Last week, the Oklahoma House passed H.B. 1645 which states that you can’t cover your head in your driver’s license photo for any reason:
Hats, head scarves, head garments, bandanas, prescription … glasses … are strictly prohibited and shall not be worn by the licensee or cardholder when being photographed for a license or identification card.
It means that religious Sikhs, Jews, Muslims and others who wear religious head covering will have to choose between their faith and their ability to travel.
The legislation was proposed in a fit of pique, after the Oklahoma Department of Transportation reversed itself and allowed a young hijabi woman to have her license photo taken with her head scarf on and her face clearly visible, but without her hair showing.
<
p>Represenative Rex Duncan was so incensed by this that he took over a different bill
, with a different purpose, and “hijacked it” to create requirements that the bureaucracy says it doesn’t need, that it will have to defend in court, and that don’t really make a lot of practical sense.
Why don’t I think the bill makes sense? Imagine that I actually did what the law wanted (which I wouldn’t, I would leave the state) and got my photo taken with a naked head. Do you think that a cop would find it easier to recognize me with my glasses and turban from a photograph of me with my hair down and my beard unfurled, man on the cross ishtyle? How about the TSA person at the gate at Tulsa airport?
The bill is also inconsistent. If the legislature seriously believes that hair is a critical part of identification, this is what they would have to do:
- Mandate no toupees or hairplugs or extensions — sorry, Represenative, but you have to go baldy now
- Mandate no changes to facial hair
- Mandate no changes in hair color or style — sorry Represenative, but your wife can’t color that grey out, and your daughter who had long brown hair can’t drive now that she has short pink hair unless she had the photo taken with the short pink hair, in which case you have to live with it from now on
- Mandate that any time somebody does change hair color or style they have to have their photo retaken
- Apply the bill retroactively, so that everybody whose appearance has changed at all since their photo was taken has to get a new ID
Can you imagine? The hairdresser’s lobby would kill that bill deader than a combover on a red carpet!
Here’s a petition in opposition to the bill. Right now, the bill is in limbo, since the Senate sponsor has backed down after talking to the transportation bureaucracy and finding out that they don’t actually want these changes. I’m hoping the pressure keeps it that way, and that they recognize that they will face opposition if they proceed with their hair-brained (sic) scheme.
If you have a beard, then half of your face is covered anyway, so are they going to make everyone shave? If someone has spent a decade growing a sweet handlebar moustache you cant make them cut it.
This is nuts. It’s almost certainly against the spirit of religious accommodation cases decided by the supreme court in recent years (though I’m frankly not sure what the current court would do with it if it were put to them).
For reference, here is the longer version of the passage with the ban on head scarves and other “head garments”:
The photograph or image shall clearly identify the licensee or cardholder and shall depict a full front unobstructed view of the entire head and shoulders of the licensee or cardholder. Hats, head scarves, head garments, bandanas, prescription or nonprescription glasses or sunglasses, masks or costumes that cover or partially cover the head or shoulders are strictly prohibited and shall not be worn by the licensee or cardholder when being photographed for a license or identification card. When any person is issued both a driver license and an identification card, the Department shall ensure the information on both the license and the card are the same, unless otherwise provided by law.
If this were challenged, another thing that, one could argue, should be on this list of things prohibited in a driver’s license photo would have to be beards. Indeed, it’s slightly surprising, given how inclusive this list is, that they don’t go “full Disney” and ban beards, mustaches, goatees, and soul patches. (They’re already banning eyeglasses.)
Why not take it even a step further, and ban all hair all together?
What if you have a tattoo on your face. Your going to tell Mike Tyson he has to remove it? I could go in with my face covered in henna and just say it is a tattoo and a week later it will be gone. So lets ban tattoos on the face too.
Never never ever go full retard.
cheeks burning
I grew up in Oklahoma, and have a lot of reasons to be proud of the time in my life that I spent there. But this…as much as it’s par for the course…as much as it reflects the still-insular attitudes of some, not all Oklahomans…this makes me feel about 2 inches tall.
I’m forwarding this to all my family in friends in Oklahoma. Thanks for bringing it to my attention.
Margin Fades —
Thank you. The bill recently passed the House 88-8. That said, most of the bill is not about head coverings at all, that was a late addition to a bill which is largely about public safety. Our best hope is for the Senate not to include such language, and for this portion of the bill to die in conference.
Do any lawyers know the liklihood of it standing up in court?
