By Martha Nussbaum
3 Oct 2014
In 2012, renowned philosopher Martha Nussbaum wrote the following article for ABC Religion and Ethics. Recent, highly reminiscent developments in the Australian Federal Parliament make her contribution to this debate - articulated from within the political tradition of Western liberalism - all the more important to revisit.
In April 2011, a law took effect in France according to which it is illegal to cover the face in any public space, from parks to marketplaces to shops. Although the law does not mention the words "women," "Muslim," "Burqa," or even "veil," it was introduced by then President Nicolas Sarkozy as a ban on Muslim veiling, which, according to him, "imprisons" women and threatens French values of dignity and equality. The new law renders illegal both the Burqa and the Niqab.
(The words are variously used and defined, but typically the Burqa is a full-length garment that includes a mesh or gauze screen over the eyes, while the Niqab is a face veil with a slit for the eyes, usually worn in conjunction with a full-body covering. From now on I shall use only the term Burqa.)
Although France is the first country to enact a full ban on the Burqa in public space, similar restrictions are being considered all over Europe, and many countries and regions have adopted some type of restriction.
What does political philosophy have to say about all these developments? As it turns out, a long philosophical and legal tradition has reflected about similar matters.
Principles of Religious Liberty
Let's start with an assumption that is widely shared: that all human beings are equal bearers of human dignity. It is widely agreed that government must treat that dignity with equal respect. But what is it to treat people with equal respect, in areas touching on religious belief and observance?
We now add a further premise: that the faculty with which people search for life's ultimate meaning - frequently called "conscience" - is a very important part of people, closely related to their dignity. And we add one further premise, which we might call the vulnerability premise: this faculty can be seriously impeded by bad worldly conditions. It can be stopped from becoming active, and it can even be violated or damaged within.
Indeed, the first sort of damage, which seventeenth century American philosopher Roger Williams compared to imprisonment, happens when people are prevented from outward observances required by their beliefs. The second sort, which Williams called "soul rape," occurs when people are forced to affirm convictions that they may not hold, or to give assent to orthodoxies they don't support.
The vulnerability premise shows us that giving equal respect to conscience requires tailoring worldly conditions so as to protect both freedom of belief and freedom of expression and practice. It suggests that freedom should be quite ample. If we combine it with the equality premise, we get the principle that liberty should be both ample and equal - a principle very like John Rawls's idea that justice requires the "maximum liberty that is compatible with a like liberty for all."
Thus the framers of the United States constitution concluded that protecting equal rights of conscience requires "free exercise" for all on a basis of equality. The state constitutions of that time made it clear that the commitment was to ample liberty, not just equal liberty: for they permitted only a few extremely urgent public considerations, particularly those of peace and safety, to trump the religious claim.
But what do these abstract principles really mean? What is truly equal liberty in religious matters? What type of state efforts to respect religious pluralism does a commitment to ample and equal liberty require? And what limits might reasonably be placed upon religious activities in a pluralistic society, compatibly with that commitment?
The philosophical architects of the Anglo-American legal tradition could easily see that when peace and safety are at stake, or the equal rights of others, some reasonable limits might be imposed on what people do in the name of religion, and that such restrictions, supported by urgent public interests, might still be compatible with a respect for equal liberty. But they grasped after a deeper and more principled rationale for these limits and protections.
Here the philosophical tradition splits. One strand, associated with the seventeenth century English philosopher John Locke, holds that protecting equal liberty of conscience requires only two things: laws that do not penalize religious belief, and laws that are non-discriminatory about practices, applying the same laws to all in matters touching on religious activities.
An example of a discriminatory law, said Locke, was a law in England that makes it illegal to speak Latin in a church, but permits people to speak Latin in schools. Obviously the point of such a law is to persecute Roman Catholics. But if a law is not persecutory in this way, it may stand, even though it may incidentally impose burdens on some religious activities more than on others. If people find that their conscience will not permit them to obey a certain law (regarding military service, say, or work days), they had better follow their conscience, says Locke, but they will have to pay the legal penalty.
