Through the Veil, Darkly
Not since the Mao jacket has a dress code been at the core of a cultural revolution. But now, a country's new ban on the wearing of overt religious symbols in public schools -- including the Islamic head scarf (the hijab), the Jewish skullcap, and oversized versions of the Christian cross -- has sparked a public furor of international dimension.
One might have expected such a ban in a totalitarian country. But the country at issue here, strangely, is France -- a staunch constitutional democracy, now in its Fifth Republic. (And even more strangely, France's ban has the blessing of none other than Sunni Islam's leading cleric.)
The ban was approved by one house of the French Parliament. Soon, on March 2, the French Senate will vote upon it. It stands a good chance of becoming law. Already, it has inspired large-scale protest.
American observers may wonder at this development, understandably: How is any of this even remotely imaginable in a country that, more than any other, prides itself on its constitutional tradition of civil liberties, as well as individual self-expression in fashion? However one looks at it, France's law violates the very values -- including secularism -- that the French claim to hold dear.
Many have pointed out an obvious reason why the law is oppressive: It targets and, indeed, forbids religious expression. That reason alone is certainly enough to passionately oppose the law. But it's not the only one. In this column, I will point out a few other aspects of the law that are less obvious, yet also very troubling.
For starters, the proposed religious garb law is vague and overbroad. And for that reason, enforcing such a dress code will transform the French police into a version of the very intrusive "religious police" that reign in the fundamentalist countries where the veil is de rigueur.
If you doubt that policing will be necessary, consider the blurry lines the proposed policy draws. It would forbid "clothing and signs which conspicuously show membership of a religion."
But what clothes or signs are those? Consider, for instance, the hijab. The proposed law appears to simply assume that wearing it identifies the wearer as a religious fundamentalist. Yet, nowadays, hijabs are worn for all sorts of reasons. Even feminists wear them, in all colors and stripes. There are even faux designer hijabs, mimicking Louis Vuitton or Hermes.
Similarly, if a black skullcap is a sign of membership in a religion, what about a variant on that theme? What if an Orthodox Jew wears another type of cap to serve the same purpose?
Also, when does one "conspicuously" show that one is a member of a religion -- and when does one do so inconspicuously? Is everything that is visible also "conspicuous"?
Similarly, what constitutes an "ostentatious" cross?" Would Madonna's count? What about Britney's? A Goth's cross?
Someone will have to make these judgment calls -- and the result will be both plain persecution and pure absurdity. Will the French police have to set up a department of cross measuring, a bureaucracy of skullcap-recognition, and an arbiter of whether a hijab is worn secularly or religiously? Will the Commission on Conspicuousness sort out properly subtle religious displays from those it deems too obvious?
Religious Discrimination Unveiled
Purportedly, the justification for the proposed French law is that though it will coerce uniformity, it will do so in the name of "equality." Yet, this asserted aim attempts to mask the law's true purposes.
In fact, the language of the proposed garb law suggests it is designed not to equalize, but rather to cover up present discrimination against the millions of France's Muslim citizens. Rather than being designed to ensure equality, the law is designed to ensure that, as George Orwell wrote, "some are more equal than others."
The original draft of the ban singled out the hijab for exclusion from public life. Recently, the law was extended to also cover skullcaps and large crucifixes. But the basic aim is the same: excluding Muslim dress. The fact that the hijab ban has been supplemented with the anti-Semitic skullcap ban hardly makes it any less poisonous; if anything, it is more so.
Meanwhile, the "oversize cross" ban ought hardly to burden Christians at all. Presumably, the commonly worn gold cross on a chain around one's neck will not be deemed oversize or overly conspicuous. The bottom line is that Muslims and Jews will have to abandon their traditional religious garb -- or recede from public life -- and Christians will not.
Several years ago, in light of recent Muslim immigration to France, France's Council of State paved the way for the current policy by declaring religious garb could be barred wherever it occasioned "divisiveness." The word was code, however, for authorizing majorities to tell minorities to put an end to their distinctive way of dress -- or to hide it away, and not venture into public spaces while wearing it.
For many, deep religious belief will force them to resort to the latter option. For this reason, the proposed dress code will further ghettoize Muslim French citizens -- relegating them to the private spheres of education, such as the madrassas. For all of the French state's ostensible interests in secularity, this isolation will render far more difficult these Muslims' integration into the French way of life.
For all these reasons, it is plain that although the ban purportedly attempts to advance equality, instead it actually sanctions religious discrimination. By endorsing the law, Chirac's government has just crossed the critical line that delineates liberal from illiberal regimes, and theocracies from constitutional democracies.
Sadly, and ironically, the proposal -- if enacted -- will succeed only in turning France itself into the religiously intolerant specter it most fears, and that it associates with the practices it now seeks to exclude from the public sphere.
A Step Backward
If France's form of government might have led us to expect better, so might the course of European history.
In Europe, the veil issue has been swirling for years, particularly in countries with significant Muslim populations. Those countries include France, but also Belgium, and Germany. Yet, France is the most extreme in its ban of the veil.
Indeed, Germany's highest court recently upheld a Muslim woman's right to wear her headscarf to school, and on the job. The court recognized that although the state had an interest in neutrality, the individual's right of conscience was critical.
History does provide a comparison for France's action -- but not a flattering one. In Turkey, Ataturk -- who reigned from 1919-1938 -- coercively forbade nonwestern dress in his bid to modernize the country. For France to adopt a similar draconian policy in 2004 represents a real step backwards, both historically and from a human rights perspective.
If France's legislatures and courts prove unwilling to protect its Muslim and Jewish citizens -- the issue should be raised once again on a regional, Europe-wide basis.
The right of free religious exercise, and the right not to be subject to religious discrimination, are human rights issues. And the urgent, underlying question of how to protect religious pluralism is now transcending state lines. If France insists on violating rights, Europe should take a strong stand against it.
Ruti Teitel is Ernst Stiefel Proffesor of Comparative Law at New York Law School, where she also teaches constitutional law and international human rights. This column originally appeared on FindLaw.com.