Ruling Against Burkini Ban Hinges on the Meaning of 'Decency' and 'Public Order'

The rationale for France's veil ban-protecting other people's sensibilities-seems broad enough to cover full-body swimwear.


Exotic Water Wear

Last Friday's decision overturning a local burkini ban in France was a welcome victory for tolerance and religious freedom. But it relied on a narrow reading of public policy goals that supporters of such bans, including French Prime Minister Manuel Valls, define more broadly. That broader interpretation was accepted by a lower court in this case and by courts hearing challenges to other restrictions on religiously motivated clothing.

The Council of State, France's top administrative court, ruled that the mayor of Villeneuve-Loubet, one of more than 30 seaside towns that have forbidden women to wear full-body swimsuits, exceeded his legal authority as protector of safety, hygiene, decency, and public order on the beach. Limits on freedom "must be justified by proven risks of harm to public order," the court said, and the city has failed to demonstrate any such risk from allowing women to wear burkinis.

"In the absence of such risks," the court added, "emotions and concerns arising from terrorist attacks, including those committed in Nice on July 14, will not suffice to justify in law the contested prohibition." Hence "the contested decree has imposed a serious and manifestly illegal restraint on fundamental freedoms such as freedom to come and go, freedom of conscience, and personal freedom."

Villeneuve-Loubet's ban, like the others, did not mention Islam specifically. Instead it banned swimwear that is not "respectful of morality and the principle of secularism, and in compliance with hygiene and safety rules." Whether such a command is legal depends on how you understand "decency" and "public order," two inherently subjective justifications for municipal beach regulations. In a ruling last Monday, a judge of the Nice Administrative Court deemed the burkini ban a "necessary, appropriate, and proportionate" precaution aimed at preventing public disorder following recent terrorist assaults, especially the truck attack that killed 86 people in Nice on July 14. The Council of State rejected that rationale, viewing "emotions and concerns arising from terrorist attacks" as irrelevant to the ban's legality.

Although the burkini ban cited "the principle of secularism" as a justification, Valls argues that such laws have nothing to do with religion per se. "The burkini is not a religious sign," he says on Facebook. "It is the affirmation of political Islam in the public space." Valls has also called the burkini a tool for "the enslavement of women." He insists that last week's ruling "doesn't exhaust the debate that has opened up in our society on the question of the burkini."

Defending its ban on full-face veils in public, the French government likewise claimed "the practice was a recent phenomenon which was not required by religion but arose from radicalization and extremism" and maintained that it violated the principle of gender equality. In 2014 the European Court of Human Rights rejected the latter rationale but agreed that the law was justified to protect "public safety" and "the rights and freedom of others." The court reasoned that wearing a veil is inconsistent with "respect for the minimum requirements of life in society" because "the barrier raised against others by a veil concealing the face is perceived…as breaching the right of others to live in a space of socialization which makes living together easier."

In other words, the veil causes social disharmony by offending people. Supporters of burkini bans believe the same is true of excessively modest swimwear. Once such considerations are admitted as legitimate rationales for restricting freedom, it is hard to find a principled stopping point.

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    1. Is that your belt or are you just happy to blow me up?

    2. What’s next is, hopefully, living in a kinder, gentler, more decent society where certain offending “freedoms” are appropriately restricted so everyone can live in a space of socialization that makes living together easier. We have taken some (but unfortunately not yet enough) steps towards living in a proper society in America too, for example by criminalizing certain forms of “speech” that damage the reputations of highly respected members of the academic community. See the documentation of our nation’s leading criminal “satire” case at:

  2. Is that like a bukaki bikini?

  3. Restricting freedoms for the “public order?” That sounds right out of Atlas Shrugged. And people think that Ayn Rand’s villains aren’t realistic…

  4. If you lay down in the road you are probably going to get run over.

  5. The first time I’ve seen a burkini is from this article. Really not as ugly and stupid as I was expecting, and actually those are revealing of hot body contour. +1 Burkini, -1 France village ordinance

    1. So,would,would,would and would?

      1. When you think about it, the burkini is also the perfect solution for wives and husbands that are built like the Michelin tire mascot. Unisex burkini ftw, especially fat chicks.

        1. NO FAT CHICKS.

    2. They’re actually an Australian invention to, as the inventor says, liberate Muslim women who prefer to cover up (and to be the classic Aussie beach icon, lifesavers). She also says nearly half her sales are to non-Muslims (including Jews and skin cancer sufferers), and I am inclined to believe her because, as an extremely pale person and cancer survivor, I’m also kinda tempted to get at least a partial one so I don’t have to worry about slapping SPF 50 on me every 5 minutes.

