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October 4, 1983


The opinion of the court was delivered by: POLLACK


 MILTON POLLACK, District Judge.

 Defendant Ishmael Muhammed, one of eight co-defendants in this criminal case, has requested through his attorney that their trial not be conducted on Fridays so that his religious beliefs and practices may be accommodated. According to Muhammed's attorney, Muhammed is of the Muslim faith and observes his sabbath from sundown on Thursday to sundown on Friday.

 No previous mention was made by Mr. Muhammed of his religious observance on Fridays, nor did he seek to be excused from Friday attendance at pretrial sessions. A number of weeks ago, at a pretrial conference, the Court announced a five-day-a-week trial schedule; no one commented or objected thereto. The defendant Muhammed is and has been confined in the building adjoining the Courthouse, the Municipal Correctional Center, since his arrest.

 The instant request was made to the court on September 14, 1983, approximately two weeks prior to the expected commencement of the trial. Mr. Muhammed has been present in Court on four Fridays out of a total of eleven appearances altogether -- not having missed any Friday session in which his interests were involved. *fn1" His is the only such request from among the eight defendants, albeit that Mr. Muhammed has said that there are others of the defendants who are of the Muslim faith.

 There does not appear to be any reported case law on the precise point of whether a court must honor a criminal defendant's request that he not be tried on days which he observes his religious sabbath. However, it is worth noting at the outset that at least three judges of the Third Circuit viewed a claim identical to Muhammed's as valid on first amendment freedom of religious exercise grounds. In that case, State of New Jersey v. Chesimard, 555 F.2d 63 (3rd Cir. 1977) (en banc), an Orthodox Muslim who was a defendant in a state criminal proceeding sought to enjoin state officials from holding trial on Friday.

 The majority in Chesimard did not reach the merits of the Muslim's claim, holding that the principles of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971) barred an injunction in the case. However, the majority described the claim as "important and sensitive." Chesimard, 555 F.2d at 66.

 Dissenting Circuit Judge Gibbons, joined by Judges Maris and Van Dusen, disagreed with the majority's Younger analysis and reached the merits of the religious free exercise claim:

I have no doubt that the state court order is invalid, given the court's finding that Chesimard's Sabbatarian beliefs are sincerely held.
The right of individuals to be free from governmental restraint upon their free exercise of religion is the first stated of the rights enumerated in the Bill of Rights. [cases cited]. The significance of the right is not diminished by an individual's status as a defendant in a criminal prosecution. See Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079, . . . . Where a person's right to the free exercise of religion is inhibited by state action, the courts will scrutinize the state's chosen means of attaining its goals to determine whether the state has met its obligation to avoid, to the extent possible, infringement of the protected freedom. [citing cases]. The governmental goal or purpose itself will be value-weighed against the protected right of the individual to determine which should prevail, and a purpose of obtaining a government objective even of the highest order, will not justify the imposition of restraint upon the free exercise of religion unless the objective cannot be otherwise achieved. Wisconsin v. Yoder, 406 U.S. 205, 215, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963); Braunfeld v. Brown, 366 U.S. 599, 607, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961) [parallel cites omitted] . . . .
In the present case, the efficient and orderly administration of justice is not placed in jeopardy by the removal of one of the five trial days ordinarily available to the court . . . .
In balancing the state interest in prompt criminal trials against the petitioner's right to observe her religious beliefs, given the facts of this case with the alternatives available to achieve the state's purpose and the limited nature of the disruption of orderly trial proceedings caused by not conducting the trial on Fridays, the petitioner's request should have been honored.

 The legal standard which the court is to apply in determining whether Muhammed has a constitutional right to having no trial proceedings on Friday is a well-settled one. The first amendment ensures without qualification that a state may not forbid the holding of any religious belief or opinion, nor may it "force anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets." Braunfeld v. Brown, 366 U.S. 599, 603, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961).

 In reconciling this first amendment right with important government objectives, such as the efficient, orderly, and fair administration of criminal justice, the court must apply a two part test, as is well described by the recent case of Africa ...

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