7 · Kirk Laz said
Claimants typically lose free exercise challenges. This is especially true in situations like the one here where the statute is facially neutral about religion and serves a compelling state interest – public safety. State courts have upheld challenges requiring the person to be photographed. Mennonites in some states do not need to be photographed although challenges to the requirement have been upheld in other states.
Really, you do not want this to have to go to the courts. This is a patently unnecessary and unfair law. It is much better to have this taken down democratically. Even in Oklahoma, I believe that is possible.
yeah what “freeexcercise” said. getting over a free exercise challenge is really difficult, subject to strict scrutiny. the only one i can think of that won recently is the peyote case, and even that caused a huge conservative backlash with bush admin pushing a religious accommodation law.
plus, ennis’ point about the law being inconsistent would almost certainly make it unconstitutional, even if they argue “national security” which is the type of “compelling govt interest” you need to overcome strict scrutiny, the law must be “generally applicable”…so if you allow all sorts of non-religious modes of dress go scot free while the religious ones (even if the law is neutral on the surface) are banned, you got a major problem with scotus.
Freexercise — Oklahoma has a state level RFRA law. Would give claimants some legal cover, no?
oh wait, me and freeexcercise have totally opposite points of view on the possibility of successful free-exercises challenge. i think its a neer slam dunk while she thinks its a high bar.
i’m not a lawyer, though. but i am a manju.
now freeexcercise appears to be talking about state law. a constitutional challenge would go thru the federal system no? i don’t see this law standing up…with strict scrutiny being applied. even if public safety is a compelling govt interest you still have a very restrictive law unevenly applied.
so its not like your religion saying you can’t have a pic taken at all b/c that’s a clear way to avoid being identified, while a turban is not. i think both conservatives and liberals are unified on the “neutral on its face” argument. peyote may be seen as an exception but this law is more like the govt banning peyote but leaving all other hard drugs legal. that would be unconstitutional.
the burden is on the govt here…and its a very high bar.
I’m talking about a federal 1st amendment challenge to the law. I’m skeptical of free exercise challenges to laws that do not implicate religion on their face. A state RFRA does change things. I haven’t looked at Oklahoma’s. A muslim woman in Florida challenged their driver license statute based on 1st amdt and the Florida RFRA and lost. http://www.5dca.org/Opinions/Opin2005/082905/5D03-2296.op.pdf That challenge dealt with a burqa. I think a turban is a much different issue. The coast guard recently lifted its ban on headdresses in ID photographs.
Here is my quick primer on the free exercise clause from what I recall from 3rd year law school. (I wasn’t around for much of it.)
The old cases on whether the govt was interfering with the free exercise of religion dealt with people who could not work on Saturdays being denied unemployment for failure to seek work. The rule that came out of those cases in the 60s and 70s was generally:
About the third prong, compelling is a strong but not essential interest. Narrowly tailored means that the government needs to avoid infringing on religion if it can but does not have to go out of its way.
Then this all changed with Scalia’s decision in Smith (The peyote case mentioned in comments above.) Scalia rejected the test above and limited it to unemployment cases. The new test is something like this – if the infringement is incidental to a generally applicable law then there is no violation of the 1st amdt. The state can carve out exceptions to the law.
I don’t know if Smith is going to hold. I think this law could be better fought democratically though.
13 · freeexercise said
well, it would be interesting to see it go to court, especially since religious minorities can’t necessarily rely on the democratic process. but the difference between peyote/hijab and turban is that while banning peyote is central to the compelling govt interest of the war on drugs, and banning the hijab during drivers license picture taking is central to the CGI of public safety/identification…banning headgear is not central to any compelling govt interest, especially since other forms of body modification are allowed.
all restrictions on freedom theoretically violate the free-expression clause (even minimum wage or anti-discrimination laws) and short of adopting a purist libertarian systems of laws we’ll always have these tough cases. but while there is no way to allow a hijab (in the context of taking a drivers lic pic) and reasonably identify a person, there are ways to accommodate a turban w/o hindering the public safety.
now scalia has shown tremendous respect for religious minorities (even in dissent) in the past like in kiryas joel, but perhaps that case didn’t contradict his judicial restraint as this one might. either way, i doubt the majority of justices, including Thomas, would uphold the ban given that i can’t really think of an equivalent ban being upheld.
free exercise, like free speech, has risen to near purist levels in this nation in recent years, in comparison to the rest of the world. it would be a major event for the court ot uphold this law, imo.
that should be burka not hijab. hijab must be accommodated according to the 1st ammendment…only burka probelmatic during drivers license pic taking.
