Freedom of Religion

The Loophole That Allows French Bans on Veils, Head Scarves, and (Probably) Burkinis

Freedom of religion is supposedly guaranteed by the European Convention on Human Rights, but there are many exceptions.

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Ahiida Swimwear

A French citizen who sees Muslim women wearing full-body swimwear at the beach and loudly declares the burkini a symbol of Islam's backwardness and misogyny is committing a crime: insulting people based on their religion, which is punishable by a fine as high as €22,500 and up to six months in jail. By contrast, a French politician who imposes a ban on the burkini because he considers it a symbol of Islam's backwardness and misogyny will not be arrested and probably will prevail against any legal challenge, as long as he frames the ban in terms of security, equality, and/or social harmony.

As Asma T. Uddin, director of strategy at the Center for Islam and Religious Freedom, explains in a New York Times op-ed piece, the European Court of Human Rights has upheld bans on burqas, veils, and head scarves based on the premise that women who wear them "are simultaneously victims, in need of a government savior, and aggressors, spreading extremism merely by appearing Muslim in public." Article 9 of the European Convention on Human Rights ostensibly guarantees an individual's "right to freedom of thought, conscience and religion," including his right "in public or private, to manifest his religion or belief, in worship, teaching, practice and observance." But Article 9 also allows restrictions on religious freedom "necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

When French Prime Minister Manuel Valles says the burkini is a tool for "the enslavement of women," or Cannes Mayor David Lisnard says "the burkini is the uniform of extremist Islamism, not of the Muslim religion," they are implicitly appealing to those Article 9 exceptions. Uddin cites a 2001 case in which the European Court of Human Rights rejected a Swiss public school teacher's challenge to a rule preventing her from wearing a head scarf in the classroom. The court worried that "the wearing of a head scarf might have some kind of proselytizing effect" and that the custom is "hard to square with the principle of gender equality," meaning a teacher so attired would be ill-equipped to impart "the message of tolerance, respect for others and, above all, equality and nondiscrimination that all teachers in a democratic society must convey to their pupils." In 2005 the court upheld an Istanbul University policy that prevented a medical student from wearing a head scarf while taking an exam, concluding that the ban furthered gender equality and aided the government in "fighting extremism." A 2014 ruling said France's ban on face-covering veils promoted harmonious coexistence.

The commodious exceptions to Article 9 are reminiscent of the all-purpose limitation on Canada's Charter of Rights and Freedoms, Section 1 of which allows "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Among other things, that loophole has been used to uphold bans on so-called hate speech, notwithstanding the "freedom of thought, belief, opinion and expression" that the charter supposedly guarantees.

It may seem that Section 1, which also qualifies the "freedom of conscience and religion" promised by the charter, would be a handy excuse for restrictions on religiously motivated clothing. But Canadian courts do not seem to share the French passion for coercive secularism. Last year the Federal Court of Appeal overturned a rule that would have required a Muslim woman to shed her veil while taking a public oath of citizenship. The court resolved the case on statutory grounds and therefore did not reach the constitutional issue. But in 2012 the Supreme Court of Canada affirmed a Muslim woman's right to wear a veil while testifying in court unless "requiring the witness to remove the niqab is necessary to prevent a serious risk to the fairness of the trial" and "the salutary effects of requiring her to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so, including the effects on freedom of religion." Sounding decidedly un-French, the court declared that "a secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified."

More on French burkini bans from Steve Chapman, Anthony Fisher, and Elizabeth Nolan Brown.

Update: In a pleasantly surprising development, a French court ruled today that local burkini bans violate "fundamental freedoms" such as the "freedom to come and go, the freedom of conscience and personal liberty." The Washington Post reports that the court decided "the burkini is neither an insult to the equality of women nor a harbinger of terrorism."

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  1. In 2005 the court upheld an Istanbul University policy that prevented a medical student from wearing a head scarf while taking an exam, concluding that the ban furthered gender equality and aided the government in “fighting extremism.”

    I thought it would have been to aid the school in fighting cheating.

  2. Both Europe and Canada have explicit FYTW clauses, Also,

    The court worried that “the wearing of a head scarf might have some kind of proselytizing effect” and that the custom is “hard to square with the principle of gender equality,” meaning a teacher so attired would be ill-equipped to impart “the message of tolerance, respect for others and, above all, equality and nondiscrimination that all teachers in a democratic society must convey to their pupils.”

    I think we’ve found some corollaries to “Freedom is slavery.”