Another tradition, associated with Roger Williams, founder of the colony of Rhode Island and copious writer about religious freedom, holds that protection for conscience must be stronger than this. This tradition reasons that laws in a democracy are always made by majorities and will naturally embody majority ideas of convenience. Even if such laws are not persecutory in intent, they may turn out to be very unfair to minorities. In cases in which such laws burden liberty of conscience - for example, by requiring people to testify in court on their holy day, or to perform military service that their religion forbids, or to abstain from the use of a drug required in their sacred ceremony - this tradition held that a special exemption, called an "accommodation," should be given to the minority believer.
On the whole, the accommodationist position has been dominant in United States law and public culture. For a time, modern constitutional law in the United States applied an accommodationist standard, holding that government may not impose a "substantial burden" on a person's "free exercise of religion" without a "compelling state interest" (of which peace and safety are obvious examples, though not the only ones).
The landmark case articulating this principle concerned a woman who was a Seventh-Day Adventist and whose workplace introduced a sixth workday, Saturday. Fired because she refused to work on that day, she sought unemployment compensation from the state of South Carolina and was denied on the grounds that she had refused "suitable work." The United States Supreme Court ruled in her favour, arguing that the denial of benefits was like fining Mrs Sherbert for her nonstandard practices: it was thus a denial of her equal freedom to worship in her own way. There was nothing wrong in principle with choosing Sunday as the general day of rest, but there was something wrong with not accommodating Mrs Sherbert's special religious needs.
I believe that the accommodationist principle is more adequate than Locke's principle, because it reaches subtle forms of discrimination that are ubiquitous in majoritarian democratic life. All societies make choices regarding holidays, workdays, drug and alcohol restrictions, and a host of other matters touching on people religious observances. The choices of a majority are usually supported by some type of reasoning; thus they will pass a weaker "rational basis" test. They may, however, be extremely harsh to minorities, rendering their liberty unequal. To grant them accommodations on grounds of conscience, in areas ranging from employment to military conscription to sacramental alcohol or drug use, is to restore a standard of equal liberty.
Accommodation has its problems, however. One is that a system based on individualized exemptions is difficult for judges to administer. Creating exemptions to general laws on a case by case basis struck Scalia as too chaotic, and beyond the competence of the judiciary. Thus, though he thought that accommodations created by legislation would be permissible - such as the change in our Controlled Substances Act that legalized the sacramental use of peyote - he was opposed to granting such exemptions judicially.
Another problem faced by the accommodationist position is that it has typically favoured religion and disfavoured other reasons people may have for seeking an exemption to general laws - family reasons, for example, or reasons having to do with personal commitments to art or even to a secular ethical creed.
To some extent, it is possible to deal with these other commitments in other areas of law - through a capacious free speech principle, for example, and through laws protecting family leave. But not all problems can be handled this way. And some scholars think this a sufficient reason to deny accommodations for all, thus reverting to the Lockean position: if the system of accommodations cannot be made fair for all, it should not exist. They thus revert to a position that is both less ample and less equal in regard to religious liberty, but on grounds that are not without their merit.
So the Roger Williams position has not yet shown that it can defeat the Lockean position. This is a thorny issue that requires lengthy discussion. But we don't need it, because the recent European cases all involve discriminatory laws that fail to pass even the weaker Lockean test - although in the special case of French secularism this will take some time to show.
For it might seem that French laicite is that rara avis, a policy that restricts liberty across the board, while protecting equal liberty: liberty is less ample, but everyone suffers from the same restrictions. Things are actually more complicated, as I shall argue.
Let me demonstrate this by working through the five most prominent arguments in favour of banning the Burqa are made inconsistently in ways that tacitly favour majority practices and burden minority practices. They are thus not compatible with a principle of equal liberty, and thus, in turn, not compatible with the idea of equal respect for conscience from which that principle springs. Indeed, all are cases of seeing the mote in your brother's eye while failing to appreciate the large plank that is in your own eye: for all target situations alleged to be present in Muslim communities while failing to note their ubiquity in the majority culture.