I’m a lawyer, but no expert in this field but when I first read this my immediate reaction was that it probably violates Equal Protection and would not be upheld by a Court.
Ennis – thanks, but it still rankles to see bigotry and xenophobia from posturing politicians from my ‘home’ state. I think this may be why I don’t like to follow politics – this sort of rhetoric was quite common at the local and state level in Oklahoma – and it was a way of life for too many people.
I’ve sent this on to a large group of people who are registered voters in Oklahoma, and I’m fairly certain most will bend their Senators ears about this. :o) The beauty of it? The crowd’s a largely non-desi one.
Yeah, there are reasons to love Oklahoma.
Margin Fades – Check out Duncan. He’s a piece of work – a conservative who plays the islamaphobe card visibly. It’s part of his shtick.
This is just the beginning. For those of us who have practice in areas of ‘religious accomodation’ these kind of laws were entirely predictable. Religious accomodation federal laws were primarily designed for fringe Christian groups and not for Muslims, Sikhs and other religions which are not considered American. The federal and state religious accomodation laws will be severely tested when the Islamo-fascists, dhimmitude, America Standing Alone crowd gets to rule on a whole series of accomodation cases (hijab, pork handling, dog carrying, alcohol handling, beards, friday prayer off)
It is important to remember though that there are two forms of religious accomodation laws in America. One are federal and state religious accomodation laws which provide for religious accomodation in the private sphere (employment, restaurants etc.) and then there is the First Amendment restriction which prevents all governments (federal, state, city) from passing laws which would restrict the free exercise of religion.
The Oklahoma statute falls in the latter category so this will get decided eventually by the Supreme Court as the challenge to this law will be brought on the basis of First Amendment.
well, it would be interesting to see it go to court, especially since religious minorities can’t necessarily rely on the democratic process. but the difference between peyote/hijab and turban is that while banning peyote is central to the compelling govt interest of the war on drugs, and banning the hijab during drivers license picture taking is central to the CGI of public safety/identification…banning headgear is not central to any compelling govt interest, especially since other forms of body modification are allowed.
I dont believe compelling state interest is the test anymore. That was the standard in the good ol’ days of liberal, commie, judicial activist Warren Court. The standard now is compelling state interest for the state only in cases where the law is targetting a religious practice.
This is a complex issue for me – on one hand I am sympathetic to people who wear garments for religious reasons, and on the other hand I do believe in a secular society there should be as much as possible one law for all. There is a separation between church and state. In the case of the photo ID, I don’t have an answer. Not sure which is fair or makes most sense.
PAFD — After RFRA got struck down at the federal level, Oklahoma passed a state level RFRA. I haven’t seen the text, but if it paralleled the federal version, the legislation could be vulnerable at the state level since it probably mandates the compelling interest test. Nice irony for Duncan since his constituencies probably support RFRA, but for his people only.
psstt. Manju: Scalia believes that a universal application of a compelling state interest test will lead to anarchy.
The problem comes when you impose one law evenly across all people, but because social practices have not always been secular, the impact is concentrated on minorities. For example, suppose the labor movement passes a law mandating that shops must be closed on Sundays, like in France. France is a secular polity, right? Except that assuming that your day of rest should be Sunday has clear religious antecedents and as such, makes it harder for non-Christians, who may have closed on Friday or Saturday, to make a living. There are plenty of other examples of this sort … the definition of what is a neutral practice and what is religious often has its roots in the religious practices of the historically dominant society.
7 · Kirk Laz said
Were it to become law, this bill would violate the Oklahoma Religious Freedom Act.
PAFD — After RFRA got struck down at the federal level, Oklahoma passed a state level RFRA. I haven’t seen the text, but if it paralleled the federal version, the legislation could be vulnerable at the state level since it probably mandates the compelling interest test. Nice irony for Duncan since his constituencies probably support RFRA, but for his people only.
I havnt seen the OK version of RFRA. Can somebody post it on here?
I think you raise a very interesting point of Duncan and his constituent support for RFRA type legislation. I do some work in the Title VII area of religious accomodation and it seems clear to me that the traditional supporters of religious freedom are bamboozled by the surge in Muslim demands. For example, here is a story from the Washington Post about how a hijabi woman violated the “no hats, hoods or sunglasses” policy of the Bank. The hijab/turban issue is really far from settled. Then you throw in Muslim accomodations for foot wash, friday afternoon prayer accomodation, beard etc. I think the right wingers enthusiasm for religious liberty is going to start waning.
story in washington post today:
Christian activists knew it was part of the package, they made common cause with the liberals and the religious minorities to get this passed. Their activists have been weighing in on non-Christian Church-State issues for a while.
