Journal of Law and Policy
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Veiled Muslim Women and Driver's License
Photos: A Constitutional Analysis
Peninna Oren
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OREN MACROED CORRECTED 062205.DOC 6/22/2005 3:49 PM
855
VEILED MUSLIM WOMEN AND DRIVER’S
LICENSE PHOTOS:
A CONSTITUTIONAL ANALYSIS
Peninna Oren
*
I
NTRODUCTION
On June 4, 2004, the Florida ACLU filed an appeal in the case
of Freeman v. State that remains pending almost one year later.
1
The ACLU was appealing the June 6, 2003 decision of a Florida
state intermediary level court upholding the Florida Department of
Highway Safety and Motor Vehicles’ (DHSMV) revocation of a
Muslim woman’s driver’s license on account of the woman’s
refusal to take a photograph for her license without her veil, or
“niqab.”
2
The Muslim woman, Sultaana Lakiana Myke Freeman,
believes from her study of the Quran and the Sunnah that
legislation from Allah mandates that she, as a Muslim woman, veil
*
Brooklyn Law School Class of 2005; B.A., Boston University, 2002. I
would like to thank my editor Doug Brooks and the entire Journal of Law and
Policy Executive Board, especially Skye Phillips and Cory Shindel for their
patience and for all of the time and effort they poured into assisting me with my
note. I would like to thank my father, Steve Oren, for teaching me not to accept
the conclusions of others, but rather, to think for myself. I would also like to
thank my mother, Roz Oren, for teaching me to respect those whose beliefs
differ from my own.
1
Telephone Interview with ACLU of Florida (April 18, 2005); Brief for
Appellant at 44, Freeman v. State, No. 2002-CA-2828, 2003 WL 21338619 (Fla.
Cir. Ct. June 6, 2003), available at http://www.aclufl.org/pdfs/Legal%20PDfs/
Freeman%20appeal%20brief.pdf.
2
Freeman v. State, No. 2002-CA-2828, 2003 WL 21338619 (Fla. Cir. Ct.
June 6, 2003). The case was decided by the Florida Circuit Court, Ninth Judicial
Circuit. Id. at *1. The plaintiff referred to her veil, which covers her entire face
with the exception of her eyes, as a niqab. Id.
OREN MACROED CORRECTED 062205.DOC 6/22/2005 3:49 PM
856 JOURNAL OF LAW AND POLICY
her face as part of her religious obligation to dress modestly.
3
Ms. Freeman challenged the Florida statute that requires a full-
face photograph for driver’s licenses
4
on the grounds that it
violated Florida’s Religious Freedom Restoration Act of 1998
5
(FRFRA) and Florida’s state constitution.
6
The FRFRA prohibits
the State from substantially burdening an individual’s exercise of
religion absent a compelling state interest and proof by the State
that the law that burdens the individual’s religious freedom is the
least restrictive means of achieving the state’s interest.
7
The free
exercise of religion is similarly protected under Article I, Section 3
of the Florida Constitution, which grants the right to religious
freedom.
8
Notably, Freeman did not challenge the State’s driver’s license
photo requirement on federal constitutional free exercise grounds
because the Supreme Court has held that there is no federal remedy
for individuals who claim only that their religious practices are
interfered with by a neutral law of general applicability.
9
The
Supreme Court has left open the possibility of a “hybrid claim,”
however, when a neutral law of general applicability interferes
3
See Statement by Sultaana Lakiana Myke Freeman, (May 27, 2003),
available at http://www.aclufl.org/issues/religious_liberty/freemanpersonal_
statement.cfm (last visited Apr. 5, 2005).
4
FLA. STAT. ANN § 322.142(1) (West 2004). The Florida statute describing
the requirements for driver’s licenses uses the term “fullface photograph.” Id.
§
322.142(1). For the sake of consistency, this note will use the term “full-face
photograph” to describe the driver’s license photographs required by the Florida
law. In Freeman, there was an initial argument about whether a veiled Muslim
woman fulfilled the requirement of a full-face photograph because, although
veiled, the woman was facing the camera when her photograph was taken.
Freeman, 2003 WL 21338619, at *2 n.2. This note, like the Florida court,
assumes that the full-face requirement dictates that a veiled Muslim woman
must unveil for her driver’s license picture.
5
FLA. STAT. ANN § 761.03 (West 2004).
6
FLA. CONST. art. I, § 3; Freeman, 2003 WL 21338619, at *1.
7
FLA. STAT. ANN. § 761.03 (West 2004).
8
FLA. CONST. art. I, § 3.
9
Employment Div., Dep’t. of Human Res. of Or. v. Smith, 494 U.S. 872,
890 (1990). A neutral law of general applicability is now subject only to rational
basis review. Id.
OREN MACROED CORRECTED 062205.DOC 6/22/2005 3:49 PM
MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 857
with the free exercise of religion as well as a conjoining
constitutional right.
10
This note examines whether laws that require veiled Muslim
women to unveil for their driver’s license photographs violate
these women’s Fourth Amendment right to protection against
unreasonable searches in addition to their right to free exercise of
religion and, therefore, give rise to a “hybrid” claim with an
available federal remedy.
11
Part I of this note summarizes the
Freeman case. Part II describes the present status of free exercise
jurisprudence, including hybrid claims.
12
Part III.A discusses the
components of a Fourth Amendment claim and analyzes how a
hybrid claim might be asserted.
13
Part III.B applies the hybrid
10
Id. at 881. “The only decisions in which we have held that the First
Amendment bars application of a neutral, generally applicable law to religiously
motivated action have involved not the Free Exercise Clause alone, but the Free
Exercise Clause in conjunction with other constitutional protections, such as
freedom of speech.” Id.
11
Id. (noting that “hybrid” claims are the lone claims available to challenge
a neutral law of general applicability under the Free Exercise Clause of the First
Amendment).
12
This note does not address the question of whether driving is a privilege
or a right because the court in Freeman treated driving as a right, despite the fact
that the language of the driver’s license statute in question referred to driving as
a privilege. Freeman v. State, No. 2002-CA-2828, 2003 WL 21338619, at *6
(Fla. Cir. Ct. June 6, 2003). The Florida court stated:
Although the Florida statutes use the term “driving privileges” this does
not mean that driving is a “privilege” rather than a “right.” The Court
recognizes that in Sherbert v. Verner, the U.S. Supreme Court stated
that the distinction between privilege and right is not meaningful when
the benefit in question, i.e., being able to drive a car and thereby
conduct normal life activities, is the same. So even if driving is a
“privilege,” the government may not deny Plaintiff that benefit without
showing that there is a compelling state interest that overrides her right
to free exercise of religion.
Id. (citations omitted). For a discussion of the Supreme Court’s
“unconstitutional conditions” doctrine, see Jason Mazzone, The Waiver
Paradox, 97 N
W. U. L. REV. 801 (2003).
13
Although Freeman’s claim was not successful, had Freeman’s attorneys
attempted to make a federal hybrid claim, this claim might not have even made
it to trial had the state made a motion under F
ED. R. CIV. P. 12(b)(6) to dismiss
the complaint for failure to state a claim upon which relief could be granted. If
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858 JOURNAL OF LAW AND POLICY
claim analysis to a case such as that of Freeman by weighing a
veiled Muslim woman’s right to Fourth Amendment protection and
free exercise of religion against the State’s interest in the full-face
driver’s license photo requirement. This note concludes that a
Muslim woman who wishes to be photographed for her driver’s
license may assert a hybrid claim, however, given the fact that
there has yet to be a successful hybrid claim, it is doubtful that her
claim would be successful.
I. F
REEMAN V. STATE
In Freeman v. State, the Florida Circuit Court of the Ninth
Judicial District decided the case of Ms. Freeman, whose
previously-issued driver’s license was revoked after she refused to
take a new picture for her driver’s license without her full-face
veil.
14
The Florida court evaluated the Freeman case under both
the Florida Constitution,
15
which grants the right to religious
freedom, and the FRFRA,
16
which prohibits the State from
the court had decided in a pre-trial motion that Freeman did not have a valid
hybrid claim, her case would not have been heard. Therefore, Freeman’s lawyers
were better off challenging the law under Florida’s RFRA, which provides an
available remedy. Indeed, only twelve states have legislation that protects the
free exercise of religion. See infra note 98. In states without free exercise
legislation, a plaintiff would have little to lose by asserting a hybrid claim
(except of course the money spent on attorney’s fees).
14
Freeman, 2003 WL 21338619.
15
FLA. CONST. art. I, § 3 (West 2004). “There shall be no law respecting
the establishment of religion or prohibiting or penalizing the free exercise
thereof . . . .” Id.
16
FLA. STAT. ANN. § 761.03 (West 2004). In relevant part, the statute
reads:
(1) The government shall not substantially burden a person’s exercise
of religion, even if the burden results from a rule of general
applicability, except that government may substantially burden a
person’s exercise of religion only if it demonstrates that application of
the burden to the person:
(a) Is in furtherance of compelling governmental interest; and
(b) Is the least restrictive means of furthering that compelling
governmental interest.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 859
substantially burdening the free exercise of religion unless the
State can prove both a compelling state interest and that the law is
the least restrictive means of achieving the State’s goal.
17
The
Freeman court held that Freeman’s right to free exercise of
religion was not substantially burdened, but nevertheless analyzed
the State’s compelling interest in the driver’s license statute,
holding that strict scrutiny review was required because Freeman
alleged an infringement upon her fundamental constitutional right
to free exercise of religion.
18
A. Freeman’s Case
On February 21, 2001, the State of Florida issued Sultaana
Lakiana Myke Freeman a driver’s license that contained a picture
of her wearing a full-face veil, or niqab, so that only her eyes were
visible.
19
Freeman’s face was similarly covered in the photograph
on her driver’s license from Illinois, where she lived prior to her
move to Florida.
20
On November 28, 2001 and December 18,
2001, Freeman received letters from the State of Florida informing
her that her license would be revoked if she did not report to the
DHSMV to be photographed without her veil for her driver’s
license.
21
For religious reasons, Freeman refused to comply, and
her license was revoked.
22
Freeman then brought an action
challenging Florida’s revocation of her driver’s license under the
FRFRA and the Florida Constitution.
23
The court found that the driver’s license requirement did not
substantially burden Freeman because the DHSMV had a practice
(2) A person whose religious exercise has been burdened in violation of
this section may assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief.
Id.
17
Id.
18
Freeman, 2003 WL 21338619 at *1.
19
Id. at *4.
20
Id. at *1.
21
Id.
22
Id.
23
Id.
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860 JOURNAL OF LAW AND POLICY
of accommodating women who veil by having a female employee
photograph them in a private room so that the women’s face and
hair would only be exposed to a female employee and, in certain
situations (for example, when women were pulled over) to law
enforcement officers.
24
Because the court found no substantial
burden, it held that the statute did not violate the FRFRA, given
that the Act only precludes the State from substantially burdening
an individual’s free exercise of religion and does not prohibit the
State from enacting a statute that places a lesser burden on an
individual’s free exercise of religion.
25
The court also addressed Freeman’s constitutional claim.
26
Article I, Section 3 of Florida’s constitution provides: “There shall
be no law respecting the establishment of religion or prohibiting or
penalizing the free exercise thereof. Religious freedom shall not
justify practices inconsistent with public morals, peace, or
safety . . . .”
27
The Florida court held that it was required to apply the strict
scrutiny standard of review to Freeman’s constitutional claim to
determine whether the State had a compelling interest to justify its
restriction of a religious practice.
28
The court thus analyzed
whether the State had a compelling interest in the statute requiring
full-face driver’s license photographs.
29
B. The Freeman Court’s Compelling Interest Analysis
Freeman argued that the State did not have a compelling
interest in restricting her right to have a driver’s license without a
full-face photograph because a driver’s license is not a state
identification card, but rather, is “merely certification of
competence to drive.”
30
Freeman relied on three cases upholding
the right of religious Christians to receive driver’s licenses without
24
Freeman, 2003 WL 21338619, at *3.
25
Id. at *4.
26
Id. at *1.
27
FLA. CONST. art. I, § 3.
28
Freeman, 2003 WL 21338619, at *1.
29
Id.
30
Id. at *5.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 861
photographs because of their religious beliefs that photographs
constitute graven images.
31
Specifically, Freeman cited Quaring v.
Peterson, in which the Eighth Circuit held that there was no
compelling state interest in the photograph requirement because
individuals who possessed out-of-state licenses that did not contain
photographs were permitted to drive in the state.
32
Further,
Freeman cited Bureau of Motor Vehicles v. Pentecostal House of
Prayer
33
and Dennis v. Charnes, which held that allowing an
exception for individuals whose religions proscribe the taking of
photographs would not lead to widespread abuse.
34
In addition to arguing that her claims should be considered
under the same reasoning as the graven images cases, Freeman
also challenged the utility and accuracy of driver’s license
photographs.
35
Specifically, Freeman contended that photographs
are “largely flawed” and can be “easily thwarted” by those who
“change their hair, cover their foreheads and ears, wear large
glasses, shave their heads, grow their beards, or alter their
appearance by other means, including contact lenses and plastic
surgery.”
36
Freeman further argued that there are more than 4,000 people
to whom the State of Florida issued photo-less driver’s licenses
and tens of thousands of people from other states with photo-less
driver’s licenses driving in the State of Florida.
37
Thus, she argued,
Florida lacked a compelling interest in refusing to grant religious
exceptions to its driver’s license photograph requirement.
38
In holding for the State, the Florida court adopted the State’s
arguments as its own analysis.
39
The State argued that it had a
31
Id.
32
Id. (citing Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984)).
33
Freeman, 2003 WL 21338619, at *5 (citing Bureau of Motor Vehicles v.
Pentecostal House of Prayer, Inc., 380 N.E.2d 1225 (Ind. 1978)).
34
Freeman, 2003 WL 21338619, at *5 (citing Dennis v. Charnes, 805 F.2d
339 (10th Cir. 1984)).
35
Freeman, 2003 WL 21338619, at *5.
36
Id.
37
Id. at *6.
38
Id.
39
Id. at *3-7.
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862 JOURNAL OF LAW AND POLICY
compelling interest in the full-face photograph requirement
because the requirement promotes safety and security, combats
crime, and protects interstate commerce.
40
In response to
Freeman’s argument that photographs are not effective, the State
presented a witness who testified that photographs of faces that
have changed are still more effective than veiled photographs
because some facial features do not change.
41
Furthermore, the
State contended that, without a full-face photograph, law
enforcement officers would be at a greater risk when they stopped
individuals, given the extra time necessary to verify the driver’s
identity.
42
The State also asserted that, despite the fact that such
intent does not appear in the driver’s license statute, driver’s
licenses are intended for use as identity documents by people in
“society at large to cash checks, rent cars and clear airport
security.”
43
Moreover, the State distinguished Freeman’s case from
earlier cases permitting exceptions to the driver’s license
photograph requirements.
44
In adopting the State’s analysis, the
court noted that the world is different than it was twenty to twenty-
five years ago and that since 1978, when the first of the three cases
cited by Freeman was decided, the increased degree of domestic
terror has amplified the potential for widespread abuse.
