In Defense of Wearing a Yarmulke in Court
Baruch C. Cohen, Esq.

Law Office of
Baruch C. Cohen, Esq.
A Professional Law Corporation

October 1996

IN DEFENSE OF WEARING A YARMULKE IN COURT

By: Baruch C. Cohen¹

When former San Francisco litigator Gil Fried made his first foray into a Texas courtroom last month, he took his hat off to the judge -- but only begrudgingly. Fried, an Orthodox Jew and a sports law professor at the University of Houston, had donned his basic black yarmulke for three years without incident in California courts. But, on September 4, 1996, when he appeared in the courtroom of Houston state court Judge Patricia Lykos, Fried hit a snag. Just minutes before he was scheduled to testify as an expert witness on behalf of a plaintiff suing a roller skate manufacturer in a personal injury matter in Pilar Uribe v. CanStar Sports USA et al., No. 94-49747, filed in the 295th District in Harris County Texas, while conferring in court with plaintiff's attorney, Fried was called into Lykos' chambers. That is when she then ordered Fried to remove his Yarmulke or be barred from testifying in her courtroom.

Fried was shocked and bewildered. He told Judge Lykos that in all of his years as a litigator in California he had never before been asked to remove his yarmulke. Fried tried to impress upon her the religious significance for him in wearing the Yarmulke. Judge Lykos responded that wearing the Yarmulke might prejudice the jury into thinking that Fried had religious authority, and that since it was her court, if he wanted to testify, he had to "take it off."

In the world according to Judge Lykos, Fried was forced to choose between his religious obligation to keep his head covered and his professional duty to the person on whose behalf he was to testify. Fried reluctantly removed his Yarmulke and testified. The plaintiff lost anyway - - not because Judge Lykos had disrobed him of any apparent "religious authority." Three weeks later, Fried filed a formal grievance complaint with the Texas Judicial Conduct Commission in Austin.

In an interview with The Jewish Herald-Voice newspaper, Judge Lykos indicated that her ruling had been based on "a Supreme Court decision that no lawyer or expert witness could have that additional authority of religion." In his complaint, Fried distinguished Judge Lykos' single authority, in reality it was a non-binding opinion from the Second Circuit in New York - Larocca v. Gold, 662 F.2nd 144 (2nd Cir. 1981), by pointing out that such case had dealt with a Catholic priest who left his calling to practice law, and although he no longer had church status, he continued to wear his priestly garb. The courts, in asking for the removal of the priestly attire, wanted him to appear as an attorney, and not as a priest, an obvious indication that the court case was seeking to prevent the jury from being misled into believing that the witness was still a priest and motivated by altruism and not self interest. The cited case had nothing to do with wearing an article of clothing as a legitimate religious obligation or based on true religious devotion. Additionally, Judge Lykos demonstrated little or no faith in the jury's ability to evaluate a witness' demeanor and credibility.

Constitutional Law scholars have criticized Judge Lykos' activity as being exactly what the First Amendment is designed to prohibit: arbitrary discrimination against religion with no compelling government interest. Further, the Religious Freedom Restoration Act passed by Congress in 1993 requires that such general rules give way to strongly held religious convictions unless they meet the test of compelling necessity.

Religion, like race and gender, enjoys constitutional and statutory protections that provide the unfettered right to be treated equally and nondiscriminatorily. Clearly, race and gender would not, in the abstract, disqualify an expert witness. So, too, an observant Jew should not be categorically disqualified from providing expert testimony for dress that publicly identifies his or her faith. Orthodox Jews are not second-class American citizens, and should not have to suffer the indignities of removing their religious attire to cater to the insensitivities and ignorance of others.

If Judge Lykos was truly concerned about improperly swaying the minds of the jury with the Yarmulke - less restrictive alternatives were available to remedy that situation (which should have been employed before demanding that Fried remove his Yarmulke). The Court could have warned the jury that Fried was not a rabbi, but merely an expert witness, that Fried was not testifying on religious matters, and that they should disregard the Yarmulke when considering his testimony. Rather than sanctioning Fried on the basis of his religious beliefs, it might have been more effective for Judge Lykos to remove jurors from the panel that harbor attitudes of bigotry and intolerance that might bias their impartiality. But these were not done, and Fried's constitutional rights to practice his religion freely were trampled upon by the Texas judiciary.

