Academic journal article The George Washington International Law Review

Public Exposure: Of Burqas, Secularism, and France's Violation of European Law

Academic journal article The George Washington International Law Review

Public Exposure: Of Burqas, Secularism, and France's Violation of European Law

Article excerpt

I. INTRODUCTION

In the summer of 2010, France's parliament banned the wearing of the Islamic full, head-and-body veil in public places, colloquially known as the "burqa ban."1 The law prohibits a person in public areas from wearing an item of clothing for the purpose of concealing his or her face.2 A violation of this provision can lead to a second-degree misdemeanor.3 The law also criminalizes forcing another person to conceal his or her face on the basis of gender with threats of violence, coercion, or by use of improper authority.4 A violation of this provision carries a one year imprisonment and a fine of C= 30,000 or, in case of force applied to a minor, a two year imprisonment and a fine of C= 60,000.5

On October 7, 2010, the French Constitutional Council approved the law, finding that it allowed free exercise of religion in places of worship and that the punishment attached to the ban was not disproportionate.6 In the run-up to the law's passage, French President Nicolas Sarkozy justified the government's policy saying, "[The burqa] is not a religious symbol. It is a symbol of servitude and humiliation.... We cannot accept, in our country, women imprisoned behind a mesh, cut offfrom society, deprived of all identity... that is not the French republic's idea of women's dignity." 7 Sarkozy seems to be echoing the sentiments of the French populace, eighty-two percent of which approve of the ban.8 While other European countries have passed or are considering similar laws,9 no other European country has taken such a definitive and harsh stance on Islamic veils. In the coming months, European countries will not only look to see whether France's law has positive effects, but whether it survives adjudication within the halls of the European Court of Human Rights (Court).

This Note argues that, in its current form, France's legislation violates European law, specifically Article IX of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Court's interpretation thereof. Moreover, because of the likelihood that the Court will strike down France's law as violative, this Note argues that France should revise the burqa ban in accordance with the Court's jurisprudence. In Part II, this Note will explain the use of the burqa as a religious symbol in Islam and illustrate the underpinnings of its use as an expression of individual belief, despite the growing perception in the western world that its use is degrading to women. In addition, this Note offers a historical account of the place of Muslims in French society. Part II also provides an explanation of the role of secularism in France and the principle of läicité that governs French decision-making, particularly its role in the current burqa ban. Part II concludes with an analysis of the Court's case law interpreting Article IX, framing the discussion around the use of personal, religious symbols.

In Part III, this Note offers an analysis of France's law under the Court's jurisprudence. Specifically, Part III addresses the separate considerations that the Court would make in a challenge to the burqa ban and demonstrates why the law would fail the Court's Article IX three-part test. Part III concludes with recommendations for ways that France may redraftthe law to make it more consistent with the Court's decisions and still accomplish its greater interests.

II. BACKGROUND

A. Use of the Burqa in Islam

The burqa (or, alternatively, "burka") is "a loose enveloping garment that covers the face and body and is worn in public" by Muslim women.10 The widely recognized source for Islam's rationale behind female body coverings can be found in two places within the Qur'an. The first reads "O Prophet! tell thy wives and daughters and the believing women, that they should cast their outer garments over their persons (when abroad): that is most convenient, that they should be known (as such) and not molested."11 The second text reads "[a]nd say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what (must ordinarily) appear thereof; that they should draw their veils over their bosoms. …

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