The bad news is that there have been leaks in the dam, with the potential for more. Three years ago, a woman became the first in Denmark to give evidence from underneath a niqab, after briefly revealing her face to a female judge for identification purposes. A 2012 decision by Italy’s Higher Judicial Council clears the way for veils to be worn as long as they “constitute a legitimate exercise of the right to profess one’s own religion” and meet the subjective criterion of not “causing disturbance to the regular and correct court proceedings.” Indeed, judges in most jurisdictions are not bound by rigid guidelines. For instance, following Judge Paul Paruk’s dismissal of a plaintiff’s case in 2006 because she would not testify with her face showing, the Michigan Supreme Court affirmed only that lower courts are to “exercise reasonable control over the appearance of parties and witnesses.” A judge more in thrall to multiculturalism could have acquiesced to the niqab — just like the Danish one did.
A Canadian case that began in 2007 is among the most pivotal. At its center is a sexual assault complainant, N.S., who wished to testify against two male relatives at a preliminary inquiry while wearing her niqab. The accused men objected, insisting that they would need to see her face to evaluate her claims, and Judge Norris Weisman noted that N.S. was not veiled in her driver’s license photo. Weisman determined that she must remove the niqab, but this order was quashed by the Ontario Superior Court and the Court of Appeal for Ontario. The latter extensively acknowledged the religious rights of niqab wearers in the courtroom, though it did admit that in some circumstances a defendant’s right to a fair trial could require a witness to bare her face. It sent the issue back for reconsideration and urged “constructive compromises,” including such possible arrangements as a female judge and an all-female courtroom staff. The Supreme Court of Canada heard testimony last December, as N.S. was still seeking an order entitling her to take the stand covered. Its eventual ruling may shake up the niqab debate in that country and beyond.
Even the jury box can be a place of controversy. In March, a UK judge took the “extraordinary” step of prohibiting a niqab-clad woman from serving. Muslim leaders condemned it as bias, but one could argue that she actually benefited from a new shade of courtroom accommodation that rescued her from the unpleasantness of jury duty: forget about dropping the veil and just go home. Will more Muslims be inspired to arrive in niqabs, hoping to escape their own obligations?
Although most wrangling has focused on face veils, mainstream Islamic attire occasionally stirs the pot. Allowing judges to wear headscarves (hijabs), which could preempt the desired image of religious neutrality on the bench, is an issue in Europe. A state-appointed body recently recommended that Norwegian judges be permitted to don them, while the topic formerly roiled the Danish government. Lawyers also have been involved in such disputes. In 2009, an appeals panel of the Dutch bar association ruled that the same Mohammed Enait introduced above could wear a “Muslim hat.” As for others with business at the courthouse, the U.S. state of Georgia has led the way in officially relaxing restrictions on headgear to accept apparel worn for religious reasons, following the 2008 arrest of a woman who refused to remove her hijab at a security checkpoint; the shift has aided Muslim men as well. Finally, no discussion would be complete without mentioning Cheryl Bormann, a Pentagon-paid civilian attorney who has covered her hair when representing one of the accused 9/11 planners. She requested that the court order modest dress for all women participating in the Gitmo legal process — “out of respect” — so pious terrorists are not compelled to look away “for fear of committing a sin under their faith.”
Additional concerns. Prayer-related concessions are a source of growing discomfort. A court building in Düsseldorf, Germany, ditched crosses but installed footbaths for ritual washing; the need is said to have arisen because Muslims were cleansing their feet in toilets. The anti-military protesters who managed to remain seated at their UK trial “were given an extra 20 minutes on top of their lunch break to go to pray at a mosque,” according to a Daily Mail article, and “a separate ‘quiet’ room [was] set aside for their regular prayer intervals.” Early this year, the Associated Press noted in passing that a federal judge presiding over a sex trafficking case in Tennessee was “allowing the defendants to take scheduled Muslim prayer breaks during the proceedings.” Deferential inaction also assisted the alleged 9/11 conspirators in using prayers to disrupt their arraignment.
Another jihadist testing the limits of accommodation is Nidal Malik Hasan, the U.S. Army psychiatrist facing a court-martial for murdering 13 people at Fort Hood. Contrary to Army regulations, Hasan began sporting a beard at pretrial hearings in June, sparking a protracted legal battle. “In the name of almighty Allah, I am a Muslim,” Hasan explained to the judge, Colonel Gregory Gross, on August 30. “I believe that my religion requires me to wear a beard.” However, prosecutors suspect that he simply intends to make it harder for witnesses to identify him. Gross ruled on September 6 that Hasan will be forcibly shaved if he does not shave himself — a decision that has been appealed, thus further delaying his trial and, with it, justice for his victims.
Last but not least, recall the infamous, decade-old British case in which a judge banned Jews and Hindus, as well as anyone married to them, from sitting on the jury that ultimately convicted Muslim cleric Abdullah el-Faisal for promoting the murder of those religions’ followers. Though the bizarre move was more of an insult to Jews and Hindus, portraying them as completely emotional beings, than a sop to Islam, nobody should assume it to be the only time that a court will employ creative means to segregate Islamists from the groups they despise.
Demands for courtroom accommodations of all types show no signs of diminishing. Given their success in advancing the Islamist cause, why would they?
Unlike believers of various faiths who aspire to fulfill purely personal religious needs, Islamists view concessions as stepping stones to supremacy. Practitioners of cultural jihad understand how obtaining special privileges that appear minor on an individual basis can yield fundamental transformations in the aggregate, eating away at the bedrock principle of equality under the law and establishing that adherents of Islam are more equal than others. This phenomenon is particularly damaging when it takes place inside the courtroom, the venue in which that law is administered most visibly.
Judges must be mindful of this Islamist campaign of inches. Deference to Islam in any aspect of the legal system calls into question its impartiality as a whole, thereby sapping public confidence in the institution and making it an even more attractive target. Excessive accommodations also communicate a troubling message beyond run-of-the-mill weakness. Professor Barry Rubin’s remarks on the Amina Farah Ali case put it best: “If Muslims are told that the state accepts the argument that Islamic law is recognized as superior to state law … they are being taught to be political Islamists.”
Surely we have enough political Islamists dreaming of our defeat and dhimmitude as it is.