Burqas and Burkinis: Is there a legal limit to religious expression?

 

By Lindsey Mattila (CMC ’17)

Burqa bans are back in the media with fresh scrutiny as French officials fine women who wear “burkinis” on the beaches of France, calling the burkinis “the uniform of Islamic extremism” and a threat to public safety.[1] On August 26th, the French Council of State, which is France’s highest administrative court, ruled that the burkini ban was illegal, saying that the officials were not able to produce evidence that the burkini was a threat to public safety.[2] Still, many mayors have yet to respond to the court’s ruling. The debate brings up underlying issues within French culture of how to define secularism. Should secular mean the absence of religion in public spaces, free expression of religion in any spaces, or the dominance of French culture over religion in public spaces? Furthermore, the discussion brings to light certain contradictions since French culture has always been a strong proponent of women’s rights and diversity.

France’s controversial debate over burqas started in 2004 when the country banned burqas, nijabs, and other “conspicuous” religious symbols from being worn in school in efforts to  promote secularism.[3] The controversy continued in 2011 with a law banning women from wearing full-body mesh coverings that hide the face in public and fining them 150 euro (roughly $205) if they were caught wearing one.[4] This law was justified by the French Constitutional Court that argued the ban was aimed at alleviating national security concerns and threats to the French secular culture.[5]

Many French Muslims, however, are concerned that they are being specifically targeted by the enactment of this law and are being burdened with a disproportionate amount of punishments compared to other French religious groups. In 2014, the debate over wearing burqas in public reached the European Court of Human Rights (ECHR) when a French Muslim woman appealed to the Court to defend her rights based on the Court’s convention.[6] Her argument cited Article 8 of the convention which grants all European citizens “the right to respect for his private and family life,” but includes that it may be interfered when “necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country… and for the protection of the rights and freedoms of others.” Additionally, Article 9 grants all citizens the right to freedom of thought, conscience and religion either in private or public, but again includes that this freedom may be limited by law and when necessary to maintain a democratic society in the interest of public safety, protection of public order, health and morals, or for the protection of others’ rights. Lastly, her argument used Article 10 which grants freedom of expression and Article 14 which prohibits discrimination.

The ECHR ruled in favor of the ban saying that it increased public safety and also maintained the conditions that are necessary for a functioning democratic society.[7] The Court outlined three values necessary to a democratic society: respect for gender equality, respect for human dignity and respect for the minimum requirements of life in society (or of “living together”). The opinion of the Court expanded on this by explaining that eye contact and the ability to see facial expressions are a key component of social interaction and community life; thus, a lack of it undermines the minimum requirement for “living together.” In contrast, the Court was also concerned that the law targeted a small population of France and that it likely was not necessary. Regardless of concerns, the Court still ruled that the ban was legal and that the benefits outweighed the drawbacks.

The recent ruling made by the French Council of State is a start in repealing past court decisions regarding burqas, freedom of expression, freedom of religion, women’s rights, and assimilation. There is, however, still a long road ahead for the legal status of the burqas as courts have long ruled that public security outweighs personal privacy.

 

 

 

[1] Joseph Micallef, “Is France Right to Ban the Burkini?” Huffington Post. September 3, 2016. http://www.huffingtonpost.com/joseph-v-micallef/is-france-right-to-ban-th_b_11845732.html

[2] Aurelien Breeden, “Court Overturns ‘Burkini’ Ban in French Town,” New York Times, August 26, 2016. http://www.nytimes.com/2016/08/27/world/europe/france-burkini-ban.html?_r=0

[3] Justin Vaïsse, “Veiled Meaning: The French Law Banning Religious Symbols in Public Schools,” Brookings Institute, March 1, 2004. https://www.brookings.edu/articles/veiled-meaning-the-french-law-banning-religious-symbols-in-public-schools/

[4] Steven Erlanger, “France Enforces Ban on Full-Face Veils in Public,” New York Times, April 11, 2011. http://www.nytimes.com/2011/04/12/world/europe/12france.html

[5] Jethro Mullen, “European rights court rules in favor of French burqa ban,” CNN, July 1, 2014. http://www.cnn.com/2014/07/01/world/europe/france-burqa-ban/

[6] European Convention on Human Rights. June 1, 2010. http://www.echr.coe.int/Documents/Convention_ENG.pdf

[7] Press release issued by Registrar of the Court, “French ban on the wearing in public clothing designed to conceal one’s face does not breach Convention,” European Court of Human Rights, January 7, 2014.

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