Where this breaks down is with the average conservative voter who might not have known what he was getting.
Here’s the Oklahoma religious freedom act. Key passage:
Hmmm … I’d love to interview Duncan …
19 · Pagal_Aadmi_for_debauchery said
that may be the intent but christian fundamentalists are not that clueless. they understood perfectly that tailoring a law so it only benefits Christians would be unconstitutional and were more than willing to allow accommodations for religious minorities. the christin right has always been tempered by democratic and liberal leanings, which is why the once popular phrase christo-fascism is so silly. they are still esentially liberals.
you undersetimate your enemy like kerry did. take a cue from our obama and pay them a little respect (warren). then you wack em hard (stem cells, abortion funding).
I think the elite got that. It’s not clear to me that the base did.
Also, the coalition was formed before 9/11, back when the conservative right saw Muslims as an ally in the war against secularism, pace Norquist. That alliance has fallen apart now.
i think its still compelling interest but the 3 pronged test has been altered by the peyote case. the peyote ruling was correct, it would be absurd to allow religious people a freedom deined to evryone else, and i think scalia saw that the warren courts test had a loophole that needed closing.
maybe he overreacted, i don’t know. but there are so many critical differences between peyote/burka and this law (as i explained earlier) that i’d be very surprised if scalia upheld this law. (thomas, btw, appears to be even one of the biggest 1st ammedment absloutists on the bench, except when it comes to cross burning). after all its been conservative Judges in recent years that have protected religious freedom from state encroachment (boy scouts, after school bible studies) and even one failed attempt to protect a religious minority (kiryas joel) .
31 · Manju said
it is so hard to keep track, but which religion did these protect again?
32 · haroun said
Christianity and a obscure sect of Judaism. but c-judges are very aware that anything that applies to one religion apples to another. plus, there is no cases that i know off where Conservative jurists denied religious minority’s their first amendment rights…except for peyote, which has been discussed, and even then liberal Judges jumped on board (except for one i think).
but the fact that there hasn’t been cases involving religious minorities constitutional rights going all the way to scotus shows you just how purist the free-exercise clause has become. the cases that have gotten there in recent years have usually involved secular liberals restricitng the freedom of Christians. (i recall there was even one case where saying “merry christmas” in the workplace was banned, but thankfully it never got to scotus).
oh…there was a ritual slaughter case recently involving some religious minority where the govt tried to ban the slaughter. the ban was deemed unconstitutional and the free exercise rights of the religion upheld. don’t know how conservative/liberal judges lined up, but if someone wants to look it up…
33 · Manju said
umm… and, apparently, the only thing keeping the muslims and jews on board is one letter by washington. wonder how long that will take to be originilastically reinterpreted. it was a sad day when i learnt that santa claus didn’t exist, lassie isn’t really playing in the big doggie park in heaven, and that these justices don’t mangle, umm, interpret the law in whatever way they see fit to suit their ideology. it’s fun to pretend though.
35 · haroun said
well, you’re speaking in the future tense so i guess you concede your scenario hasn’t happened yet. the blog you link to discusses an establishment clause case, and scalia has long faulted on the side of free-exercise, especially when there is secular purpose to the govt using religion. in the kiryas joel case, which concerns a sect of Judaism, scalia dissented by asserting judaism can be seen a culture being accommodated by the state.
what you need to do in order to make the case is cite examples where he then denies this secular purpose to other religions. in scalia’s discussion in that case, he argues why the govt has a secular purpose in displaying the 10 commandments, but that doesn’t mean he would deny such purposes to other religions. in fact kiryas joel, indicates otherwise. plus, then there’s thomas and the rest.
stop worrying. you’re free in the usa. the christo-fascists can’t get you. just stop trying to get them.
Manju, what about PLEASANT GROVE CITY, UTAH, et al. v. SUMMUM? It was a first amendment case, and while it was decided on free speech rather than free exercise grounds, it sure looked like Scalia had no interest in extending to Summum the same privilege he extended to mainstream Christianity.
37 · Ennis said
i think scalia was pretty clear in what he believed about religion in the link i showed in 35.
37 · Ennis said
summum was decided unanimously because it was on free speech grounds. so, it is hard to compare though.
