The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the U.S.A

Article excerpt

ABSTRACT

Six years after prohibiting the wearing of headscarves by students in public schools, the French state passed a law prohibiting the wearing of burkas in public places. Compared to France, in the United States there is more tolerance for wearing signs of religious affiliation. The difference in legal responses can be understood in reference to a different background understanding of the fundamental presuppositions of republicanism in the two legal and political orders, which also define their conception of secularism. The law enacted in France can be understood in a general frame of a paternalistic state, which is seen as permitted to dictate the proper exercise of their reason to the citizens. In the United States, the dominant understanding of republicanism attempts to reconcile the natural rights philosophy with the conception of the common good. The trust in the use of collective power and the legislature dominant in France can be opposed to the distrust towards the same elements in the United States.

I. THE CONFLICTING LEGAL RESPONSES ............................ 799

A. The Total Prohibition of French Law and Its Evaluation from the Point of View of Supranational Law .......................... 799

1. French Internal Law ................................... 799

2. The Case Law of the European Court of Human Rights ........ 804

3. European Union Law Perspectives ........................ 808

B. The Moderately Restrictive View of American Law .............. 810

II. UNDERLYING PHILOSOPHY ..................................... 825

A. Role of the State ......................................... 825

1. The French "Rational" Republic ......................... 825

2. ... Versus the American Natural Rights Republic ............ 831

B. The Role of the Law ...................................... 836

1. The Legislator - Institutor of Civil Society in France .......... 836

2. The American Conception of Checks and Balances ........... 841

III. DOES THE BURKA BAN PROMOTE OR NEGATE LIBERTY? ............. 844

CONCLUSION .................................................. 850

We must support these women. Only France can do it, as it has a frame for this. Muslim women have a right to the respect and the protection of the Republic.1

Six years after banning the hijab2 for students in public schools,3 France enacted a law banning the burka in public places.4 Similar legislation was enacted in Belgium.5 In Denmark, according to a recent law, schools and public services are allowed to regulate the wearing of headscarves by employees.6 In the Netherlands, new draft legislation is being prepared to ban burkas and other face coverings.7 In Italy, a law of general applicability prohibiting the covering of the face in public places8 contains exceptions that apply to coverings for religious reasons,9 but members of Parliament are discussing lifting the exception.10 In Austria, the debate is still open.11 In Spain, the lower chamber of the Parliament rejected a legislative proposal to ban the burka.12 In Germany, "[e]ight out of 1 6 Länder introduced a headscarf ban" for teachers in public schools.13 The European Court of Human Rights has twice rejected applications concerning headscarf bans for teachers on admissibility basis and has deferred to the authority of the states regarding the regulation of students ' dress. 14 The European Union antidiscrimination legislation regarding access to employment does not provide a legal basis to invalidate legislation banning headscarves to state employees.15 In the United States, only two states have banned religious apparel worn by teachers.16 These prohibitions have been criticized as contrary to federal antidiscrimination legislation on the access to employment.17 Bans of the hijab directed at students have not been upheld.18

This Article aims to present some of the political ideas that led to the two laws in France. …