Home / General / French Constitutional Court Upholds Ban On Veils

French Constitutional Court Upholds Ban On Veils

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Since I’m skeptical of even much narrower anti-veil public policy, I find much broader French bans on wearing veils in public particularly dismaying.   Like Somin, I express no opinion about whether the Conseil Constitutionnel’s opinion is sound as a matter of French constitutional law, but agree that to the extent that the decision is plausible it represents an indictment of French constitutionalism, and the legislation itself is a greater indictment. It’s worth noting that this ban — since it’s obviously targeted at the practices of a particular religious minority — almost certainly wouldn’t survive even under the American Smith standard, which many consider too narrow. Achieving gender equality is certainly a compelling state objective. But not only are bans on wearing the veil not necessary for achieving gender equality, it’s not clear if they’re effectual at all. For Muslim women in egalitarian family relationships, bans on the veil represent a diminution of freedom for no benefit, and for Muslim women compelled to wear the veil because of patriarchal family relationships, the bans offer only the most cosmetic relief.  Inscribing into the law the principle that the veil is necessarily a manifestation of sexism is not the right solution to a very real problem.

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  • DocAmazing

    This must be another example of Europe being under Shari’a law.

    • mark f

      Finally, a win for freedom!

  • Amanda in the South Bay

    FWIW, on another forum I visit, which has a large number of both American and European leftists, the Europeans are much, much more supportive of this than the American posters are

  • Bill Murray

    But atheist women are just as banned from wearing veils as Islamic women. Well I assume so

    • Scott Lemieux

      Ah, “the majestic equality of the law forbids rich and poor alike to sleep under bridges.” Bans on ceremonial animal sacrifice nominally apply to everybody, but since they’re actually targeted a religious minorities they’re obviously restrictions on religious freedom.

    • hv

      So Bill Murray would be ok with a ban on having dark skin? Light-skinned people would also not be permitted to have dark skin, so it would be fair, right?

      Hmmmm.

      • Scott Lemieux

        Or that perennial favorite, “heterosexual, gay and lesbian people are all equally prohibited from marrying someone of the same gender.”

      • Bill Murray

        so hv needs his snark detector recalibrated, hmmmm.

        Wasn’t that argument snark back when Holmes first said it? Or very shorty thereafter?

        • hv

          Not just hv, eh?

          I counter-assert my detector is fine, and it was just a poor effort on your part.

  • ajay

    Wouldn’t laws like this also ban the wearing of burqas?

    No person or persons shall in this State, while wearing any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, enter, or appear upon or within the public property of any municipality or county of the State, or of the State of North Carolina. (1953, c. 1193, s. 7.)

    Or this one?

    Title 16, Chapter 11, Section 38 (16-11-38)

    (a) A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.

    Presumably these weren’t brought in as anti-burqa laws (at a guess they’re anti-Klan in origin), but they could be used as such.

    • Murc

      You get in under those by invoking reasonable accommodation to your freedom to practice your religion.

      Sort of like how my job bans headwear (I know, right?), but the one or two Sikhs working there are allowed to wear their headwraps. Same deal (I think). The state has to let you wear the burqa in public absent an extremely compelling reason to do otherwise.

      • Warren Terra

        I seem to recall that in the early 90s a case originating with a discrimination suit against the famously totalitarian employer Perot Systems made it all the way to the Supreme Court: an Orthodox Jew insisted that he be allowed to follow the customs of his faith an maintain an untrimmed beard, in violation of a Perot Systems policy that quite sensibly implemented the truism that Hirsute People Can’t Code. The Supreme court upheld the Beard Ban.

        All that is my recollection, from following the news casually at the time; my memory is usually pretty good, but I can’t find anything on Google in thirty seconds, so maybe I imagined it all.

        • DrDick

          The case you really want to look at is Employment Division v. Smith, which effectively strips freedom of religion protections from laws of general applicability. The case involved a member of the Native American Church who was fired from his job as a substance abuse counselor for partaking in a church service (which involves use of peyote as a sacrament).

          • Warren Terra

            I’m sure that is an excellently relevant case, but peyote consumption strikes me as something of a grey area. Beard wearing – and Perot Systems and its predecessor EDS did indeed ban beard wearing (along with adultery) – is less obviously undesirable.

            • DrDick

              The language of the decision was so broad as to cover all religious activities or acts. It was so broad that every major religious organization pressured Congress into passing the Religious Freedom Restoration Act (parts of which were also struck down by the Supreme Court). It really is the signature case for this issue.

