In 2005, the “REAL ID Act of 2005,” H.R. 1268, P.L. 109-13, was attached as a rider to an emergency defense appropriations bill. After two years of public comment, the Department of Homeland Security (DHS) issued it’s revised regulations to enforce the REAL ID Act on January 10, 2008. Several groups commented (pg. 125-6) that the federal REAL ID requirement of an unobscured photograph would burden the free exercise of religion for some groups like Amish Christians and Muslim women. Not surprisingly, the new DHS regulations did not address this problem, rendering null and void any state ID with an obscured photo for religious purposes.
Compounding this problem is the fact that several (upwards of a dozen) states have specific exemptions in their ID policies for religious observers. Several cases, including this influential per curium ruling by the Supreme Court, have upheld the rights of such observers to opt-out of state photo ID requirements and be accommodated in a way that does not contravene their fundamental religious beliefs. The states have traditionally regulated in the area of licensing; however, the new DHS regulations impose an entirely new federal scheme on top of already existing state license laws. As such, the REAL ID requirements preempt states from granting exceptions for religious head coverings and run-up against serious free exercise claims.
This seems like uncooperative federalism to me. There should be a way that the DHS can preserve its core purpose of fighting terrorism without forcing religious observers to remove their head coverings. For example, the “Question and Answer” page of the DHS’ website on REAL ID says that REAL IDs are only required for “boarding federally regulated commercial aircraft or accessing federal or nuclear facilities.” REAL ID is not required to drive your car to the store for milk or to purchase liquor. Couldn’t those states with religious exemptions issue a non-federal ID to religious objectors that would work for everything but boarding a plane?
One more note: legal claims brought by persons forced to remove their head coverings by the government are becoming more and more common. We at the ACLU’s Program on Freedom of Religion and Belief are currently serving as counsel to a Muslim woman who was forced to remove her headscarf during interrogations at a police station following a routine, misdemeanor arrest. You can read the complaint here.