Let's look at each argument in turn, asking whether it treats all citizens with equal respect.
Arguments 1 and 2: Security and Transparency
First is the argument from security: it holds that security requires people to show their face when appearing in public places. A second, closely related, argument, which I shall treat together with it, says that the kind of transparency and reciprocity proper to relations between citizens is impeded by covering part of the face.
What is wrong with both of these arguments is that they are applied inconsistently. It gets very cold where I live in Chicago. Along the streets we walk, hats pulled down over ears and brows, scarves wound tightly around noses and mouths. No problem of either transparency or security is thought to exist, nor are we forbidden to enter public buildings so insulated.
Moreover, many beloved and trusted professionals cover their faces all year round: surgeons, dentists, skiers and skaters. The latter typically wear a full - face covering with slits only for the eyes, similar to a Niqab. Some are even more covered than the typical Burqa wearer. In general, then, what inspires fear and mistrust in Europe, and, to some extent, in the United States, is not covering per se, but Muslim covering.
So, what to do about the threat that all bulky and non-revealing clothing creates? Airline security does a lot, with metal detectors, body imaging, pat-downs, and so on (one very nice system is at work in India, where all passengers get a full manual pat-down, but in a curtained booth by a member of the same sex who is clearly trained to be courteous and respectful). Sport stadiums search all bags (though more to check for beer than for explosives, thus protecting the interests of in-stadium vendors). Retailers or other organizations who feel that bulky clothing is a threat (whether of shoplifting or terrorism or both) could institute a non-discriminatory rule banning; They could even have a body scanner at the door, but they don't, presumably preferring customer friendliness to the extra margin of safety.
What I want to establish, however, is the invidious discrimination inherent in the belief that the Burqa poses a unique security risk. Reasonable security policies, applied to similar cases similarly, are perfectly fine. A reasonable demand would be that a Muslim woman has a full face photo on her driver's license or passport. With suitable protections for modesty during the photographic session, such a photo could be required, and I don't think that this requirement would be incompatible with equal liberty.
Moreover, I've been informed by my correspondence that most contemporary Islamic scholars agree: a woman can and must remove her Niqab for visual identification if so requested. However, we know by now that the face is a very bad identifier. At immigration checkpoints, eye-recognition and fingerprinting technologies have already replaced the photo. When these superior technologies spread to police on patrol and airport security lines, we can do away with the photo, hence with what remains of the first argument.
Sometimes people argue that even if a Burqa ban would be both over-inclusive (banning dress worn by harmless peaceful women) and under-inclusive (failing to ban many forms of attire that terrorists might choose), still, it is a good proxy for what is truly dangerous, and this sort of profiling is perfectly legitimate. We can certainly debate the empirics here, and we should. But within reasonable limits we do think that airports are entitled use profiling in determining whom to search. This, however, is not what we are contemplating. We are contemplating not extra searches, but an outright ban on a religiously mandatory item of clothing.
In the context of such a severe burden, the fact that the proposed ban is greatly under-and over-inclusive for security purposes is highly relevant.
Argument 3: Objectification
A third argument, very prominent today, is that the Burqa is a symbol of male domination that symbolizes the objectification of women: it encourages people to think of and treat a woman as a mere object. A Catalonian legislator recently called the Burqa a "degrading prison." President Sarkozy said the same thing.
It hardly needs to be said that the people who make this argument typically don't know much about Islam and would have a hard time saying what symbolizes what in that religion. But the more glaring flaw in the argument is that society is suffused with symbols of male supremacy that treat women as objects.
Sex magazines, pornography, nude photos, tight jeans, transparent or revealing clothing - all of these products, arguably, treat women as objects, as do so many aspects of our media culture. Women are encouraged to market themselves for male objectification in this way, and it has long been observed that this is a way of robbing women of both agency and individuality, reducing them to objects or commodities. And what about the "degrading prison" of plastic surgery? Every time I undress in the locker room of my gym, I see women bearing the scars of liposuction, tummy tucks, breast implants. Isn't much of this done in order to conform to a male norm of female beauty that casts women as sex objects?