      1. I checked, and apparently, they don’t make versions for 250 lb men.
        So I have to continue prancing around with my shame hanging out in a board shorts and a tank top.

      2. Ever since the beginning of time, gingers have yearned to destroy the sun.

      3. My wife wears a similar outfit of swim leggings and a long sleeve reef shirt when swimming because of a previous melanoma. When I go snorkeling I wear a dive skin and hoodthat covers me completely. UV is a bitch. I wonder if the French would make my redheaded wife disrobe in public? I’m guessing not and therein lies the real problem.

    3. All the pictures I saw earlier from France were of overweight, matronly sorts. These ones are much nicer.

  6. You know who else wanted to uncover women’s bodies?

    1. Buffalo Bill?

    2. Hugh Hefner?

    3. The Ted Bundy task force?

  7. Once such considerations are admitted as legitimate rationales for restricting freedom, it is hard to find a principled stopping point.


  8. Sad that the republicanized Libertarian Party nominated a politician who believes the exact same thing as the French Prime Minister

    1. Why are you so obsessed with Johnson? You can’t stop talking about him. Is your own preferred candidate that bad?

      1. Everyone assumes that SIV is obsessed with Johnson because that’s all he talks about and all he seems to care about. But it’s just the opposite. SIV talks about Johnson all the time because he doesn’t like Johnson, he won’t touch Johnson, and he absolutely won’t take what Johnson gives him. He’s tired of seeing Johnson every time he gets online, and sick of Johnson in his face every time he goes out. Mostly he’s fed up with people assuming he loves Johnson just because he secretly visits websites that feature and promote Johnson every day. But SIV isn’t like that. He won’t swallow Johnson’s lies, and he sure as hell won’t bend over and take Johnson if he gets elected, no matter how slick Johnson is.

        SIV just wants to make sure everyone knows that he does not like Johnson.

  9. Reason: Remember everyone, Muslims are at the very very top of the progressive victim hierarchy!!!

    I mean I know the Burkini ban was completely evil, but I’m kinda out of sympathy for a shit 7th century religion of oppression and violence. Yes, I realize I spelled “religion of peace” wrong in that last sentence….

    1. It’s not like there’s a reason for a Muslim backlash in France.

    2. Yeah, that’s what this article says.

      1. I guess anytime anything tangentially related to Islam is mentioned without also adding that Islam is the worst religion ever and its practitioners are sub-human monsters, it is implying that Muslims are all wonderful and perfect and should never be criticized.

  10. Supporters of burkini bans believe the same is true of excessively modest swimwear.

    Ok, now we’re talkin’!

    So if you are 19 and hot, any swimwear is “excessively modest”. So full nude for you.

    And 43, dumpy and fat? Well, a little modesty wouldn’t hurt.

    I really like where you’re going with this.

    1. Cyto- I seem to recall some European (Italian?) cities wanting to decide who should and should not be allowed to be naked on their beach.

  11. A “principle of secularism” is just as oppressive of liberty as enforced religiosity. France simply is not a free country with such a principle, merely enforcing a different kind of conformity. And while many, even perhaps most Muslim women are made to wear such things under threat of violence, you cannot make the prejudicial assumption that that is true in every case without laying aside the notion if innocence until proven guilty.

  12. it warms my heart to see the Teletubbies all grown up.

  13. Muslim women do not cover up by choice.

    How is this known?

    Because whenever it’s allowed, they strip down to normal levels of dress.

    Without the ever-present threat of shunning, beating or death, who knows how they would dress?

  14. Where’s the French police “Burkinis”!? No just nuns it’s ok

    Check out more on my blog:

  15. As a traditionalist who doesn’t believe modesty in women is equivalent to “women’s enslavement,” the burkini ban is ridiculous. I am a Trump supporter and I totally support efforts to limit Muslim migration to Europe (the same way Muslim countries restrict immigration to their countries), but I’m just not okay with having armed police officers approach women on the beach and force them to remove articles of clothing.

    Notice how they say burkinis are “contrary to the principle of gender equality.” This means they could potentially use this logic to prevent ALL women from dressing “excessively modestly” at the beach. If I go to the beach with my wife and she decides to wear something more modest than a bikini, I don’t want cops telling her she has to show more skin.

    Can you imagine if they start using this law against little girls (Muslim or not). The thought of a cop approaching a little girl, or even a teenage girl, and telling her she is dressed too modestly and must change into something more revealing, is sickening to me.

    Every right-winger who supports this is stupid. They use anti-Muslim rhetoric to get the conservatives to support it, but once the courts uphold it, they will use it to come after non-Muslims who are judged to be dressed “too modestly.” Theoretically, crooked cops could even order women they find attractive to show more skin, just because they want to see more of her body.

    You can always count on the French to surprise you with their degeneracy.

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