À Nous la Liberté

Riots broke out in a Paris suburb this weekend after police ticketed a woman wearing the full Islamic veil, or burqa, on a local street. Since 2011, France has banned the burqa in public places on pain of a €150 fine. The details of this weekend’s incident are unclear, but police apparently asked the woman to remove her veil as part of an identity check. An altercation ensued, and the woman’s husband allegedly assaulted the officers. The officers then arrested the husband, and in response at least 250 people besieged the local police station, throwing fireworks and setting refuse bins and vehicles on fire. According to France 24, four police officers have been injured. The violence has continued for three nights.

The burqa ban has been controversial from the beginning. Supporters argue that it’s a necessary safety measure: terrorists could use the burqa as a disguise. But, observing the debate from this side of the Atlantic, safety issues don’t seem central. Most of the emotion in the debate relates to the burqa’s symbolic impact. The French Right supports the ban because the burqa suggests the presence of an alien culture that refuses to be French. The Left is divided. Some on the Left support the ban because the burqa suggests the subjugation of women; others argue that the burqa controversy is a sideshow to distract from France’s real social problems. And of course many French Muslims–though not all–see the ban as evidence of racism and  Islamophobia. Not to mention a violation of religious freedom.

Behind the controversy is a debate about the meaning of laïcité, that peculiarly French contribution to law and religion. Often translated loosely as “secularism,” laïcité is one of the foundations of French republicanism. But its meaning is, and always has been, contested. On one view, laïcité means only that the state should have no official ties to religion and that citizens should be free to follow whatever religion they wish. On this understanding, the ban is problematic. What legitimate reason does a liberal state have for banning religious dress in public? (A liberal state, note — not a state with a religious foundation or a “thick” conception of the public good). Public safety, surely: but the French government doesn’t ban knapsacks or raincoats, which pose greater risks. What about the fact that some women are forced to wear the burqa by family members? That’s a legitimate state concern, too. But there must be ways to address that concern that don’t involve forbidding public religious expression by women who do wish to wear the veil.

Perhaps laïcité means something different, though, something more aggressive. Perhaps laïcité requires a naked public square, in order to rid society of the influence of religions that stand in the way of progress. This view has a long lineage in France as well. Rousseau, recall, taught that society must force people to be free. On this view of laïcité, the burqa ban makes more sense. The burqa is forbidden even if women wear it voluntarily–indeed, especially if women wear it voluntarily. How else is equality to be achieved?

A few hundred women have been cited for wearing the burqa since the ban went into effect. Almost none of the citations, apparently, have led to incidents like this weekend’s. This weekend’s riots suggest, though, that the burqa ban remains deeply unpopular in some French neighborhoods, and that the controversy is far from over.

Tebbe (ed.), “Religion and Equality Law”

This June, Ashgate Publishing will publish Religion and Equality Law edited by Nelson Tebbe (Brooklyn Law School). The publisher’s description follows.

The essays selected for this volume address topics at the intersection of religion and equality law, including discrimination against religion, discrimination by religious actors and discrimination in favor of religious groups and traditions. The introduction provides a conceptual guide to these types of inequality – which are often misunderstood or conflated – and it offers an analysis of different species of discrimination within each broad category. Each section of the volume contains both theoretical essays, which set out frameworks for thinking about the relevant type of inequality, and essays that examine real-world disputes. For example, the articles address the conflicts over headscarf laws in France and Turkey, the place of so-called traditional religions in Africa, the display of Roman Catholic crucifixes in Italian classrooms, and the ability of American religious organizations to be free of employment laws in their treatment of clergy. This volume brings together classic articles which are otherwise difficult to access, enables students to study key articles side-by-side, and provides instructors with a valuable teaching resource.

Bhuta on Religious Freedom in the European Court of Human Rights

Nehal Bhuta (European University Institute) has posted Two Concepts of Religious Freedom in the European Court of Human Rights. The abstract follows.