45
Next, the court rejected the argument that Freeman should be
granted an exception based on the fact that others, including out-
of-state drivers and those with temporary licenses, are legally
allowed to drive in Florida without a full-face photograph on their
40
Freeman, 2003 WL 21338619, at *4.
41
Id. at *5.
42
Id.
43
Id.
44
Id. at *7.
45
Id. According to the U.S. Centennial of Flight Commission, the U.S.
Department of Transportation reported that there were 364 hijackings worldwide
from 1968 until 1972. There were no hijackings from February 1991 until
September 11, 2001. Judy Rumerman, U.S. Centennial Flight Commission;
Aviation Security,
available at http://www.centennialofflight.gov/essay/
Government_Role/security/POL18.htm (last visited May 18, 2005). There have
been no hijackings since September 11, 2001. Eli Lehrer, The Homeland
Security Bureaucracy, P
UBLIC INTEREST, June 22, 2004, at 71.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 863
licenses.
46
The court explained that individuals with temporary
licenses that did not contain photographs had already received a
permanent license, and therefore, the State possessed a full-face
photograph of those individuals.
47
The court held that the State of
Florida cannot control the laws of other states and must accept
their citizens’ driver’s licenses because full faith and credit is given
to the laws of other states.
48
The court held that Florida can,
however, exert control over its own residents and impose
regulations regarding the requirements for obtaining driver’s
licenses within the state.
49
Based on its analysis of both parties’ arguments, the court
found that the driver’s license statute promoted public safety and
protected against fraud, and thus, the State had a compelling
interest in the statute that outweighed the seemingly insubstantial
burden the law posed to the free exercise of religion.
50
The court
also explained that, given the accommodations put in place by the
DHSMV, the statute was the least restrictive means of furthering
the State’s interest.
51
Thus, the court held that the driver’s license
statute did not violate Article I, Section 3 of the Florida
Constitution.
52
II. RELIGIOUS FREEDOM CLAIMS
Freeman challenged the revocation of her driver’s license due
to her refusal to unveil under the FRFRA and Florida’s state
46
Freeman, 2003 WL 21338619, at *6.
47
Id.
48
Id. 28 U.S.C. § 1738 (West 2005) provides:
[a]cts of the legislature of any state, territory or possession of the
United States . . . shall have the same full faith and credit in every court
within the United States and its Territories and Possessions as they
have by law or usage in the courts of such State, Territory or
Possession from which they are taken.
Id.
49
Freeman, 2003 WL 21338619, at *6.
50
Id. at *7-8.
51
Id.
52
Id.
OREN MACROED CORRECTED 062205.DOC 6/22/2005 3:49 PM
864 JOURNAL OF LAW AND POLICY
constitution.
53
Freeman notably pursued these avenues of relief
based on the lack of a federal remedy. A federal claim under the
First Amendment’s Free Exercise Clause would have been
unsuccessful
54
because such a claim, which alleges only a violation
of a person’s freedom of religion, no longer applies to neutral laws
of general applicability.
55
This section discusses Supreme Court
case law regarding federal free exercise review and analyzes the
remedies that remain available to individuals whose free exercise
of religion is substantially burdened by neutral laws of general
applicability.
A. Federal Free Exercise Clause Review
The Free Exercise Clause of the First Amendment provides
that “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof. . . .”
56
In Sherbert
v. Verner, the Supreme Court interpreted the Free Exercise Clause
to mean that “if the purpose or effect of a law is to impede the
observance of one or all religions or is to discriminate invidiously
between religions, that law is constitutionally invalid even though
the burdens may be characterized as only indirect.”
57
Under this
interpretation of the Free Exercise Clause, the Supreme Court
53
Freeman, 2003 WL 21338619, at *1.
54
See The Case of Mrs. Sultaana Freeman, at http://www.aclufl.org/
news_events/archive/2003/freemanrelease052703.cfm. The Florida ACLU
represented Freeman and discusses her case on the organization’s website.
55
Daniel A. Crane, Beyond RFRA: Free Exercise of Religion Comes of Age
in the State Courts, 10 S
T. THOMAS L. REV. 235, 238 (1998) (“As a result [of
Flores], the states are no longer bound by any federal standard, whether
statutory or constitutional, to exempt the religiously devout from neutral laws of
general applicability.”). Driver’s license requirements are neutral laws of
general applicability because they were written with the neutral intention of
regulating drivers and not to regulate religious activity, and they are generally
applicable in that they apply to the entire public equally and are not applied
exclusively to religious individuals. Employment Div., Dep’t. of Human Res. of
Or. v. Smith, 494 U.S. 872, 890 (1990).
56
U.S. CONST. amend. I.
57
Sherbert v. Verner, 374 U.S. 398, 404 (1963) (citing Braunfeld v. Brown,
366 U.S. 599, 607 (1961)) (emphasis added).
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 865
invalidated a number of neutral, generally applicable laws as they
applied to the religiously observant.
58
In Sherbert, the petitioner, a Seventh Day Adventist, was fired
from her job because, for religious reasons, she would not work on
Saturdays.
59
While the petitioner sought other employment
following her dismissal, she refused to accept positions that
required her to work on Saturdays and could not find a job that did
not require her to do so.
60
The petitioner was subsequently denied
unemployment benefits under the South Carolina Unemployment
Compensation Act, which provided that a person is not eligible for
benefits if “he has failed without good cause . . . to accept available
suitable work when offered to him by the employment office or the
employer.”
61
In reviewing the petitioner’s claim, the Sherbert
Court applied a balancing test, equivalent to strict scrutiny review,
in which it balanced the state’s compelling interest in the law
against the substantial burden the law imposed on the plaintiff’s
religious practices.
62
The Court found that the substantial burden of
the petitioner’s being required to work on her Sabbath or forgo
state benefits outweighed the state’s interest in preventing
fraudulent claims that would dilute unemployment funds and
disrupt work schedules.
63
58
See Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136,
146 (1987) (holding that Florida’s refusal to award unemployment
compensation benefits to a Seventh Day Adventist who quit her job because she
would not work on her Sabbath was unconstitutional under the Free Exercise
Clause); Thompson v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707,
720 (1981) (holding that the state’s termination of petitioner’s unemployment on
the grounds that the petitioner quit his job violated the Free Exercise Clause
because his religion prohibited making armaments); Wisconsin v. Yoder, 406
U.S. 205 (1972) (excepting the Amish from a general state law requiring that
children remain in school until they are sixteen years of age).
59
Sherbert, 374 U.S. at 399. This balancing test is also called “strict
scrutiny.” See id. at 908-09 (Blackmun, J., dissenting) (referring to the Sherbert
test as strict scrutiny review).
60
Id. at 402 n.3.
61
Id. at 400-01 (citing S.C. CODE ANN. § 68-1-404 (Law Co-op. 1962)).
62
Employment Div., Dep’t. of Human Res. of Or. v. Smith, 494 U.S. 872,
875 (1990) (citing Sherbert v. Verner, 374 U.S. 398 (1963)).
63
Sherbert, 374 U.S. at 407.
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866 JOURNAL OF LAW AND POLICY
In 1990, however, the Court narrowed its definition of free
exercise. In Employment Division v. Smith,
64
the Supreme Court
rejected the application of strict scrutiny review to free exercise
claims.
65
In Smith, the Court considered the case of two Native
Americans who were dismissed from their jobs for ingesting
peyote during a religious service and who were subsequently
denied unemployment benefits by the State of Oregon because
ingesting peyote was a criminal offense under Oregon state law.
66
The Supreme Court of Oregon applied strict scrutiny and held that,
although the respondents had committed a crime by using peyote,
the purpose of the unemployment law, which precluded the receipt
of benefits by individuals who were dismissed from their jobs for
misconduct, was not to punish individuals for crimes, but rather, to
preserve the fund’s integrity.
67
The court held that the burden on
the respondent’s religious practice outweighed the purpose of the
law; therefore, the law was unconstitutional.
68
The U.S. Supreme Court overruled the Oregon Supreme
Court’s decision, rejecting the application of strict scrutiny to a
free exercise claim that challenged a neutral law of general
applicability.
69
The Court held that the Free Exercise Clause would
be violated were a law to specifically target a religious group or
religious observance, for example, if a statute were to specifically
prohibit “bowing down before a golden calf.”
70
The Court noted,
however, that the right to free exercise of religion under the First
Amendment is not unlimited.
71
The Court explained that to allow
individuals in all circumstances to practice their religions, even
when their doing so would conflict with existing, generally
applicable law, would “contradict[ ] both constitutional tradition
and common sense” because individuals would be excused from
following the law whenever their religions conflicted with the
64
Smith, 494 U.S. at 872.
65
Id. at 884.
66
Id. at 872.
67
Id. at 875.
68
Smith, 494 U.S. at 875.
69
Id.
70
Id. at 878.
71
Id. at 886.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 867
laws.
72
The Court cited a sampling of cases in which it had rejected
the extension of free exercise protection to individuals when state
laws interfered with the practice of religion.
73
The Court’s
examples included laws prohibiting polygamy and child labor, and
those requiring the payment of Social Security taxes.
74
The Court
noted that it had never invalidated a neutral law of general
applicability when the law interfered only with a person’s right to
free exercise of religion.
75
Rather than applying strict scrutiny, the Supreme Court in
Smith
76
held that it is up to the “political process” and not the
courts to protect the interests of individuals whose religious
practices are interfered with by a neutral, generally applied state
law.
77
Although it rejected the use of the strict scrutiny as the
standard of review for free exercise claims, the Smith Court did not
overrule Sherbert.
78
Instead, the Court distinguished the case
before it from Sherbert, stating that strict scrutiny applied only to
“employment compensation” cases, not criminal matters, as
examined in Smith.
79
The Supreme Court explained that the issue
72
Id.
73
Id. at 879-80 (citing Reynolds v. United States, 98 U.S. 145 (1879)
(holding that a person who believed, based on his religion, that a law prohibiting
bigamy should not have been enacted is not immune from prosecution for
violating that law); Prince v. Massachusetts, 321 U.S. 158 (1944) (holding that a
woman who used her child to distribute literature on the street could be
prosecuted for violation of child labor laws, despite the fact that the literature
being distributed was religious); United States v. Lee, 455 U.S. 252 (1985)
(holding that an Amish person was not exempt from paying Social Security
taxes, even though his religion prohibited taking part in governmental support
programs)).
74
Smith, 494 U.S. at 886.
75
Id. at 878-79. “We have never held that an individual’s religious beliefs
excuse him from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate.” Id.
76
Id. at 872.
77
Id. at 872, 890. The phrase “political process” describes the legislature.
Id.
78
Id. at 884 (holding that “[e]ven if we were inclined to breathe into
Sherbert some life beyond the unemployment compensation field, we would not
apply it to require exemptions from a generally applicable criminal law”).
79
Id.
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868 JOURNAL OF LAW AND POLICY
in Smith was not whether Oregon could deny the respondents
benefits, but rather, whether the Oregon criminal statute, which
generally prohibits the use of peyote, could be applied to
individuals whose religion required its use.
80
The Court held that
unemployment compensation cases belong to a separate class of
cases in which exceptions for free exercise of religion are
permitted because “a distinctive feature of unemployment
compensation programs is that their eligibility criteria invite
consideration of the particular circumstances behind an applicant’s
unemployment.”
81
The Court further held “that where the state has
in place a system of individual exemptions, it may not refuse to
extend that system to cases of ‘religious hardship’ without
compelling reason.”
82
The Court also distinguished Smith from prior Supreme Court
cases in which it had invalidated statutes as applied to the
religiously observant, holding that the burden on the religious
individuals in those cases outweighed the states’ compelling
interests in the challenged statutes.
83
The Court held that the cases
in which it had invalidated laws on free exercise grounds involved
both a right to free exercise and a conjoining additional
constitutional claim, and that strict scrutiny is only available in
such “hybrid” cases.
84
As a result of Smith, under existing federal
law, a court may still apply strict scrutiny in free exercise cases
involving 1) laws that are not neutral and generally applicable 2)
unemployment compensation, or 3) a free exercise claim that is
80
Id. at 876.
81
Smith, 494 U.S. at 884.
82
Id. (citing Bowen v. Roy, 476 U.S. 693 (1986)).
83
Id. at 881-82.
84
Id. (citing Catwell v. Connecticut, 310 U.S. 296 (1940)) (containing
conjoining free speech and free press claims); Murdock v. Pennsylvania, 319
U.S. 105 (1943) (containing a conjoining free speech claim); Follet v.
McCormick, 321 U.S. 573 (1944) (same); Pierce v. Society Sisters, 268 U.S.
510 (1925) (containing conjoining claim of parents’ right to direct the education
of their children); Wisconsin v. Yoder, 406 U.S. 205 (1972) (same); Wooley v.
Maynard, 430 U.S. 705 (1977) (decided on free speech grounds, but containing
a conjoining free exercise claim); West Virginia Bd. of Ed. v. Barnette, 319 U.S.
624 (1943) (same).
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 869
conjoined with another constitutional claim.
85
However, when a
neutral law of general applicability violates only the right to free
exercise of religion, the state must survive only rational basis
review, the lowest form of scrutiny. To prevail under rational basis
review, the state need only prove that its law is rationally related to
a legitimate state interest.
86
B. The Federal and State Legislative Response to the Smith
Decision
In response to Smith, Congress enacted the Religious Freedom
Restoration Act of 1993 (RFRA).
87
The Senate Report that
accompanied the Act criticized the Smith decision and explained
that “the framers of the Constitution, recognizing free exercise of
religion as an unalienable right, secured its protection in the First
Amendment to the Constitution.”
88
The report also stated that
“laws ‘neutral’ towards religion may burden religious exercise as
surely as laws intended to interfere with religious exercise.”
89
The
85
Smith, 494 U.S. at 884-85 (holding the Sherbert test inapplicable to
challenges against generally applicable laws on free exercise grounds, but
excepting employment cases from those to which the Sherbert test applies). See
also Swanson v. Guthrie Independent School District, 135 F.3d 694, 700 n.5
(10th Cir. 1998) (“The Smith opinion does not make it clear whether it is
constitutionally sufficient for a law or policy to be neutral and of general
applicability, or whether the policy or law will still have to satisfy some lesser
standard than the compelling interest test.”).
86
S. REP. NO. 103-111, at 7-8 (1993) (stating that the review remaining
after Smith when a neutral law of general applicability interferes with a person’s
religious observance is rational basis review).
87
42 U.S.C.A. § 2000bb (1993). The statute lists as its purpose:
(1) to restore the compelling state interest test as set forth in Sherbert v.
Verner, 373 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972) and to guarantee its application in all cases where free exercise
of religion is substantially burdened; and (2) to provide a claim or
defense to persons whose religious exercise is substantially burdened
by the government.
Id. § 2000bb(b) (1993).
88
S. REP. NO. 103-111, at 2-3 (1993).
89
Id.
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870 JOURNAL OF LAW AND POLICY
report further criticized the Smith decision, stating that “[b]y
lowering the level of constitutional protection for religious
practices, the decision has created a climate in which the free
exercise of religion is jeopardized.”