              As to the sacramental use of peyote in the Native American Church, they are specifically excluded from the statute outlawing peyote use and have had state and federal recognition as a legally recognized religious body since 1918. The church teachings prohibit the use of alcohol or recreational drug use. Many of the early converts in the late 19th and early 20th century joined seeking a cure for alcoholism.

              • Murc

                I’d always just sort of had a fuzzy assumption that there was a reasonable accommodation standard when it came to laws of general applicability colliding with constitutional protections. I may have been confusing portions of the ADA with caselaw. Or I could just be crazy.

                Anyway, I guess I was totally wrong about that. Thanks, Warren, Doctor D.

      • ajay

        Doesnt this leave a huge loophole for those good Christian boys in the Klan to wear their masks and hoods?

  • booferama

    The ban on veils is also counter-productive from a gender equality standpoint. While the veil can reflect brutal violence against Muslim women at home, it also provides women in those homes a public privacy when they meet. Often, veiled Muslim women work to help free each other. Banning the veil becomes, for some Muslim men, an excuse to keep women from leaving the house, from the possibility of escape.

  • cpinva

    this was my first thought as well:

    Banning the veil becomes, for some Muslim men, an excuse to keep women from leaving the house, from the possibility of escape.

    the “law of unintended consequences” comes quickly to mind.

  • Glenn

    Inscribing into the law the principle that the veil is necessarily a manifestation of sexism is not the right solution to a very real problem.

    Scott, are you saying that you don’t believe the veil is necessarily a manifestation of sexism? And if so, I would honestly like to hear the argument for that position, because I don’t see it.

    That is not to say that combating this sexism through a legal ban is the right way to go, and if that’s all you’re saying, then I agree with you.

    • booferama

      I’ll make the argument that it’s not necessarily a manifestation of sexism. In many cases it is, but I’ve met enough Muslim women who wear the veil and are also liberal–politically and otherwise. They understand why many see the veil as a misogynistic method of control, but they disagree and choose to wear the veil anyway.

      • Scott Lemieux

        This. There’s nothing about any particular face covering that’s inherently sexist. It’s not like a burqua–it doesn’t any way impede women from participating in any day-to-day activity.

        • hv

          Laws that ban burquas don’t tickle me, either, so I am not sure what we are parsing here. Everyone should be allowed to wear clothing that impedes daily function… (bye bye high heels) … as a matter of free expression.

          • Scott Lemieux

            RIght. I wasn’t arguing about the legal status of burquas, just arguing that there’s a better argument that they’re inherently sexist.

            • gmack

              Agreed wholeheartedly. It’s always worth remembering that cultural symbols are not self-interpreting. It is always possible to re-deploy a symbol, a practice, or even a word on behalf of meanings that are not currently attributed to it. In fact, that’s the very stuff of politics (as when the workers first named themselves “proletarians,” or when “homosexuals” started calling themselves queers).

              • cer

                When I was in Syria head coverings that concealed the entire face were illegal but women wore them as a statement of protest against the al Assad government (and to show allegiance with Islamic parties). The majority of women I met wearing the full veil were well-educated, outspoken, politically involved and keenly aware of the symbolism of the veil. Not surprisingly, many Muslim women in France have taken to wearing the head scarf as a means of identifying with the Muslim community and against what they see as an anti-Muslim, anti-immigrant culture. So, yes, it signifies many things.

              • “It’s always worth remembering that cultural symbols are not self-interpreting.”

                Great line. I’m using it, first chance I get.

            • hv

              Ah, I see.

              Don’t veils impede the day-to-day activity of public displays of affection? :)

              • DocAmazing

                And the eating of hoagies.

        • The Bobs

          Since this face covering applies only to women, it is inherently sexist.

          • RobW

            And therefore a law that applies only to women is inherenly sexist.

    • Justaguy

      The best examination of this that I’ve come across is Saba Mahmood’s Politics of Piety. It doesn’t argue that the veil isn’t sexist per se, but uses an ethnography of a women’s Islamist movement in Egypt to question liberal feminist ideals.

  • herr doktor bimler

    I am intrigued. What rules are used to determine whether someone is veiled for islamic reasons [or more accurately, what their cultural background believes to be an islamic requirement], as opposed to someone doing it as a fashion statement or in mourning?

    This seems to be more a case of the Law, in its majestic equality, allowing anyone to sleep under a bridge unless they are motivated by a particular religion.

  • hv

    …puts women in a “condition of exclusion and inferiority manifestly incompatible with the constitutional principles of liberty and equality.”

    It became necessary to destroy the village liberty to save it.

  • el donaldo

    I used to see this T-shirt around campus from time to time:
    http://www.flickr.com/photos/surlygrrrl/146712343/
    And I can recommend Sabah Mahmood’s book as well. Also Talal Asad’s now-somewhat-old article on the veil, “Trying to understand French secularism.” Both are good at revealing what I guess we could call complexities of agency behind wearing the veil.