37 · Ennis said
this appears to be less free-speech than govt speech. in other words, is the govt obligated to display a certain religious monument? scalia and the rest of the justices said no. here you have limited resource arguments and a whole host of other issues. i guess there was no evidence that the govt viewpoint discriminated by favoring Christianity. an analogy would be if the govt financed a crucifix submerged in urine does that mean it must finance one submerged in champaign?
would scalia’s opinion be different if the petitioner were trying to get a christian monument on the lawn? we don’t know. in the the previous 10 commandments case he wasn’t saying the govt was obligated ot display the 10 commandments, just that if it did there was no establishment clause violation.
Manju, logic and constitutional law go together like oil and water–I’m with haroun to that extent. This isn’t true of all law, IMHO, but it is true of con. law.
38 · haroun said
well you’re linking to someone else’s interpretation of scalia, which may or may not be fair. I guess the most problematic part of scalia words, the section where he appears to have a double standard is this:
what he appears to be saying here is that you can acknowledge the majority’s religious traditions, and by effect disregard other traditions, without there being an establishment clause violation. he is speaking within the context of the 10 commandments having a secular purpose.
but the question is what would scalia do when the shoe is on the other foot? lets say a public school teaching the history of saudi arabia and then displaying the koran? my guess, especially considering his opinion in kiryas joel, would be he would allow for this entanglement of state and church.
41 · rob said
well, i’d say constitutional law has the same problem political philosophy has: how to maintain philosophical consistency in the face of reality. the previous discussion regarding sen and adam smith bought up similar conundrums that smith obviously grappled with: how to advocate for a free-market when there are so many exceptions to the aforementioned right.
while some of his more libertarian offspring resorted to pure theory, smith and other liberals wanted their regime to work. but when trying to make liberalism work you undermine its basic principles.
that’s what scotus does on a daily basis: attempts to make principle work by creating all sorts of excetions to the principles.
but i think its important to point out that we’re arguing around the edges. the fundamental right to fee exercise and non-establishment is there, but scotus deals with the tough cases, where consistency and logic appear to go out the window. but if one steps back for a moment, you see this messy system has created an historic degree of individual freedom.
There’s something to that (actually, a lot to that), sure–a lot of things are settled, and so the litigation is over the edges, yes. So, we are 99% in agreement!
But one might hope for more consistency in departures/tough cases–LOL, like, growing wheat for your own consumption effects interstate commerce b/c you consume less wheat imported across state lines, but education has no such indirect effect on interstate commerce (huh?!). Now, what about the snail darter?? Of course, even here it’s not as if the outcomes are indeterminate/random–there are only a few plausible positions, and the Court more or less rotates between them.
C’mon Manju, the 10 commandments case wasn’t about momentarily displaying the commandments in the context of a history lesson, in a school. They were about the commandments in a courthouse in KY. The first time, they were the largest documents in a set of nine (including the declaration of independence) the second time they were of equal size. The district court argued that the counties had cherry picked documents so that they could include only foundational documents referring to Christianity. As I recall, there wasn’t even discussion of the Jewish perspective on the commandments, which makes it fairly ahistorical.
Now imagine a courthouse in America doing this with the Koran. Or pre-Christian laws that shaped western Jurisprudence. Do you think that Scalia would acquiesce?
45 · Ennis said
my guess is he would. he appears to consistently allow religion in the public sphere even if other religions are excluded, since government is not compelled to include all viewpoints, and especially if there is even the vaguest secular purpose (in this case the traditions of American law). he sees religious texts on par with a secular texts, so if the court were to have a display of say feminist writers, that may be unwise or even viewed in some quarters as exclusionary, but its not unconstitutional. he’s looking for an actual establishment of religion in order to strike down the govt act.
his opinion in kiryas joel illuminates his thinking. there he views religion as a culture, in that case a peculiar sect of Judaism. in his view, since cultural organizations are allowed govt aid, religious ones are too…the establishment clause does not put religion on a lower level.
It would be interesting to see how they line up if this law went to the high court.
46 · Manju said
henh?
47 · haroun said
that appears to be a double-standard, but read it carefully. he’s not saying that polythists and devout athiests are banned from the public square via the establishment clause, but rather their exclusion is permitted via the free-excercise clause and/or govt speech doctrine. see comment 42.
48 · Manju said
no, he just arbitrarily drew a line – which can well be redrawn, since it is based on one letter – so the court can bar them when it so desires.
49 · haroun said
you lost me. what one letter? when have they been arbitrarily barred?