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.
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.