This essay focuses on the vexed institutional relationship between secular and religious sources of law and authority in liberal democracies that adhere to the separation between state and religion, and asks whether it might be possible to balance the twin commitments to religious diversity and gender equality. In asking this question, I will focus exclusively on the situation of members of minority religions living in otherwise secularized societies. My interest, more specifically, lies in exploring how different legal arrangements between secular and religious jurisdictions shape and affect women's rights to religious freedom and equality.
An argument over the public recognition of cultural differences and especially the degree and type of accommodation that ought to be afforded to religious faiths has risen to the forefront of public debate. Vividly illustrating this trend are the debates surrounding the Islamic headscarf (hijab) in Europe, from Germany to Turkey to France. These debates have engulfed schoolhouses, courts, and legislatures, even reaching the European Court of Human Rights on several occasions over the last decade. The House of Lords, too, was called in 2007 to determine whether a local school board in England that permitted the donning of the hijab had the authority to ban a more conservative and extensive form of covering called the jilbab (a garment that usually covers the whole body except for the hands and sometimes part of the face); the House of Lords ruled in the affirmative. And then again, France returned to the headlines. After passing national legislation in 2004 that prohibited ostentatious religious symbols from public schools (widely interpreted to interdict the hijab), the Conseil d'Etat upheld a decision to decline citizenship in 2008 to a Muslim woman who spoke French, was married to a citizen and had three French children, because "she had adopted a radical practice of her religion, incompatible with essential values of the French community, particularly the principle of equality of the sexes."
The same sentiments are now echoed in calls to legally ban the wearing of the burka in France, the most restrictive of all Islamic veils, consisting of a full body and face cover with only a mesh screen to pierce the outer world. A similar anti-veiling proposal was made in the Netherlands in 2006, but never passed the initial stages of legislation. In 2010, Belgium introduced legislation that bans partial or total covering of faces in public places. This nationwide ban--the first in Europe--is likely to go into effect this summer. What remains persistent in these different examples of state-religion tensions is the focus on a visual marker of identity that is ascribed to the female body.
This particularized gaze has ignited political activism on behalf of conservative religious leaders as well as secularist state officials. The former often seek to impose a rigid and strict reading of what is arguably a more flexible and malleable tradition, claiming their authority to define and enforce a "pure" or "authentic" manifestation of a distinct cultural or religious identity in face of real or imagined threats. State officials, for their part, have interpreted the veil as representing a global rise of political Islam, the challenge of Muslim integration into European societies, and as yet another justification to retreat from multiculturalism. What often gets lost in the middle are the real pressures facing women who cover both in negotiating their position within religious minority and across communal boundaries in secularized societies that increasingly view them as vanguards of religious extremism.
These legal battles over the veil (in its variant manifestations) are also steeped in deep anxieties about the painful renegotiation of the once-hierarchal relations between the metropolitan center and colonized populations, some of which later turned into immigrants and citizens of the very countries that once oppressed them. …