Commentators are generally praising the restrained nature of the Supreme Court’s decision-like object on whether women may testify with their faces hidden for what the Chief Justice, for the majority, called its “just and proportionate balance between freedom of religion and trial fairness.” And given the sorts of things the Court often does we should probably be grateful, in the short run, that it was not a thundering declaration that from now on anyone may wear a niqab in court. But the ruling and the trend in comments on it are dismaying from the point of view of principle.
Rights, properly understood, cannot conflict. My right to swing my arm ends where your nose starts; if these are your shoes they cannot be mine; your right to speak ends where my house starts and so on. And the fatal flaw in this Supreme Court decision is simply this: the right to freedom of religion does not in principle entitle anyone, anywhere, at any time to do something that would be forbidden if they did not believe in that religion.
The reason you can operate a church, pay the same tax as everyone else whether or not you think Jesus is God, own a Koran and so on is that anyone whose conduct is lawful may operate a building, hire staff, admit willing visitors, face the state as an equal, buy sell and trade documents and so on. It has nothing to do with the purposes for which you do these things (excepting conspiracy to violate the law which is equally forbidden to everyone) nor how firmly you believe in the metaphysical tenets that give rise to your purposes; that is the very meaning of equality before the law. Which is precisely why, regardless of how sincerely you believe that God wants it, you cannot disregard even a municipal bylaw on noise or stench, let alone a statute concerning bodily harm to others or the nature of due process.
In certain cases, primarily connected with organized crime or national security, a judge might permit a witness to conceal their identity to protect their safety or the confidentiality of a source. But that is not because the right to a fair trial must be “balanced” against the right to, say, security of the person.
It is because the defendants are trying, under the guise of the right to a fair trial, to intimidate or harm a person, which is something they have no right to do and another vital legal principle is that you are forbidden to do indirectly what you are forbidden to do directly. Even so, it is very important that the unusual circumstances surrounding the testimony do not impair the right to a fair trial.
The niqab issue is not remotely comparable. A judge or jury member wishing to see a witness’s face while they testify to help gauge their truthfulness is not engaged in a clever indirect effort to defile the witness and the witness’s belief that it might tend to do so, regardless of its source, simply cannot intrude on the right to due process.
In practice this ruling may prove relatively harmless though at least one newspaper expressed the cautious hope that permission to testify in a niqab would now become the default option. But in principle it embodies a pernicious relativism about rights that makes coherent jurisprudence impossible.
Which is bad.