The New York Times, Aug. 11, 2002
http://www.nytimes.com/2002/08/11/weekinreview/11PRIS.html
By TERRY PRISTIN
SULTAANA FREEMAN, an American-born Muslim woman, had no trouble getting a Florida driver’s license last year even though she insisted on being photographed in a veil that reveals only her eyes.
After Sept. 11, however, state officials had a change of heart. In December, they said her license would be revoked if she refused to be re-photographed without the veil. Instead of complying, Ms. Freeman gave up her license — and then sued the state to get it back.
Florida officials contend, not surprisingly, that police officers need full-face photographs to identify a driver in a traffic stop and to hunt down suspected criminals. Ms. Freeman argues that her faith requires her to shield her face in public and that a full-face photograph is not needed to verify her identity. In June, a Florida judge ruled that the case could go to trial.
Many legal scholars maintain that in an increasingly multicultural society, it is important to respect religious beliefs outside the mainstream. And in fact, a dozen states, Florida among them, have laws that require officials to show they have a compelling interest in enforcing a law that conflicts with a sincerely held religious belief.
But today, several legal scholars said, the question of what constitutes a compelling state interest is likely to be heavily influenced by Sept. 11. Robin Charlow, a law professor at Hofstra University, said judges are now likely to give additional weight to the state’s arguments. “Certainly now that law enforcement interest might be more significant,” she said, “and in the context of an Arab person shielding her identity, it’s not realistic to think that it isn’t.”
Ideally, said Douglas W. Kmiec, the dean of the Catholic University Law School in Washington, both interests should be protected — the woman’s right to be true to a core religious belief and the state’s need to maintain public safety. Few people, after all, are likely to seek a similar exemption since it is inconvenient to be without a photo ID “Prior to 9/11,” Mr. Kmiec said, “one could have rationally concluded that a handful of religious exemptions are not much of a threat. But now we know there is a relationship between some forms of religious belief and mischief of the worst kind.”
In a 1983 case similar to Freeman, a Nebraska woman won a legal battle over whether she could refuse to be photographed for a driver’s license. The woman, Frances Quaring, had claimed that her Pentecostal faith prohibited graven images. Ruling in what now appear to be more innocent times, the federal appeals court majority never even mentioned that a picture license might be a useful crime-fighting tool.
That omission would not occur today, as judges weigh the conflict between a religious tenet and a state’s compelling interest, law professors said. “I don’t think there’s any question that these cases will be affected by the atmosphere we’re in,” said Thomas C. Berg, a professor at the University of St. Thomas School of Law in Minneapolis. “But whether they will have a different result is an open question. It will not surprise me if at least some judges look at it differently. The disturbing thing would be if a judge looked at the issue differently only in a case about a Muslim.”
THOUGH Ms. Freeman also argues that the photo requirement violates the First Amendment protection of the free exercise of religion, her lawyer, Howard S. Marks, concedes his client does not have a strong constitutional case.
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Under the Florida law, the state will be required to show not only that it has a compelling interest in requiring photographs but also that it cannot find a less restrictive way to achieve these ends, Mr. Marks said. Mr. Freeman is willing to submit to fingerprinting or DNA testing; the state counters that traffic officers cannot be expected to have technical expertise. The state has also offered to keep men away when the photograph is taken.
But Ira C. Lupu, a law professor at George Washington University, said that if the Freeman case follows the typical pattern, the court will not even get to the point of determining whether the state has a compelling interest in enforcing its driver’s license law.
In most religious freedom cases, Mr. Lupu said, the courts find that the state law in question does not impose a substantial burden on the free exercise of religion.