This week, the National Academy of Continuing Legal Education (NACLE) held a virtual presentation entitled “Religious Head Coverings in Court: Legal and Jewish Law Perspectives.” The presentation was led by Rabbi Jeffrey Ephraim Glatt, Esq., associate rabbi of the Young Israel of Forest Hills and a partner in commercial litigation at McGrail & Bensinger, LLP.
Rabbi Glatt, who has decades of experience representing clients in litigation, arbitration, and mediation and has published widely on law topics, including the interplay between American and Jewish law, discussed the tension between religious expression and courtroom decorum as it relates to First Amendment religious rights. His Zoom presentation compared U.S. law and halacha regarding a lawyer wearing a yarmulka in court.
The Free Exercise Clause of the First Amendment to the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This means that the government must protect religious rights and not impose any religious practices. Courts may, however, impose neutral restrictions on religious practices while also allowing religious attire as part of a pluralistic society.
In 1996, Gil Fried, an expert witness who happens to be Jewish, was allegedly ordered by Judge Pat Lykos of Texas to remove his yarmulka or be barred from testifying. In that case, Fried chose to take off his yarmulka so that the client who hired him would not lose the case. This seems to be in accord with the view of the Igros Moshe, which says that one may remove his yarmulka in court to avoid financial harm. (Orach Chaim 4:2) (R’ Moshe Feinstein, 1974). Fried informed Rabbi Glatt that he had worn his yarmulka outside the courtroom, thus rebutting the judge’s argument that jurors would view him as a religious expert.
In 1999, Texas passed its own state-law version of the federal Religious Freedom Restoration Act of 1993, due in part to Fried’s advocacy work with the ADL. Thanks to Fried, litigators in Texas can wear religious head coverings unless a compelling reason exists for barring such head coverings in the courtroom. The burden is on the government – and not the person wearing the religious head covering – to show that a conflict exists.
During the CLE presentation, Rabbi Glatt opened a poll of the participants asking whether they had faced religious discrimination in court or the workplace or had witnessed such discrimination; one-third of attendees responded affirmatively. Rabbi Glatt then shared his own experience as a young law student facing pressure to remove his yarmulka in order to receive a position at a top law firm. Instead, he chose to accept an offer from another top firm that allowed him to wear a yarmulka. Rabbi Glatt reminded the audience to consult their own halachic authority in making such decisions.
Rabbi Glatt offered viewers some strategies for handling potential conflicts between religious law and court practice, including politely explaining the religious practice to the court. If the judge doesn’t adhere to such a request, one should weigh the lenient opinion of Rav Moshe against the professional consequences. If one feels the judge is acting in a discriminatory manner, they may contact organizations such as the ADL or file an ethics complaint. It is helpful to negotiate accommodations in the workplace by citing federal and state law protections for religious rights. Rabbi Glatt reminded viewers to stick to their beliefs, explaining that people will generally respect them for doing so.