This paper considers the way in which recent historical work on the history of freedom of religion and freedom of conscience opens up a new interpretation of the decisions of the European Court of Human Rights in the headscarf cases. These decisions have been widely criticized as adopting a militantly secularist approach to the presence of Islamic religious symbols in the public sphere, an approach that seems inconsistent or even overtly discriminatory in light of the court’s recent decision in Lautsi that the compulsory display of crucifixes in the classroom did not breach Italy’s convention obligations. I argue that the headscarf cases turn less on the balance between state neutrality and religious belief, than on an understanding of certain religious symbols as a threat to public order and as harbingers of sectarian strife which undermine democracy.

Jolly on State Photo Identification Standards and Religious Freedom

Rajdeep Singh Jolly (The Sikh Coalition) has posted How State Photo Identification Standards Can Be Used to Undermine Religious Freedom. The abstract follows.

The purpose of this essay is to highlight a latent threat to religious freedom in the post-9/11 environment. In the absence of state laws that track the language of the Religious Freedom Restoration Act of 1993, state legislatures motivated by anti-Muslim bias can harm religious minorities by enacting facially neutral and generally applicable laws that forbid headcoverings in driver license photographs. If such laws are enacted, individuals who wear religious headcoverings can be forced to choose between religious freedom and valid identification cards, without which travel and economic transactions become exceedingly difficult. As a safeguard against this deprivation of religious freedom, this essay argues for more robust civil rights protections at all levels of American government, including stronger federal regulations and wider adoption of state versions of the Religious Freedom Restoration Act.

Muslim Parents Sue Greek Orthodox School for Banning Head Scarves

Here’s an unusual case. Muslim parents are suing a public school in south London for refusing to allow their nine-year old daughter to wear a head scarf to class. That’s not so unusual in itself. Law school casebooks are full of cases in which parents sue public schools for failing to accommodate their children’s religious practices. What makes this case unusual is that the public school in question, St. Cyprian’s in Croydon, is an Orthodox Christian school.

To Americans, faith-based public schools are unfamiliar. As Ashley Berner explains here, however, such schools are common in England. According to the official government website, roughly 7000 “maintained,” as in publicly maintained, “faith schools” exist, the large majority of which are affiliated with the Church of England. St. Cyprian’s is affiliated with the Greek Orthodox Church — it is the only Greek Orthodox school in England, in fact. As a faith-based school, St. Cyprian’s may give priority in admission to Greek Orthodox students, though by law it must admit students of other faiths if places remain unfilled. As far as I can tell, like other public schools, St. Cyprian’s may adopt its own school uniform policy, subject to very broad guidelines.

I’m not sure how the English courts will resolve this dispute. But the whole situation is puzzling and it’s a shame things have come so far. It’s odd, in the circumstances, that the parents would insist on a Greek Orthodox school for their daughter. If it’s so important to them that she maintain Muslim practices, why put her in a school in which a different religion is pervasive? Isn’t that a bit unreasonable, and unfair to her? The school says the parents petitioned to send their daughter to St. Cyprian’s, and that the school’s rule against head scarves was explained to them before she matriculated. St. Cyprian’s has very high academic ratings; perhaps that explains why the parents are so eager to have their daughter attend. Still, it’s all rather odd.

On the other hand, the school’s position is puzzling as well. There’s nothing in Orthodoxy that forbids the wearing of head scarves; in fact, some Orthodox women wear head scarves in church. Perhaps St. Cyprian’s is concerned that a visible non-Orthodox presence would dilute the school’s identity. That’s a valid concern, in my opinion. And I can understand how school officials might think they’ve been sandbagged by the parents in this case. If the parents knew about the rule against head scarves before their daughter matriculated, why are they complaining now? But the law requires St. Cyprian’s to admit non-Orthodox students if it has places for them, and it doesn’t seem tenable to admit such students and then forbid them from wearing their religious attire. Anyway, mightn’t it be better, in the circumstances, to allow this student to wear her head scarf? What would demonstrate more effectively the essential nature of Christianity — its willingness, even joy, in serving everyone and anyone?

Temperman (ed.), “The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom”

This November, Martinus Nijhoff Publishers will publish The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom edited by Jeroen Temperman (Erasmus University Rotterdam). The publisher’s description follows.

