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Freedom of religion meets the DMV

By Matt Bean

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(Court TV) -- It could be the dim lighting, the poor camera work or the drab backgrounds at most motor vehicle departments, but driver's license photos are seldom considered flattering. To a veil-wearing Florida woman, they're unconstitutional.  

Sultaana Freeman, an American-born Muslim woman, lost her license after she refused to remove her veil, or hijab, for a photo. Now she is suing the Florida State Department of Highway Safety for violating a Florida statute that says the government "shall not substantially burden a person's exercise of religion."

Freeman's civil suit, which is expected to go to court May 27, draws on the First Amendment to the U.S. Constitution, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

But Florida authorities say the world changed after September 11. After learning that 13 of the 19 hijackers allegedly obtained licenses in Florida, authorities cracked down on the system, hoping to ensure that the DMV photos could remain one of the primary tools used by law enforcement officials for identification.

The showdown, in which Freeman is asking a court to reinstate her license, pits her interpretation of Islam, a 1,400-year-old religion, against Florida authorities struggling to keep law enforcement from falling behind.

What makes a veil?

The tradition of the hijab stems from a trio of verses in the Al-Ahzab section of the Quran, one of which reads: "Tell thy wives and thy daughters and the women of the believers to draw their cloaks close round them (when they go abroad). That will be better, so that they may be recognised and not annoyed."

Even within the Islamic religion, the form and function of the veil is widely disputed.  Some Muslims take a loose interpretation of the verse, believing it does not mandate Muslim women to wear the veil. Others take a strict interpretation. But even then, some women cover only their hair, some cover only part of their face, and some — like Freeman — cover all but their eyes.

"Full hijabs are very rare," said Alan Godlas, an associate professor of religion specializing in Islamic studies at the University of Georgia. But whether full, half or hair only, the hijab is often an integral part of a Muslim woman's identity.

"For many Muslim women, it's one of the key features of their identity as a Muslim," said Godlas.  "Not only would removing it be a violation in their mind of the Quran, it's a violation of an element that's essential to who they are ... it is the most important single religious symbol to many Muslim women."

The interpretation of this verse could make its way into Freeman's trial. 

Freeman claims her "sincere religious belief that her religion requires her to wear her veil in front of strangers and unrelated males" as the basis for her March 2002 complaint.

But Florida authorities have geared up to dispute her strict interpretation of the veil, and plan to call an expert witness, Khaled Abou El Fadl, an Islamic law professor at the University of Southern California, to argue that full-face veiling is an Arabic cultural custom, rather than a practice mandated by Islamic law.

Unless quashed by Judge Janet Thorpe, the showdown over Islamic law could put the court system, an ardently secular unit, in the difficult position of deciding a matter of religious interpretation. 

"I'm sure you can get religious scholars to pretty much disagree on anything," said Howard Marks, Freeman's Florida-based lawyer, who is working on her case pro-bono.  It is not the role of a court to be the arbiter of religious scripture."

The plaintiff's case

To rebut the state's case, Freeman is expected to call a number of religious experts to testify about the significance of the veil in the Muslim religion.

Marks, her attorney, told he will also attack the state's timing.

"We do not believe the events of 9/11 justify the government's intrusion to restrict a person's ability to live by their religious principles and religious beliefs," said Marks.

Before September 11, Freeman had a Florida driver's license with a photo of her in traditional garb. She also had one in Illinois, where she lived before.

Marks is also seeking to show that his client has been singled out, when, he claims, hundreds of thousands of Florida residents are issued drivers licenses without photographs each year. "They issue them for a myriad of reasons," said the lawyer. "If they have such a compelling state interest that everyone must have a license with their photograph on it, then why do they have all of these exemptions on it?"

The lawyer says he has precedent on his side, citing three cases brought by Christian sects that believed the second commandment prohibits photographs.  And 14 states, not including Florida, have built in exemptions to deal with such religious objections to photographs.

The state's case

Jason Vail, the Florida assistant attorney general handling the case, says a victory for Freeman could damage one of the most important law enforcement mechanisms in the country, the official license photograph. 

"The case has major implications for the integrity of driver's licenses around the country," he said.  "If you allow exemptions from it for reasons like this, people who have a religious objection to taking photographs at all could ask for them too."

Terrorists, said Vail, could abuse such exemptions.

In addition to the expert on Islamic law, Vail also plans to call representatives from the Department of Motor Vehicles to explain the ways in which Muslim women have been accommodated. 

"The practice has been to ask the men to leave the room. They lift the veil, we take the picture, they get the license, and they put it in their pocketbook and nobody sees it again," Vail said.  "We don't care.  We just have to have the picture."

But to Marks, Freeman's lawyer, the courtesy is still not a compromise: It isn't the process, but the photograph itself that his client objects to.  "She believes that would violate a tenet of her religion," he said.

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