Academic journal article The Yale Law Journal , Vol. 122, No. 4
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.
I. 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. …