90
In recognition of these concerns, the RFRA reinstated strict
scrutiny as the test for determining whether a federal or state law
violates the Free Exercise Clause of the U.S. Constitution.
91
In
relevant part, the RFRA provided that the “[g]overnment shall not
substantially burden a person’s free exercise of religion . . .
[unless] it is in furtherance of a compelling governmental interest;
and is the least restrictive means of furthering that compelling
interest.”
92
In 1997, the Supreme Court, in City of Boerne v. Flores, struck
down the Religious Freedom Restoration Act of 1993 as it applied
to the states, holding that Congress had exceeded its power under
the Enforcement Clause of the Fourteenth Amendment.
93
City of
Boerne involved an RFRA challenge to city zoning ordinances by
a Catholic archbishop who was denied a permit to enlarge his
church.
94
The Court held that, under the Enforcement Clause,
Congress has the power to make laws that protect people from
state infringement upon their constitutional rights.
95
However,
90
Id.
91
Id. See also City of Boerne v. Flores, 521 U.S. 507, 516-17 (1997).
92
42 U.S.C.A. § 2000 (West Supp. 2004). The RFRA defined
“government” as “a branch, department, agency, instrumentality, and official (or
other person acting under color of law) of the United States or a covered entity.”
The RFRA defined “covered entity” as “the District of Columbia, the
Commonwealth of Puerto Rico, and each territory and possession of the United
States.” Id.
93
Flores, 521 U.S. at 536. The Court held:
When the political branches of the Government act against the
background of a judicial interpretation of the Constitution already
issued . . . in later cases the Court will treat its precedent with the
respect due them under settled principals . . . as the provisions of the
federal statute here invoked are beyond congressional authority, it is the
Court’s precedent, not the RFRA, which must control.
Id.
94
Id.
95
Id. at 517.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 871
because the Supreme Court held in Smith that strict scrutiny is not
available when a general law of neutral applicability interferes
with one’s exercise of religion, Congress cannot be said to be
enforcing the constitutional right of free exercise of religion
through the RFRA because the rights that the RFRA grants are not
provided for by the Free Exercise Clause.
96
In other words, the
Court determined that the RFRA was unconstitutional because the
Act provided for rights not granted in the Constitution.
97
96
Id. In response to the Supreme Court’s striking down the RFRA,
Congress has passed the Protection of Religious Exercise in Land Use and by
Institutionalized Persons Act (RRLUIPA) which reinstated strict scrutiny as the
test for more narrow instances of government interference with individuals’ free
exercise of religion including land use and zoning regulations and over people
residing in or confined to government institutions. 42 U.S.C. § 2000cc (West
2005). In Elsinore Christian Center v. City Lake of Elsinore, 291 F. Supp. 2d
1083 (C.D. Cal. 2003), the district court for the central district of California
found RLUIPA unconstitutional, holding it exceeds Congress’s enforcement
power. But see U.S. v. Maui County, 298 F. Supp. 2d 1010 (D. Haw. 2003)
(rejecting challenge to RLUIPA on the grounds that RLUIPA violates the
Establishment Clause). See also Corporation of the Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints v. City of West Linn, 86 P.3d 1140
(Or. Ct. App. 2004) (finding no substantial burden to Plaintiffs under RLUIPA).
For a discussion of the constitutionality of RLUIPA in comparison to the RFRA,
see Michael Paisner, Boerne Supremacy: Congressional Responses to City of
Boerne v. Flores and the Scope of Congress’s Article I Power, 105 COLUM. L.
REV. 537 (2005).
97
Id. Congress’s enforcement power under the Fourteenth Amendment
extends only to enforcing the provisions of the Fourteenth Amendment. In this
case, the petitioner asserted that Congress was enforcing the Privileges and
Immunities Clause of the Fourteenth Amendment, which, in pertinent part,
reads:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due
process under the law, nor deny to any person within its jurisdiction the
equal protection of the laws.
U.S.
CONST. amend. XIV, § 1. However, the Supreme Court held in Smith that
the right to free exercise of religion does not require strict scrutiny when neutral
laws of general applicability interfere only with an individual’s practice of
religion. Therefore, strict scrutiny is not one of the privileges of citizens of the
United States and Congress has no right to direct the state legislation in this
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872 JOURNAL OF LAW AND POLICY
In response to the Supreme Court’s rejection of both the
Sherbert test and the RFRA, a number of states enacted legislation
requiring a balancing test similar to Sherbert for neutral, generally
applicable laws that impede freedom of religion.
98
Florida is
among the states that have enacted Religious Freedom Restoration
Acts in the wake of the Supreme Court’s decisions in Smith and
City of Boerne.
99
Florida’s RFRA provides for strict scrutiny
review like Sherbert and the federal RFRA.
100
manner. Flores, 521 U.S. at 536 (“RFRA was designed to control cases and
controversies, such as the one before us; but as the provisions of the federal
statute here invoked are beyond congressional authority, it is this Court’s
precedent, not RFRA, which must control.”). Although the Supreme Court has
not ruled on whether the RFRA is constitutional as applied to the federal
government, many circuit courts have held that this is so. See Anne Y. Chiu,
When Prisoners Are Weary and Their Religious Exercise Burdened, RLUIPA
Provides Some Rest for Their Souls, 79
WASH. L. REV. 999, 1004 n. 49 (stating
that the RFRA seems to remain valid as applied to the federal government)
(citing O’Bryan v. Bureau of Prisons, 349 F.3d 399, 400-01 (7th Cir. 2003));
Guam v. Guerrero, 290 F.3d 1210, 1221 (9th Cir. 2002); Henderson v. Kennedy,
265 F.3d 1072, 1073 (D.C. Cir. 2001); Kikumura v. Hurley, 242 F.3d 950, 958
(10th Cir. 2001); Christians v. Crystal Evangelical Free Church (In re Young),
141 F.3d 854, 856 (8th Cir. 1998)).
98
According to RJ&L Religious Liberty Archive, a religious liberty
watchdog organization, twelve states have enacted their own statutes protecting
the free exercise of religion. See http://www.churchstatelaw.com/
statestatutes/index.asp (last visited Feb. 10, 2005). These states include
Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico,
Ohio, Rhode Island, South Carolina and Texas. See A
LA. CONST. amend. NO.
622 (1999); A
RIZ. REV. STAT. § 41-1493(1999); CONN. GEN. STAT. § 52-571b
(1993); F
LA. STAT. ANN. §§ 761.01-761.05 (1998); IDAHO CODE § 73-401-404
(2000); 775 ILL. COMP. STAT. ANN. 35/15 (West 2004); MO. REV. STAT. §1.302
(2003); N.M. STAT. ANN. § 28-22-1(1978); OKLA. STAT. 51 §§ 251-58 (2000);
R.I. GEN. LAW § 42-80-1 (1956); S.C. CODE ANN. § 1-32-10-60 (1999); TEX.
C
IV. PRAC. & REM. CODE ANN. tit. 5, § 110 (1999).
99
FLA. STAT. ANN. §§ 761.01-761.05 (1998).
100
Florida’s RFRA provides:
The government shall not substantially burden a person’s exercise of
religion, even if the burden results from a rule of general applicability,
except that government may substantially burden a person’s exercise of
religion only if it demonstrates that application of the burden to the
person: (b) is the least restrictive means of furthering that compelling
governmental interest.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 873
C. Hybrid Claims
Although no federal legal remedy lies when a neutral law of
general applicability interferes with the right to free exercise of
religion standing alone, the U.S. Supreme Court has acknowledged
that a petitioner may challenge a law on Free Exercise Clause
grounds if the petitioner’s free exercise claim is joined with a
claim based on the violation of another constitutional freedom,
such as freedom of speech.
101
In such “hybrid” cases, in which a
generally applicable law is challenged on the basis of the Free
Exercise Clause and another constitutional freedom, strict scrutiny
appears to remain available.
102
To date, no circuit court has actually applied strict scrutiny to a
hybrid claim.
103
However, of the circuits that have decided cases in
which hybrid claims were asserted,
104
with the exception of the
Second and Sixth Circuits, all have recognized the existence of
Id.
§ 761.03(1)(b).
101
Employment Div., Dep’t. of Human Res. of Or. v. Smith, 494 U.S. 872,
881 (1990).
102
See Crane, supra note 55, at 236 (“The strict scrutiny test of earlier
cases would now be reserved for “hybrid” cases—those involving a combination
of free exercise rights and constitutional rights.”).
103
Leebaert v. Harrington, 332 F.3d 134, 143 (2d Cir. 2003). Hybrid claims
were basically irrelevant from 1993 to 1997 because, during that time, plaintiffs
asserting free exercise claims could do so under the federal RFRA. See infra
Part I.A.
104
The First, Second, Third, Sixth, Seventh, Ninth, Tenth, and D.C.
Circuits have decided cases in which hybrid claims were asserted. See Leebaert
v. Harrington, 332 F.3d 134, 143 (2d Cir. 2003); Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003); Tenafly Eruv Ass’n,
Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002); Prater v. City of
Burnside, Kentucky 289 F.3d 417, 430 (6th Cir. 2002); American Family
Assoc., Inc. v. City and County of San Francisco, 277 F.3d 1114 (9th Cir. 2000);
Swanson v. Guthrie Independent School District, 135 F.3d 694, 700 (10th Cir.
1998); EEOC v. Catholic Charities of America, 83 F.3d 455 (D.C. Cir. 1996);
Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995). For
further discussion of the split within in the Circuits regarding the status of
hybrid claims, see Ryan M. Akers, Begging the High Court for Clarification;
Hybrid Rights Under Employment Division v. Smith, 17 R
EGENT. U. L. REV. 77
(2004-2005).
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874 JOURNAL OF LAW AND POLICY
such a claim.
105
The Second and Sixth Circuits have held that the
Court’s discussion of hybrid claims in Smith is not part of the
Court’s holding, but rather, is merely dicta; the circuits thus
maintain that Smith overruled the Sherbert test for all neutral laws
of general applicability, including those brought as hybrid
claims.
106
The circuits that recognize hybrid claims differ in
opinion with regard to whether the claim conjoined with the free
exercise claim must be successful on its own or whether the claim
must simply be one with “a ‘fair probability’ or ‘likelihood’ but
not a certitude of success on the merits.”
107
In Swanson v. Guthrie Independent School District, for
105
See Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752
(7th Cir. 2003) (recognizing a hybrid claim, but holding that a plaintiff fails to
assert a valid hybrid claim by conjoining a free exercise claim with a meritless
claim). See also Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144,
165 n.26 (3d Cir. 2002) (recognizing hybrid claims, but noting that the plaintiffs
did not assert such a hybrid rights claim); American Family Assoc., Inc. v. City
& County of San Francisco, 277 F.3d 1114 (9th Cir. 2000) (recognizing hybrid
claims, but holding that the conjoined claim must be colorable, which the
plaintiff’s free speech claim was not); Swanson v. Guthrie Independent School
District, 135 F.3d 694, 700 (10th Cir. 1998) (recognizing hybrid claims, but
holding that in order to succeed on such a claim, a plaintiff must be able to
succeed independently on the claim conjoined with the free exercise claim);
EEOC v. Catholic Charities of America, 83 F.3d 455, 467 (D.C. Cir. 1996)
(recognizing the possibility that the respondents had a valid hybrid claim, but
denying petitioner’s claim on other grounds); Brown v. Hot, Sexy and Safer
Productions, Inc., 68 F.3d 525 (1st Cir. 1995) (recognizing the existence of
hybrid claims, but denying petitioner’s claim because there was no violation of a
privacy right).
106
Leebaert v. Harrington, 332 F.3d 134, 143 (2d Cir. 2003); Prater v. City
of Burnside, Kentucky 289 F.3d 417, 430 (6th Cir. 2002) (holding that Smith
overruled the compelling state interest/least restrictive means test for a neutral
law of general applicability, including those cases in which hybrid claims were
asserted).
107
Swanson v. Guthrie Independent School District, 135 F.3d 694, 700
(10th Cir. 1998) (recognizing the availability of a hybrid claim, but holding that
in order to succeed on such a claim, a plaintiff must be able to succeed
independently on the conjoined constitutional claim). See also Miller v. Reed,
176 F.3d 1202, 1207 (9th Cir. 1999) (citing Thompson v. Anchorage Equal
Rights Comm’n, 165 F.3d 692, 703, 707 (9th Cir. 1999)) (holding that a
conjoined claim does not require a certitude of success).
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 875
example, the Tenth Circuit rejected a hybrid claim brought by
Christian parents who desired that their home-schooled daughter
take classes at a local public school.
108
The parents challenged the
local school board’s decision requiring that students be enrolled
either full-time or not at all, and alleged a violation of the Free
Exercise Clause as well as the constitutional right of parents to
direct their children’s education.
109
The Tenth Circuit held that,
although “parents have a constitutional right to direct [their
child’s] education, up to a point . . . parents simply do not have a
constitutional right to control each and every aspect of their
children’s education and oust the state’s authority over that
subject.”
110
Based on this rationale, the Swanson court found that
the petitioners did not have a valid claim based on their
constitutional right to direct their child’s education.
111
The court
held that “it is not sufficient simply to invoke the Free Exercise
Clause as well as another general constitutional claim to trigger the
compelling-interest/narrowly-tailored-rule analysis,” but rather,
there must be a “colorable showing of infringement of recognized
and specific constitutional rights.”
112
The Tenth Circuit, in essence,
required that the claim conjoined with the free exercise claim be
one that would succeed independently.
113
Conversely, in Miller v. Reed, the Ninth Circuit specifically
held that its test was less stringent than that of other circuits, given
that it did not require a “certitude” that the conjoined claim would
succeed on the merits, but only a “fair probability” or “likelihood”
that such a claim would succeed.
114
In Miller, a religious individual
108
Swanson, 135 F.3d at 696-97.
109
Id. at 697, 699.
110
Id. at 699.
111
Id. at 700 (citing a host of cases in which courts rejected the claims of
parents asserting a constitutional right to direct their child’s education).
112
Id.
113
Id.
114
Miller v. Reed, 176 F.3d 1202, 1207 (9th Cir. 1999) (“We recently held,
to assert a hybrid-rights claim, ‘a free exercise plaintiff must make out a
‘colorable claim’ that a companion right has been violated-that is, a ‘fair
probability’ or a ‘likelihood,’ but not a certitude, of success on the merits.”)
(quoting Thompson v. Anchorage Equal Rights Comm’n, 165 F.3d 692, 703,
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876 JOURNAL OF LAW AND POLICY
who was not a member of an organized religion challenged the
state’s requirement that he submit his social security number in
order to renew his driver’s license.
115
The plaintiff claimed that
this requirement interfered with his religious belief because being
identified by a number diminished his identity as an individual and
also that the restriction violated his fundamental right to interstate
travel.
116
The Ninth Circuit held that the plaintiff did not articulate
a valid hybrid claim because the conjoining constitutional claim
was “utterly meritless,” given that denying the plaintiff a driver’s
license would not prevent his interstate travel in the same way that
gasoline taxes and toll roads do not violate the right to interstate
travel.
