Unveiling inequality: burqa bans and nondiscrimination jurisprudence at the European Court of Human Rights.

Over the past decade, Europe has been the site of strident debates over integration and Islam. One major point of controversy is the trend toward enacting legislation to prohibit Islamic veils from public places. Laws banning face coverings, already in force in France and Belgium, are under consideration in a number of European countries, including the Netherlands, Italy, and Switzerland. Though few women in Europe wear the full veil, (1) the symbolic and political stakes of the legislation are high. (2) The laws raise fundamental questions about what it means to be French, Belgian, Dutch, or indeed European. But the bans are of special interest for another reason: they provide a likely testing ground for the nascent nondiscrimination jurisprudence of the European Court of Human Rights ("the Court") and a potential opportunity to bolster legal safeguards against discrimination at the regional level.

Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), which protects the right to religious freedom, has traditionally been the dominant analytical approach to religious symbols in the public space in the Court's jurisprudence and the academic literature. But previous cases concerning restrictions on religious clothing have sharply narrowed that avenue for redress. This Comment argues, however, that Article 14 nondiscrimination protections can fill that void. The Court's Article 14 jurisprudence has long been criticized for its limited scope and application, but a recent line of cases in the education context evinces the emergence of a new doctrinal approach to discrimination. Properly applied and reinforced, that case law could mature into a general analytical framework for addressing the claims likely to arise from anti-burqa legislation and other discriminatory measures.

This Comment proceeds in three Parts. Part I surveys national anti-burqa laws promulgated or proposed in France, Belgium, and the Netherlands. Part II argues that Article 9 is a fundamentally inadequate mechanism for addressing the key issues that burqa bans raise. Part III explores recent developments in the Court's nondiscrimination jurisprudence and shows how Article 14 might help resolve questions relating to burqa bans that Article 9 cannot address.

1. BANNING BURQAS

   National bans on face coverings in public places have been in force in France and Belgium since 2010 and 2011 respectively. (3) These bans establish criminal penalties for appearing in public with one's face concealed. (4) Despite a number of constitutional complaints against Belgium's burqa ban, the country's Constitutional Court has rejected requests to suspend the law. (5) The Netherlands has considered similar legislation. (6)

   Although the bans are facially neutral, the legislative history and political context of the laws suggest they were conceived precisely to address Islamic veils. (7) In the Netherlands, a proposed 2007 amendment to the Penal Code would have specifically prohibited wearing the burqa or niqab in public. (8) The Council of State issued an advisory opinion finding that the proposal raised free exercise and discrimination concerns under the national constitution and the Convention. (9) A 2012 bill, perhaps in response to that opinion, does not address specific types of face coverings. (10)

   Similarly, during the drafting process in Belgium, one legislator proposed that the law be renamed "Law Forbidding the Wearing of the Burqa or Niqab." (11) Though the proposal was rejected, (12) the legislative debates remained focused on the perceived tension between the burqa and Belgian values. (13)

   Meanwhile, in France, the draft law purported to protect national security and public order, noting that concealing the face may be "in certain circumstances, a danger to public security." (14) But here, too, the legislative debate made clear that the laws were designed to target the burqa and address the tension between concealing the face and "'living together' in French society." (15)

   Given the highly charged political climate surrounding the passage of the bans, it is hardly surprising that challenges to the legislation have been brought before national courts and regional tribunals, including the European Court of Human Rights. (16)

2. THE LIMITS OF ARTICLE 9

   By criminalizing the decision to wear a burqa in public, these bans infringe upon individuals' freedom to wear Islamic dress in manifestation of their religious beliefs. One of the most natural methods for addressing the bans is therefore the European Convention's protection of religious freedom under Article 9. (17) However, the Court's jurisprudence in a line of similar cases has sharply limited the viability of Article 9 claims. Further, even if the Court were to distinguish the bans from negative precedent, Article 9 remains a doctrinally unsatisfying means to address the laws.

   Burqa bans are not the Court's first encounter with laws restricting Islamic dress. Legal challenges to regulations forbidding conspicuous religious symbols--including Islamic headscarves (18) --from public institutions have proceeded chiefly under Article 9. (19) In those cases, the Court deferred to national governments, declining to find Article 9 violations. The result is a significant precedential obstacle to successful challenges to burqa bans under Article 9. In Daklab v. Switzerland, the Court declared inadmissible a teacher's Article 9 claim, explaining that students' right to a secular environment in a state school justified prohibiting instructors from wearing headscarves. (20) Four years later, in Sahin v. Turkey, the Court upheld a regulation forbidding students from attending lectures or examinations while wearing headscarves against an Article 9 claim. (21) In reaching this decision, the Court noted the absence of consensus among member states concerning the relationship between religion and society, and particularly on the wearing of symbols in educational institutions. (22) Based on Sahin, the Court has also upheld school rules banning headscarves from physical education classes (23) and from all classes. (24)

   The Court's approach in the headscarf cases conforms to the doctrine of the margin of appreciation. This doctrine is rooted in the Court's recognition that national governments are often better placed than international judges to decide whether limitations on individual rights are justified in light of a particular state's political and social context. (25) The degree of deference accorded a national government--the width of the margin--depends on whether the challenged measure has a legitimate aim and is necessary in a democratic society. (26) Legitimacy and necessity may be reflected in the level of consensus among member states of the Council of Europe on the particular issue. (27) When there is no uniform practice, the Court tends to leave the matter to national discretion. (28)

   The Court consistently recognized a wide margin of appreciation in the headscarf cases. That approach has attracted stinging criticism (29) for its vagueness (30) and lack of nuance, (31) both of which may betray an overly politicized view of the veil and its fraught relationship with secular values. (32) In the absence of sustained analysis of how the right of Muslim women to wear the headscarf interferes with the rights and freedoms of others, or of the question of the incompatibility of the Islamic veil and secularism, the consequence of the Court's reliance on the margin of appreciation has been "a clear perception of the Islamic veil as the symbolic enemy of democracy in Europe." (33) Similar tensions in the debates over the burqa make the transposition of the Court's sweeping approach a real possibility, threatening to foreclose successful Article 9 challenges to the legislation.

   Of course, burqa bans do differ in important ways from headscarf regulations. Previous cases concerned regulations that were limited to schools or public establishments; the new laws apply in all public places. Indeed, in Arslan v. Turkey, the Court specifically distinguished a general ban on religious dress in public from regulations on religious symbols in public establishments. (34) While the interest in preserving religious neutrality in schools or the civil service could be seen to supersede the right to the manifestation of religious belief, that interest is less compelling where a ban applies in all public spaces. Determining that a narrower margin should apply to bans covering all public spaces, (35) the Arslan Court found an Article 9 violation. Applying this logic to generally applicable burqa bans might result in a finding of a similar violation of the Convention.

   But although Arslan presents grounds for cautious optimism for future Article 9 challenges to burqa bans, the decision may be narrow in scope. Arslan turned on the fact that Turkey had not offered persuasive arguments that such broad restrictions were "necessary in a democratic society;" thus, the Court concluded, the restrictions could not qualify as an exception to Article 9's protection of religious freedom. (36) While Turkey cited secularism and the prevention of "acts of provocation...