Shaira Nanwani, the Burqa Ban: an Unreasonable Limitation on Religious Freedom or a Justifiable Restriction?

• Jurisdiction: European Union
• Citation: Vol. 25 No. 3
• Publication year: 2010
• topic: Constitutional Law

THE BURQA BAN: AN UNREASONABLE LIMITATION ON RELIGIOUS FREEDOM OR A JUSTIFIABLE RESTRICTION?

INTRODUCTION

In the spring of 2011, France enacted a law banning the concealment of the face in public spaces (the “burqa ban”). The burqa ban creates two new punishable offenses in France.1 First, wearing clothing designed to conceal one’s face in a public space is punishable by either a maximum of a €150 fine or by being required to take a class on the meaning of citizenship, or both.2 Second, forcing a woman to wear a face-covering veil is punishable by one year of imprisonment or a €30,000 fine.3 The burqa ban, which was first introduced by the French National Assembly4 and passed “overwhelmingly” through both houses of the French Parliament,5 went into effect in France on April 11, 2011.6

On its face, the burqa ban is a neutral provision; it refrains from mentioning any specific religion or community, and its main concerns are the promotion of gender equality and women’s rights, and the protection of national security.7

1. Loi 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public [Law 2010-1192 of Oct. 11, 2010 Banning the Concealment of the Face in the Public Space] arts. 2–4, JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Oct. 12, 2010, p. 1.

2. Id. art. 3; see also CODE PÉNAL [C. PÉN.] art. 131-13. The law defines “public space” broadly to

   include public roads and spaces that are open to the public. Loi 2010-1192 art. 2.

3. Loi 2010-1192 art. 4. If a man forces a minor to wear a face-covering veil, the possible fine is increased to €60,000. Id.

4. Projet de loi interdisant la dissimulation du visage dans l’espace public [Bill Banning the Concealment

   of the Face in the Public Space], Assemblée Nationale No. 2520 (May 19, 2010) [hereinafter Assemblée Nationale No. 2520], available at http://www.assemblee-nationale.fr/13/pdf/projets/pl2520.pdf.

5. CNN Wire Staff, French Senate Approves Burqa Ban, CNN (Sept. 15, 2010, 5:17 AM), http://www.

   cnn.com/2010/WORLD/europe/09/14/france.burqa.ban/index.html [hereinafter French Senate Approves Burqa Ban]; see also France Votes To Ban Full-Face Veils, AMNESTY INT’L (July 13, 2010), http://www.amnesty. org/en/news-and-updates/france-votes-ban-full-face-veils-2010-07-13.

6. Steven Erlanger, French Legislation Takes Effect Banning Full-Face Coverings, N.Y. TIMES, April 12,

   2011, at A4; Loi 2010-1192 art. 5.

7. Loi 2010-1192 arts. 1–4; Assemblé Nationale No. 2520, supra note 4, at 3–5; Jean-François Copé, Op- Ed., Tearing Away the Veil, N.Y. TIMES, May 5, 2010, at A31. While this Comment does not explore this justification, the veil’s hindrance upon social interaction has also been used as a justification for the prohibition. Copé, supra. Jean-François Copé described the veil as “an insurmountable obstacle to the

   affirmation of a political community that unites citizens without regard to differences in sex, origin or religious faith.” Id. He further went on to question how one can “establish a relationship with a person who, by hiding a smile or a glance—those universal signs of our common humanity—refuses to exist in the eyes of others?” Id.

   However, it is common knowledge that the ban is aimed at eliminating the burqas, niqabs, and sitars, worn almost exclusively by Muslim women, from the French public sphere.8 While this prohibition directly affects only a small portion of France’s population,9 the burqa ban has elicited protests within France10 and has sparked a heated debate throughout the world: is the burqa ban a discriminatory and unreasonable limitation on freedom of religion or a justifiable restriction in a secular society, concerned with public safety and gender equality?

   
   

   In considering this issue, it is important to note the existence of several competing factors:

   
   

   [A]ny truly satisfactory approach to this issue must be able to embrace a series of dualities. These include the simultaneous importance of freedom of religion and gender equality, the interrelationship and yet crucial distinction between freedom of conscience and expression of that conscience, concern for the rights of women seeking to express themselves by wearing headscarves and for those of other women in the same context, coercion and agency, the religious meanings of the veil and its political meanings, discomfort with veiling and discomfort with restrictions on veils. Only by weighing all of these factors and contradictions in context

   can one begin to discover an adequate response to this problem.11

   
   

