Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Tuesday, July 27, 2010

Banning the Niqab/Burqa (full face veil)

So France, Syria, and likely Spain are banning the full face veil in certain walks of life. An interesting development all around. Such a rule probably could not be enforced in the USA, could it? I note that laws prohibiting wearing masks in public have been enforced since the 1870s. The masks under attack at that time were white sheets and hoods. Those laws, not always enforced, have been on the books for quite a while and are still upheld. It is unlikely that the ban on the burqa falls in the same exact category, but there is a precedent for regulating clothing in public for reasons other than simply "decency." I also note that courts have required burqa-wearing women to doff the headgear for photo IDs.

The First Amendment, however, both its "free exercise" clause and its "freedom of expression" will almost certainly protect wearing the burqa in the USA. The more interesting question for a legal scholar is which clause of the First Amendment matters more: religion or speech. This is a strange question for many today, since for many people the whole idea of "free expression" swallows up the idea of free exercise of religion. Worth thinking about whether this is so.


Raised By Republicans said...

I think Turkey also, until recently, had some sort of ban of this type - at least in public buildings like schools/universities.

I don't have a problem with requiring women to have their faces exposed for their ID photo. There is sufficient public interest, in my opinion, in being able to identify individuals that is justifies what is really a minimal invasion of religious privacy.

Bob said...

I like LTG's thought about which trumps which -- freedom of speech vs. freedom of religion. It's not ultra-clear to me that they conflict with each other so much, or at least not in a unique way. But perhaps that's because as a non-lawyer, I don't know what freedom of religion really implies beyond "you're free to conduct yourself as you (or your religion) dictate, so long as it doesn't impinge on anyone else's rights, such as their rights of expression, religion, property, etc." (I feel like this is something that law students must go over in some introductory constitutional law course.)

It therefore seems to me that most "freedom of religion" conflicts are between an individual or small group's practice (e.g. praying five times a day, smoking peyote, not saying the pledge of allegiance) and an institution's need for conformity. And the gist of freedom of religion is that, if the conformity isn't required to preserve the rights of society at large, the religious practicer wins. In other words, religious practices should be accommodated where possible, even when they're not yours and you don't understand them.

(Somewhat luckily, the establishment clause might be interpreted to defend lack of religion -- someone _not_ practicing a religion should be accommodated as well, in their "right not to practice religion", if you will. I am sympathetic to that right, and frustrated when a sort of ecumenical "we all worship the same god really, just in different ways" notion is invoked to demand _some_ religious expression from everyone, or excuse some suitably genericized institutional religion.)

Freedom of speech/expression seems to fall along much the same lines -- the right of the individual pressured to conform trumps the conveniences of social "harmony", excepting fundamental unravellings of society (e.g. libel, "Fire!" in a crowded theater).

So when might the two come in direct conflict? The only way I can come up with is an artificial notion of religious practice, like "my religion requires of me that I not expose myself to the utterances of women". I'm reasonably sure that such "rights of avoidance" don't hold up as a general principle (fundamentally, they are too much like "it's inconvenient for me to suffer the expression of others"), although I could be wrong. (And specific cases, like obscenity, seem to undermine my view.)

[I should add the caveat that the right to avoid things is often upheld on its own -- you're allowed to live like a hermit, be a conscientious objector, go to a private club that doesn't allow women, etc. But when that desire to avoid things comes into conflict with someone's desire to express that same thing _in a public forum_, the two parties conflict. That is the situation where the "right to avoid" loses to the right to express.]

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