NJ judges okay religious headgear in court

Matthew Graham calls himself an “Orthodox Christian” who insists his religious beliefs — like those of many observant Jews — require him to keep his head covered.

So, when he entered municipal court in Egg Harbor in October of 2013 to settle a legal dispute with a neighbor, he refused to remove the wool ski cap he was wearing.

“I wear this hat out of religious obligation,” he told Judge William J. Cappuccio, according to Graham’s lawyer, Alexander Shalom, senior staff attorney at the American Civil Liberties Union of New Jersey.

Cappuccio held Graham in contempt and fined him $50. On Aug. 12, the Appellate Division of the State Superior Court sided with Graham, in what Shalom calls a victory for “an unquestioned right to practice your religion as you see fit, particularly when the practice of that religion does not interfere with other people’s constitutional rights.” 

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“Wearing a yarmulka [or] wearing traditional Muslim garb,” he added, “doesn’t interfere with the exercise of other people’s constitutional rights, and you have a full right to participate in civil society while doing so.”

Marc Stern, associate general counsel for legal activity at the American Jewish Committee, told NJJN the appellate ruling “clearly helps protect religious Jews. The message to judges is pretty clear.” 

Stern, who has litigated church-and-state issues for more than 40 years, said the ruling “is not unprecedented.”

“A higher court found you could not hold someone in contempt for wearing a hat or religious garb in court,” he said. “There has been litigation about Muslim women wearing hijabs when serving as witnesses.”

Although he noted that Graham’s insistence on wearing a hat “is not a common Christian belief,” the appellate court “took the guy at his word that keeping his hat on is a religious belief. That is reassuring, because as often as we try to kill this it keeps popping up. None of that bothered the court here, and that is an important consideration,” said Stern.

When Graham appeared in court in 2013, the judge ordered him to remove his hat. 

“The judge said, ‘I never heard of a religion that requires you to wear a ski hat,’” said Shalom. “Mr. Graham said, ‘I would get a more traditional head covering but I can’t afford to get to the store where they sell traditional head coverings, so I am wearing this one.’ The judge said, ‘Take it off. If you are in America you are going to follow American rules, and you are out of line.’” 

Graham appealed to a presiding criminal judge in Atlantic County, Michael Donio, who agreed with Cappuccio’s order. 

“So the ACLU got involved, and we appealed to the Appellate Division, saying, ‘This is crazy.’ Our view is that Judge Cappuccio violated Mr. Graham’s First Amendment free exercise of religion right,” said Shalom.

Appellate Judges Paulette Sapp-Peterson and Marie Lihotz ruled that the municipal judge’s decision was “procedurally defective.” Although they did not rule on the constitutional issues, the judges asserted that “the interest of justice is not served” by holding Graham in contempt. 

Stern said he himself has worn a yarmulka at every level of the court system, including the United States Supreme Court, “and no one has ever breathed a word to me.”

“Decades ago there were cases when lower-court judges objected to yarmulkas in court, but those objections have generally not withstood scrutiny,” he said.

Neither Cappuccio nor Graham was available for comment.