If the proposal were to ban all practices concerning which a ministry of feminism had concluded that they objectify women, the proposal would at least be consistent, although few would endorse such a sweeping restriction of liberty or the authority it would vest in a small number of alleged feminist experts. But it is not made consistently. Proponents of the Burqa ban do not propose to ban all these objectifying practices. Indeed, they often participate in them.
Once again, then, the opponents of the Burqa are utterly inconsistent, betraying a fear of the different that is discriminatory and unworthy of a liberal democracy. In effect, they arrogate to themselves the position of the inquisitorial ministry of feminism - but only for certain people, people whose real motives and understandings they are particularly likely not to understand clearly, not for their own sort. The way to deal with sexism, in this case as in all, is by persuasion and example, not by removing liberty.
Of course, things that are legal can still be disapproved of. What I am arguing is that equal respect for persons requires equal conditions of liberty. But it does not require equal personal approval of all religious practices. Legality is not approval. Many things are legal that most of us would consider deplorable: unkindness, stinginess, intemperance, incivility, narcissism.
And in a society based upon equal respect for persons, people with one religious or secular view remain perfectly free to disapprove of some religious practices, or even of all of them and of religion itself. Respect is for the person, and is fully compatible with intensely disliking many things that many people do. So in a society dedicated to equal liberty people remain perfectly free to think and to say that the Burqa is an objectionable garment because of the way in which it symbolizes the objectification of women. Still, such a person ought at least to think about consistency, and I think a duty of civility suggests that she ought at least to try very hard to understand. One should listen to what women who wear the Burqa say they think it means before opining.
In general, we needn't approve of the forms of dress that others choose, or of any specific religious observance. We may judge other people's choices ridiculous, or revolting, or even hateful. I do think that one should try to understand first before coming to such a judgment, and I think that in most cases one should not give one's opinion about the way a person is dressed unless someone has asked for it.
But, of course, any religious ceremony that expresses hatred for another group (a racist religion, say) is deeply objectionable, and one can certainly protest that, as usually happens when the Ku Klux Klan puts on a show somewhere these days. That white hooded garment is plausibly seen as a symbol of racism, and though it would be wrong, I think, to make it illegal, it is permissible to criticize it.
Myself, I think that a Burqa is not a symbol of hatred, and thus not something that it would be reasonable to find deeply hateful. It is more like the boys and their tzizit, something I may feel out of tune with, but which it is probably nosy to denounce unless a friend has asked my opinion. Still, if someone else wants to say that it is deeply objectionable, and that she does not respect it, that does not in any way disagree with the principles I am defending here.
What respect for persons requires is that people have equal space to exercise their conscientious commitments, not that others like or even respect what they do in that space. Furthermore, equal respect for persons is compatible with limiting religious freedom in the case of a "compelling state interest."
A government intervention that was right, in my view, was the judgment that Bob Jones University should lose its tax exemption for its ban on interracial dating. Here the Supreme Court agreed that the ban was part of that sect's religion, and thus that the loss of tax-exempt status was a "substantial burden" on the exercise of that religion, but they said that society has a compelling interest in not cooperating with racism. Never has the government taken similar steps against the many Roman Catholic universities that restrict their Presidencies to a priest, hence a male; but in my view they should all lose their tax exemptions for this reason.
Why is the Burqa different from the case of Bob Jones University? First, of course, government was not telling Bob Jones that they could not continue with their policy, it was just refusing to give them a huge financial reward in the form of tax relief, thus in effect cooperating with the policy. A second difference is that Bob Jones enforced a total ban on interracial dating, just as the major Catholic universities have imposed a total ban on female candidates for the job of President. Thus everyone who is part of the institution is coerced. The Burqa, by contrast, is a personal choice, so it's more like the case of some student at Bob Jones (or any other university) who decides to date only white females or males because of familial and parental pressure. Sadly, most people in most places prefer to date only people from their own group. And many religions back them up. This may be morally short-sighted, but it does not seem like a case for government intervention. Which brings me to my next point?