117
Although the Miller court distinguished its analysis from
that of more stringent circuits, the court utilized virtually the same
analysis as the Swanson court; it evaluated the conjoining claim
independently and then specifically denied the hybrid claim based
on the weakness of the conjoining claim.
118
Both the Ninth and Tenth Circuits’ holdings indicate that,
regardless of whether a probability or a certainty of success is
required, the analysis of a hybrid claim centers on whether the
conjoining claim can survive on its own.
119
Requiring a strong or
“colorable” conjoining claim, however, diminishes the utility of a
hybrid claim, as plaintiffs may sue on the conjoining claim
alone.
120
As Justice Souter noted in his concurring opinion in
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, “if a
hybrid claim is one in which a litigant would actually obtain an
exemption from a formally neutral, generally applicable law under
707 (9th Cir. 1999), rev’d on other grounds by 220 F.3d 1134 (9th Cir. 2000)).
115
Miller, 176 F.3d at 1204.
116
Id. at 1204-05 (holding that because the petitioner could still travel
interstate as a passenger that the examined law did not affect the petitioner’s
right to travel, but rather, his operation of a motor vehicle).
117
Id. at 1205-06. The court noted, “Other circuits have adopted similar or
more stringent predicates for a hybrid rights claim.” Id.
118
Id.
119
Swanson, 135 F.3d at 699.
120
Church of the Lukumi Babalu Aye v. City of Hileah, 508 U.S. 520, 567
(1993) (Souter J., concurring) (noting that requiring the conjoining claim of a
hybrid claim to be strong on its own alleviates the need for a hybrid claim).
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 877
another constitutional provision, then there would have been no
reason in what Smith calls the hybrid cases to have mentioned the
Free Exercise Clause at all.”
121
The U.S. Supreme Court has yet to decide a hybrid claim. The
Court referenced hybrid claims most recently in 2002, in
Watchtower Bible and Tract Society of New York, Inc. v. Village of
Stratton.
122
In Watchtower, a group of Jehovah’s Witnesses
challenged on both free exercise and free speech grounds a village
ordinance requiring that door-to-door canvassers or solicitors
obtain a permit.
123
The Court held that it was “unnecessary to
[determine the standard of review] because the breadth of speech
affected by the ordinance and the nature of the regulation make it
clear that the Court of Appeals erred in upholding it.”
124
The
question of how strong a conjoining claim must be to support a
valid hybrid claim and obtain strict scrutiny review thus remains
unanswered.
III.
SEARCH CLAIMS UNDER THE FOURTH AMENDMENT
In addition to a free exercise claim, a veiled Muslim woman
may assert that requiring her to unveil constitutes an unreasonable
search under the Fourth Amendment. This section analyzes the
components of a Fourth Amendment claim.
The Fourth Amendment protects people “against unreasonable
121
Id. Hileah was not a hybrid case. The petitioners challenged city
ordinances banning ritual sacrifice. Id. The Court invalidated the ordinances,
finding that Smith was inapplicable because the ordinances were not neutral. Id.
122
Watchtower Bible and Tract Society of New York, Inc. v. Village of
Straton, 536 U.S. 150 (2002).
123
Id.
124
Id. at 164. The Court held:
The mere fact that the ordinance covers so much speech raises
constitutional concern. It is offensive not only to the values protected
by the First Amendment, but to the very notion of a free society—that
in the context of every day public discourse a citizen must first inform
the government of her desire to speak with her neighbors and then
obtain a permit to do so.
Id. at 165-66.
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878 JOURNAL OF LAW AND POLICY
searches and seizures.”
125
In his concurring opinion in United
States v. Katz, Justice Harlan set forth a two-prong test for
determining whether an action constitutes a search.
126
The test
requires both that the person allegedly searched have a subjective
expectation of privacy in the subject of the claimed search and that
society recognize the person’s expectation as a reasonable one.
127
Because the Constitution protects only against unreasonable
searches, once an action is determined to be a search, the Supreme
Court must then determine whether that search was reasonable.
128
The Court has determined that individualized suspicion is required
for a search to be deemed reasonable, unless authorities can
establish the existence of “special needs beyond the normal need
for law enforcement.”
129
A. Unveiling as a Search
The Supreme Court, in Katz v. United States,
130
held that what
a person “seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.”
131
However, “[w]hat
a person knowingly exposes to the public, even in his own home or
office, is not subject to Fourth Amendment protection.”
132
The
Katz Court held that the police’s taping of the petitioner’s phone
calls, made within a public phone booth and taped using a device
attached to the outside of the phone booth, constituted a search.
133
125
U.S. CONST. amend. IV.
126
Katz v. United States, 389 U.S. 347, 362 (1967) (Harlan J., concurring)
(“My understanding of the rule that has emerged from prior decisions is that
there is a twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one that
society is prepared to recognize as ‘reasonable.’”).
127
Id.
128
City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
129
Edmond, 531 U.S. at 37 (citing Vernonia School Dist. 47J v. Acton, 515
U.S. 646 (1995)).
130
Katz v. United States, 389 U.S. 347 (1967).
131
Id. at 351.
132
Id.
133
Id. at 356-57.
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Because the petitioner in Katz had a reasonable expectation that his
conversations were private, the Court reasoned, he “may rely on
the Fourth Amendment.”
134
In his concurring opinion in Katz, Justice Harlan articulated a
two-prong test that “emerged from prior decisions” and was to be
applied in cases in which a right to privacy was asserted to
determine whether a search had taken place.
135
Justice Harlan’s test
examines 1) whether “a person exhibited an actual (subjective)
expectation of privacy,” and 2) whether “the expectation . . . [is]
one that society is prepared to recognize as reasonable.”
136
This
two-prong test was subsequently adopted by the Supreme Court as
the test for determining whether an individual enjoys a reasonable
expectation of privacy in a given case, and therefore, receives
Fourth Amendment protection.
137
Thus, under present law, in order
for a veiled Muslim woman to successfully assert a right to privacy
in her face, she must demonstrate not only that she has a subjective
expectation of privacy in her face, but also that society is prepared
to recognize that expectation as reasonable.
138
1. The Katz Test: Subjective Expectation of Privacy
In explaining what is meant by something a person “seeks to
preserve as private” the Katz Court cited with approval its earlier
decision in Rios v. United States,
139
in which it held that the
134
Id. at 352 (holding that “[o]ne who occupies [a phone booth], shuts the
door behind him, and pays the toll that permits him to place a call is surely
entitled to assume the words he utters into the mouthpiece will not be broadcast
to the world”).
135
Id. at 361 (Harlan J., concurring).
136
Id. (internal quotations omitted).
137
See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984) (holding that the
petitioner failed to satisfy the two-prong test because, although he had a
reasonable expectation of privacy in his jail cell, it was not one society was
prepared to accept as reasonable); see also Smith v. Maryland, 442 U.S. 735,
740 (1979) (holding that the petitioner did not establish either a subjective or an
objective expectation of privacy in the phone numbers he dialed from his
telephone).
138
See also Katz, 389 U.S. at 351 (Harlan J., concurring).
139
Rios v. United States, 364 U.S. 253 (1960).
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admissibility as evidence of a package of heroin that was dropped
on the floor of a taxi cab turned on whether the petitioner dropped
the package before or after the police arrested him.
140
If the police
arrested the petitioner without probable cause and thereafter saw
the package of heroin, the search and arrest would be unlawful,
and the package of heroin would be inadmissible.
141
However, if
the petitioner held the package in the officers’ view and the
officers then arrested him based upon probable cause, that is, upon
seeing the package of heroin, then evidence of the package would
be admissible.
142
The Katz Court cited Rios to emphasize that
when a person makes an effort to preserve something as private, as
the petitioner may have done in the Rios case by hiding the
package of heroin on the floor of the cab, that this “something”
merits constitutional protection.
143
Courts have reviewed several cases involving an individual’s
right to privacy in certain physical attributes.
144
Because those
courts did not find a subjective expectation of privacy in the
examined physical characteristics, such as one’s voice,
handwriting, hands, and eyes, they did not reach the question of
whether society was prepared to recognize the individuals’
expectations of privacy as reasonable.
145
For example, the Sixth Circuit, in United States v. Richardson,
analyzed the right to privacy in one’s hands.
146
The Richardson
court held that examining the petitioner’s hands under an
ultraviolet light before arrest and without a warrant did not
140
Id. at 261-62.
141
Id.
142
Id.
143
Katz, 389 U.S. at 351-52 (citing Rios v. United States, 364 U.S. 253
(1960) (holding that “what [a person] seeks to preserve as private, even in an
area accessible to the public, may be constitutionally protected”).
144
See United States v. Dionosio, 410 U.S. 1 (1978) (analyzing the right to
privacy in one’s voice); United States v. Doe, 457 F.2d 895 (2d Cir. 1972)
(analyzing the right to privacy in handwriting samples); United States v.
Richardson, 388 F.2d 842 (6th Cir. 1968) (discussing the right to privacy in
one’s hands); State v. Shearer, 30 P.3d 995 (Idaho Ct. App. 2001) (analyzing the
right to privacy in one’s eyes.)
145
Id.
146
United States v. Richardson, 388 F.2d 842 (6th Cir. 1968).
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 881
constitute a search under the Fourth Amendment.
147
However, the
court relied heavily on the fact that the petitioner had agreed to the
search, “gambl[ing] on his ability to convince the officers of his
innocence.”
148
The Richardson court did not discuss whether the
petitioner would have had a reasonable expectation of privacy in
his hands had he not voluntarily shown them to the officers.
149
In United States v. Dionisio, the Supreme Court considered
whether an individual has a reasonable expectation of privacy in
his voice.
150
The Court concluded that there is no reasonable
expectation of privacy in a person’s voice because it is “constantly
exposed to the public” and “repeatedly produced for others to
hear.”
151
The Court relied on Katz and determined that a person’s
voice is something that one knowingly exposes to the public;
therefore, it is not subject to Fourth Amendment protection.
152
Similarly, in U.S. v. Doe, the Second Circuit held that handwriting
samples could be compelled by subpoena in a grand jury
proceeding because there is “no intrusion into an individual’s
privacy . . . [since] nothing is exposed to the grand jury that has not
previously been exposed to the public at large.”
153
State courts have examined similar questions. In State v.
Shearer, the Idaho Court of Appeals rejected a petitioner’s claim
that his right to privacy was violated when he was pulled over by a
147
Id. at 845. In Richardson, FBI agents dusted stolen bank bags with
fluorescein powder, which becomes florescent under ultraviolet light. After the
petitioner and his accomplice retrieved the bags, FBI agents and police dropped
in on the petitioner at work and asked him if they could view his hands under a
light without explaining to the petitioner the purpose of this request.
148
Id.
149
Id.
150
United States v. Dionisio, 410 U.S. 1, 14 (1978) (involving a challenge
on Fourth and Fifth Amendment grounds by two grand jury witnesses who were
held in contempt of court for refusing to provide voice samples).
151
Id.
152
Id. at 14 (citing Katz v. United States, 389 U.S. 347, 351 (1967)).
153
United States v. Doe, 457 F.2d 895, 899 (2d Cir. 1972) (challenging on
Fourth Amendment grounds a judgment of contempt by the Southern District of
New York related to the appellant’s refusal to provide the grand jury with a
handwriting sample).
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police officer and asked to remove his sunglasses.
154
The court
held that there is no reasonable expectation of privacy in a person’s
eyes and stated that “taking minimal steps to temporarily conceal a
facial characteristic that is ordinarily and frequently exposed to the
public is, in our view, insufficient to create a legitimate expectation
of privacy.”
155
Taken together, these rulings indicate that courts will not
uphold a right to privacy in a feature that is normally in plain view
and that the petitioner generally makes no effort to conceal.
156
For
the most part, these decisions rely on the Supreme Court’s
assertion in Dionisio, which provides that “[n]o person can have a
reasonable expectation that others will not know the sound of his
voice, any more than he can expect that his face will be a mystery
to the world.”
157
Although these words would seem fatal to a case
asserting a right to privacy in one’s face, the Dionisio Court
qualified its statement by asserting that “[e]xcept for the case of
the rare recluse who chooses to live his life in complete solitude, in
our daily lives we constantly speak and write.”
158
Indeed, the Court
concluded its opinion by noting that “nothing [was] being exposed
to the grand jury that [was] not previously . . . exposed to the
public at large.”
159
Therefore, it is not clear whether the “rare
recluse” possesses a right to privacy in her handwriting or voice
samples.
160
Unlike members of the general public, a recluse
presumably has not exposed the characteristic in question to “the
public at large.”
161
Like a recluse, a veiled Muslim woman keeps
154
State v. Shearer, 30 P.3d 995 (Idaho Ct. App. 2001).
155
Id. at 1000. The Freeman case is easily distinguishable from Shearer
because Freeman constantly wore her veil. Therefore, her head and face were
not “ordinarily and frequently exposed to the public,” unlike the petitioner’s
eyes in Shearer.
156
See United States v. Dionisio, 410 U.S. 1, 14 (1972) (citing United
States v. Doe, 457 F.2d 895, 898-99 (2d Cir. 1972)); State v. Shearer, 30 P.3d
995, 1000 (Idaho Ct. App. 2001).
157
Dionisio, 410 U.S. at 14.
158
Id. (citing United States v. Doe, 457 F.2d 895, 898-99 (2d Cir. 1972)).
159
Dionisio, 410 U.S. at 14.
160
Id.
161
Id.
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her face regularly concealed from the public.
162
Because no court
has ever ruled on whether there is a privacy interest in the case of a
person who regularly keeps private a physical feature freely
exposed by the general population, such a case would be one of
first impression in the United States.
2. The Katz Test: Expectation of Privacy That Society Is Prepared
to Recognize as Reasonable
The Supreme Court has not set forth a bright line test for
establishing how to evaluate the second prong of Katz, that is,
whether society is prepared to recognize a privacy right as
reasonable.
163
However, the Supreme Court has decided several
cases upholding certain privacy expectations as ones that society is
prepared to recognize as reasonable.
164
For example, in Minnesota
v. Olson, the Court held inadmissible as evidence a confession
made by an individual who was arrested in a home where he was
staying as an overnight guest after the police had entered without a
warrant and with their guns drawn.
165
The Olson Court rejected the
government’s argument that the defendant was not entitled to
Fourth Amendment protection because the place he was staying
was not his home.
166
The Court relied on Katz to demonstrate that
Fourth Amendment protection extends beyond one’s home and
focused on the fact that the defendant was an overnight guest in the
searched home.
167
The Court explained that society recognizes as
reasonable an expectation of privacy by overnight visitors in a
162
Freeman, 2003 WL 21338619, at *1 (“Plaintiff wears the niqab in front
of all strangers and unrelated Muslim men.”).
163
See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984); Smith v.
Maryland, 442 U.S. 735, 740 (1979). See also Katz v. United States, 389 U.S.
347, 351 (1967) (Harlan J., concurring).
