An Originalist Argument Against France’s Burqa Ban

by Jake Nelson

Most attempts at fighting France’s 2010 law banning face-concealing attire in public spaces—the so-called “burqa ban”—have attacked the law from either the U.S.-centric free exercise of religion perspective or the transnational critical feminist perspective.

In S.A.S. v. France, a case argued before the European Court of Human Rights (ECtHR) late last year to overturn the ban, the appellant’s arguments approached the legal questions from these angles. The French government, in turn, focused on the case’s admissibility and mostly ignored specific questions of individual rights.

Whether or not the ECtHR rules in favor of the ban, it is clear that arguments made against the ban on these bases are not practically effective—not to the French government, not to the hyper-majority of the French National Assembly who supported the law (which passed 355-to-1), and not to the French population.

Opponents of the burqa ban should instead fight the government on its own terms by taking a textually originalist approach to dismantling the law, anchoring opposition in long-established legal norms and calling the government’s slippery and often-changing defense of the law what it is: overbroad and discriminatory activist lawmaking.

At the heart of the government’s most recent defense of the law is its desire to preserve “public order” and individuals’ ability to live together cohesively. During oral arguments before the ECtHR, French government representative Edwige Belliard said that wearing a full-face veil such as the burqa “undermines equality between persons, dignity, and the foundations of living together in society.”

In other words, the simple act of wearing a burqa can be deemed an act of disturbing the peace. The government shifted the focus away from an individual’s claim to certain rights by focusing on the rights of the majority to a peaceful and undisrupted public space.

Here is where originalism comes in: this ad hoc definition of public order runs contrary to the definition of the same term in France’s landmark 1905 law on the separation of church and state, the prevailing law describing when the government can limit expressions of religion to preserve public order.

That law claims: “The Republic ensures freedom of conscience. It guarantees the free exercise of religious groups, subject only to the restrictions enacted hereafter in the interest of public order [pensions, property restitution, and official associational status].”

By limiting restrictions on free exercise to situations in which the state had previously conferred some sort of privilege upon a religious group, the state made clear that it understood “public” to mean relating to official public institutions, not individuals in the broader French public.

This definition of public order, fully in the spirit of the Revolution (the mention of which greatly increases one’s originalist bona fides), is actually about ensuring the smooth running of public services and publically held goods and property. For example, churches previously owned by the state would be taken out of religious control and given back to the state.

To stretch this conception of public order into a quasi-legal standard that mandates permanent visability in all spaces accessible to the public, even in privately owned businesses, is an overly broad interpretation of public order at odds with French law, and not, as the government claims, a simple extension of previous time and place restrictions on the wearing of burqas.

With the largest Muslim community in Western Europe, France has tended to pave the way for the continent on mosque-and-state issues, but its game of cat and mouse in legally defending its burqa ban has set a dangerous and flimsy precedent for the rest of Europe.

As variations on France’s burqa and headscarf bans continue to inspire policymakers from Europe and beyond, including most recently in Canada as part of the proposed Quebec Charter of Values, opponents of these laws must think outside the box in their attempts to restore religious freedom.

In the case of France, an appeal to originalism fights the government on its own terms—and it could prove to be a winning argument.

About the Author

Jake Nelson is a Master's student in European and Russian Studies at Yale University and a Pickering Graduate Foreign Affairs Fellow with the U.S. Department of State. He is currently writing a thesis evaluating the counterterrorism policy of the current French presidential administration. Before graduate school, he served as a foreign affairs specialist in the Department of State's Bureau of European and Eurasian Affairs. Find him on Twitter @JakeRNelson.

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