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December 17, 2006

When American law and private doctrine conflict

Eugene Volokh discussed an extremely interesting case in which a Muslim woman who wears a burka came before a judge in a small-claims court case and refused to agree to show her face if she took the stand. The judge made the argument that he must be able to see the face of witnesses in order to effectively judge his or her testimony and therefore could not proceed with the case if the woman still refused to remove her face covering. The case was subsequently dismissed.I find this extremely fascinating because it is an instance in which two value systems are in direct conflict. It's worth reading the subsequent posts on Volokh discussing various issues of the matter. I particularly enjoyed the debunking of the suggestion that the judge should have granted a change of venue so that the woman could have presented her case in front of a female judge and therefore felt comfortable enough to remove her face covering. I must admit I initially jumped to this suggestion, but the rebuttal is completely convincing. There will often/always be male members of juries and defense teams and male defendants, all of whom need to see the face of female witnesses. A suggestion that works in small claims court but rarely elsewhere is not acceptable.So what to do? If we simply hold that all witnesses must show their faces in court, we effectively do not grant access to the legal system to certain individuals. As is suggested on Volokh, they may even become targets as assailants know they will likely not be testified against (in the specific case being discussed, the women chose to drop the small claims case rather than remove her face covering and proceed). If we allow certain individuals to conceal their faces at trial, the legal system would be compromised, and perhaps other individuals who would not normally cover their faces would request to so under claims of equal rights.There are certainly other instances when American law is in direct conflict with private doctrine. It can be a case when supposedly equal treatment/requirements is de facto discrimination against certain individuals (i.e. a situation remedied by anti-discrimination laws protecting the disabled in the workplace). As a nation of immigrants and one that guarantees equal treatment, we have a responsibility to seek compromise. It may just be a very difficult path along the way.