164
See Minnesota v. Olson, 495 U.S. 91 (1990) (holding that an arrest
warrant was required to arrest an overnight guest in the home of a third person);
see also Bond v. United States, 529 U.S. 334 (2000) (involving the manipulation
of a bus passenger’s bag by a law enforcement agent).
165
Olson, 495 U.S. at 94.
166
Id. at 96-99.
167
Id.
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884 JOURNAL OF LAW AND POLICY
host’s home:
To hold that an overnight guest has a legitimate expectation
of privacy in his host’s home merely recognizes the
everyday expectations of privacy that we all share. Staying
overnight in another’s home is a longstanding social
custom that serves functions recognized as valuable by
society. We stay in others’ homes when we travel to a
strange city for business or pleasure, when we visit our
parents, children, or more distant relatives out of town,
when we are in between jobs or homes, or when we house-
sit for a friend. We will all be hosts and we will all be
guests many times in our lives. From either perspective, we
think that society recognizes that a houseguest has a
legitimate expectation of privacy in a host’s home.
168
Similarly, in Bond v. United States, the Supreme Court
considered whether a search resulted when a government agent
checking a bus for illegal immigrants squeezed a passenger’s bag
located in the bus’s overhead storage bin.
169
Finding that society
recognizes as reasonable a passenger’s expectation that his bags
will not be physically manipulated, the Court explained:
When a bus passenger places a bag in an overhead bin, he
expects that other passengers or bus employees may move
it for one reason or another. Thus, a bus passenger clearly
expects that his bag may be handled. He does not expect
that other passengers, or bus employees will, as a matter of
course, feel the bag in an exploratory manner. But this is
exactly what the agent did here. We therefore hold that the
agent’s physical manipulation of the petitioner’s bag
violated the Fourth Amendment.
170
The Supreme Court has also provided guidance with regard to
when an expectation of privacy is one that society is not prepared
to recognize as reasonable.
171
For example, in Hudson v. Palmer,
168
Id. at 98.
169
Bond, 529 U.S. at 336 (2000).
170
Id. at 338-39.
171
See Hudson v. Palmer, 468 U.S. 517 (1984) (holding that society is not
prepared to recognize the privacy rights of prisoners in their cells).
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the Court considered the case of an inmate who challenged a
random search of his prison cell where his contraband property
was intentionally destroyed.
172
The Court held that although
prisoners have a reasonable expectation of privacy in their cells, it
is not one that society is prepared to recognize as legitimate
because “[t]he recognition of privacy rights for prisoners in their
individual cells cannot be reconciled with the concept of
incarceration and the needs and objectives of penal institutions.”
173
The Court noted that incarceration is the result of committing a
crime and that its premise is to withhold an individual’s personal
freedoms.
174
The Court therefore concluded that a prisoner’s
expectation of privacy in his prison cell is not an expectation that
society is prepared to accept as reasonable.
175
This body of Supreme Court case law can be used to determine
on a case-by-case basis whether an expectation of privacy is one
that society is prepared to accept as reasonable, and therefore,
whether a search has occurred.
176
B. Unveiling as an Unreasonable Search
The Fourth Amendment to the U.S. Constitution protects only
against unreasonable searches.
177
Once a court determines that a
search has occurred, the court must determine whether the search
was reasonable.
178
As the Supreme Court held in 2000, in City of
172
Id.
173
Id. at 526.
174
Id.
175
Id. at 525-26.
176
See Bond v. United States, 529 U.S. 334, 338-39 (2000) (engaging in a
fact-based analysis to determine whether the expectation that law enforcement
would not manipulate a passenger’s bag to discover its contents was one that
society is prepared to accept as reasonable); Minnesota v. Olson, 495 U.S. 91,
95-99 (1991) (engaging in a fact-based analysis to determine whether society is
prepared to accept as reasonable overnight guests’ expectation of protection
against warrantless searches); Hudson, 468 U.S. at 526 (engaging in a fact-based
analysis to determine whether society was prepared to recognize as reasonable
the right of prisoners to protection against unreasonable searches).
177
U.S. CONST. amend. IV.
178
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).
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Indianapolis v. Edmond, a search is reasonable if there are “special
needs beyond the normal need for law enforcement” or if the
search is an administrative search with a narrowly limited
purpose.
179
In the absence of special needs, individualized
suspicion is required for a search to be considered reasonable.
180
In
Edmond, the Court examined Indianapolis’ highway checkpoint
system, whereby cars were stopped and inspected by police from
the outside and sniffed by a drug dog for signs of illegal drug
activity.
181
The Court held that police activity of this sort
constitutes a seizure and because such a seizure protects only the
city’s general interest in crime control, it is unreasonable absent
individualized suspicion.
182
1. Special Needs
In special needs cases individualized suspicion is not required
for a search to be considered reasonable because, by definition, the
cases are such that “the privacy interests implicated by the search
are minimal, and . . . an important governmental interest furthered
by the intrusion would be placed in jeopardy by a requirement of
individualized suspicion.”
183
In stating that the case before it was
not a special needs case, the Edmond Court referenced three cases
in which it had identified special needs.
184
Each of the cases cited
by the Court in Edmond involved drug testing that was performed
179
Id. The Court also mentions that in certain circumstances “brief
suspicionless seizures of motorists at fixed Border Patrol checkpoint[s] designed
to intercept illegal aliens” or sobriety checkpoints may also be considered
reasonable. Id. (citing United States v. Martinez-Fuerte, 428 U.S. 543 (1976);
Michigan v. Dept. of State Police v. Sitz, 496 U.S. 444 (1990)). However, such
seizures are not relevant to the discussion of the case of a veiled Muslim
woman.
180
Edmond, 531 U.S. at 37.
181
Id. at 48.
182
Id.
183
Skinner, 489 U.S. at 624.
184
Edmond, 531 U.S. at 37 (citing Vernonia School Dist. 473 v. Acton, 515
U.S. 646 (1995)); Nat’l Treasury Employees v. Von Raab, 489 U.S. 656 (1989);
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989).
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without individualized suspicion or a warrant.
185
In Vernonia
School Dist. 473 v. Acton, the Supreme Court upheld the random
drug testing of student athletes.
186
In National Treasury Employees
Union v. Von Raab, the Court upheld the drug testing of employees
who work for U.S. Customs Service and who apply for promotions
to positions that are directly involved with drugs or in which
employees are required as part of their jobs to carry a firearm.
187
The Von Raab Court declined to determine whether employees
who handle classified material should be subject to random drug
testing as well and remanded the case to the Fifth Circuit for that
determination.
188
In Skinner v. Railway Labor Executives’ Assoc.,
the Court upheld a Federal Railroad Administration regulation
requiring blood and urine tests of employees involved in “major
train accidents” to test for drugs and alcohol.
189
The Supreme Court found in all three cases that drug testing
implicated the Fourth Amendment.
190
The Court then balanced the
character of the intrusion against the governmental interest
furthered by the intrusion.
191
In each case, the Court held that the
intrusiveness of a urinalysis is minimal.
192
In determining that the
185
Id.
186
Vernonia, 515 U.S. at 664-65. The Vernonia holding was expanded in
Board of Educ. of Indep. Schools Dist. No. 92 of Pottawtomie v. Earls, 536 U.S.
822 (2002), in which the Court upheld random drug testing of all students
involved in extracurricular activities. Id.
187
Von Raab, 489 U.S. at 677.
188
Id. at 678.
189
Skinner, 489 U.S. at 607.
190
Vernonia, 515 U.S. at 652; Von Raab, 489 U.S. at 665; Skinner, 489
U.S. at 618.
191
Id.
192
Vernonia, 515 U.S. at 658-59; Skinner, 489 U.S. at 624; Von Raab, 489
U.S. at 672. In Vernonia, the Court cited to Skinner and held that the privacy
interests related to the manner in which the urine was obtained for a urinalysis
were negligible because female students urinated within a stall and male
students urinated in a urinal, but were only viewed from behind. Vernonia, 515
U.S. at 658-59 (citing Skinner, 489 U.S. at 626). Further, the Court held that the
privacy interest in the information that the urinalysis disclosed was minimal as
well because the test only looked for drugs and not any health condition. Id.
(citing Skinner, 489 U.S at 617). Further, the Court held that the required
disclosure of any medications that the students were taking to avoid a false
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nature of the intrusion of a drug tests is minimal, the Court in
Vernonia and Von Raab specifically relied on the fact that positive
results of such tests are not reported to law enforcement
authorities.
193
In Skinner, which involved blood in addition to urine
testing, the Court cited to its decision in Schmerber v. California,
which held that blood tests are not significant privacy intrusions
because such “tests are commonplace in these days of periodic
physical examinations and experience with them teaches that the
quantity of blood extracted is minimal and that for most people the
procedure involves virtually no risk, trauma or pain.”
194
Having found that the privacy interests involved were minimal,
the Court in all three cases found that there were special needs that
outweighed the minimal privacy concern.
195
In Vernonia, the Court
held that deterring drug use in school children constituted a special
need.
196
Additionally, in Von Raab, the Supreme Court held that
because those working in drug departments or those required to
carry a firearm for the U.S. Customs Service “depend uniquely on
their judgment and dexterity, these employees cannot reasonably
expect to keep from the Service personal information that bears
positive result also was minimal. Id. at 658-59.
193
Vernonia, 515 U.S. at 658-59; Von Raab, 489 U.S. at 663. The Skinner
Court specifically stated that the testing was not for prosecutorial purposes, but
rather, as a way to prevent train accidents. Skinner, 489 U.S. at 620.
194
Skinner, 489 U.S. at 607 (quoting Schmerber v. California, 384 U.S.
757, 770-71 (1966)).
195
Vernonia, 515 U.S. at 661; Von Raab, 489 U.S. at 672; Skinner, 489
U.S. at 607.
196
Vernonia, 515 U.S. at 661. The Court held:
Drugs had not been a major problem in Vernonia schools. In the mid-
to-late 1980’s, however, teachers and administrators observed a sharp
increase in drug use. Students began to speak out about their attraction
to the drug culture, and to boast that there was nothing the school could
do about it. Along with more drugs came more disciplinary problems.
Between 1988 and 1989 the number of disciplinary referrals in
Vernonia schools rose to more than twice the number reported in the
early 1980’s, and several students were suspended. . . . Not only were
student athletes included among the drug users, but, as the District
Court found, athletes were the leaders of the drug culture.
Id. at 648-49.
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directly on their fitness.”
197
Lastly, the Skinner Court held that
special needs existed, given the significant use of drugs and
alcohol by railway employees.
198
2. Limited Purpose Administrative Searches
The Edmond Court also cited three cases in which the Supreme
Court had examined administrative searches conducted without a
warrant.
199
In only one of those cases did the Court hold that an
absolute exemption from the warrant requirement was appropriate,
based on the limited nature of the administrative search in
question.
200
In New York v. Burger, the Supreme Court upheld a
New York statute permitting authorities to systematically search
197
Von Raab, 489 U.S. at 672. The Court held:
The Government’s compelling interest in preventing the promotion of
drug users to positions where they might endanger the integrity of our
Nation’s borders or the life of the citizenry outweigh the privacy
interests of those who seek promotion to these positions, who enjoy a
diminished expectation of privacy by virtue of the special, and obvious
physical and ethical demands of those positions.
Id. at 679.
198
Skinner, 489 U.S. at 607, n.1 (citing 48 Fed. Reg. 30,726 (1983)).
The FRA noted that a 1979 study examining the scope of alcohol abuse
on seven major railroads found that “[a]n estimated one out of eight
railroad workers drank at least once while on duty during the study
year.” In addition, “5% of workers reported to work ‘very drunk’ or got
‘very drunk’ on duty at least once in the study year,” and “13% of
workers reported to work at least ‘a little drunk’ one or more times
during that period.” The study also found that 23% of the operating
personnel were “problem drinkers,” but that only 4% of these
employees “were receiving help through an employee assistance
program, and even fewer were handled through disciplinary
procedures.”
Id. (internal citations omitted).
199
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (citing New
York v. Burger, 482 U.S. 691, 700 (1987)); Michigan v. Tyler, 436 U.S. 499,
511 (1978); Camara v. Municipal Court of the City and County of San
Francisco, 387 U.S. 523 (1967)).
200
New York v. Burger, 482 U.S. 691, 700 (1987).
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junkyards without a warrant in order to look for stolen property.
201
The Court in Burger found that the owners of commercial property
employed in closely regulated industries have a lesser expectation
of privacy with regard to that property.
202
The Court held that even
in closely regulated industries three criteria must be met in order
for warrantless searches to be permitted: 1) “there must be a
‘substantial’ governmental interest that informs the regulatory
scheme pursuant to which the inspection is made”;
203
2) “the
warrantless inspection must be ‘necessary to further the regulatory
scheme”;
204
and 3) “[t]he statute’s inspection program, in terms of
the certainty and regularity of its application, must provide a
constitutionally adequate substitute for a warrant.”
205
The Burger
Court found that the New York junkyard statute fulfilled its three-
prong test.
206
First, the Court cited to a statement by the governor
of New York approving the statute, in which the governor
emphasized the magnitude of the problem of car theft in the state
and explained that New York had a “substantial interest in
regulating the vehicle dismantling and automobile junk
industry.”
207
Second, the Court held that the “regulation of the
201
Id.
202
Id.
203
Id. at 702 (citing Donovan v. Dewey, 452 U.S. 594, 602 (1981); United
States v. Biswell, 406 U.S. 311, 315 (1972); Colonnade Catering Corp. v.
United States, 397 U.S. 72, 75 (1970)).
204
Burger, 482 U.S. at 703 (citing Dewey, 452 U.S. at 600).
205
Id. at 703.
206
Id. at 708.
207
Id. The Governor stated:
Motor vehicle theft in New York State has been rapidly increasing. It
has become a multimillion dollar industry which has resulted in an
intolerable economic burden on the citizens of New York. In 1976,
over 130,000 automobiles were reported stolen in New York, resulting
in losses in excess of $225 million. Because of the high rate of motor
vehicle theft, the premiums for comprehensive motor vehicle insurance
in New York are significantly above the national average. In addition
stolen automobiles are often used in the commission of other crimes
and there is a high incidence of accidents resulting in property damage
and bodily injury involving stolen automobiles.
Id. (citing Governor’s Message approving L.1979, chs. 691 and 692, 1979 N.Y.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 891
vehicle-dismantling industry reasonably serves the State’s
substantial interest in eradicating automobile theft” because “it is
well established that the theft problem can be addressed effectively
by controlling the receiver of, or market in stolen property.”
208
Lastly, the Court held that the statute itself provides for a
“constitutionally adequate substitute for a warrant” because it
informs the operator of a junkyard that searches will be made on a
regular basis and that these searches are “not discretionary acts by
a governmental official.”
209
Additionally, the court held that the
“time, place, and scope” of the search are limited because such
inspections can only be made during normal business hours.
210
In the two remaining limited purpose administrative search
cases cited by the Edmond Court, the Court also examined
warrantless searches of property.
211
In Michigan v. Tyler, the Court
held that no warrant is required for firefighters to enter a building
to fight a fire and that “once in the building, officials may remain
there for a reasonable time thereafter to investigate the cause of the
blaze.”
