Source: The Conversation – France
KEY TAKEAWAYS
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France’s far-right Rassemblement National (RN) party wants to ban Muslim headscarves being worn in public spaces if it wins the presidential election.
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The RN cites the fight against Islamism as its rationale. However, research findings do not support the view that wearing the veil is, in itself, an indication of adherence to an Islamist ideology.
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Such a ban would constitute a breach of the fundamental principle of religious freedom and would contravene numerous legal provisions.
The ban on Islamic headscarves in public spaces in France – particularly on the street – is a proposal put forward by the Rassemblement National (RN) party led by Marine Le Pen that resurfaces with every presidential election. The idea of restricting Muslim women’s freedom to wear religious symbols of their choice is, however, not new: successive bans on hijabs in schools, full-face veils in public spaces, burkinis on beaches or headscarves being worn by accompanying mothers on school trips or during sporting events, and even a ban extending to abaya robes in schools. These proposals have come thick and fast, and have sometimes been successful.
The central issue on each occasion – and which emerges even more clearly this time round – is the legal grounds on which the proposals are founded. Restricting a fundamental freedom in a state governed by the rule of law does indeed require a legal basis, that is to say, justification. Is this the case?
Secularism does not require citizens to remain religiously neutral in public
Unlike other proposals for legislation banning headscarves in certain contexts, the ban in public spaces does not claim to be based on the principle of secularism. The latter, in fact, requires respect for all beliefs, the equality of all citizens regardless of religion, and the freedom to profess and practise a religion.
Secularism also implies the neutrality of the State: those carrying out public service duties must, for example, refrain from wearing religious symbols while performing their duties. Secularism also served as the basis, in 2004 for regulating the wearing of religious symbols by pupils in state schools. However, this ban applies specifically to the public education service and in no way implies that secularism imposes neutrality on citizens. In the public sphere, therefore, religious freedom is the guiding principle.
A ban on wearing headscarves in public would, therefore, be at odds with this constitutional principle inherent to France. In any case, this is not the approach the RN is proposing, which seeks to justify such a ban by arguing that there is a link between headscarves and Islamism.
From the headscarf to Islamism: a shift in the line of argument
Restrictions on the freedom to wear religious symbols are based on various grounds, and sometimes on different lines of argument:
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the 2004 law banning religious symbols in schools is based on the principle of secularism;
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the 2016 Act, which allows a neutrality clause to be included in companies’ internal regulations, introduced, under certain conditions, the possibility of restricting the expression of beliefs in the name of a requirement for neutrality;
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In 2010, the ban on face coverings in public spaces was defended, in particular, in the name of republican values and social cohesion.
The aforementioned legal acts do not concern the same practices and are not based on the same grounds. What they have in common is the gradual shift in the arguments used to make a restriction on religious visibility legally acceptable.
The line of argument being used today is different: it is no longer simply a matter of deeming wearing headscarves to be religious expression that is incompatible with certain conceptions of secularism, nor even as a threat to ‘social cohesion’, but as a visible sign of a political ideology. The headscarf is thus presented as an indication of Islamism.
This equating assumes that visible religious behaviour allows one to infer adherence to a political ideology. Yet this inference is far from self-evident.
The available data fails to support that wearing a headscarf can be reduced to a political motivation. This practice varies according to generation and migratory and social backgrounds; head-covering cannot, therefore, be regarded as a homogeneous form of behaviour corresponding to a single ideological orientation.
Furthermore, sociological studies on veiling among French Muslim women demonstrate the diversity of meanings that Muslim women may attach to wearing the headscarf: religious practice, an affirmation of identity, or a form of emancipation or empowerment. The multiple meanings behind wearing a headscarf therefore oppose lumping together head-coverings and adherence to Islamist ideology.
This distinction is legally significant. A restriction on a fundamental act of freedom cannot be based on a general presumption that all persons engaging in a particular form of religious behaviour are, in fact, pursuing a political objective or pose a threat. Where state intervention is justified on the basis of specific behaviours or commitments, these must be capable of being identified independently of whether or not it is a religious practice. Wearing a headscarf, in itself, cannot be equated with adhering to Islamist ideology.
A ban incompatible with European and international commitments
In the absence of convincing evidence of a clear political threat, this ban would ultimately prove to be contrary to Article 9 of the European Convention on Human Rights, which protects freedom of thought, conscience and religion – including the freedom to express one’s religious beliefs, particularly in public. This freedom is certainly not absolute: the Convention permits certain restrictions where they are provided for by law, pursue a legitimate aim and are necessary in a democratic society.
The case law of the European Court of Human Rights shows that restrictions on religious symbols are assessed according to the context in which they are worn. The Court has thus accepted certain restrictions in specific settings, notably in schools or the workplace, but this does not mean that any expression of religion can be banned in public places.
Such a ban would also contravene Articles 18 and 26 of the International Covenant on Civil and Political Rights, which protect freedom of conscience and religion, and the principle of equality, respectively.
The United Nations Human Rights Committee thus notes “with concern, the expansion of such restrictions” and calls on France to “assess the discriminatory effect in practice and the impact of these measures on members of religious minorities, in particular Muslim women and girls”.
Such a ban would therefore constitute a particularly serious breach of the rule of law if it were based on the notion that the political authorities could, by mere assertion, transform a religious practice into an indication of a political threat. It would also raise a major issue with regard to anti-discrimination, as it would target a specific religion and gender.
This issue is all the more worrying given that women who wear the headscarf are already subject to discrimination, particularly in finding employment and in various areas of social life, as documented in recent reports by the Defender of Rights.
The evolution of the arguments in favour of such bans
This proposal raises an issue that goes beyond the mere wearing of the headscarf; it is symptomatic of the Rassemblement national’s attitude towards rights and freedoms: the desire to flout the rule of law, that is to say, respect for the fundamental rights guaranteed by the Constitution and by European and international conventions.
In a state governed by the rule of law, political will alone is not sufficient to override the legal safeguards binding on the legislature. A government that disregards legal limits is the very definition of arbitrary power.
The issue raised by this new proposal from France’s far-right party therefore ultimately goes beyond the headscarf. It concerns the limits that the State may impose on the exercise of a fundamental freedom and, more broadly, the ability of the law to act as an effective barrier against political will.
Lauren Bakir ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d’une organisation qui pourrait tirer profit de cet article, et n’a déclaré aucune autre affiliation que son organisme de recherche.