Increasingly, debates about religious symbols in the public space are reformulated as human rights questions and put before national and international judges. Particularly in the area of education, legitimate interests are manifold and often collide. Children’s educational and religious rights, parental liberties vis-à-vis their children, religious traditions, state obligations in the area of public school education, the state neutrality principle, and the professional rights and duties of teachers are all principles that may warrant priority attention. Each from their own discipline and perspective––ranging from legal (human rights) scholars, (legal) philosophers, political scientists, comparative law scholars, and country-specific legal experts––these experts contribute to the question of whether in the present-day pluralist state there is room for state symbolism (e.g. crucifixes in classroom) or personal religious signs (e.g. cross necklaces or kirpans) or attire (e.g. kippahs or headscarves) in the public school classroom.

Good Thing They Didn’t Try It in France

Anatole France famously observed that the law, in its majestic equality, forbids both rich and poor from sleeping under bridges. What would he have said about this weekend’s events in Marseille? At a rally in solidarity with Pussy Riot, the Russian punk band currently in prison for hooliganism, a group of protesters donned the band’s trademark neon balaclavas (above). The police immediately arrested the protesters for violating the French ban on veiling one’s face in public. The ban, which went into effect last year, was obviously directed at Islamic niqabs. To avoid any appearance of bias, however, the law formally forbids face veils generally. If tried and convicted, the protesters are subject to a fine of €150 and a compulsory citizenship course. CLR published a symposium on the ban and other aspects of church-state relation in France in 2010 – check it out here.

Goldenziel on Courts in Majority-Muslim Countries

In the conflict between Islamists and secularists in majority-Muslim countries, courts can play a major role. Yesterday, for example,  Egypt’s Supreme Constitutional Court issued rulings allowing a former Mubarak loyalist to run for president and effectively dissolving the country’s Islamist-dominated parliament — clear victories for executive power and supporters of the old regime. A new piece by Jill Goldenziel (Harvard), Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts, suggests that the situation is more complicated, however. Courts in majority-Muslim countries do not always side with executive power. Even in Egypt, there are tensions between the SCC, which the Mubarak regime brought to heel, and the High Administrative Court, which remained more independent.  Her piece makes for interesting reading. The abstract follows.

This article explains how judicial independence can develop in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because Continue reading

Tourkochoriti on Freedom of Religion in France and the USA

Ioanna Tourkochoriti (Committee on Degrees in Social Studies, Harvard University) has posted The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the USA. The abstract follows.

Six years after prohibiting the wearing of headscarves by students in public schools, the French state passed a law prohibiting the wearing of burkas in public places. Compared to France, in the United States there is more tolerance for wearing signs of religious affiliation. The difference in legal responses can be understood in reference to a different background understanding of the fundamental presuppositions of republicanism in the two legal and political orders, which also define their conception of secularism. The law enacted in France can be understood in a general frame of a paternalistic state, which is seen as permitted to dictate the proper exercise of their reason to the citizens. In the United States, the dominant understanding of republicanism attempts to reconcile the natural rights philosophy with the conception of the common good. The trust in the use of collective power and the legislature dominant in France can be opposed to the distrust towards the same elements in the United States.

Elver, “The Headscarf Controversy”

Related to Ms. Hummel’s post below, a new book, The Headscarf Controversy: Secularism and Freedom of Religion (OUP 2012) by Hilal Elver (UC Santa Barbara) is scheduled to be released next month and treats subjects of great interest to CLR Forum readers from what I think is an unusually ambitious cross-cultural perspective.  The publisher’s description follows.

Hilal Elver offers an in-depth study of the escalating controversy over the right of Muslim women to wear headscarves. Examining legal and political debates in Turkey, several European countries including France and Germany, and the United States, Elver shows the troubling exclusion of pious Muslim women from the public sphere in the name of secularism, democracy, liberalism, and women’s rights.

After evaluating political actions and court decisions from the national level of individual governments to the international sphere of the European Court of Human Rights, Elver concludes that judges and legislators are increasingly influenced by social pressures concerning immigration and multiculturalism, and by issues such as Islamophobia, the “war on terror,” and security concerns. She shows how these influences have resulted in a failure on the part of many Western governments to recognize and protect essential individual freedoms.

Employing a critical legal theory perspective to the headscarf controversy, Elver argues that law can be used to change underlying social conditions shaping the role of religion, and also the position of women in modern society. The Headscarf Controversy demonstrates how changes in law across nations can be used to restore state commitments to human rights.

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