France’s Constitutional Council recently upheld the constitutionality of a law banning the wearing of veils in public places. The text of the decision is available in French here. Despite the importance of the issue and the large potential infringement on religious freedom, the opinion is very short and conclusory. For those of our readers who understand French, here is the key passage:
[L]e législateur a estimé que de telles pratiques peuvent constituer un danger pour la sécurité publique et méconnaissent les exigences minimales de la vie en société ; qu’il a également estimé que les femmes dissimulant leur visage, volontairement ou non, se trouvent placées dans une situation d’exclusion et d’infériorité manifestement incompatible avec les principes constitutionnels de liberté et d’égalité.
Roughly translated, this means that veils can be banned because the legislature has determined that they pose a “danger to public safety” and because wearing a veil, even “voluntarily,” puts women in a “condition of exclusion and inferiority manifestly incompatible with the constitutional principles of liberty and equality.”
Later in the opinion, the court concludes that, given the public interests served by the law, the punishment imposed on violators is not “manifestly disproportionate” and therefore it doesn’t violate the religious freedom guarantees in the 1789 Declaration of the Rights of Man.
I am no expert on French constitutional law, so I have little to say about the legal correctness of the ruling. I should also note that the institution of judicial review is much weaker in France than in the US or in some European nations such as Germany. Thus, the court’s highly deferential posture and cursory dismissal of the religious freedom issues involved may well be a correct ruling under French law.
I will say, however, that if the decision is not mistaken, it is a serious indictment of the French constitution that its protection of religious and personal freedom is so weak. The justifications offered by the court for a massive infringement on the religious practices of hundreds of thousands of French Muslims [update: probably “only” thousands, depending on how many actually wear veils and what kinds of headgear are actually covered by the ban] are at best extremely dubious. For example, it is simply not true that women who voluntarily wear veils necessarily end up in a “condition of exclusion and inferiority manifestly incompatible with the constitutional principles of liberty and equality.” Right here where I live in northern Virginia, there is a substantial Muslim population and many (though by no means all) all of the Muslim women wear veils. That doesn’t prevent them from having jobs outside the home, getting an education, and participating in politics and government in much the same way as unveiled women do. Some other religious groups, such as Orthodox Jews, also impose fairly strict requirements of modest dress on women. They too are not thereby blocked from full participation in society.
European Muslims are, on average, less well integrated into the economies and societies of their countries than American ones are. Nonetheless, it is difficult to believe that European Muslim women’s full participation in society is somehow precluded by wearing veils. The French Constitutional Council offers no evidence whatsoever to the contrary.
I can understand the idea that covering one’s face poses a danger to public safety in some instances (e.g. – where security personnel need to carefully screen anyone who enters a particularly sensitive area). But a blanket ban on all wearing of veils in public seems manifestly disproportionate to any such legitimate security concerns. Here, too, the Council doesn’t give any evidence or analysis to justify the conclusion that a blanket ban on public veiling really is necessary.
Finally, while I agree that radical Islamism is a serious danger, banning veils is a poor way to combat it. Forbidding the wearing of veils in public won’t persuade any Muslims to reject radical Islamist ideas. What you wear on top of your head doesn’t determine what you believe inside it. The ban might, on the other hand, increase the attraction of radical Islamism to at least some wavering Muslims who are likely to be embittered as a result. It will also strengthen the perception that Western society is somehow biased against Muslims. Our goal should be to try win over Muslims (and others) to the ideals of liberty, tolerance, and religious freedom. Heavy-handed restrictions on what people can wear do much more to undermine that objective than advance it.
It is not my view that the veil ban is wrong merely because Muslims might be offended. However, a free society should not impose a severe restriction on religious and personal freedom unless there is a very strong justification for doing so. The arguments offered by the French government and Constitutional Council don’t even come close.
NOTE: My French is fairly fluent, but still very imperfect. So I welcome correction by any fluent French speaker who notices that I have mistranslated something, or possibly missed an important part of the opinion. I also welcome input from readers expert in French law.
UPDATE: Various commentators point out that the ban covers only headgear that covers the entire face. I agree and did not mean to suggest otherwise. The term “veil,” in English at least, implies something that covers the entire face, or at least most of it (as opposed to, say, a headscarf, which only covers the top of one’s head). Nonetheless, many Muslim women do in fact wear veils that cover their entire faces, and the law is still a severe infringement on their religious freedom, even if a less sweeping one than a hypothetical ban that also covered headscarves.
UPDATE #2: The text of the law forbids the public wearing of “une tenue destinée à dissimuler son visage.” I tentatively translate this as “clothing designed to conceal one’s face.” It’s not clear to me that this necessarily requires concealment of the entire face, as opposed to merely a large part of it.
UPDATE #3: A commenter notes that I didn’t translate this part: “et méconnaissent les exigences minimales de la vie en société” ([wearing the veil] “is not in line with the basic requirements of living in this society”). Fair enough. But this argument adds very little to the justification for the veil ban. A woman who wears a veil certainly can meet the basic requirements of living in France or any other Western society, including having a job, participating in politics and civil society, and so on. This argument only helps justify the law if keeping one’s face uncovered is itself circularly defined as one of the requirements of “living in this society.”