Guest Commentary

Opinion: Headwear Laws Fraught With Trouble

, The Connecticut Law Tribune

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Passion about head coverings is not limited to intense interest in Kate Middleton's latest hat or ­fascinator. Retailer Abercrombie & Fitch, well known for its "look policies," lost a court battle last month to prohibit its employees from wearing headscarves but won a different federal appeal earlier this month because a 17-year-old employee did not make explicit the religious motives for her scarf. And earlier this month, Turkey made news by further lifting its long-standing ban on headscarves, even while maintaining the prohibition for women judges, prosecutors and members of the military.

Police officers in the Bronx, N.Y., allegedly removed by force the headscarves of teenage girls playing in a park in late August. And last month in Mississippi, the American Civil Liberties Union sent a letter to the state Department of Transporta­tion alleging that employees had targeted a truck driver because he was wearing a turban. When the truck driver appeared in court on the charge for failure to obey an order, the judge reportedly had him ejected from the courtroom for his headdress and told his attorney that he needed to remove the "rag" from his head.

It isn't only Muslims and Sikhs whose head coverings arouse consternation. In 1986, the U.S. Supreme Court considered the case of S. Simcha Goldman, an Air Force psychologist who had worn a yarmulke without incident for many years, despite a regulation prohibiting wearing "headgear" indoors. Justice William Rehnquist, writing for the court, upheld the constitutionality of the regulations, but Congress quickly passed an "accommodation of religious apparel in the military" provision. The statute allows prohibition of religious headgear and religious attire only if it is "not neat and conservative."

The most famous head covering in constitutional history is William Penn's hat. It wasn't that Penn's headcovering itself denoted his Quaker religion. Instead, as a Quaker, he refused to use honorific titles and practices, including the common male custom of removing or tipping hats as a sign of respect. During Penn's famous trial in England for tumultuous assembly, he and his co-defendant were held in contempt for failure to remove their hats.

Although the trial was a potent symbol to the founders of the United States of the unfairness of British law, the entrenched practice of removing hats in court has persisted. Indeed, a federal appellate court recently rejected the claims of a New York attorney that he had a First Amendment right of expression and a Fourteenth Amendment liberty interest to appear in New York City housing court wearing a baseball cap. The federal judge first hearing the case found that prohibiting baseball caps in general — as opposed to, for example, Yankees baseball caps — did not infringe on any constitutional rights.

And it is not only courtrooms that demand the removal of hats, at least those on the heads of men. A federal statute last recodified in 1998 not only declares the "Star-Spangled Banner" as the national anthem but provides that "men not in uniform should remove their headdress with their right hand and hold the headdress at the left shoulder, the hand being over the heart."

For Americans, exemption of religious attire from general "headdress" rules is part of the religious freedom enshrined in our history and our Constitution. Judges, law enforcement officers and retail moguls needing a refresher would do well to read The Peoples Ancient and Just Liberties Asserted, In the Tryal of William Penn and William Mead at the Old Bailey, 22 Charles II 1670. They also could simply read the First Amendment.

Our neighbors to the north in Québec have a different history and a less absolutist constitution. The provincial government's proposal to limit religious expression by public employees to the "unostentatious" has nevertheless caused a furor. Specifically prohibited ostentatious attire, helpfully illustrated by a "do's and don'ts" government poster, focuses on headgear. Disallowed are the turban, the headscarf and the yarmulke, or kippa. Despite their contrasting approaches, the underlying problem with the Québec proposal and the American exemption is the same. By carving out some head coverings as religious, government not only gets to decide what constitutes religious headgear but also invades personal autonomy. One can imagine a woman wearing a scarf over her hair in a Québec government office and having her employer decide whether it is a banned hijab or a stylish kerchief. One can also imagine a man wearing a cap in the courtroom and a judge deciding whether it is a permitted religious expression or a disrespectful gesture. In such situations, government officials become entangled in making religious judgments they may not be qualified to make, which invites bias. Moreover, what gets labeled as "ostentatious" is the head covering that does not conform to normative fashions. Even one of Kate Middleton's fascinators might be acceptable. Or not.

Dissenting in Simcha Goldman's case about wearing his yarmulke, Justice William Brennan, usually a staunch advocate of civil liberties, wrote that if Goldman "wanted to wear a hat to keep his head warm or to cover a bald spot," there would be no constitutional violation because "mere personal preferences in dress are not constitutionally protected."

But why not? Governments should no more be in the hat business than they should be in the business of religious headgear.•

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