Can the French legally ban the burqa?
John R Bowen
France has just passed a law that its prestigious State Council said has no clear legal basis, that may soon be declared unconstitutional, and that would in any case be challenged before the European Court of Human Rights. The general ban on covering the face in public space will lead to fines and ‘education’ for Muslim women wearing what is called the burqa, the niqab or the ‘full veil.’ The measure easily passed the lower house on July 13th, and now goes to the Senate for the expected approval.
It is easy to ridicule the French law: why set the police out to track down the miniscule number of women wearing burqas, who tend to be French-born, not Afghan imports? Why not allow them their religious freedom? Does the law reflect anything more than general Islamophobia and calculated electioneering?
Well, certainly French politicians listened to polls showing strong support for the law, and voting for it may undercut support for the far-right National Front, so simple electoral politics might explain the vote. But politicians could have opted for a more narrowly-tailored ban, one limited to government offices and shops and that would have likely been judged constitutional. They argue that a broad law sends the right message, and that it is constitutional. They make three arguments for its legality, only one of these claims has a chance of being accepted—and it might seem the oddest of the three to those outside France.
The first argument is that the burqa stands for the oppression or the inequality of women. This claim is too abstract to be of legal use—what is it for an item of clothing to have an objective meaning? Moreover, no women are coming forward to complain about having to wear the garment in question. In the absence of a clear harm, the law must tread very lightly.
Others argue that wearing the burqa violates the dignity of the individual. Although the idea of individual dignity is held high in France, it is difficult to translate into law, particularly when it conflicts with individual rights. After a debate in the 1990s over whether “dwarf tossing” violated individual dignity—the State Council ruled that it did but was roundly criticized—France’s courts have given this notion a wide berth, except in the sphere of bioethics and human reproduction.
This leaves a third claim, that covering the face in public violates basic ideas of how French people should live together, and thus offends public moral order, or ordre public. Justice Minister Michèle Alliot-Marie based her argument for the law on this principle, saying that the law would protect French rules of living together, with people able to speak with each other “faces uncovered”.
Such a claim might make little sense in America, but French political ideas give the state a large role in creating a ‘community of citizens’. The state school system is supposed to create a sense of shared citizenship; marriage is supposed to take place only at city hall; the state retains a strong role in everyday life.
But what about individual rights? Does not the French Constitution, itself drawing on the 1789 Declaration of the Rights of Man and of Citizens, protect religious beliefs? Indeed it does, but France considers religious practices to be protected only when they are part of religious requirements, as in the case of worship or eating appropriate foods. France routinely limits behavior that in the United States would enjoy First Amendment protections, such as distributing religious materials on the street or dressing in a religious way. And thus the government thinks that it might be able to successfully argue that because burqa-wearing is not required in Islam, and because it violates French ‘public moral order’, the ban does not unduly infringe on the liberty of its citizens.
The next months will see whether France’s Constitutional Council (and perhaps the European Court of Human Rights) sees things in the same way.