LI: Should Judges Rise For Jurors? Analysis.

http://volokh.com/2012/06/04/defendant-may-have-right-to-religious-exemption-from-the-requirement-of-rising-in-court/

A question raised by MG some years ago is that logically Judges should rise for Jurors. It’s notable that in most private mediation courts today people just get down to business after normal civilities without what may be criticized as a remnant of  feudal abuses.

 An additional issue is the abuse of contempt to create a criminal offense…Now US courts are puzzling over the issue of a defendant who rose for the jurors –but not the judge.–LI

Furthermore, focusing on Ali’s “inconsistent” application of her belief in refusing to rise to honor the court but standing so that prospective jurors could see her is not appropriate in the RFRA context. See Love, 216 F.3d at 688 (“Love himself admits that his understanding of the tenets of his belief system are evolving. However, ‘[c]ourts should not undertake to dissect religious beliefs because the believer admits that he is struggling with his position or because his beliefs are not articulated with clarity and precision that a more sophisticated person might employ.’” (quoting Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981))). Ali also stood at other times when doing so facilitated non-ceremonial functions, such as moving to the podium to address the court when it inquired as to why she would not stand. Thus, in the RFRA context, the court erred by evaluating the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether her practice was rooted in her sincerely held religious beliefs.

Here, the parties do not dispute that Ali’s refusal to stand was rooted in her sincerely held religious beliefs. Furthermore, an order requiring someone either to act affirmatively in violation of a sincerely held religious belief or face criminal penalties substantially burdens the free exercise of religion. Thus, once Ali raised an objection rooted in her sincerely held religious belief, the government could enforce the order “only if it demonstrate[d] that application of the burden to [Ali] … is the least restrictive means of furthering [a] compelling governmental interest.”

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. For more on the controversy, including the link to a centuries-old landmark dispute involving not Muslims but Quakers, see here….

Failure to rise when the judge or jury entered the courtroom has been found to constitute criminal contempt, even where the defendant had claimed that his refusal to stand was based on his religious beliefs. In re Chase, 468 F.2d 128 (7th Cir. 1972). See also Evans v. Ciccone, 377 F.2d 4, 6 (8th Cir. 1967) (finding that freedom of religion cannot be made superior to reasonable rules of conduct, in or out of prison).

I suspect the judge’s actions likely violate the federal Religious Freedom Restoration Act (RFRA), because the standing requirement is probably not necessary to serve a compelling government interest (which is the test the Act prescribes). Requirements that people stand as a gesture of respect, like requirements that they salute the flag, also generally violate the Free Speech Clause (see West Va. Bd. of Ed. v. Barnette (1943)). But the rule may be different for in-court behavior, where restrictions on speech and symbolic expression are generally much more acceptable than outside court, and where compulsions of speech and symbolic expression might likewise be constitutional, which is why I think Ali’s strongest claim would likely be under RFRA.

Beyond this, though, I thought it was worth noting the connection between this incident and a famous incident from Anglo-American legal history — the 1670 trial of William Penn, who of course would go on to found Pennsylvania. Penn was a Quaker, and because of his beliefs refused to uncover his head in court. Much like Ali, the Quakers of the era saw such uncovering of the head as a “token[] of reverence due to the Almighty alone.” The court found Penn to be in contempt, and fined him 40 marks. (Penn had actually entered the courtroom with his head uncovered, and an official put the hat back on Penn’s head; but the court’s objection seemed to be to Penn’s refusal to remove the hat at that point.) The jury in the underlying case — the prosecution of Penn for unlicensed preaching — later refused to hand in a verdict that the court saw suitable, which led to the landmark jury rights decision in Bushel’s Case….

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