That means if it is a part of your religion to wear a hood during a crime, you cannot be prosecuted under this law. But, if I am protesting a government policy and am wearing a mask, say like the Guy Fawkes mask worn by Anonymous “hacktivists,” does the constitution allow me to be arrested for violating this law? Why does the government have the right to tell me what to wear or not wear? There is little to be found in American history concerning a person’s right to choose his personal appearance.
This situation exists because it was thought to be such a fundamental right that its existence was taken for granted. For instance, there was considerable debate in colonial America about what rights should be specifically enumerated in the Bill of Rights. See, Hamilton, Madison, Jay, The Federalist Papers, (1961) Chap. 38, 84; Jefferson, T., On Democracy (Saul K. Padover e.d. 1939) p.47. During the 1789 Congressional debates, there was much discussion about whether the right of assembly should be mentioned in the Bill of Rights. Brant, I., The Bill of Rights (1965) p.53-67. It was in the midst of this discussion that Congressman Benson of New York stated this right should be included so that it could not be infringed upon by the government. Congressman Sedgwick of Massachusetts responded by stating:
If the committee were governed by that general principle... they might have declared that a man should have a right to wear his hat if he pleased... but [I] would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed.” Id., at 54-55. Emphasis added.
The history of the adoption of our Bill of Rights demonstrates that our forefathers clearly believed there to be a right in one’s personal appearance but was of such a trifling nature that it need not be included in the enumerated rights contained in the Bill of Rights. Therefore, court’s have found that one’s personal appearance is deserving of constitutional protection. Peppies-Courtesy Cab Co. v. City of Kenosha, 165 Wis. 2d 397; 475 N.W.2d 156 (1991) (ordinance requiring cab drivers to cut hair unconstitutional); Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969) (personal hair length is personal freedom protected by the United States Constitution).
The US Supreme Court, back when it believed that people not corporations had rights, held that an individual had a fundamental right to travel, eat, and choose what to wear or what to read. Kent v. Dulles, 357 U.S. 116, 125 (1958). Clearly, the choice of what a person wears is a matter of taste for the individual and not a matter of regulation by the government. Cohen v. California, 403 U.S.15, 25 (1971) (wearing jacket with the words “Fuck the Draft” on it). The right to control the appearence one’s own body necessarily means a person has the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. Olmstead v. U.S., 277 U.S. 438,478 (Brandeis, J., dissenting). The right to one’s own personal appearance is a personal freedom protected under the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970); Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969). The right to your personal appearance is "implicit in the 'liberty' assurance of the Due Process Clause." Richards v. Thurston, 424 F.2d 1281, 1284 (1st Cir. 1970).