Have You Ever Experienced Religious Discrimination?

Have You Ever Experienced Religious Discrimination? by Saul Bienenfeld

I have been practicing law for over 25 years. Before the start of what would have been my 45th jury trial, my opponent made a motion to ask the court to order me to remove my kippah.[1]

I was dumbfounded. Here we are in Nassau County, New York, ready to pick a jury, and my opponent believed that a jury would side with me over him, solely because I was wearing a religious article. I decided at that moment that no matter how the judge ruled, I would not, under any circumstances, remove my kippah.

My opponent argued the New York Court of Appeals ruling in Larocca vs. Lane, wherein a Catholic priest with no church status continued to wear his priestly garb while practicing law. The court asked him to remove his collar and priestly attire and to appear as an attorney, not as a priest. Since this priest was not allowed to wear his religious attire as an attorney, my opponent argued that I too must remove my religious attire before the jury got the wrong impression of me.

I argued that the kippah in no way indicates I have any status in my religion, nor does it indicate that I am a Rabbi, and if my opponent thinks it unfair, perhaps he should level the playing field by donning a kippah himself.  

Luckily for me, the judge was called away in the middle of my argument which gave me time to do “real” legal research on my iPhone. I looked up a case called Close It Enterprise Inc vs. Weinberger, a 1978 Appellate Division case where the trial judge ordered the defendant, a devout adherent of the Jewish faith, to remove his skullcap before the jury entered the courtroom (this direction was given despite the fact that no objection was made during the process of jury selection, when the defendant had been seated before the potential jurors, wearing his skullcap). The defendant, obviously sincere in his belief that wearing the skullcap was a mandatory part of his religion, and faced with an unenviable choice, chose to be excluded from the courtroom.

The trial (really an inquest) took place, and within minutes of its conclusion, the jury returned a verdict for the plaintiff. The Appellate Division stated it was an error to exclude the defendant from the courtroom. The defendant should not have been placed in the situation of having to choose between protecting his legal interests or violating an essential element of his faith.  

When the judge returned, I quoted the Close It case and mentioned that the Supreme Court of the United States ruled that US Attorneys wearing lapel pins that bear the United States flag or a political symbol were permitted to do so, as their right to freedom of expression. No doubt my freedom of religion should be considered as important.

The judge then left the bench for twenty minutes, presumably to do his own legal research, and upon returning, ruled that my freedom of religion outweighed any possible prejudice my kippah may have upon a jury. Thus, I was allowed to wear my kippah in court as I had done for the past 25 years.  

However, this entire incident made me think: what is my obligation to wear a kippah? Must I wear it in court? What if a judge was to order its removal—must I abide by that ruling over the dictates of my religion? What if my client asks me to remove my kippah as a prerequisite to representing him or her—am I obligated to remove it then? I turned to my friend and rabbi to answer these and other questions related to the wearing of a kippah. He, in turn, turned this question into a learning session which can be found online here.

In the end, I am proud to wear my kippah in court. If you have been a victim of religious discrimination, better call Saul at (212) 363-7701.


[1] A kippah, also known as a skullcap or yarmulke, is a brimless cap, usually made of cloth, worn by Jews to fulfill the customary requirement held by orthodox halachic authorities that the head is covered at all times. It is usually worn by men and, less frequently, by women (in Conservative and Reform communities) at times of prayer.

Saul Bienenfeld, Criminal Defense Attorney

Saul Bienenfeld P.C.
450 Seventh Ave.
Suite 1408
New York, NY 10123

About Saul Bienenfeld
Former Assistant District Attorney For The Special Narcotics Bureau, with Over 25 Years Experience As A Successful Criminal Defense Attorney in New York. When you're in trouble, you better call Saul! The Law Offices of Saul Bienenfeld P.C. is dedicated to helping clients receive justice. As your personal law firm, we take the time necessary to fully understand your situation, ensuring that all of your legal needs are met. Your peace of mind is important to us, which is why we are always available to assist you. As a law firm designed specifically for the people, the Law Offices of Saul Bienenfeld P.C. is always ready to help out his fellow New Yorkers. We take each of our cases to heart and work as a team for you.

2 Responses to Have You Ever Experienced Religious Discrimination?

  1. Pingback: Have You Ever Experienced Religious Discrimination?| Saul Bienenfeld

  2. Mr. Bienenfeld, your story was very interesting. Thank you for sharing.
    All the best,
    David Notowitz, National Center for Audio and Video Forensics


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