212
The Court noted, however, that additional entries to
investigate a fire require a warrant.
213
Further, in Camara v.
Municipal Court of the City and County of San Francisco, the
Court held that warrantless inspections of properties by housing
and public health officials pursuant to San Francisco’s Housing
Code are unconstitutional.
214
The above cases instruct that a search
will be deemed unreasonable in the absence of individualized
suspicion unless special needs exist or the search falls into the very
narrow category of a limited purpose administrative search.
Laws 1826, 1826-1827 (McKinney)).
208
Burger, 482 U.S. at 709 (citing 2 W. LAFAVE & A. SCOTT,
SUBSTANTIVE CRIMINAL LAW § 8.10(a) (1986); 2 ENCYCLOPEDIA OF CRIME AND
JUSTICE 789 (Kadish ed. 1983)).
209
Id. at 711.
210
Id. (citing United States v. Biswell, 406 U.S. 311, 315 (1972)).
211
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (citing Michigan v.
Tyler, 436 U.S. 499, 507-09, 511-12 (1978); Camara v. Municipal Court of City
and County of San Francisco, 387 U.S. 523, 534-39 (1967)).
212
Tyler, 436 U.S. at 511.
213
Id.
214
Camara, 387 U.S. at 540.
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892 JOURNAL OF LAW AND POLICY
IV. FREE EXERCISE AND PROTECTION AGAINST UNREASONABLE
SEARCHES AS A CONJOINED CLAIM
Although Freeman’s lawyer did not so argue, Freeman’s claim
is one that falls into the “hybrid” category of free exercise claims
because Freeman may assert a conjoining constitutional claim that
merits federal attention.
215
In addition to her free exercise claim,
Freeman could have argued that the Florida driver’s license statute
was a violation of both her right to free exercise and her right to
Fourth Amendment protection against unreasonable searches. This
section analyzes a claim such as Freeman’s as both a standalone
Fourth Amendment claim, which Freeman might have asserted
independent of any other relief, and as a hybrid claim.
In her case before the Florida Circuit Court, Freeman indeed
asserted a violation of her Fourth Amendment rights; however, the
trial court granted summary judgment in favor of the State on that
claim, holding that Freeman did not have an objective expectation
of privacy in her face.
216
As previously noted, there is a split in the
circuit courts with regard to the permissibility of hybrid claims.
217
Even assuming the existence of these claims, the Supreme Court
has yet to address how strong a conjoined claim must be to proceed
as a hybrid claim.
218
Courts requiring that a conjoining claim be
capable of succeeding on its own render the assertion of free
exercise claims unnecessary, as once a court determines that the
plaintiff has prevailed on her conjoining claim it need not continue
on to analyze the plaintiff’s alternative constitutional claims.
219
However, in courts that require that the conjoining claim be
215
See Smith, 494 U.S. at 881 (distinguishing hybrid cases from those to
which the Sherbert test does not apply). See also Crane, supra note 55; see also
supra text accompanying note 85.
216
Brief for Appellant at 44, Freeman v. State, No. 2002-CA-2828, 2003
WL 21338619 (Fla. Cir. Ct. June 6, 2003).
217
See supra note 105 (noting the current status of the law among the
circuits).
218
See supra Part I.B (outlining the present status of hybrid cases).
219
Church of the Lukumi Babalu Aye v. City of Hileah, 508 U.S. 520, 567
(1993) (Souter J., concurring) (noting that requiring the conjoining claim of a
hybrid claim to be strong on its own alleviates the need for a hybrid claim).
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 893
colorable, establishing a standalone Fourth Amendment claim is
the key to the assertion of a viable hybrid claim.
220
In those courts,
once the plaintiff demonstrates that she has a colorable Fourth
Amendment claim, the court will analyze the statute under strict
scrutiny, requiring that the state’s compelling interest outweigh the
burden to the plaintiff and that the statute be the least restrictive
means of accomplishing the state’s objective.
221
A. Fourth Amendment Claim
For a Fourth Amendment claim to succeed, the individual
asserting such a claim must first demonstrate that a search occurred
and then that the search was unreasonable.
222
There is no reported
federal or state case analyzing the Fourth Amendment right of a
Muslim woman who wears a face veil.
223
However, cases that have
analyzed the extent of an individual’s Fourth Amendment
protection against unreasonable searches may shed some light on
220
See supra Part I.B.
221
See Smith, 494 U.S. at 899 (O’Connor J., concurring in part and
dissenting in part) (indicating that the least restrictive means test is appropriate
for determining whether a government regulation of criminal law interferes with
an individual’s right to free exercise of religion). Although, the majority’s
holding in Smith indicates that the least restrictive means test does not apply to
neutral laws of general applicability, it remains the test for hybrid claims, as the
Court specifically excluded those claims from its holding. Id. at 882.
222
See supra Part III.
223
A Westlaw search for “all state and federal cases” using the search
terms “Muslim” and “veil” and “privacy” produced four cases. Ctr. for Nat’l
Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003) (involving
suit under FOIA for information on the detention of people following the
September 11th attacks); Freeman v. State, No. 2002-CA-2828, 2003 WL
21338619 (Fla. Cir. Ct. June 6, 2003); Adsani v. Miller, No. 94 Civ. 9131, 1996
WL 194326 (S.D.N.Y. April 22, 1996) (involving copyright infringement
dispute); State v. Sport and Health Clubs Inc., 370 N.W.2d 844 (Minn. 1985)
(involving discrimination claims in hiring, employment, and promotion based on
religion). Three cases were entirely unrelated to this issue. One was Freeman v.
State. A Westlaw search of all state and federal cases with the terms “Muslim,”
“veil,” and “Fourth Amendment” produced no cases. A search of LexisNexis of
its federal and state cases using the same search terms produced the same
results.
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894 JOURNAL OF LAW AND POLICY
these rights.
224
1. A Veiled Woman’s Subjective Expectation of Privacy
According to the test articulated by Justice Harlan in his
concurrence in Katz, in order for a veiled Muslim woman to
successfully assert that requiring her to unveil constitutes a search
under the Fourth Amendment, she must first demonstrate that she
has a subjective expectation of privacy in her face.
225
Based on the
analysis of the aforementioned Fourth Amendment cases, which
rely heavily on exposure to the general public of the feature
claimed to be private, it is possible that a court may conclude that a
veiled Muslim woman whose face has not been exposed to the
public has an actual expectation of privacy in her face.
226
A woman
who chooses to veil her face protects it from exposure to the
general public.
227
Accordingly, a veiled woman has a heightened
expectation of privacy in her face because she seeks to preserve it
as private.
228
Unlike cases in which individuals have resisted
orders to produce voice and handwriting samples after an offense
has occurred, a veiled woman chooses to preserve the feature
claimed as private before its production was requested.
229
Further,
224
See United States v. Dionosio, 410 U.S. 1 (1978); see also United States
v. Doe, 457 F.2d 895 (2d Cir. 1972); United States v. Richardson, 388 F.2d 842
(6th Cir. 1968); State v. Shearer, 30 P.3d 995 (Idaho Ct. App. 2001).
225
Katz v. United States, 389 U.S. 347, 351 (1967) (Harlan, J., concurring).
226
See supra Part III (detailing the requirements of the Katz test and
distinguishing Freeman’s case from previous cases in which an expectation of
privacy was alleged in a body part).
227
Freeman, 2003 WL 21338619, at *1. “Plaintiff wears the niqab in front
of all strangers and unrelated Muslim men.” Id. (indicating that the plaintiff’s
face is not “ordinarily and frequently exposed to the public”).
228
See Katz, 389 U.S. at 351 (holding that “what [a person] seeks to
preserve as private, even in an area accessible to the public, may be
constitutionally protected”).
229
Compare United States v. Dionisio, 410 U.S. 1 (1978) (involving the
refusal of witnesses to furnish voice samples to a grand jury in an investigation
relating to possible federal statutes prohibiting gambling), with Freeman, 2003
WL 21338610 (reviewing the requirement that veiled Muslim women unveil for
their drivers license photographs).
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 895
in contrast to cases in which the petitioners spoke, wrote, and
walked about freely without attempting to hide their handwriting,
voices, or appearance, a veiled Muslim woman regularly covers
her face and does not expect it to be seen.
230
Likewise, unlike an
individual’s eyes that have been temporarily hidden by sunglasses,
a veiled Muslim woman’s face has not previously been exposed to
the public.
231
A Muslim woman who chooses to veil has
determined that she is commanded by Allah not to reveal her face
as part of the requirement that she dress modestly.
232
Because she
believes that she is choosing to follow the will of God, she dresses
in this manner at all times when she is in public.
233
Thus, a veiled
Muslim woman would not reasonably expect the public to see her
230
See United States v. Dionosio, 410 U.S. 1; Freeman, 2003 WL
21338610.
231
See Shearer, 30 P.3d at 1000 (Idaho Ct. App. 2001) (finding no
reasonable expectation of privacy in one’s eyes by a sunglass wearer and
holding that “taking minimal steps to temporarily conceal a facial characteristic
that is ordinarily and frequently exposed to the public is, in our view,
insufficient to create a legitimate expectation of privacy”). But see Freeman,
2003 WL 21338619, at *1 (indicating that the plaintiff’s face is not “ordinarily
and frequently exposed to the public”). Note that in Freeman’s case, Freeman
converted to Islam in 1997 and began veiling at that time. Brief for Appellant at
3, Freeman v. State, No. 2002-CA-2828, 2003 WL 21338619 (Fla. Cir. Ct. June
6, 2003). Therefore, the fact that she at one time did freely expose her face to the
public could be used in argument against Ms. Freeman’s subjective expectation
of privacy in her face.
232
See Statement by Sultaana Lakiana Myke Freeman, May 27, 2003,
available at http://www.aclufl.org/issues/religious_liberty/freemanpersonal_
statement.cfm (last visited Apr. 5, 2005). Ms. Freeman stated:
I discovered veiling to be the ultimate in self-respect and feminism, as
this liberating act sent a clear message that I am not an object of sexual
fulfillment but a person of strong religious conviction. Whether you
believe that the niqab is a requirement of Muslim women or not, the
fact is ? [sic] it is how I have chosen to practice my religion. I wear the
niqab because I believe that according to The Qur’an and Sunnah,
Allah has legislated for the believing woman to dress in this modest
way. Embracing the niqab was a very personal choice, and I thank
Allah for the protection it has afforded me in life, as a woman of faith.
Id.
233
Id. See also Freeman, 2003 WL 21338619, at *1.
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896 JOURNAL OF LAW AND POLICY
face and could arguably establish a subjective expectation of
privacy in her face under Katz.
234
2. A Veiled Muslim Woman’s Objective Expectation of Privacy
The second prong of the Katz test requires that the claimed
privacy right be one that society is prepared to accept as
reasonable.
235
The same privacy concerns at issue in Olson and
Bond appear in the case of a veiled Muslim woman.
236
Just as
society understands that a person staying with a friend or relative is
entitled to privacy and that a bus passenger’s bags should not be
squeezed for contraband items, so too should society value the
choice that religious people make to dress as their religions
mandate.
237
Practicing religion in the United States is, like being
234
See Katz, 389 U.S. at 351 (holding that the petitioner has a right to
privacy in the conversation he has in a phone booth because he is “entitled to
assume that the words he enters into the mouthpiece will not be broadcast to the
world”).
235
Id. at 361 (Harlan, J., concurring).
236
Bond v. United States, 529 U.S. 334 (2000); Minnesota v. Olson, 495
U.S. 91 (1990).
237
See Olson, 495 U.S. at 98 (holding that society is prepared to recognize
a right to privacy of a houseguest in his host’s home). See Bond, 529 U.S. at 339
(recognizing bus passenger’s right not to have his or her bags manipulated as
part of a search for contraband items). See also President George W. Bush,
Remarks by the President at the Islamic Center of Washington D.C. (Sept. 17,
2001) (discussing the fact that Muslim women who wear head coverings should
be treated with respect), available at http://www.whitehouse.gov/news/releases/
2001/09/20010917-11.html (last visited Apr. 16, 2005).
America counts millions of Muslim amongst our citizens and Muslims
make an incredibly valuable contribution to our country. Muslims are
doctors, lawyers, law professors, members of the military,
entrepreneurs, shopkeepers, moms and dads. And they need to be
treated with respect. In our anger and emotion, our fellow Americans
must treat each other with respect. Women who cover their heads in
this country must feel comfortable going outside their homes. Moms
who wear cover must not be intimidated in America. That’s not the
America I know. That’s not the America I value. I’ve been told that
some fear to leave; some don’t want to go shopping for their families;
some don’t want to go about their daily routines because, by wearing
cover, they’re afraid they’ll be intimidated. That should not and will not
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 897
and having an overnight guest, a “longstanding social custom that
serves functions recognized as valuable by society.”
238
Indeed, the
Fourth Amendment is implicated when a state’s policy requires
that a Muslim woman unveil because society respects the choice of
Muslim women to follow her religion and wear a veil. Requiring
that a Muslim woman remove her veil for a driver’s license
photograph would be disrespectful to that choice and an intrusion
upon her privacy just as law enforcement’s squeezing a
passenger’s bag intrudes on the privacy of a person’s personal
possessions.
239
Further, the case of a veiled Muslim woman is notably distinct
from cases in which prisoners’ expectations of privacy were held
to be unreasonable in light of the unique goals of punitive
confinement.
240
The objective of a driver’s license, unlike the
objective of prisons, is not to restrict a person’s privacy, but rather,
to ensure safety on the roads and to enable the state to verify that
individuals on the road have fulfilled certain state requirements.
241
stand in America.
Id.
238
Olson, 495 U.S. at 98.
239
Bond, 529 U.S. at 339. The rationale of the Court in holding that the law
enforcement officer’s squeezing of a bus passenger’s bag violates the Fourth
Amendment was that if society expects individuals to value something as
private, then this expectation applies to law enforcement officers as well. Id.
Additionally, removing a veiled Muslim woman’s veil without her consent
would likely constitute criminal battery in most, if not every, state. See F
LA.
STAT. ANN. § 784.03(1)(a)(1) (West 2003). “The offense of battery occurs when
a person: Actually and intentionally touches or strikes another person against the
will of the other.” Id.
240
Hudson v. Palmer, 468 U.S. 517 (1984).
241
See, e.g., FLA. STAT. ANN. § 322.263 (West 2004).
It is declared to be the legislative intent to: (1) Provide maximum safety
for all persons who travel or otherwise use the public highways of the
state. (2) Deny the privilege of operating motor vehicles on public
highways to persons who, by their conduct and record, have
demonstrated their indifference for the safety and welfare of others and
their disrespect for the laws of the state and the orders of the state
courts and administrative agencies. (3) Discourage repetition of
criminal action by individuals against the peace and dignity of the state,
its political subdivisions, and its municipalities and impose increased
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Whereas there is no societal expectation of privacy in a prison cell,
society indeed recognizes the privacy rights of members of free
society. Thus, individuals lawfully applying for driver’s licenses
are likely entitled to Fourth Amendment rights.
