I have a comment on the Hobby Lobby case over at the Liberty Fund’s blog in which I offer some speculations about the case (I do not know that they are “deeper meaning” speculations; they’re just some thoughts). There you will also see other good comments on the case by former CLR Forum guest Steve Smith, John McGinnis, Peter Lawler (with whom I strongly agree about judicial minimalism), and Hadley Arkes.
Last month, Yale University Press released The Taliban Revival: Violence and Extremism on the Pakistan-Afghanistan Regime, by Hussein Abbas (National Defense University). The publisher’s description follows:
In autumn 2001, U.S. and NATO troops were deployed to Afghanistan to unseat the Taliban rulers, repressive Islamic fundamentalists who had lent active support to Osama bin Laden’s Al-Qaeda jihadists. The NATO forces defeated and dismantled the Taliban government, scattering its remnants across the country. But despite a more than decade-long attempt to eradicate them, the Taliban endured—regrouping and reestablishing themselves as a significant insurgent movement. Gradually they have regained control of large portions of Afghanistan even as U.S. troops are preparing to depart from the region.
In his authoritative and highly readable account, author Hassan Abbas examines how the Taliban not only survived but adapted to their situation in order to regain power and political advantage. Abbas traces the roots of religious extremism in the area and analyzes the Taliban’s support base within Pakistan’s Federally Administered Tribal Areas. In addition, he explores the roles that Western policies and military decision making— not to mention corruption and incompetence in Kabul—have played in enabling the Taliban’s resurgence.
Next week, Oxford releases Being Muslim in South Asia: Diversity and Daily Life, edited by Robin Jeffrey (National University of Singapore) and Ronojoy Sen (National University of Singapore). The publisher’s description follows:
This book contributes to the rich recent scholarship on contemporary Islam in South Asia. It provides insights into the controversies of the past 150 years over how South Asian Muslims ought to respond to the challenges of modernity and Western imperialism. Though such contests of ideas began with a few intellectuals, their consequences flowed through to touch the lives of ordinary people. The book also traces the processes, in train since British times, that have created large social categories out of diverse, dispersed communities. In the past, such communities shared only a common devotion, a sacred book and the duties the book enshrined. This volume highlights the diversity of peoples and practices among South Asians who follow Islam. Readers learn about aspects of those practices in the resolution of disputes, the education of children, the marriage of offspring, and the recreations of leisure time. The book does not underplay the violence, oppression, and uncertainty that Muslims of South Asia too often face in recent times. Overall, the book invites readers to contemplate the diverse daily lives of the more than 500 million people who are Muslims in South Asia.
This week, Americans understandably have been occupied with the Hobby Lobby case and its implications for religious freedom in our country. But across the Atlantic, the European Court of Human Rights was handing down its own decision on the scope of religious freedom, S.A.S. v. France. The European Court held that France’s ban on clothing designed to cover one’s face in public–what everyone knows, for obvious reasons, as the “burqa ban”–does not violate the European Convention on Human Rights. The court’s ruling reveals the challenges of enforcing a regional, European standard with respect to religious expression.
Some background: Article 9 of the European Convention recognizes a right to manifest one’s religion or belief, subject to limitations that are necessary to promote certain legitimate state interests, including public safety and “the protection of the rights and freedoms of others.” Any such limitation must be proportionate to the interest the state asserts. The European Court has made clear that Article 9 need not apply uniformly across Europe. Given different national histories and cultures, states have discretion to adapt article 9 in light of the needs and values of their particular societies. The Europeans refer to this discretion as the states’ “margin of appreciation.”
France argued that the ban on burqas is necessary to promote public safety and protect the rights and freedoms of others–specifically, the right of people to live in an “open society” characterized by “civility” and “social interaction.” The court rejected the first argument. Even assuming the burqa posed a risk in some circumstances, it held, a blanket ban is disproportionate. If the concern were public safety, a more targeted ban would be appropriate–in the context of security checks, for example.
The court agreed with France, though, that the ban could be justified on the basis of promoting an “open society”–at least, an open society in the French manner. Obviously, not all societies see the burqa as problematic. In Europe, only Belgium has a similar ban. But the French people had decided that the burqa violates “the ground rules of social communication” in their country. This decision deserved deference, the court held. Given the margin of appreciation in such matters, the court would honor France’s determination that “the voluntary and systematic concealment of the face is … incompatible with the fundamental requirements of ‘living together’ in French society.”
This level of deference is really quite breathtaking. Essentially, the European Court is saying, a state can ban religious expression in order to maintain local norms of “living together.” What ban on religious expression would not be allowed under such a standard? Let’s pose a hypothetical case. France already prohibits conspicuous religious dress in public schools. Let’s assume France decides to extend this ban to all public places, arguing that conspicuous religious dress in public creates unnecessary tension and interferes with social interaction à la française. Under the court’s deferential approach, wouldn’t such a ban be permissible? What would be the basis for second guessing France’s assertion about what French social norms require?
The deference to national norms is unavoidable in the context of the Council of Europe, a regime that includes scores of states with widely varying cultures and histories. One size simply doesn’t fit all. If the European Court is to have any legitimacy, it will often need to defer to national judgments on sensitive issues. Still, the European Court purports to pursue a common European standard in respect of human rights. Decisions like S.A.S. suggest that pursuit has a long way to go.