Argument 4: Coercion
A fourth argument holds that women wear the Burqa only because they are coerced. This is a rather implausible argument to make across the board, and it is typically made by people who have no idea what the circumstances of this or that individual woman are. We should reply that of course all forms of violence and physical coercion in the home are illegal already, and laws against domestic violence and abuse should be enforced much more zealously than they are. Do the arguers really believe that domestic violence is a peculiarly Muslim problem? If they do, they are dead wrong.
According to the United States Bureau of Justice Statistics, intimate partner violence made up 20% of all nonfatal violent crime experienced by women in 2001. The National Violence Against Women Survey reports that 52% of surveyed women said they were physically assaulted as a child by an adult caretaker and/or as an adult by any type of perpetrator. There is no evidence that Muslim families have a disproportionate amount of such violence. Indeed, given the strong association between domestic violence and the abuse of alcohol, it seems at least plausible that observant Muslim families will turn out to have less of it.
Suppose there were evidence that the Burqa was strongly associated, statistically, with violence against women. Could government legitimately ban it on those grounds? The United States Supreme Court has held that nude dancing may be banned on account of its contingent association with crime, including crimes against women, but it is not clear that this holding was correct.
College fraternities are very strongly associated with violence against women, and some universities have made all or some fraternities move off campus as a result. But private institutions are entitled to make such regulations about what can occur on their premises; public universities are entitled to limit the types of activities that will get public money, particularly when they involve illegality (underage drinking). But a total governmental ban on the male drinking club (or on other places where men get drunk, such as soccer matches) would certainly be a bizarre restriction of associational liberty.
One thing that we have long known to be strongly associated with coercion and violence against women is alcohol. The Amendment to the United States Constitution banning alcohol was motivated by exactly this concern. It was on dubious footing in terms of liberty: why should law-abiding people suffer for the crimes of abusers? But what was more obvious was that Prohibition was a total disaster politically and practically. It increased crime and it did not stop violence against women.
College and university administrators today generally deplore the fact that the drinking age is currently 21 rather than 18, because they believe that the higher age actually increases binge drinking and coercion of women. The reason is that at present alcohol consumption secret and illegal, rather than legal and therefore potentially regulable and supervisable by university officials.
Moreover, even during Prohibition religions that required the sacramental use of alcohol got an exemption. Similarly, federal law today exempts religious use of alcohol from the drinking age. So the correct analogue would be a ban on the Burqa that exempted those who wear it for religious reasons - which is to say virtually all users.
What is most important, however, is that anyone proposing to ban the Burqa must consider it together with these other cases, weigh the evidence, and take the consequences for their own cherished hobbies.
But what about children and adolescents? Surely they do not have much choice as long as they are living with their parents, so family pressure to wear religious dress is likely to be difficult to resist. This question opens up a huge topic, since there is nothing that is more common in the modern family than various forms of coercive pressure (to get into a top college, to date people of the "right" religion or ethnicity, to wear "appropriate" clothes, to choose a remunerative career, to take a shower, "and so each and so on to nolast term" as James Joyce once said).
So, where should government and law step in? Certainly it should step in where physical and/or sexual abuse is going on, which is very often. Where religious mandates are concerned, intervention would be justified, similarly, where the behaviour either constitutes a gross risk to bodily health and safety (as with Jehovah's Witness children being forbidden to have a life-saving blood transfusion), or impairs some major functioning.
Thus, I think that female genital mutilation practiced on minors should be illegal if it is a form that impairs sexual pleasure or other bodily functions. Male circumcision seems to me all right, however, because there is no evidence that it interferes with adult sexual functioning; indeed it is now known to reduce susceptibility to HIV/AIDS. The Christian Science belief that children should not be taken to the doctor when ill has also been litigated successfully, and some forms of "alternative" medical treatment have led to abuse and neglect convictions.