242
Based on this
reasoning, a court could find that a veiled Muslim woman’s
expectation of privacy in her face is one that society is expected to
recognize as reasonable.
3. Unveiling as an Unreasonable Search
If requiring a veiled Muslim woman to unveil is considered a
search, then absent individualized suspicion, special needs, or the
classification of the search as a limited purpose administrative
search, it would be deemed unreasonable, and therefore, a violation
of the Fourth Amendment.
243
In the case of a driver’s license
photograph requirement, individualized suspicion is lacking
because such a policy is a broad one that applies to all individuals
seeking driver’s licenses and is unrelated to particularized
suspicion.
244
Consequently, a search of a woman’s veil could only
be deemed reasonable if it were characterized as a search related to
special needs or as a limited purpose administrative search.
245
Special needs cases are cases in which “the privacy interests
implicated by the search are minimal, and where an important
governmental interest furthered by the intrusion would be placed in
and added deprivation of the privilege of operating motor vehicles upon
habitual offenders who have been convicted repeatedly of violations of
traffic laws.
Id.
242
See Hudson, 468 U.S. at 527 (citing Lanza v. New York, 370 U.S. 139,
143-44) (internal quotations omitted). “A prison shares none of the attributes of
privacy of a home, an automobile, an office, or a hotel room.” Id. This quotation
implies that there is a recognized privacy right in the locations the Court lists
that are representative of free society.
243
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (listing the
categories of searches that are considered reasonable).
244
See FLA. STAT. ANN. § 322.142(1) (West 2004) (requiring a full-face
photograph for all those seeking a driver’s license).
245
Edmond, 531 U.S. at 37.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 899
jeopardy by a requirement of individualized suspicion.”
246
Photographing the face of a Muslim woman who chooses to veil
would likely not fall into the special needs category. First, in
special needs cases, the privacy interests are necessarily
minimal.
247
However, the intrusion into a Muslim woman’s veil to
view her face may not be considered minimal; indeed, the nature of
this intrusion is decidedly distinct from the intrusions previously
examined by the Supreme Court.
248
For example, required
unveiling is unlike urine testing, during which an attendant hears a
person urinating or sees the back of a man while he is urinating. As
noted by the Supreme Court in Vernonia, people often use public
bathrooms, where the sounds of their excreting urine can be heard
by others.
249
Therefore, requiring that a person supervise students
or employees by hearing them urinate is not a substantial invasion
of the students’ or employees’ privacy.
250
However, in the case of
a veiled Muslim woman, the woman’s face is never unveiled to the
public,
251
and therefore, the invasion of her privacy is substantial.
The fact that the driver’s license photograph requirement applies to
the population as a whole does not diminish the fact that the
driver’s license requirement violates a veiled Muslim woman’s
Fourth Amendment right. With respect to society generally, the
vast majority of individuals have no privacy interest in their faces,
and therefore, the driver’s license requirement is valid as applied to
them.
252
However, because veiled Muslim women have a uniquely
significant expectation of privacy in their faces, required unveiling
246
Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 624 (1989).
247
Id.
248
Vernonia School Dist. 473 v. Acton, 515 U.S. 646 (1995); Nat’l
Treasury Employees v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway
Labor Executives Ass’n, 489 U.S. 602 (1989).
249
See Vernonia, 515 U.S. at 658. “[The conditions of urine sample
collection] are nearly identical to those typically encountered in public
restrooms, which men, women, and especially schoolchildren see daily.” Id.
250
Id. “Under such conditions, the privacy interests comprised by the
process of obtaining the urine sample are in our view negligible.” Id.
251
See supra note 162 and accompanying text.
252
See supra Part III.A.1. (discussing a person’s expectation of privacy in a
physical attribute).
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900 JOURNAL OF LAW AND POLICY
is a great invasion that is unjustified by the state’s asserted interest
in safety. Moreover, while urinalysis tests can be designed so that
they do not detect any health information about the person being
tested other than whether he or she has used illicit drugs,
253
the
photograph of a veiled Muslim woman is a revelation of her face—
the very characteristic she seeks to protect against exposure.
254
The
case of veiled Muslim women is similarly distinct from specials
needs cases with regard to the degree to which the searched
individual’s private information is revealed publicly. In special
needs drug testing cases, individuals subjected to testing may be
required to reveal to testers certain illnesses for which they are
being medicated to avoid a false positive results; in such cases, the
exposure of this information can be limited to the testers.
255
Further, this information may be completely anonymous, as the
testers who perform urinalysis tests and see the students’ or
employees’ forms may have never seen the subjects of the tests
themselves and may have no additional information about the
tested individuals.
256
In the case of a veiled Muslim woman,
however, because a driver’s license will certainly contain both the
woman’s photograph and name, anonymity cannot serve to protect
the woman from an association with the private characteristic she
has revealed.
257
In determining the existence of a special need, the Supreme
Court, in Vernonia, Von Raab, and Skinner, identified an existing
problem among the class of people upon which the states whose
policies were in question sought to impose a search.
258
Therefore,
253
See Vernonia, 525 U.S. at 658.
254
See Freeman, 2003 WL 21338619, at *1.
255
See id. (stating that respondent student could have requested that the
medical information that he disclosed only be viewed by the laboratory
performing the test and not by his coaches or teachers).
256
Vernonia, 515 U.S. at 658-59.
257
See Freeman, 2003 WL 21338619, at *1.
258
Vernonia, 515 U.S. at 661 (noting a problem among high school athletes
taking drugs); Von Raab, 489 U.S. at 672 (noting the problem that the people it
sought to test for drugs had access to drugs and/or weapons); Skinner, 489 U.S.
at 607 (noting the problem of railroad accidents resulting from employees
operating under the influence of drugs and alcohol).
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in order to establish that a special need exists in the case of a veiled
Muslim woman, a state would have to identify a problem among
this class that compels such a search.
259
There was no evidence
mentioned in the Freeman case that among such a class of women
there is a particularly high incidence of driver’s license fraud or
even that identifying women who have been pulled over has been a
problem.
260
Therefore, it is unclear that a special need exists.
Additionally, in order for required unveiling to constitute a
special needs case there would have to be a special need beyond
the normal need for law enforcement.
261
It is unclear how the
state’s interest would fit into the category of special needs, as it
appears that the state’s goals are directly tied to routine law
enforcement. As in Edmond, where the state’s interest in
controlling illegal drug activity was viewed as part of the normal
need for law enforcement,
262
in this case, protecting against fraud
and identifying drivers is similarly part of law enforcement
activity. Further, in contrast to Vernonia and Von Raab, where the
results of positive drug tests were not given to law enforcement
authorities, in this case, the state license database in Freeman was
specifically maintained for a law enforcement purpose in order to
assist police officers in doing their jobs.
263
Lastly, the case of a veiled Muslim woman likely does not fall
into the very limited category of administrative searches that are
permissible absent individualized suspicion. First, the only case the
Edmond court cited that blanketly allowed administrative searches
applied only to commercial property, in which people have a lower
expectation of privacy.
264
In Burger, the object of the search was a
259
Special needs necessitates that “an important governmental interest
furthered by the intrusion would be placed in jeopardy by a requirement of
individualized suspicion.” Skinner, 489 U.S. at 624.
260
See Freeman, 2003 WL 21338619.
261
Skinner, 489 U.S. at 624.
262
Edmond, 531 U.S. at 48.
263
Freeman, 2003 WL 21338619, at *4 (finding Florida’s compelling state
interest in the driver’s license requirement is promoting safety and security,
combating crime, and protecting interstate commerce).
264
Burger, 482 U.S. at 699 (citing Donovan v. Dewey, 452 U.S. 594, 598-
99 (1981)) (holding that “[a]n expectation of privacy in commercial premises,
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902 JOURNAL OF LAW AND POLICY
junkyard that likely had little personal value to its owner and
offered a reduced expectation of privacy, given that junkyards are
frequently used to conduct illegal activity in the dismantling and
selling of parts from stolen vehicles.
265
Moreover, in Tyler, the
Court held that fire investigators may only enter a building without
a warrant when the building is burning and the primary purpose of
the entry is to put out the fire.
266
In both Tyler and Camara, the Court demonstrated that there is
a very high expectation of privacy in one’s home and, absent an
emergency situation, the Court will not allow a warrantless
search.
267
A veiled Muslim woman has a significant expectation of
privacy in her face similar to the expectation of privacy that one
has in his or her home.
268
Therefore, she cannot be compelled to
unveil in a non-emergency situation absent individualized
suspicion.
269
The state may not circumvent this requirement by
analogizing the woman’s expectation of privacy to that enjoyed by
the individuals in the administrative search cases reviewed by the
Court because, in the case of a veiled Muslim woman, the thing
she expects to keep private is a physical feature that by nature is
highly personal, rather than commercial property, which is by
definition impersonal. For this reason, it appears that the search of
a Muslim woman’s veil may be characterized neither as a special
needs case nor a limited purpose administrative search.
B. Application of the Hybrid Strict Scrutiny Test
Were a veiled Muslim woman to prevail in her claim that the
state’s driver’s license photograph requirement violated her Fourth
Amendment rights, she might be able to assert a hybrid claim,
which would elevate the level of review of her claim to strict
however, is different from, and indeed less than, a similar expectation in an
individual’s home”).
265
Id.
266
Michigan v. Tyler, 436 U.S. 499, 511 (1978).
267
See id. at 511; Camara v. Municipal Court of the City and County of
San Francisco, 387 U.S. 523 (1967).
268
See infra Part IV.A.1.
269
Id.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 903
scrutiny.
270
This section analyzes a hybrid claim of this nature
through a balancing of the burden that required unveiling imposes
upon a Muslim woman who veils and the state interests asserted in
Freeman.
271
1. Substantial Burden
As the Supreme Court held in Sherbert, the test of substantial
burden looks to whether “the purpose or effect of a law is to
impede the observance of one or all religions or is to discriminate
invidiously between religions that law is constitutionally invalid
even though the burden may be characterized as only indirect.”
272
In describing the burden upon a Sabbatarian imposed by the state’s
disqualification of those who did not accept employment offers
from the receipt of unemployment benefits, the Sherbert Court
noted:
The [lower court’s ruling upholding the unemployment
compensation policy] forces her to choose between
270
See, e.g., Swanson v. Guthrie Indep. School Dist., 135 F.3d 694, 700
(10th Cir. 1998) (recognizing the compelling interest test as the appropriate test
for a hybrid claim).
271
Recently there have been a number of bills in the House, including the
Real ID Act of 2005 which passed in the House and was referred to Senate
Committee on the Judiciary on February 17, 2005, seeking to set federal
standards for state driver’s licenses. Real I.D. Act of 2005, H.R. 418, 109th
Cong. (2005). See, e.g., An Act Making Emergency Supplemental
Appropriations for Defense, the Global War on Terror, and Tsunami Relief, for
the Fiscal Year Ending September 30, 2005, and for Other Purposes, H.R. 1268,
109th Cong. (2005) (version including driver’s license provisions referred to
Senate Subcommittee). Driver’s License Security and Modernization Act, H.R.
368, 109th Cong. (referred to House Subcommittee on Immigration, Border
Security, and Claims March 2, 2005), available at thomas.loc.gov. These bills
have yet to pass in the Senate and become law. However, were Congress to pass
a national standard for state driver’s licenses this analysis would not change
because this note discusses whether an exception should be made to driver’s
license laws requiring fullface photographs for veiled Muslim women. The
question of whether driver’s laws requiring a full face photographs should be put
in place for the general citizenry or whether there should be a federal scheme for
state licenses is outside the scope of this Note.
272
Id. at 404 (citing Braunfeld v. Brown, 366 U.S. 599, 607 (1961)).
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following the precepts of her religion and forfeiting
benefits on the one hand, and abandoning one of the
precepts of her religion in order to accept work, on the
other hand. Governmental imposition of such a choice puts
the same kind of burden upon the free exercise of religion
as it would a fine imposed against appellant for her
Saturday worship.
273
The burden imposed by requiring that a veiled Muslim woman
unveil for her driver’s license photograph is tantamount to the
burden imposed in Sherbert because, in both cases, the religious
individuals must choose between following their religions and
receiving a state benefit.
274
As in Sherbert, a policy requiring
exposure by a woman who believes that showing her face is
prohibited by her religion, as the court found that Freeman does,
275
forces the woman to either forgo a driver’s license, and therefore
lose the privilege of driving, or to decide not to follow her religion
and be awarded a driver’s license.
276
A Muslim woman who
chooses to veil does so because she believes that this is what Allah
requires.
277
She thus is in the same position as the petitioner in
273
Sherbert, 374 U.S. at 404.
274
Id.
275
Freeman, 2003 WL 21338619, at *2.
276
Sherbert, 374 U.S. at 404. The Court noted:
The ruling [of the lower court in Sherbert, denying the appellant
unemployment benefits because she refused to accept work that
required that she work on Saturday] forces her to choose between
following the precepts of her religion and forfeiting benefits, on the one
hand, and abandoning one of the precepts of her religion in order to
accept work, on the other hand. Governmental imposition of such a
choice puts the same kind of burden upon the free exercise of religion
as would a fine imposed against appellant for her Saturday worship.
Id. Driving is necessary to Freeman’s lifestyle. See State: Terrorists May Benefit
if Veiled Muslim Woman Gets License, Fox News, available at
http://www.foxnews.com/story/0,293388410,00.html. “After the hearing
Freeman complained that without a license, she can’t even drive to the store to
buy diapers for her six-month old son.” Id.
277
See Statement by Sultaana Lakiana Myke Freeman (May 27, 2003),
available at http://www.aclufl.org/issues/religious_liberty/freemanpersonal_
statement.cfm.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 905
Sherbert of either following a tenet of her religion or receiving a
state benefit.
278
Therefore, under the Sherbert test, required
unveiling would likely constitute a substantial burden to veiled
Muslim women who are required to take full-face photographs in
order to obtain driver’s licenses.
2. Compelling State Interest
The Freeman court upheld the driver’s license photograph
requirement as applied to veiled Muslim women on the basis that
the state has a compelling interest in the statute because it
promotes public safety and protects against fraud.
279
On closer
examination, however, there are flaws in many of the arguments
favoring safety and security upon which the court relied.
a. Speedily Identifying Pulled-Over Drivers
Among the interests asserted by the state and accepted by the
Freeman court as compelling was the state’s interest in speedily
identifying pulled-over drivers.
280
It is unquestionable that the state
has an interest in identifying pulled-over drivers. However, it is not
clear that requiring that Muslim women unveil for their driver’s
license photographs will, in actuality, help to achieve that goal. As
discussed, required unveiling may constitute a search for Fourth
Amendment purposes, and therefore, absent individualized
suspicion, police officers will be unable to compel a veiled Muslim
woman to remove her veil once they have pulled her over so that
they may match her face with the photograph on her driver’s
license.
281
Moreover, because driver’s license pictures are often
unflattering and many people may change in appearance
278
Sherbert, 374 U.S. at 404.
279
Freeman, 2003 WL 21338619, at *7.
