Piercing the Veil: An Examination of the Constitutionality of France’s Burqa Ban

The terrorist attacks in Paris on November 13, 2015 shocked the world and once again sparked debate about the place of religion in modern society. This debate intensified as the Islamic State of Iraq and Syria, or ISIS, claimed responsibility for the slaughter.[1] While both the United States and France have been the targets of orchestrated attacks from extremist fringes, France addresses religion, especially Islam, differently than the United States.

Indeed, the French Constitution establishes that it is a secular state, providing: “France shall be an indivisible, secular, democratic and social Republic.”[2] The American approach, of course, is the First Amendment, which employs language that protects the presence of religion in private life, but does not endorse a religion for the state.[3]

To say that France prides itself on its secularism would be an understatement.[4] For many Americans, this is a puzzling concept to grasp. The United States Congress has even taken affirmative steps to maintain religion’s place in America, including the Religious Freedom Restoration Act.[5]

Despite the fact that both countries attempt to keep religion from mixing with governance to varying degrees, it is plainly evident that France takes its secularism further. Of primary note, in France, it is illegal to wear a burqa or niqab – the religious face coverings worn by Muslim women – in a public place.[6] Although the law prohibits the use of other face-covering garments such as balaclavas and hoods,[7] Muslim women are arguably the ones most affected by the law. This law has been at the center of a fervent debate, and has been scrutinized in several high courts. Still, despite the opposition, the prohibition stands, at least under French and European Human Rights law.[8] The Conseil Constitutionnel, the highest court in France that examines constitutional issues, reasoned that the law stuck a “reasonable balance” between liberty and public order.[9] The European Court of Human Rights similarly found in favor of the French law, opining that the notion of “living together” was a “legitimate aim” of French lawmakers.[10]

With even a rudimentary understanding of the place of religion in the United States, it seems clear that a law similar to the French ban of religious garb such as burqas and niqabs would not survive in American courts. But why is France’s approach so different from that of the United States? For one, it is important to remember that France and the United States differ in heritage. Even after this consideration, however, even bigger questions remain. These questions focus on the future of France. Should France begin to distance itself from its steadfast dedication to secularism? Would an atmosphere of greater tolerance of Muslims mitigate the extremist threat against France? If France were willing to take steps to reduce the religious and secular tension within its borders, what would those steps be? The jury is out and speculation is welcome. However, it is clear that France’s controversial ban on religious garb withstands constitutional assail – at least for now.

 

Nick Schwartz is a 3L and the Managing Editor of Student Work for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


 

[1] Vivienne Walt, ISIS Claims Responsibility for Paris Attacks as Arrests Are Made, TIME (Nov. 15, 2015, 3:09 PM), http://time.com/4112884/paris-attacks-isis-isil-france-francois-hollande/.

[2] 1958 CONST. I. (Fr.) (emphasis added).

[3] U.S. CONST. amend. I.

[4] A common term, la laïcité refers to the state secularism in France. Secularism is so central to French life that the government has even dedicated a day to the concept. Steven Erlanger & Kimiko De Freytas-Tamura, Old Tradition of Secularism Clashes with France’s New Reality, N.Y. TIMES, (Feb. 5, 2015), http://www.nytimes.com/2015/02/06/world/old-tradition-of-secularism-clashes-with-frances-new-reality.html?_r=0.

[5] See generally The Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-2000bb4 (1993).

[6] Criminal penalties include a fine of 150 Euros or community service in lieu of a fine. 2 Arrested as France’s Ban on Burqas, Niqabs, Takes Effect, CNN (Apr. 12, 2011, 9:37 AM), http://www.cnn.com/2011/WORLD/europe/04/11/france.burqa.ban/.

[7] Kim Willsher, France’s Burqa Ban Upheld by Human Rights Court, THE GUARDIAN (July 1, 2014), http://www.theguardian.com/world/2014/jul/01/france-burqa-ban-upheld-human-rights-court.

[8] Id.; John Lichfield, France’s Highest Legal Authority Removes Last Obstacle to Ban on Burka, INDEPENDENT (Oct. 7, 2010), http://www.independent.co.uk/news/world/europe/frances-highest-legal-authority-removes-last-obstacle-to-ban-on-burka-2101002.html.

[9] Lichfield, supra note 8.

[10] Willsher, supra note 7.