Religious tolerance and state interests

About a year ago, I noted a troubling religious freedom story in Canada. Requests by Muslim women who wear niqabs to be photographed by a female employee had customarily been granted, but Quebec's "growing resistance to the accommodation of minority religious practices" brought that to a halt. (The niqab, remember, is the full-face veil; it is entirely different from the hair-covering hijab.) In contrast to the famous Florida case where a woman was denied permission to wear a niqab in her drivers' license photograph (Freeman v. Department of Highway Safety and Motor Vehicles), I found Quebec's decision unreasonable. The province had imposed a burden on religious exercise without any kind of countervailing state interest. The women were not refusing to be photographed, and there was no indication that they would be unwilling to work with the province to ensure that they showed up at a time when a female photographer was available. Moreover, the women asking for accomodation were a drop in the bucket when compared to the total pool of applicants—ten of 118,000 in the preceding year—which eliminated any possibility for the state to claim hardship or undue burden on it from accommodation. Cf., in a concededly different context, 29 C.F.R. § 1605.2(c).

This story, however, presents a much harder case. The Supreme Court of Canada will hear an appeal from two men accused of sexually assaulting a female relative. When the case came to trial, the alleged victim insisted on wearing her niqab while testifying (which I assume that is her practice—that it's not a gimmick for the trial), and the defendants claim that this violated their right "to face their accuser in court." (That's the Globe & Mail's characterization of the right; I don't know if that's the actual language in Canada.)

At first blush, this looks more like Freeman. Set aside the confrontation issue for a minute. We traditionally assume that there is a strong interest in weighing the demeanor—including the facial expressions—of a witness, see Aaron Williams, The Veiled Truth: Can the Credibility of Testimony Given by a Niqab-Wearing Witness be Judged Without the Assistance of Facial Expressions?, 85 U. Detroit Mercy L. Rev. 273, 274 et seq. (2008), and the niqab obviously precludes that. There are, however, reasons to question that assumption, to think that such assesments may be unhelpful—indeed, positively misleading. Compare id., generally, with Mark Spottswood, Live Hearings and Paper Trials, 38 Fla. State U. L. Rev. (forthcoming 2011) (available at SSRN) (arguing that physical cues generally impair, not aid, credibility judgments). If Spottswood is right, the state interest in refusing witnesses leave to wear a niqab would seem to collapse.

And then there is the confrontation issue. I do not have an answer on this, and since there has been a lot of interesting discussion in the comments over the last few days, I'd like to invite comment. Because this is happening in Canada, the focus here isn't necessarily on the legal question as we would perceive it in the United States (U.S. Const., amdt. VI; Crawford v. Washington, 541 U.S. 36 (2004)), although that is obviously related. If the right to confrontation is guaranteed and would be violated by allowing a person to testify wearing a niqab (or any other headgear which obscures their appearance despite physical presence in the courtroom—say, a hockey mask or balaclava), the state interest in refusing witnesses leave to wear such headgear becomes, it would seem to me, all-but irresistible. But is that so? And is the right to confrontation violated? My guess is that the answer is that it does not violate the right to confrontation. While I said I'm not looking exclusively at American law, I should nevertheless note that cases like Ohio v. Roberts, Maryland v. Craig, Crawford, and Melendez-Diaz v. Massachusetts involve the absence of witnesses from the courtroom, not the obscuring of their identity; Coy v. Iowa, where a screen was placed between the defendant and his accusers, is closer but still different. I welcome comments.