280
Id.
281
See supra Part III.B. (discussing how required unveiling may constitute
an unreasonable search under the Fourth Amendment). See also Knowles v.
Iowa, 525 U.S. 113 (1998) (holding that the full search of a vehicle after the
driver received a citation for speeding absent probable cause violated the Fourth
Amendment).
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906 JOURNAL OF LAW AND POLICY
subsequent to taking such a picture, identifying an individual by
her driver’s license picture is not a certainty. Strict scrutiny also
requires that the state’s method constitute the least restrictive
means of accomplishing its ends.
282
In this instance, a less
restrictive means of furthering the state’s interest would be to grant
these woman an exception to the driver’s license photograph
requirement while adding an additional requirement that those
women carry with them when they drive certain documents, such
as a birth certificate or a social security card, verifying their
identity as the person granted the driver’s license. Because the
state has not used the least restrictive means of furthering its goal,
the state’s interest in speedily identifying drivers does not appear
to outweigh the burden the requirement imposes upon a veiled
Muslim woman.
b. To Protect against Driver’s License Fraud
The Florida court in Freeman also found a compelling state
interest in the use of driver’s license photographs to protect against
driver’s license fraud.
283
Although a full-face photograph may
assist in the prevention of fraud in the case of an unlicensed driver
who borrows the driver’s license of a licensed driver,
284
the
likelihood of such an instance of fraud is extraordinarily rare. Most
people who are driving have valid licenses and have no need to use
another’s.
285
Moreover, were an individual to drive illegally
282
See Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S.
707, 718 (1981) (holding that “the state may justify an inroad on religious
liberty by showing that it is the least restrictive means of achieving some
compelling interest”).
283
Freeman, 2003 WL 21338619, at *7.
284
Id. at *4 (outlining the state’s argument that the purpose of a driver’s
license photographs is for speedy identification and to combat fraud).
285
Because driver’s license fraud and driving without a license can only be
documented if the perpetrators are caught, it is difficult to find any statistics on
the frequency with which driving without a license occurs. However, the
statistics below were somewhat indicative of the frequency with which people
drive without a valid driver’s license. Roughly eighty-seven percent of those
driving in fatal crashes have a valid driver’s license. See AAA Foundation Study
on Unlicensed Drivers, Table A.1, License Status of Drivers Involved in Fatal
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 907
without a license, it is unlikely that such a person would bother to
locate another person’s valid license and, if pulled over, attempt to
pass it off as her own.
286
Further, if an illegal driver decided to use
another individual’s license as her own when pulled over, she
would likely borrow the license of someone with similar features,
given the photograph requirement. It is no more likely that women
who choose to veil will “share” their driver’s licenses than friends
or family members who look alike will “share” theirs.
287
Moreover, full-face license photographs will only prevent fraud
in relation to driving if there is a reasonable suspicion that the
driver has committed another violation. The Supreme Court held in
Delaware v. Prouse that it is a violation of the Fourth Amendment
for police officers to randomly pull over drivers on the highway
without “an articulable and reasonable suspicion that a motorist is
unlicensed or that an automobile is unregistered or that either the
vehicle or an occupant is otherwise subject to seizure for a
violation of the law.”
288
The Prouse Court held that the state’s
interests in public safety were not sufficiently furthered by the
Crashes in the United States 1993-1999 (June 2000), available at
http://www.aafoundation.org/pdf/UnlicensedToKill2.pdf. Of the 13.5 percent of
driver’s without valid license, only 3.6 percent have never been issued a driver’s
license. Id. The rest have driver’s licenses that are either suspended, revoked,
canceled, or expired. Id. Because this study is composed of drivers involved in
fatal crashes, it is likely that the percentage of drivers on the road with valid
licenses is even higher since it is more likely that those without a valid license
will be involved in a fatal accident since such drivers either never fulfilled the
license criteria or had their licenses taken away because of a tendency to commit
driving infractions. Regardless, the study shows that the vast majority of drivers,
86.5 percent, have a valid license. See Delaware v. Prouse, 440 U.S. 648, 660
(1979) (holding that the state’s interests in public safety were not sufficiently
furthered by the chance that the individual whom law enforcement officers
chose to pull over would in fact be in violation of the law).
286
See Prouse, 440 U.S. at 660 (1979) (holding the state’s interests in
public safety were not sufficiently furthered by the chance that the individual
whom law enforcement officers chose to pull over would in fact be in violation
of the law).
287
The AAA Foundation Study on Unlicensed Drivers, supra note 285,
makes no mention of a danger of people with valid licenses “lending” their
licenses to unlicensed drivers.
288
Prouse, 440 U.S. at 663.
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908 JOURNAL OF LAW AND POLICY
chance that the individual whom law enforcement officers
randomly chose to pull over would in fact be in violation of the
law.
289
The court explained:
It seems common sense that the percentage of all drivers on
the road who are driving without a license is very small and
that the number of licensed drivers who will be stopped in
order to find one unlicensed operator will be large indeed.
The contribution to highway safety made by discretionary
stops selected from among drivers generally will therefore
be marginal at best. . . . Much of the same can be said about
the safety aspects of automobiles as distinguished from
drivers . . . .
. . . .
. . . The marginal contribution to roadway safety possibly
resulting from a system of spot checks cannot justify
subjecting every occupant of every vehicle on the roads to a
seizure-limited in magnitude compared to other intrusions
but nonetheless constitutionally cognizable—at unbridled
discretion of law enforcement officials.
290
Given that drivers can only be pulled over based on an
articulable suspicion and not at random, a veiled Muslim woman
cannot be pulled over unless she has committed a driving
infraction or is driving a vehicle that is unlicensed or subject to
seizure.
291
In such a case, the need for a positive full-face
identification would be significantly lessened because the person
who committed the violation would be in law enforcement
officer’s presence, and therefore, the need to identify the individual
in order to ascertain whether the driver’s identity matches that of
the individual for whom the police are searching is moot because
the offender has been caught.
Further, as the Prouse Court observed, the percentage of
drivers that are unlicensed is small, making the probability that an
unlicensed driver would be discovered based on a random check
289
Id. at 660.
290
Id.
291
Id. at 663.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 909
minimal.
292
Likewise, because of the small number of Muslim
women who choose to wear a full-face veil,
293
it is improbable that
this minute percentage of veiled Muslim women will take
advantage of the fact that they are not required to take full-face
pictures and craft ways to commit criminal acts in which they
benefit from the fact that they do not have driver’s licenses with
full-face photographs. As articulated in Prouse, the minimal risk of
unlicensed individuals driving on state roads does not justify the
institution of a police policy of pulling over drivers at random.
294
For the same reason, the minimal risk that a veiled Muslim woman
will allow another veiled Muslim woman to use her driver’s
license as her own is insufficient to justify invading the privacy
rights of all veiled Muslim women who apply for driver’s licenses.
Therefore, the state’s interest in protecting against driver’s license
fraud is not sufficiently compelling to outweigh the burden that an
unveiling requirement places upon a veiled Muslim woman.
c. To Protect against Identity Theft
The Freeman court noted an additional compelling state
interest in the state’s use of driver’s license photos in that licenses
are commonly used as form of identification.
295
However, as
292
Id. at 660.
293
See Freeman, 2003 WL 21338619, at *2. “[M]ost Muslims do not veil
to the extent the plaintiff does, and that she is in a small minority of Salfeeha
Muslim women who refuse to remove their veils when they have their pictures
taken for identification.” Id. There are an estimated 6 to 7 million Muslims in
the United States. See http://www.cair-net.org/asp/populationstats.asp (last
visited Nov. 9, 2004). Presumably, half of the Muslim population, around 3.5
million, are women. Only a small minority of these women wear the full face
veil. Even if ten percent wear the full face veil, when in reality it is most
probably a much smaller percentage, this would be 350,000 women. This
number is roughly .01 percent of the population of the United States.
294
Prouse, 440 U.S. at 660.
295
Freeman, 2003 WL 21338619, at *6 (finding that protecting interstate
commerce from widespread identity theft and fraud is a compelling state
interest.). But see Freeman, 2003 WL 21338619, at *2, regarding the small
percentage of women who wear the full-face veil. The fact that such a small
number of individuals choose to wear the veil and would require an exception
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910 JOURNAL OF LAW AND POLICY
Freeman noted, Florida’s Motor Vehicles Statute describing the
legislative intent for driver’s licenses makes no mention that one of
the purposes of a driver’s license is to serve as identification.
296
Although as a general state interest it seems sound that private
industry should be able to have a uniform policy regarding what it
considers valid forms of identification, the state may maintain this
policy while still allowing for an exception for a small minority of
its residents.
297
As the Eighth Circuit stated in Quaring v.
Peterson, “the state may still achieve its interest . . . because
people may freely refuse to do business [with the respondent] if
she is unable to present adequate identification.”
298
Because
from the full-face photograph requirement negates the Freeman court’s
argument that such an exception would lead to “widespread abuse.” Id. at *6
(emphasis added).
296
FLA. STAT. ANN. § 322.263 (West 2003) states:
It is declared to be the legislative intent to: (1) Provide maximum
safety for all persons who travel or otherwise use the public highways
of the state. (2) Deny the privilege of operating motor vehicles on
public highways to persons who, by their conduct and record, have
demonstrated their indifference for the safety and welfare of others and
their disrespect for the laws of the state and the orders of the state court
and administrative agencies.
Id.
297
In fact, it does not seem as though private industry is entirely reliant on
driver’s licenses as forms of identification. See Identification (ID) Requirements
for GRE Tests, at http://www.gre.org/idreq.html (listing a driver’s license as a
valid form of identification but stating that if the license lacked a photograph it
is not valid). A search of a number of bank websites using the term
“identification” uncovered no statement by any bank indicating what form of
identification it will consider valid. See Citizens Bank, Important Information
About Online Security, at http://www.citizensbank.com/misc/online_security.
asp (indicating “[w]hen you call us, come to a branch or visit us online, we will
ask you for some information to verify your identity”). See also
http://citibank.com (search for term “identification” came up with no relevant
results). See also http://fleet.com/home.asp (search for term “identification”
came up with no relevant results). See also http://www.wau. com/servlet/
wamu/index.html (search for term “identification” came up with no relevant
results).
298
Quaring, 728 F.2d at 1127 (upholding the right of religious Christians
who believe that photographs are forbidden graven images to be exempted from
the state’s driver’s license photo requirement). See also supra note 293
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 911
individuals do not have a Fourth Amendment right to protection
against unreasonable searches by private entities, a business can
require any reasonable type of identification it desires in restricting
access to its services.
299
Additionally, the fact that driver’s licenses
are commonly used as valid forms of identification by airlines and
other entities does not limit the ability of states to formulate
exceptions to their driver’s license requirements. The Federal
Aviation Administration (FAA) and others may determine for
themselves the types of identification that are required for
individuals to board planes or make use of other private services;
at the same time, a state may choose not to burden its religiously
observant citizens by allowing them an exemption from the
driver’s license photo requirement.
300
Moreover, if the purpose of the driver’s license photograph
requirement is to protect individuals who wear a full-face veil from
identity fraud, this legitimate state interest would be outweighed by
the burden the requirement imposes on the very group it aims to
protect. Therefore, a court may find that a state cannot demonstrate
that its legitimate interest in speedy identification and the
prevention of fraud outweighs the burden the photograph
requirement imposes upon veiled Muslim women. It thus is
possible that a court may find that a state is required to grant an
exception from the driver’s license photograph requirement to
veiled Muslim women.
(discussing the small number of Muslim women who veil and, therefore, would
require an exemption demonstrating the minute effect such an exemption would
have on businesses).
299
Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 411-12 (1995).
“The conduct of a private entity is not subject to constitutional scrutiny if the
challenged action results from the exercise of private choice and not from state
influence or coercion.” Id.
300
Note that although the FAA’s website contains a great deal of
“Passenger Information,” including “Airline Contact Information,” “Baggage
Size Requirements” “Check Airport Status,” “Passenger Health and Safety
Information,” “Travel Tips,” “Using Child Safety Seats,” and “Wait Times at
Airport Security Checkpoints,” it does not state what it considers valid forms of
identification. See http://www.faa.gov/passengers/index.cfm (last visited Apr.
16, 2005).
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912 JOURNAL OF LAW AND POLICY
C
ONCLUSION
Although there is no federal protection apart from rational
basis review for an individual claiming that a neutral law of
general applicability interferes with her free exercise of religion,
veiled Muslim women may still argue violations of their federal
constitutional rights to free exercise of religion and Fourth
Amendment protection through a hybrid claim.
301
However,
because an argument that exposing a veiled Muslim woman’s face
is a violation of the Fourth Amendment is revolutionary
302
and
because no circuit court has yet applied strict scrutiny based on a
hybrid claim,
303
it seems unlikely that a person in Freeman’s
position will find recourse in a federal court. Even if the courts are
unwilling to provide veiled Muslim women with a remedy,
however, state legislatures retain the authority and the
responsibility to provide accommodations for the religiously
observant within their jurisdictions.
304
The seemingly negative
reception of Freeman’s case by the national media and the
American public suggests that legislatures may choose not to carve
out an exception for such a marginalized group.
305
However, in
301
See supra Part I (outlining the present state of free exercise claims).
302
See supra Part II.A (analyzing a Muslim woman’s Fourth Amendment
right to privacy in her face).
303
Part I.B (outlining the status of hybrid claims).
304
See Smith, 494 U.S. at 890 (holding it is up to the “political process” to
protect the interests of individuals whose religious practice is interfered with by
a neutral law of general applicability).
305
Debbi Gardiner, Fla. Muslims See Veil Case as Distraction, BOSTON
GLOBE, June 15, 2003, at A12 (citing to Muslims who criticize Ms. Freeman for
putting this issue into the spotlight and feel that it reflects poorly on Muslims);
Susan Taylor Martin, A Fight for Religion or Something More, S
T. PETERSBURG
TIMES, June 15, 2003, at A2 (“Still you have to wonder. Why would someone
who is fighting so hard to protect one basic right-freedom of religion-adopt the
dress code of an Islamic sect that has denied right to so many women in
Afghanistan and Saudi Arabia.”); Gloria Kaplan Sulkin, Driver’s Photos, C
HI.
TRIB., June 13, 2003, at 22 (arguing in a letter that “sanity has prevailed in the
case of Sultaana Freeman”); License Is Unveiled; Allowing Woman to Hide
Face in Identification Photo Would Have Been Foolish, T
HE COLUMBUS
DISPATCH, June 10, 2003, at A10; License Must Do Its Job, SUN-SENTINEL
(Fla.), June 3, 2003, at A18.
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MUSLIM WOMEN AND DRIVER’S LICENSE PHOTOS 913
denying veiled Muslim women an exception to driver’s license
photo requirements, legislatures make broader statements about the
value of religious freedom and their attitudes toward minority
religious groups. In order to promote religious freedom and
accommodate the religiously observant, legislatures should
examine the actual motivations behind what seem to be general
policy requirements and determine whether state goals truly
necessitate requiring religious minorities to forgo sacred practices
or lose state benefits.