What is amazing is that other religious Jews working for the Texas coroner's office, have testified on several occasions for the State of Texas in criminal matters before Judge Lykos when she was still on the criminal bench, wearing a Yarmulke each time, and Judge Lykos never asked them to remove their Yarmulkes. Fried did not believe he was singled out for any Anti-Semitic reason, but still cannot make sense out of why Judge Lykos demonstrated such poor judgment with him by violating his constitutional rights.

This yarmulke episode is particularly important to me because I am one of the few Jewish attorneys in Los Angeles who wear the traditional head covering called Yarmulke (Heb.: short form for Yir'ah d"malkah, meaning "in awe of God"). In the course of my daily law practice and when I appear before the Bankruptcy Courts, I wear this head covering as a reminder of God above, and my responsibilities to God. As a matter of fact, I wear this at all times, indoors and out, during prayer and when eating, wherever I go.

Many Jewish lawyers who forego a head covering at work will still make an effort to cover their heads when making benedictions before and after eating, or will only eat in places where they can wear their Yarmulkes. That often means eating out at Kosher restaurants or their offices.

I, however, in addition to being an attorney, am also an Orthodox Jew. I am a direct descendant of numerous great Orthodox Rabbis spanning a period of over 500 years. I proudly wear my Yarmulke in my legal practice, even though it separates me from others. My identity as an observant Jew requires a certain separateness. As a de facto representative of religious Jews, I have an added responsibility to strive for the most ethical behavior.

My religious upbringing has taught me that the custom of Jewish men covering their head to foster humility and Yiras Shomayim (Heb.: fear of Heaven) is of undisputed pedigree. A covered head is widely recognized as the mark of an observant Jew.

The Babylonian Talmud (Kiddushin 31a) notes that "Rav Huna, the son of Rav Yehoshua would not walk four cubits bareheaded saying, 'The Divine Presence is above my head.'" Thus covering of one's head is considered a formal symbolic manifestation of the constant presence of God. As the Psalmist (King David) states (23:4): "Yea, though I walk through the valley of the shadow of death, I shall fear no evil, for Thou art with me." God is always above us. We are covered by the protection of God. The Yarmulke is a constant reminder that a Jew is never alone. He walks with God. It is a feeling of assurance and comfort. At the same time, it is an ever-present conscience to withhold one from going astray.

Perhaps while Judge Lykos was focusing on the prejudicial effect the Yarmulke may have on the jury, she missed the more fundamental issue - the effect of the Yarmulke on its wearer.

The Talmud (Berachos 60b) further notes that the placing of a covering on one's head is as natural to the Jew as rising in the morning and getting dressed with clothes. The Talmud contends that each process of awakening has a concomitant blessing. For example: "When he opens his eyes, he should say, 'Blessed is He who opens the eyes of the blind.'... When he dresses he should say, 'Blessed is He who clothes the naked.'... & When he places a covering on his head, he should say, 'Blessed is He who crowns Israel with glory.'" In other words, the covering of one's head is part of the process of getting dressed in the morning. It was once inconceivable that the Jew would not place a covering on his head.

As to the efficacy of an attorney with a Yarmulke, I do not believe that it has ever diminished my effectiveness as a zealous advocate. Neither has it diminished my market share. Apparently, when clients retain me, they - unlike Judge Lykos - are prepared to judge me by my skills and experience, not by the round piece of black suede on my head.

Never, and I emphasize never, in all my years here in Los Angeles, has anyone ever asked me to remove my yarmulke. Never has anyone in the legal community suggested that I remove the yarmulke when appearing in front of the Courts. No judge has ever made a comment to me about my head covering, and if anyone did, I would refuse to remove it. And, on the occasion when I have been able to attend legal functions, my wearing a yarmulke has been a non-issue. I was always made more than welcome.

I believe that Gil Fried should never have had to choose between his religious obligations and his professional ones. Judge Lykos' decision was narrowminded, based on ignorance and, at best, grossly insensitive to religious freedoms. Hopefully the Texas Judicial Conduct Commission in Austin will investigate this matter, issue a private or public admonition, warning or reprimand, and commence formal proceedings against the Judge.

Hopefully, the remainder of our country's judiciary will not make the same mistake.

FOOTNOTES

1. Baruch C. Cohen's practice includes all aspects of creditors' and debtors' rights, corporate reorganizations, personal bankruptcies, and all types of bankruptcy litigation in state, federal and bankruptcy courts.