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.


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."