ACLU of Hawaii warns driver’s license officials: Discrimination against Muslim women violates First Amendment

The ACLU of Hawaii (ACLU) has sent a demand letter to County of Hawai’i government offices that oversee the issuance of motor vehicle licenses for the county (”Hawaii County DMV”). The letter details the unconstitutional 18-week ordeal that Hilo resident and local small business owner Laycie Tobosa endured to renew her county-issued driver’s license simply because she is a practicing Muslim. The letter also demands that the Hawaii County DMV change the unconstitutional policies, which violate the First Amendment to the U.S. Constitution. Cautionary letters have also been sent to Honolulu, Maui, and Kauai counties seeking confirmation that they do not impose similar unconstitutional policies.

Ms. Tobosa is a Muslim who wears a hijab – a head scarf – for religious purposes. The scarf shows her face but covers her hair and her ears. While the County of Hawaii routinely allows non-religious applicants to have their photos taken for driver’s licenses with their ears covered, when Ms. Tobosa visited the Hawaii County DMV to renew her driver’s license, she was not treated in the same way. Instead, because she would not agree to expose her ears from beneath her hijab when taking her identification photograph, she was held in line for hours, and ultimately granted only a provisional driver’s license, which allowed her to drive but could not be used as a form of identification. Employees at the Hawaii County DMV repeatedly told her that the federal Real ID Act of 2005 required that her ears be visible in the identification photograph for her to be eligible for a full driver’s license, even though the U.S. Department of Homeland Security has provided guidance stating otherwise. After eighteen weeks of pleading and protestation, and after obtaining a written declaration from the University of Hawaii at Manoa Department of Religion that “confirmed” her religious beliefs, the Hawaii County DMV granted her a full driver’s license.

Staff Attorney Wookie Kim, who worked on this matter, said: “The Hawaii County DMV’s policies violate the First Amendment, plain and simple. Most troubling is the DMV’s requirement that people with religious beliefs—and only such people—engage in an onerous process with a third-party entity (in this case, the University of Hawaii) to prove that their religious beliefs are valid. Not only is this demeaning and time-consuming, but the First Amendment prohibits the government from burdening one’s ability to exercise religion in this way. Also concerning is the Hawaii County DMV’s failure to recognize that the Department of Homeland Security—which is the very federal agency charged with enforcing the Real ID Act—has explicitly stated that the law does not require one’s ears to be exposed. That the DMV appears to be permitting non-religious applicants and applicants of other religious faiths to keep their ears covered raises serious questions about whether the DMV is unconstitutionally singling out Muslim applicants. In light of recent events, it is more important than ever to scrutinize the way the government treats religious minorities, as we have done in Ms. Tobosa’s case.”

The demand letter requires the County to remove the policy of requiring ID-applicants to obtain letters from the University of Hawaii Department of Religion “confirming” their religious beliefs; ensure that its rules, policies, and procedures adhere to the U.S. Department of Homeland Security’s guidance on the REAL ID Act; and to train all personnel in the equal and constitutional application of rules to everyone, regardless of religious belief. No financial damages or compensation are sought in the demand letter.

Laycie Tobosa said: “We have rights as Americans and it is important that we hold people in authority accountable when they violate those rights. I am born and raised in Hawaii. Hilo is home. It is where I am from, where my kids will grow up and where I will forever return to. Hawaii is known to be one of the most diverse places in the world. Here we treat everyone with aloha no matter where you are from and being Muslim or any other religion should be no different. I knew something wasn’t right when I was approved by the federal government for a passport while wearing my head scarf but was denied a driver’s license on the county level. I am grateful to my friends and family, and even people who I don’t personally know, for all of their help, guidance and support during this very trying process, and I am glad that I finally obtained my full driver’s license. I just want the next Muslim woman, or any other person of any religion, going into that office to be treated with more respect than I was and to not be discriminated against for exercising their right as an American to freedom of religion.”

The ACLU has given the County of Hawaii until November 1, 2018 to respond with their plan for correcting these constitutional violations. The ACLU has also requested that Honolulu, Maui, and Kauai counties respond with a letter confirming that they do not impose similar unconstitutional policies.