3

After the attacks on 911, proper identification became important especially when boarding a plane or using other mass transit. Unfortunately, it is very difficult to identify someone whose face is completely covered.

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The ACLU claims that to do so though is a violation of the of the First/Fourteenth Amendments:

In obtaining drivers' licenses and otherwise engaging in civic life: Muslim women have been denied drivers' licenses unless they remove their headcoverings for the photograph.21 The same has happened to women seeking to obtain passport and NSA photos.

Is the ACLU correct?

  • This may be on topic, but it sure leans towards asking for legal opinions (ie, a legal question more than political) – user1530 Aug 15 '13 at 3:07
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    I might agree, except that the question is easily answerable as there's some directly applicable court precedent. – Avi Aug 16 '13 at 20:57
  • Is an image referring to ID cards in Britain really appropriate in a question about the US constitution? – Richard Aug 13 at 14:37
7

Possibly, but it may be a legal infringement on a person's rights. In the United States, infringements on religious rights are subject to a standard of strict scrutiny. This means that, for infringements on religious liberties to be constitutional, they have to further a significant government interest, be necessary to further that government interest, and be narrowly tailored to do so.

Infringements on religious liberties can also be legal if the infringement does not target a specific religion. In the Supreme Court Case Employment Division, Department of Human Resources v. Smith, the courts ruled that bans on drugs used in religious rituals cannot be considered infringements on religious rights, because the ban applies to anybody who would wish to use the drug. A requirement that people expose their faces to the TSA or in drivers' licenses would likely be ruled constitutional by the courts because it doesn't target religious rituals or beliefs, but applies to anybody who might be covering his or her face.

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    I think that it's more that it's not considered an infringement on religious liberty in the first place, if it didn't target the religion. Not that it's legal if it is an infringement. – Sam I am says Reinstate Monica Nov 19 '14 at 19:20
  • @SamIam That may be true. Also, I actually might be wrong in this answer. Hobby Lobby v. Burwell brought to relevance a law with which I was not familiar requiring the courts to subject all infringements to strict scrutiny, so I may need to look at that. – Avi Nov 19 '14 at 22:20
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The ACLU is not correct.

Having a Driver's License is not a right. It is a privilege. To gain that privilege you have to meet certain requirements. Those requirements are to pass a drivers test, have your face photographed and, in some states, you must be finger printed. You can even lose the privilege based on failure to follow various laws.

To be clear, in the USA you have the right to travel and use public roads. However, you don't have a right to drive a car.

  • This is the first thing any police officer will say when invited to speak in a drivers education class. – Grant Garrison Aug 15 at 4:43
3

Sort answer: No.

First amendment is about religion. Can religion allow anything? No, religion is protected as far as it is not against the law.

Fourteenth amendment is about no discrimination. There is no discrimination here, everybody must show their face for identification.

But in the end that doesn't matter. It is about politics and not law or justice, this means it is about not upsetting people too much and finding compromise solutions to get some votes (as far as the lost votes are less than the obtained votes).

Consider the implications:

  • Religious human sacrifices.
  • Religious human mutilations, especially genitalia in children.
  • Religious dress codes, including nudism.
  • Religious drug consumption (implies possession).
  • Religious medical care (includes homeopathy).

Religion could potentially support anything (it has supported all those things). Religion, law, justice and politics are four different things and independent to a great extent.

  • "It is about politics and not law or justice" the ACLU claims the 1st/14th go as far as treating everyone equally (blind justice). Also your bullet points about implications are odd, considering we currently allow almost all of them... Circumcision, nudism, peyote in Native American religious services, faith healing (sometimes overruled by being considered neglect of children, but not always). It seems that we usually error on the side of freedom. Do you have any citations regarding which way the courts sided with ID/face coverings? – user1873 Aug 16 '13 at 13:11
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    Unfortunately I don't have citations, is that the question? As I said there are 4 different things to consider here and politics are more concerned with compromise solutions than law (as courts may be). About the examples, they are meant to be that way, now imagine how a new religion could exploit that. Pastafarians could make their own country distributed in all states (and cities) with a very different set of rules (laws) applied to them. Would that be "blind justice" or exactly the opposite? – Trylks Aug 16 '13 at 13:33
  • You should explain the specific standard used to determine whether infringements on religious rights are warranted – Avi Aug 16 '13 at 19:31
  • @Avi the law (specially when most important), murder is against the law (human rights in this case), ritual sacrifices are not allowed. Some concessions are made depending on the pros and cons counted as votes in the next elections. – Trylks Aug 16 '13 at 19:37
  • Supreme court judges aren't elected. I added an answer explaining the standard used. – Avi Aug 16 '13 at 19:41
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The other answers choose to ignore the specifics of the ACLUs complaint.

Requiring the removal of face coverings would in all probability not be a violation of civil rights, if this were required from everybody. ACLUs complaint is that the woman mentioned in the footnote was required to show her face, while others were not:

At this week's trial, the ACLU also plans to argue the state is singling out Freeman based on her religious beliefs, while allowing others to obtain driving permits without photographs. According to Marks, Florida officials issued more than 800,000 temporary licenses and/or driving permits - without photographs - in the past five years to individuals in a variety of different categories. Convicted drunk drivers with revoked licenses are legally allowed to drive in Florida using only driving permits without photographs, as are foreign nationals, those who failed their eye or written exams and military personnel.

Source

I cannot say if that claim has merit (it might be more tactical than be made in good faith), but it is a somewhat different claim than the question suggests. ACLU says she cannot be forced to do something that others do not have to do. They do not deal with the question if there was still reason for complaint if all people where treated equally. So ACLU might be very well correct, but they are not saying what the question suggests they say.

  • That case was ultimately thrown out (by the judge AND the appellate court) because Freeman had previously been photographed without her hijab when she was arrested for battering a foster child. There have been a few other cases but all of them have ruled the same way - covering the face for the photo isn't allowed. – NotMe Aug 18 at 23:24
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Arguably it is their body so they should get to choose what to do with it, such as choosing to show their face or not.

But on the flip side any shop owner, or plane pilot, or cab driver (or whatever else you might insert as an example) owns their "whatever-it-is" (plane/cab/shop) so they should as owners of their property be able to use it as they wish, including attaching requirements to it to be permitted to enter (such as "you must show your face before being allowed on my plane").

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    Is this merely your opinion or do you have any laws or court precedent to back it up? – Avi Aug 17 '13 at 11:42
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    I'm sorry, but this is complete bunk. Civil rights are about protecting individual freedoms from infringement by government and private individuals. You can't simply "attach requirements" however you choose based simply on owning the property. That's exactly what civil rights protect against! You couldn't say (for example) "if you break a lamp in my store, I can cut out your tongue." Sorry, but -1 for not even answering the question. – Robert Cartaino Aug 21 '13 at 0:15

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