Circuit Court Judge Bars Jewish Man from His Own Trial then Finds Him Guilty

The  Rutherford Institute has come to the defense of a Jewish man who was barred from participating in his own trial after a circuit court judge removed him from the courtroom for insisting on wearing a head covering in keeping with his Jewish beliefs. Stephen Orr, a resident of Chesapeake, Va., was tried in absentia and found guilty, after a Circuit Court judge denied his request to wear a hat, or “kippah,” into the courtroom in keeping with a Jewish mandate that persons wear a head covering at all times. The judge allegedly based his denial on the fact that other Jewish litigants appear in court without a head covering.

“As Jewish Americans prepare to celebrate Yom Kippur, one of the holiest days in the Jewish calendar, we would do well to remember that in many parts of this country, the right to freely practice one’s religious beliefs remains an uphill battle, and that’s true no matter what your religious beliefs, whether you’re a Jew, a Christian, a Muslim, a Hindu, or an atheist,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “State law and the First Amendment clearly prohibit the government and its agents from impeding the free exercise of religion. For Stephen Orr, that means wearing a hat into the courtroom. For someone else, it might be the right to mention God in a graduation speech, or avoid eating particular foods. It’s not up to the government to decide whether one’s religious beliefs are credible so long as they are sincere.”

Stephen Orr appeared in Chesapeake General District Court on the charge of failing to obey a traffic signal. Orr informed courtroom deputies that he is Jewish and adheres to a mandate that persons wear a head covering, or “kippah,” all the time. Although the court forbids the wearing of hats in the courtroom, Orr was permitted to wear a plain black baseball cap during his hearing. Orr was found guilty of failing to obey a traffic signal and appealed his case to the circuit court, which also has a rule forbidding the wearing of hats in the courtroom. Upon reporting for his hearing in February 2013, Orr once again advised the court deputies about his religious beliefs regarding a head covering. However, presiding Circuit Court Judge Randall D. Smith ordered Orr to remove his hat or be removed from the courtroom. Orr stood by his beliefs, was removed from the courtroom, and was subsequently tried and convicted without the opportunity to confront the witness against him or to offer evidence on his behalf. Later that day, Orr was allowed to appear before Judge Smith and explained that Jewish law required that he cover his head at all times. Judge Smith allegedly responded that other Jewish litigants appear before the court without a head covering and that he did not find Orr’s explanation credible.

In coming to Orr’s defense, Rutherford Institute attorneys point out that under Virginia’s Religious Freedom statute and the First Amendment to the U.S. Constitution, any requirement that Orr remove his hat in violation of his religious beliefs is enforceable only if the court’s no-hat rule serves a compelling state interest, and no such interest justified the demand that Orr violate his beliefs. Institute attorneys also assert that Orr’s Sixth and Fourteenth Amendment rights to confront witnesses and present evidence on his behalf were violated by his trial in absentia because Orr’s wearing of a hat would not have significantly disrupted his trial. Affiliate attorney James J. Knicely of Williamsburg, Va., is assisting The Rutherford Institute in representing Orr.

The Rutherford Institute’s petition in Orr v. City of Chesapeake is available at www.rutherford.org.