    1. Difference Is Intolerance

  3. Center for Islam and Religious Freedom

    A center with conflicting goals? that makes about as much sense as a Center for Government and Free Markets.

    1. The Center for Libertarianism and Public Accommodation Laws.

      1. Don’t You mean the Libertarian Party?

    2. The Center For Nazi Cakes For Everybody! (We Haf Ways Of Making You Take Ze Cake)

      1. The Clinton Center for Government Transparency

    3. The SugarFree Institute for Christian Children’s Literature

      1. The Robby Soave Powerlifting Center

        1. What is this? A center for ants?!

  4. If only Mohammed had proclaimed forehead tattoos the Way ….

    1. He would have had proto-Juggalos following him?!

  5. such reasonable limits prescribed by law

    Like the “reasonable” accommodations you have to make for your employees and customers here in the US, “reasonable” is whatever a judge and jury decide after the fact is reasonable. Is the wheelchair ramp and the elevator and three separate bathrooms and breakrooms good enough or do I have to close off the second floor altogether, provide five different bathrooms and take the pork rinds out of the snack machines in all three breakrooms? You’ll just have to take a guess, and guessing wrong may bankrupt you..

    1. Are pork rinds not halal? I thought you just couldn’t eat the meat of swine. Now you tell me that the delicious fried skins are off limits too?

      Islam is a scourge for this alone.*

      *well, this as well as the subjugation of women, the treatment of non-believers and gays and the use of children as suicide bombers by some adherents

      1. Pork rinds are an affront to Yahweh.

        1. Then again, all those blonde moppets you have running around are an affront to Yahweh. And to Mother Gaia.

          1. Not according to David Harsanyi.

            1. Harsanyi is an affront to Yahweh as well.

              1. It’s affronts to Yahweh all the way down.

              2. I thought all you Hebes stuck together. Guess I was wrong.

  6. There are always exceptions to liberties.
    You can’t yell “Burkini” in a firehouse!

  7. Somebody should make a video reenacting the Pee Wee movie bar scene with a woman (or Reubens) dancing in a burkini to The Champs but have everybody in the bar dressed as The Prophet shout “Burkini!” at the end.

    Somebody get Nakoula Nakoula on the phone!

  8. Thought Experiment – Theoretical Only

    Imagine a religion whose founding scriptures explicitly state that it is the only correct religion, and that worshipers of other religious traditions are dogs and pigs. Furthermore, that anyone who doesn’t follow the one true religion should be killed, converted, or simply ruled over.

    How could openly practicing or preaching that theoretical religion not run afoul of the kind of hate crime laws we see in places like Canada and the UK? After all, the very content of this theoretical religion (it’s a thought experiment!) would under any fair reading qualify as “hate.”

    Does the act of declaring some system of thoughts, statements and/or practices “a religion” automatically exempt the adherent from hate crime prosecution?

    1. The soft bigotry of a completely one-sided standard. Victim groups are not expected to engage in enlightened moral thinking like the rest of us.

  9. First of all, governments imposing laws that may be problematic for certain religious expression is nothing new (yes, even in the US). See: WoD vs. Rastafarians.
    What’s the difference, in this case?

    As far as the cultural angle goes…

    Dress Code Guide for Muslim Countries

    Air France stewardesses were last week told to wear headscarves upon arrival in Tehran when the airline resumes services there later this month. The order sparked outrage among female cabin crew members, some of whom say they will refuse to fly to the Iranian capital.

    “Whenever the locals rub blue mud in their navels, I rub blue mud in mine just as solemnly.”
    –Lazurus Long

    “I can never know enough about human manners and etiquette but I do know that a woman guest must dress — or undress — to match her hostess.”
    –Marjorie Friday Baldwin

    IOW, when in Rome, etc.

    It’s just manners. And that should cut both ways. Go to a nude beach, take off your clothes. Go to a “western” beach, wear “western” swimwear. Go to a Muslim beach, wear a burkini.

    *shrug*

  10. Secularism is the best thing that could actually happen to France.
    Luckily they’re going to ramp it up, as are the rest of Europe.
    The United States badly needs to follow France’s lead.
    Secularism leads to fringe groups emerging. So you put them down.
    Criminalize adamant religious behaviour, and save the West.

    Free speech and freedom of religion not only are not the same thing, they’re completely different.
    Freedom of religion suppresses free speech.
    Hence why secular Europe is so heroic.

    Religion destroyed French citizens in Mali and Paris.

    And now for a celebration of Retardation:

    1. I always have trouble trying to figure out what point, if any, you’re trying to make.

  11. freedom to come and go

    The most French of all freedoms.

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