said:

Total comments: 1

My two cents: I think all principles have their limits. The principle that the State not hinder the religious practice of any one of its citizens cannot be held absolutely. Limits are imposed on this the moment you realize that allowing that citizen in his/her practice of religion will violate more obvious and more generally accepted principles. e.g. "I was merely following my religion" is not an accepted argument for theft, pedophilia or murder. As an American and as a Muslim, I feel that 9/11 has changed our perception of the potential for abuse by a mischief-maker. So while Ms. Freeman's desire to follow her understanding of Islam is dear to me, I think it runs against a more obvious and compelling issue of safety and security. If the circumstances were different, I would support for a verdict in her favor. This was the case with earlier court verdicts in the past and, who knows, may again be (I hope) some day soon in the future. Right now, however, it goes against the grain of common sense, as I see it. It was, I believe, Ibn Al Qayyim al Jawziyya, the great Muslim jurist who wrote that in order to properly implement the Shari'ah (Islamic law), he would pray that God grant the Muslim jurist three things: (a) An understanding of the texts of the law (the Qur'an and the sunnah) (b) An understanding of the real world in which those texts were being applied and (c) An understanding of the inter-play between the two. I think what Muslim jurists held for centuries before rigid ways of thinking set in is that no law/principle about social conduct is absolute. This is not to cop out and make excuses, but there was a need to honestly embrace this. Why else would the second Caliph (Umar - God be pleased with him), refuse to prosecute theft of food when crops failed and Madinah experienced famine?

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