In every case, what is really going on is my two-sided balancing test: is there a substantial burden on the parents' religious freedom? And, if so, does a compelling state interest justify the imposition of this burden? Now to the Burqa.
The Burqa (for minors) is not in the same class as genital mutilation, since it is not irreversible and does not engender health or impair other bodily functions - not nearly so much as high-heeled shoes. If it is imposed by physical or sexual violence, that violence ought to be legally punished. Otherwise, however, it seems to be in the same category as all sorts of requirements, pleasant and unpleasant, that parents impose on their children: getting top grades, practicing the violin, dating only people of the "right" religion, getting into a top college. Some practices of this type do appear to violate laws against child cruelty.
Societies are certainly entitled to insist that all female children have a decent education and employment opportunities that give them exit options from any home situation they may dislike. If people think that women only wear the Burqa because of coercive pressure, let them create ample opportunities for them, and then see what they actually do.
Before we leave the topic of coercion, there is a reasonable point to be made in this connection. When Turkey banned the veil long ago, there was a good reason in that specific context: because women who went unveiled were being subjected to harassment and violence. The ban protected a space for the choice to be unveiled, and was legitimate so long as women did not have that choice.
The ban does not appear to be justified today, when women are able to circulate freely, unveiled. Nor would it be justified today in Europe, the United States or Australia, where women can dress more or less as they please; there is no reason for the burden to religious liberty that the ban involves.
Argument 5: Health Risk
Finally, one frequently hears the argument that the Burqa is per se unhealthy, because it is hot and uncomfortable. I have heard this argument often in Europe, particularly in Spain. This is perhaps the silliest of the arguments. Clothing that covers the body can be comfortable or uncomfortable, depending on the fabric. In India I typically wear a full salwaar kameez of cotton, because it is superbly comfortable, and full covering keeps dust off one's limbs and at least diminishes the risk of skin cancer. It is surely far from clear that the amount of skin displayed in typical Spanish female dress would meet with a dermatologist's approval.
But more pointedly, would the arguer really seek to ban all uncomfortable and possibly unhealthy female clothing? Wouldn't we have to begin with high heels, delicious as they are? But no, high heels are associated with majority norms (and are a major Spanish export), so they draw no ire.
In general, the state limits its regulatory interventions into clothing to making sure that children sold for children is flameproof and without harmful chemicals, and that other gross health risks are avoided. But on the whole women in particular area allowed and even encouraged to wear clothing that could plausibly be argued to create health risks, whether through tendon shortening or through exposure to the sun.
Suppose parents required their daughters to wear a Victorian corset - which did a lot of bodily damage, compressing various organs. Adult women today could wear something just as restrictive with no impediment. If people made a fuss about teenage girls being forced to wear corsets, it is likely that a ban would at least be contemplated. If corsets were mandatory for some religion, however, they would have to show not just a rational basis for the ban but a compelling state interest: so they'd have to show that the risk to health was considerable.
The Burqa is not even in the category of the corset. As many readers pointed out, it is sensible dress in a hot climate where skin easily becomes worn by sun and dust. What does seem to pose a risk to health is wearing synthetic fabrics in a hot climate, but nobody is talking about that.
The Burqa and the limits of laicite
All five arguments are discriminatory. We don't even need to reach the delicate issue of religiously grounded accommodation to see that they are utterly unacceptable in a society committed to equal liberty. Equal respect for conscience requires us to reject them.
Let us now consider more closely the special case of France. Unlike other European nations, France is consistent - up to a point. Given its history of anticlericalism and the strong commitment to laicite, religion is not to set its mark upon the public realm, and the public realm is permitted to disfavour religion by contrast to non-religion. This commitment leads to restrictions on a wide range of religious manifestations, all in the name of a total separation of church and state. But if one looks closely, the restrictions are unequal and discriminatory. The school dress code forbids the Muslim headscarf and the Jewish yarmulke, along with "large" Christian crosses.
But this is a totally unequal burden, because the first two items of clothing are religiously obligatory for observant members of those religions, and the third is not: Christians are under no religious obligation to wear any cross, much less a "large" one. So there is discrimination inherent in the French system.
