If You Must, Mustache

It is not only the changing meaning of words that federal judges must navigate these days. There have also been some recent cases where federal courts have had to confront the physical world and make tough choices about the reality we see before us.

To begin with, a D.C. District Court judge has settled the fact that decorative fireplaces are not meant to heat anything, so the Department of Energy has no business regulating them. The fireplaces are “designed to stay cool and look pretty,” according to the judge, and therefore are beyond the agency’s reach.

But that’s not the only instance where staying cool and looking pretty has come before a federal court of late. Late last month the Ninth Circuit determined that it is indeed constitutional to wear a wig and a large fake mustache while testifying in court, so long as you have a good reason. The case was one where a police informant needed to testify against an alleged Mexican drug cartel member, which testimony could put the informant and those he knows in danger of retribution. However, the Confrontation Clause in the Sixth Amendment seemingly would urge courts to not allow people to testify in disguise. On this issue of first impression the Ninth Circuit ruled for the mustache. Following precedent from state courts in Texas and New Hampshire, where the confluence of gangland prosecutions and theatrical garb settled this issue years ago, the court determined that the Supreme Court’s precedents allow for such a disguise when it furthers an important state interest and when the reliability of the evidence presented is otherwise assured. Applying the rule: the state’s interest in the mustache and wig were the witness’s safety, which is sufficiently important; and despite the get-up the reliability of his testimony was tested by his presence, oath, cross-examination, and the jury’s ability to see his eyes and body language. In sum, going forward in the Ninth Circuit some false mustaches and wigs are constitutional, but only if nonfrivolous and worn by someone trustworthy.

Clearly this was not a sweeping decision and not all mustaches are constitutional, but this is nevertheless a step forward for a part of society that has clamored for recognition. It is good to see that courts these days are not afraid to confront the weighty issues face-on.

 


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