A niqab carries a meaning that other forms of religious headgear do not. A kippah, a turban, and a hijab simply identify a person as belonging to a particular faith. The niqab conveys an additional message by placing a physical barrier between the woman wearing it, and men who are not related to her. In a courtroom everyone is equal regardless of gender or faith. A woman wearing a niqab in court is treating men differently because of their gender, and the law cannot allow that.
First, it is a matter of security. Second, it can create a hostile situation for women. Third, it can send a statement to witnesses or victims either for support or intimidation. It is an extremely visible symbol which has many meanings many times to force a point or position which may have negative or chilling effects on the court case.
When you are in a courtroom everyone is required to wear appropriate attire as required by their standards. If you come into a courtroom and are wearing something that covers 98% of your body then there is something wrong. You could be anyone and could have anything on you. Just because it is under your religion to wear something like that, it does not matter. If it stops people from knowing who you are and seeing what you are up to, then it is a problem.
Although our charter recognizes the supremacy of god it is safe to say most of modern day culture recognizes that religion is all bs. Having said that ill now argue my point logically without my personal bias haha. The fact is that in a court of law a witness's facial expression's has an effect on a jury's decision, and especially in criminal cases where someone's liberty is at risk religion should take a backseat and allow for a fair trial. It is not fair for this person to get special treatment because of their religious views, if a court room is to be fair everyone must be treated the same and no one should get special treatment because of their beliefs.
If the woman's hair is an integral part of the case in some way, then yes she should be made to take it off, but otherwise there's no real reason to do so I don't believe. So yeah I do think courtrooms should ban the burka, but only in cases where wearing it would play a role in the case outcome.
Imagine this: A Muslim woman, wearing a niqab, goes to the courtroom. She is forced to take the niqab off. She is wondering:
'Why? I didn't do anything bad or offensive. I am wearing niqab for my religion.'
OK, OK. I understand that a woman of Islam doesn't HAVE to wear niqab/hijab/burqa, unless she is making salat (ritual prayer), but many Muslimahs still do! If you have a problem with the niqab, you should have a problem with any scarf while not praying.
Please see the following link for a scholarly paper published in the University of Pennsylvania law review, discussing why a ban on the niqab in the courtroom violates the Free Exercise clause of the U.S. Constitution:
Here is the abstract from SSRN: http://papers.Ssrn.Com/sol3/papers.Cfm?Abstract_id=1593198
The niqab has become enmeshed in heated political controversy all across the world. In the United States, the situation of Ginnah Muhammad exemplifies the complex legal issues arising from conflicts between individuals whose religious beliefs compel this practice and the secular state. Muhammad, an African-American Muslim woman, was ejected from a Michigan small claims court for refusing to remove her veil while testifying. This Comment explores the constitutionality of this action, and a subsequent amendment to the Michigan Rules of Evidence passed in response to her case giving judges the power to “exercise reasonable control over parties and witnesses." Inevitably, neutral, generally applicable laws will sometimes conflict with individuals’ religious practices. In Employment Division v. Smith, the Supreme Court concluded that in most of these situations, the secular goals of the state override the religious objections of the individual so long as the government can advance a rational basis for its legislation. However, Smith itself acknowledges that in certain limited circumstances, even neutral, generally applicable laws are subject to strict scrutiny. This Comment explores the idea that a ban on the niqab in the courtroom is one such case. It analyzes the division amongst the Courts of Appeals regarding the “hybrid-situation,” and argues that Muhammad’s case exemplifies precisely how the doctrine should work in practice, because such a rule violates a Muslim woman’s Free Exercise rights and her corresponding right of access to the courts. It then reviews the interests advanced by the state as compelling reasons for the ban, and presents legal and empirical evidence suggesting that these are not sufficiently compelling and narrowly tailored enough to overcome strict scrutiny. By showing why even individuals at the outer edges of the law still have a strong claim for a religious exemption, this Comment attempts to make jurisprudential space for the vast majority of religious adherents to enjoy fair and equal treatment within the halls of American justice.
This is more about assessing the demeanor of witnesses, not about forbidding them from practicing their religion or partially covering their faces. People keep talking about what the niqab means rather than why niqab should be removed in a courtroom. It doesn't matter what the niqab represents to you, it only matters what wearing it means to the individual practicing that faith. It also doesn't matter whether the religion makes wearing of the niqab to be mandatory, it only matters that the individual practicing it believes it is necessary for themselves. You have to look at the bigger picture – what does it mean when the justice system orders for partial disrobing of a Muslim woman? It is a court-ordered discouragement for those who practice any faith that partially covers their faces not to participate in the justice system: victims will be hesitant in bringing charges, accused will be hesitant to make full defense. No one should be forced to choose between their sincerely held beliefs and exercising their rights. If you want to go even further, to say that facial visibility is important falls flat if you look at other factors: telephone testimonies, witnesses who suffer disabilities that affects their facial expressions, video recorded or live-feed testimonies, etc. And what of different cultures with different meanings behind their facial expressions? The question is simple, however, the answer can't be because of the disastrous side-effects it would have.
There is no compelling reason for this. Courts allow other garments that mark a person as being of a certain faith. There are no rules against a defendant or plaintiff showing up in court wearing a yarmulke for example.
If the court requires to look at the woman's face for evidence then it's reasonable to require her to lift it off her face and show the court. Heck, if it's really necessary to establish the evidence and make a point I have no problem with courts requiring witnesses to strip naked. But it should not be required except in those very specific incidents.