Excluding the burqa and niqab from the public space ?
A very tiny number of women in France would wear the burqa or niqab. For the European Court of Human Rights, the French ban on such clothing does not violate human rights.
A cursory search on the Internet reveals that more and more frequently opinion polls are carried out, in various European countries, on a very specific but topical question: should the public wearing of burqas be banned? The question, which also concerns the equally controversial wearing of ‘niqab’, has been tackled by the Grand Chamber of the European Court of Human Rights with its decision in the case S.A.S. v. France. The Court stated that the French ban on the wearing of clothing concealing one’s face in public does not violate the European Convention.
The Court considers that the above-mentioned ban gives rise to an interference with or limitation on the rights to respect for private and family life and to freedom of thought, conscience and religion, as the applicant has to renounce her religious convictions or be subject to a criminal sanction. The French government had justified the measure with public safety reasons and the respect of the ‘mimimum set of values of an open and democratic society’ (with reference to equality between men and women, respect for human dignity and respect for the minimum requirements of life in society).
The Court is of the opinion that equality between men and women can justify the aforesaid interference, but the ban goes beyond what is allowed, as the practice is defended by some women, such as the applicant. As for respect for human dignity, the conclusion is that it cannot justify a blanket ban; whereas with regard to the ‘minimum requirements of life in society’, the Court is of the view that the face plays an important role in social interaction and a veiling that conceals the face can violate the right of others to live in a space of socialisation that makes living together easier. The Court emphasises the flexibility of the concept of ‘living together’, therefore the need to carefully analyse the necessity for the prohibition in a democratic society.
The public safety argument is rejected, as the ban at issue can be proportionate only in case of an (unproven) ‘general threat’ to public safety. The Court gives particular weight to the fact that the goal pursued by the law could have been met with more targeted measures. With regard to the ‘mimimum requirements of life in society’, the Court states that the ban in question can be justified only to the extent that it seeks to ensure the conditions of ‘living together’. The Court doubts the proportionality of the measure, referring also to the very limited number of women affected; the significant negative impact on those who decide to wear the burqa/niqab and a possible perception of threats to identity; Islamophobic comments in the relevant legislative debate and the risk of the State contributing to stereotypes and intolerance. However, a decisive weight is given to the fact that: the prohibition is not linked to the religious character of the clothing, but only to the fact that it hides the face; the sanctions’ lightness; it is a ‘choice of society’ whether to allow or prohibit full veiling (the Court refuses to call into question the balance achieved in the democratic process, also highlighting the absence of consensus in Europe). With particular regard to the ample margin of appreciation granted in the present case to the State in question, the prohibition is deemed proportionate to the purpose of preserving the ‘conditions of living together’.
(Not so) solid foundations
While the decision was supported by a comfortable majority (15-2), its motivations are not entirely convincing. It is striking that the Court decided the case following the least obvious path (reasons of public safety would arguably have justified the same outcome more easily). With the ‘living together’ element, the Court seems to have chosen the shakier, and also more ‘slippery’, ground. The concept is vague and it can hide pitfalls, although the Court’s scrutiny was quite rigorous. The Court was on the other hand too quick in rejecting the ‘gender equality’ argument. In other cases it had - quite unacceptably - considered the hijab to be contrary to ‘gender equality’. It is surprising that in this , much more conducive, case the Court backed off from the approach. In any case it is risky and short-sighted to dismiss the ‘gender equality’/burqa-niqab question as ‘stereotypes’. Respect for human dignity would also have deserved more developed considerations. In general, on the theme of ‘values’, one could have expected more from a Court that more often than not presents itself as one of the chief defenders of the basic values of European societies.
Too harsh criticism
The renewed wave of quasi-indignation regarding the use of the concept of ‘margin of appreciation’ vis-à-vis freedom of religion is nothing new, but those who expect ‘more courage’ on the part of the Strasbourg judges will have to ‘get over it’. The Court has been criticised for having been too cautious, but isn’t it correct to be cautious on a matter such as religion? It is perhaps not entirely insignificant that at the EU level the proposed ‘Fifth equality directive’ has invariably included, through several years of Council discussions, a provision stating, on an analogous matter, that “This Directive is without prejudice to national measures authorising or prohibiting the wearing of religious symbols”.
Choice of clothes is an expression of personality and identity. However, one can wonder whether to cover one’s face (entirely or almost entirely) does not mean to deny or renounce to one’s own identity. Stigmatisation, exclusion, negative impact on integration have been mentioned, but wearing such full veils might also entail rejecting inclusion and integration.
The outcome of the proceedings also has little to do with debates on tolerance, with the undeniable need to fully respect the Muslim presence in Europe or more generally with the (equally necessary) acceptance of religious symbols and clothing in the public space. To create alarm in these regards on the basis of a decision on such a highly controversial matter is to distort reality. Moreover, while fighting against any genuine manifestation of intolerance and discrimination against Muslims in Europe is a goal that deserves unconditional support, without any ‘but’; the misuse of the concept of ‘Islamophobia’ to prevent any kind of debate (or indeed public policies) is to be exposed as mistaken and harmful. Pointing to the risk of the majorities ruling over minorities or of minorities ruling over majorities is equally unhelpful.
Criticism of the decision also has its risky side. Female genital mutilations (FGM) has been justified by some on religious grounds. Taking certain reasonings to extremes might entail accepting such a practice in Europe in the name of tolerance and acceptance towards those (minority) communities that carry it out. How far can we go?
Some have presented the ruling as the last nail in the coffin of the right to manifest one’s religion. It is puzzling that no such cries were heard in similarly delicate (and painful in their consequences) cases such as Eweida and Others v. United Kingdom, which inter alia concerned the wearing of the Cross by a hospital nurse. A case of political correctness?
At the moment, only France and Belgium have legislation of the present kind, but the fact that a number of other European countries are considering measures in this regard must mean something: it points to the existence of a perceived issue that European societies feel they have to address, although perhaps the best possible measure has yet to be identified.