Vail Daily column: Freedom of religion or special treatment? | VailDaily.com

Vail Daily column: Freedom of religion or special treatment?

A Michigan woman who claimed her rights were violated when she was required to remove her headscarf to have her mug shot taken will test the extent of the First Amendment’s protection of religious liberty. Malak Kazan was arrested for driving with a suspended license due to outstanding traffic tickets. During her booking, she was directed to remove her headscarf for her mug shot. Initially she refused to remove it claiming it was contrary to her religious observance. Her interpretation of Islam requires that her hair be covered in the presence of men that are not close relatives.

The officers of the Dearborn Heights Police Department denied Kazan’s appeal to take the photo with her headscarf on. Kazan then asked for a female officer to take her photo. That request was also denied. Eventually she removed her headscarf and the photo was taken. She is now suing the city of Dearborn Heights for violating her First Amendment rights. Furthermore, she claims the requirement that she remove her headscarf inflicted “extreme shame, humiliation, mental anguish and emotional distress” on her.

When Americans claim to have the right of “freedom of religion,” what they are referring to is the First Amendment, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” called the Establishment Clause and the Exercise Clause respectively.

Is freedom of religion an unlimited right? Not exactly.

Perhaps the federal government’s most famous interference in a religious practice was the prohibition of polygamy, a common tradition in the Mormon Church during the 19th century. Considerable pressure was brought to bear on the Mormons to compel them to eliminate the practice. George Reynolds appealed his bigamy conviction to the Supreme Court. The court distinguished between religious beliefs and religious practices and allowed the infringement of religious exercise in cases where a religious practice conflicts with a neutrally enforced law. In other words, no one gets to marry a bunch of women, regardless of their religion. Whatever of your views on polygamy, most people would agree that religions that include human sacrifice, for instance, have no place in American society. Again, a religious practice curtailed as the result of a neutral law prohibiting murder.

In the intervening years, the Supreme Court’s position evolved to require the state to show a “compelling interest” for restricting a religious activity.

Is there a compelling interest for police departments to require individuals to remove head coverings? The Dearborn Heights Police Department insists that the removal of all head coverings is required for all individuals for safety reasons pointing out that dangerous items can be concealed in a head covering. I decided to check with a police officer I know. She confirmed that head coverings must be removed at her department as well — that includes headscarves, turbans, hats and even wigs. She pointed out that a head covering made of fabric, such as a scarf or turban, could be used to harm oneself or another by strangulation.

Another distinction worth noting is that the Dearborn Heights’ requirement is a department specific policy, not a law enacted by Congress. Also, it is a neutral policy, in that it applies to anyone arrested by the department, not specifically Muslim women.

Kazan has it wrong. Her freedom of religion was not violated. Her demand is not for equal treatment, but rather, for special treatment due to her religious beliefs.

Claire Noble is the author of “State-Sponsored Sex and Other Tales of International Misadventure.” She can be reached at claire@clairenoble.com or follow her on Twitter @thehkhousewife.

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