Would French secularism be acceptable if practiced in an even-handed way? According to United States constitutional law, government may not favour religion over non-religion or non-religion over religion. I must say that I prefer this balanced policy to French laicite; I think it is fairer to religious people. Separation is not total, even in France: thus, a fire in a burning church would still be put out by the public fire department; churches still get the use of the public water supply and the public sewer system. Still, the amount and type of separation that the French system mandates, while understandable historically, looks unfair in the light of the principles I have defended.
Let's now consider the language of the law banning the Burqa. It prohibits "wearing attire designed to hide the face" (porter une tenue detinee a dissimuler son visage) - and then there is a long list of exceptions:
"The prohibition described in Article 1 does not apply if the attire is prescribed or authorized by legislative or regulatory dispensation, if it is justified for reasons of health or professional motives, or if it is adopted in the context of athletic practices, festivals, or artistic or traditional performances."
One's first reaction to this capacious list is that they have tried to include every possible occasion for covering the face - except the Burqa. Clearly, though, you don't purchase principled consistency simply by listing as an exception to the principle everything except the one thing you really dislike.
The French have a reply to make, however. For they do not exempt any religious occasion or motive for covering the face. In the case of the school dress code, they did: and those "small" crosses showed favouritism to the Christian majority. (Similarly, bans on Muslim headscarves in other countries that exempt nuns in full habit are inconsistent and a form of majority favouritism.) From the point of view of our principle of equal liberty, the whole policy of laicite is mistaken, since it privileges non-religion over religion and constricts the liberty of religious expression without any compelling government interest (apart from laicite itself). But we are not asking that question at this point; we are simply asking about fairness among the religions.
Does the application of the ban to all religions mean that the ban, unlike the school dress code, is truly neutral? Well of course, although the word Burqa does not occur in the legislation, we understand perfectly well that this is what it is all about. And the fact that they are so generous with other cultural and professional exemptions shows that they are not terribly worried about the practice as such - only when it is a religious manifestation. But still, isn't that a consistent and, up to a point, neutral application of the polity of laicite?
The difficulty we have here is that no other religion has a custom of precisely that sort. So what the law has done is to single out something that is of central importance to one religion and to apply a very heavy burden to it, without similarly burdening the central and cherished practices of other religions. Indeed, it seems clear that one would not be fined for making the sign of the cross over oneself in a public place, for singing a religious hymn as one walked down the street, or for wearing any type of religious apparel other than the Burqa: cassocks, nuns' habits, Hasidic dress, the saffron garb of the Hindu priest - all of these remain unburdened. So it is neutral in one sense, but not at all neutral in another.
At this point, defenders of the ban will typically allude to one of the other arguments, saying that the Burqa, unlike these other forms of clothing, is a security risk, an impediment to normal relations among citizens, and so on. But the fact that the government does not credit these rationales is clear from the fact that they permit so many exceptions to the ban. Even a public masquerade, at which hundreds of people cover their faces, received explicit defence in the statute. So it's clear that the government does not think that security provides a compelling interest in favour of the restriction: it's trumped routinely by very weak and even frivolous interests.
So I conclude that the French ban is not truly neutral, any more than the school dress code. Besides the obvious objection that French secularism does not allow sufficiently ample freedom for religious observance, we may add the objection of bias.
Philosophical principles shape constitutional traditions and the shape of political cultures. I have tried to articulate some important principles behind traditions of religious liberty and equality in both the United States and Europe.
Today, a climate of fear and suspicion, directed primarily against Muslims, threatens to derail these admirable commitments. But if we articulate them clearly and see the reasons for them, this may help us oppose these ominous developments.
Material in this article is drawn from The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age by Martha C. Nussbaum, Cambridge, Mass.: The Belknap Press of Harvard University Press, Copyright 2012 by Martha C. Nussbaum. Used by permission of the publisher. All rights reserved.
Martha Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics in the Philosophy Department, Law School and Divinity School at the University of Chicago.