    • Justaguy

      Definitely – Mahmood and Asad are great. Its depressing how little attention to the significantly scholarship on the issue is paid in popular discussion.
      One good point that Gabriele Marranci makes in his discussion of the veil is that there are more Muslim women in the West wearing miniskirts than veils http://marranci.wordpress.com/2010/05/18/burquing-freedom/
      So why is the viel the only lens through which we discuss Muslim women?

      • Ed

        It may something to do with visual impact. I remember the first time I saw in my neighborhood a Muslim woman entirely covered from head to to save for her eyes. She was all in black on a bright warm day, so she sort of stood out. It did give me pause that here in the good old USA we have women immured like mummies in broad daylight. A woman in a short skirt or dress would have been appropriately dressed for the circumstances and blended right in.

  • stickler

    I’m reminded, for no obvious reason, of the case in Baden-Württemberg, where conservatives managed to ban the wearing of religious headgear by State-employed teachers — aiming to keep Muslim female teachers from wearing headscarves in front of German students.

    And then they discovered that the state employed Roman Catholic nuns as teachers, too …

  • Dear France,

    Please come back, all is forgiven.

    Love,

    fRightwing America.

  • joel dan walls

    The discussion on the linked page by Somin includes some interesting and useful items comparing and contrasting US and French constitutional practices and customs. Please have a look.

    I make no claims to great insights about France and the French people, but I do know that French friends and professional colleagues/acquaintances do not see the veil ban as an attack on religious freedom at all. They see it rather as a “pro-active” step to promote Republican values. To make a rather broad generalization, the US constitutional order is about keeping government out of people’s lives to the extent possible, whereas the French constitutional order is one in which the government with the support of the citizenry takes steps to promote and reinforce Republican values.

  • Ed

    For if a woman will not veil herself, then she should cut off her hair; but if it is disgraceful for a woman to have her hair cut off or to be shaved, she should wear a veil. For a man ought not to have his head veiled, since he is the image and reflection of God; but woman is the reflection of man. Indeed, man was not made from woman, but woman from man. Neither was man created for the sake of woman, but woman for the sake of man. For this reason a woman ought to have a symbol of authority on her head, because of the angels.

    Having a symbol of authority on your head sounds like reasonable evidence of inherent sexism. I guess Christians and Muslims can agree on something. Good for the French.

    • herr doktor bimler

      In keeping with Jewish law, married [Hasidic] women will cover their hair using either a sheitel (wig) or a tichel (scarf) which is often used to cover a shpitzel. In some groups, such as Satmar, women cut their hair short and wear a wig or tichel.

      Possible issues here.

      • elm

        More generally, though, Jewish men are required to cover their head (out of respect for God) while Jewish women are not. Is their sexism inherent in not being required to wear a head covering?

    • ajay

      For this reason a woman ought to have a symbol of authority on her head, because of the angels.

      To expand this particular bit of lunacy, this passage was often glossed by Byzantine theologians as meaning that since women’s hair is a) attractive and b) on top of their heads, it presents a flight hazard to angels, who are (of course) up in the air, and might get distracted by the sight of a particularly nice head of hair and crash into each other, just as male drivers used to do at junctions where they had those Wonderbra billboards.

  • Why make the issue to be about freedom of religion but as an issue of public preference? (Or whatever it would be.)

    Why not ask something similar: is nudity allowed on public streets? Suppose someone said that their religion requires they be naked in public. Would society accept that?

    (Put likelihood aside — we are talking analogy and principles.)

    I bet that most people would, one way or another, agree that yes it’s OK for the state with its heavy hand to require some extent of clothing. I don’t think that we would go for a “freedom of religion” exception. Freedom of religion is not complete e.g. human sacrifice or child marriage bow to the secular law.

    The principle is that within some bounds society is able to dictate appearance. Showing genitals is forbidden. Covering faces is forbidden.

    Legally we dictate human appearance; and we accept it.

  • Shell Goddamnit

    Not sure how invested I am in the notion that there’s a compelling societal interest in forcing people to wear clothes. Uniforms, maybe; but what’s so dang vital about clothes?

  • dilbert dogbert

    The French got it all wrong. The law should have required everyone male or female to wear a veil.
    How do you make a statement when everyone is doing it?
    I thought a French official who had a face to face with a woman in a veil or burka should wear one too.
    It would be interesting to see the reaction.
    Go with the flow and see what happens.

  • RobW

    Nothing says, “protecting women’s freedom” like dictating what women are not allowed to wear.

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