July 14, 2010
By RONALD P. SOKOL
Two years ago, France’s highest court denied citizenship to a Muslim woman on the grounds that she had not assimilated into French society. I agreed to defend her before the European Court of Human Rights. I could have emphasized religious freedom; I raised the argument, but there was an easier way to show that the court had gone astray.
French law gives two tests of assimilation: knowledge of the language and absence of a criminal record. My client spoke fluent French and had no criminal record. But reports of interviews by social workers said that she had showed up wearing a niqab. On that basis, the court concluded that she practiced a form of religion incompatible with equal rights of men and women.
I argued that to allow an official to judge a failure to assimilate without providing criteria was to invite arbitrary decisions. The Human Rights Convention prohibits governments from acting arbitrarily. The case is currently pending before the European Court.
In 2009, the French equivalent of the FBI reported that the practice of wearing a veil was “marginal.” There appeared to be only 367 women in all of France who wore the niqab. A second police agency confirmed the initial report. Subsequent work increased the estimate to a maximum of 2,000 women.
With over 30 million women in France the phenomenon did indeed appear marginal. None of the reports said the women were a danger; no post office, bank or other institution complained that veiled women were a problem.
Yet the very marginality seems to incite a segment of the political class, including the president, prime minister and majority leader in the National Assembly, to protest further against veiled women. They advocated a law to ban the veil. In March, France’s highest court said that a general ban would violate French law and the European Convention on Human Rights. Despite that opinion, the government went ahead and proposed a law to ban the veil.
On Tuesday, the National Assembly passed the draft law by a vote of 335 to 1. It declares that “no one can, in the public space, wear clothing intended to hide the face.” The Senate is expected to pass the bill in September, when it will become law.
While the extreme marginality of the practice renders discussion somewhat ridiculous, the government’s insistence that the issue is vital makes it incumbent to show that its reasons do not resist analysis. Jean-François Copé, the majority leader in the French National Assembly and a small town mayor, argued in an opinion article on these pages (May 6) that “face covering poses a serious safety problem” and that “visibility of the face in the public sphere” is a fundamental principle.
The first argument is easily disposed of. There exists no evidence that women wearing the veil pose a security problem. Copé provides no evidence. The government’s own reports fail to show a public safety issue. In the total absence of any evidence, passing a law to provide protection where no protection is needed is either an exercise in absurdity or conceals a different agenda.
Copé’s second reason is more interesting. He asks, “How can you establish a relationship with a person who, by hiding a smile or a glance … refuses to exist in the eyes of others?” For the majority leader, “the niqab and burqa represent a refusal to exist as a person in the eyes of others.” In this he may be correct. But if a woman has a duty to show her face in public it must be because someone else has the right to see her face. That is the pretended “right” that Copé asserts.
I know of no such right. Copé will not find it in the Declaration of the Rights of Man, nor in the European Convention of Human Rights. When walking down the Champs Elysées, I have no right to see the face of passersby. Nor do I want such a right. While Copé may want a passer-by to give him a glance or a smile, he has no right to demand it.
Yes, the veil may be antisocial, but, fortunately, in a democratic, pluralistic society there is no legal duty to be social.
Monsieur Copé may be right in calling the veil a “mask making participation in economic and social life virtually impossible.” He may be correct in thinking that participation is desirable. But he is profoundly wrong in thinking there is a legal duty to participate.
He is wrong as well to say the law aims “at no particular religion.” “The Koran,” he says, “does not instruct women to cover their faces.” Neither does the Bible tell Christians to wear a cross; yet no one would suppose that a ban on wearing a cross in public would be aimed “at no particular religion.”
The final irony of this fabricated problem is that the law’s proponents, who see women wearing the niqab as oppressed victims, propose to punish the victim rather than the oppressor. A nearly all male legislature under the guise of public safety and protecting women’s dignity will deny a minority the right to choose how to dress.
Ronald P. Sokol is a lawyer in Aix-en-Provence, France.