   In other words, to consider whether the burqa ban infringes on the rights of the women who wear them, one must weigh several competing factors. While the ban implicates important concerns regarding the restriction of freedom of expression, many members of Western populations feel extreme discomfort in

   reaction to the veil.12 Similarly, while the ban implicates important freedom of

   religion concerns, many argue that, because Islam does not even prescribe the

   
   

8. See Benjamin Ismail, Ban the Burqa? France Votes Yes, MIDDLE E.Q., Fall 2010, at 47, 51–52; France Sets Up Burka Commission, BBC NEWS, http://news.bbc.co.uk/2/hi/europe/8114590.stm (last updated June 23, 2010, 10:48 AM). See generally France: Highlights of Parliamentary Report on the Wearing of the Full Veil (BURQA), LIBRARY OF CONG., http://www.loc.gov/law/help/france-veil.php (last updated Apr. 4, 2011) [hereinafter Highlights of Parliamentary Report] (discussing the Parliamentary Commission report on the burqa in France).

9. Erlanger, supra note 6 (noting that approximately 2,000 women in France, out of an estimated Muslim

   population of six million, wear face-covering veils).

10. See, e.g., France’s Controversial Burqa Ban Takes Effect, CNN (Apr. 10, 2011, 1:19 PM), http:// religion.blogs.cnn.com/2011/04/10/french-police-arrest-burqa-ban-protesters.

11. Karima Bennoune, Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s Equality Under International Law, 45 COLUM. J. TRANSNAT’L L. 367, 386 (2007).

12. See id. at 369–77.

practice of wearing the veil, a ban on wearing the veil does not infringe upon anyone’s religious freedom.13

Finally, the burqa ban implicates discrimination concerns on many fronts, all of which are prohibited by Article 14 of the European Convention on Human Rights14 (“European Convention”). Article 14 forbids “discrimination on any ground such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national minority, property, birth or other status.”15 The burqa ban potentially violates this article; by prohibiting women from wearing face-covering veils, the burqa ban discriminates against France’s Muslim population. However, France may also violate Article 14 if it does not ban the veil; by allowing people to wear face-

covering veils in French public spaces, France would possibly be condoning a symbol of the inequality of women and gender discrimination.16

While this Comment considers all these factors, it argues that the burqa ban is an unjustifiable restriction upon the fundamental freedom of religion guaranteed by Article 9 of the European Convention.17 This Comment focuses on Article 9, rather than on French constitutional law, for two reasons. First, a

French constitutional analysis of the burqa ban is virtually moot, as the French Conseil Constitutionnel (“Constitutional Council”) has already decided that the burqa ban is compatible with the French Constitution,18 and a ruling by the Constitutional Council cannot be overcome easily.19 Second, an Article 9

13 Id. at 388–91.

1. Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Apr. 11, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953) [hereinafter European Convention].

2. Id. art 14.

3. See Highlights of Parliamentary Report, supra note 8. The French Parliamentary Commission, comprised to study the wearing of the full veil in France, concluded that “[t]he full veil is the symbol of

   subservience, the ambulatory expression of a denial of liberty that touches a specific category of the population: women. In this it also constitutes a negation of the principle of equality.” Id. (translating Rapport d’Information au Nom de la Mission d’Information sur la Pratique du Port du Voile Intégral sur le Territoire National [Report of the Commission on the Practice of Wearing the Full Veil in France], Assemblée Nationale Rapport No. 2262, at 107 (Jan. 26, 2010) [hereinafter Rapport No. 2262], available at http://www.assemblee- nationale.fr/13/pdf/rap-info/i2262.pdf).

4. When a case regarding the burqa ban is heard by the European Court of Human Rights (“ECHR”), the

   court will likely also analyze whether the ban complies with Article 14 of the European Convention. However, this Comment focuses on the ban’s infringement on religious liberties, and thus analyzes the ban in accordance with Article 9 of the European Convention, rather than Article 14.

5. Pierre-Antoine Souchard, France’s Constitutional Panel OKs Burqa Ban, MSNBC (Oct. 7, 2010, 2:00

   PM), http://www.msnbc.msn.com/id/39559671.

6. Eilsa T. Beller, The Headscarf Affair: The Conseil d’État on the Role of Religion and Culture in French Society, 39 TEX. INT’L L.J. 581, 603 (2004) (noting that a ruling by the Constitutional Council can only be overruled by amending the constitution).

   analysis of the burqa ban is increasingly important in Europe, as several other parties to the European Convention are considering legislation similar to the French burqa ban.20 These European countries would be less inclined to pass versions of the burqa ban if the French burqa ban does not comply with

   Article 9.

   
   

   Article 9 of the European Convention grants freedom of religion to all European citizens by stating that “[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private...