The Qur’an, Islamic Veiling, and Laïcité: French Law and Islamophobia
In the summer of 2021, the French National Assembly and Senate passed the so-called “anti-separatism” bill, signed into law by Emanuel Macron, ostensibly to protect laïcité, the French secularist doctrine designed to ensure government neutrality toward religion.1loi n° 2021-1109 du 24 aoȗt 2021, Agir contre le separatismes en concretisant la promesse republicaine d’egalite des chances The new law increases scrutiny by the government of religious associations, bars homeschooling (except in some instances which have nothing to do with religion), proscribes political meetings at houses of worship, bans polygamy, virginity certificates, the “burkini” and other practices which allegedly discriminate against women, and protects government officials who investigate and prosecute the newly instituted crime of “separatism.” In fact, the anti-separatism legislation was the culmination of a three decade-long political campaign by a hostile nativist, French populace to marginalize Muslim communities. The policy was first formalized in 2003 with a statute to ban the wearing of signs and symbols that embodied religious identification in French public schools.2loi n° 2004-228 du 15 mars 2004, encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics Although arguing that the ban applied to all religions, equally prohibiting the Sikh patka, Jewish kippah, and large Christian crosses as well as the hijab worn by Muslim female children and teenagers, its proponents specifically targeted the Muslim community. The campaign was intensified in 2010 by the statutory prohibition of any article of clothing which concealed the face.3loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public, (https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000022911670/ This article analyzes Islamic veiling, the origins of laïcité, and the statutory campaign against Islam.
Islamic veiling takes on many forms: the hijab (a headscarf covering the head and neck but leaving the face uncovered), the niqab (a headscarf, covering the head and neck, but veiling the face except for an area around the eyes), the al-almira (a cap with a scarf around the head and neck), the shayla (a rectangular scarf wrapped around the head and fastened at the shoulder), the khimar (a shawl that covers the head and shoulders to the waist, face uncovered), the chador (a cloak blanketing the entire body, except for the face), and the burqa (a robe covering the entire head and body with a mesh screen for the eyes). Islamic veiling finds its origins in Qur’anic passage 33:53:
O ye who believe! Enter not the Prophet’s houses — until leave is given you — for a meal, (and then) not (so early as) to wait for its preparation: but when ye are invited, enter; and when ye have taken your meal, disperse, without seeking familiar talk. Such (behaviour) annoys the Prophet: he is ashamed to dismiss you, but Allah is not ashamed (to tell you) the truth. And when ye ask (his ladies) for anything ye want, ask them from before a screen: that makes for greater purity for your hearts and for theirs. Nor is it right for you that ye should annoy Allah’s Messenger, or that ye should marry his widows after him at any time. Truly such a thing is in Allah’s sight an enormity (The Holy Qur’an, trans. Abdullah Yusuf Ali).
The passage recounts the problems with male believers who visited the Prophet’s home and overstayed their welcome to the detriment of his wives, concubines, and daughters. The Qur’an instructs these men to desist from uninvited visits and, when invited, to speak to the Prophet’s women from behind a screen (Arabic: hijab) to protect their chastity.
It is noteworthy that the text itself does not identify the hijab as a headscarf nor does it require Muslim women in general to wear them; however, following a practice common in Byzantine culture with which the Muslim community had contact,4 Mary Margaret Fulghum, Under Wraps: Byzantine Textiles as Major and Minor Arts, 9 STUD. IN THE DECORATIVE ARTS 1, 13 (2002). wearing some sort of veiling protected women from unwanted male attention; the practice slowly spread from the Prophet’s family (the so-called “Mothers of Believers”) to women in the Muslim community-at-large to discourage impious advances by men. This development follows the Islamic imperative of modesty, commanded by the Qur’anic passage 24:31:
And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what (must ordinarily) appear thereof; that they should draw their veils over their bosoms and not display their beauty except to their husbands, their fathers, their husband’s fathers, their sons, their husbands’ sons, their brothers or their brothers’ sons, or their sisters’ sons, or their women, or the slaves whom their right hands possess, or male servants free of physical needs, or small children who have no sense of the shame of sex (The Holy Qur’an, trans. Abdullah Yusuf Ali).
This verse directs all Muslim women to cover their bodies, particularly what the French call la gorge or throat, but does not specify covering their heads or faces. Believers commonly interpret the passage as a reference to a jibab, a loose garment worn over the trunk of the body.
Although a number of prominent Islamic scholars, including the Kuwaiti-born legal scholar Khaled Abou El-Fadl and the leading Pakistani scholar Javed Ahmad Ghamidi, do not find veiling religiously obligatory, the practice had become more widespread after the 1979 Shi’ite revolution in Iran, where most women wear the chador.5 KHALID ABOU EL-FADL, (2001). SPEAKING IN GOD’S NAME: ISLAMIC LAW, AUTHORITY AND WOMEN (One World Publications 2001); Interview of Javed Ahmad Ghamidi, STUDYING ISLAM (n.d.), http://www.studying-islam.org/articletext.aspx?id=985; Ashraf Zahedi, Contested Meaning of the Veil and Political Ideologies of Iranian Regimes, 3 JOURNAL OF MIDDLE EAST WOMEN’S STUDIES, 3, 75 (2007). Likewise, the increasing influence of the Muslim Brotherhood and other Islamists in countries with large Sunni populations, including Syria and Iraq under Daesh, resulted in the increasingly common appearance of the niqab or burqa.6 LEILA AHMED, A QUIET REVOLUTION: THE VEIL’S RESURGENCE, FROM THE MIDDLE EAST TO AMERICA (Yale U P 2012); MARKSILINSKY, JIHAD AND THE WEST: BLACK FLAG OVER BABYLON (Indiana U P., 2016). While the modern movement toward veiling was spearheaded by conservatives, many young Muslim women have appropriated veiling, particularly in Western cultures, as a sign of religious identity and cultural pride.7 Uma Bhowon & Harsha Bundhoo, Perceptions and Reasons for Veiling: A Qualitative Study, 28 PSYCHOL. & DEVELOPING SOCIETIES 1, 29 (2016). That is certainly the case in France where Muslims number 7.2% of the population (France Population, 2019). “What these ‘cases,’ which led to several girls being expelled from schools in Mantes, Lille, Strasbourg or Goussainville, have contributed to revealing is that in reality, oftentimes the headscarf is not imposed by the families, but is the result of a free choice, and it is not lived as a submission, but rather as a self-affirmation.”8 Françoise Gaspard & Farhad Khosrokhavar, The Headscarf and the Republic, in BEYOND FRENCH FEMINISMS: DEBATES ONWOMEN, POLITICS, AND CULTURE IN FRANCE, 1981–2001 61 (Roger Célestin, Eliane DalMolin, & Isabelle de Courtivron eds). While French Muslim women who wear the niqab or burqa number perhaps in the hundreds, those who wear the hijab surely run in the thousands.
The Foulard Affair
The debate over the wearing of the headscarf in French public schools originated in the 1989 “Foulard Affair” during the bicentennial celebration of the French Revolution, when three students were expelled from a French middle school for failure to remove their headscarves when requested by school authorities. Referred by the Minister of Education Lionel Jospin to the Conseil d’Etat, the leading judicial body advising the President of the Republic, the Conseil recommended that students not be permitted to wear “ostentatious” signs of religious affiliation “which would constitute an act of pressure, provocation, proselytism, or propaganda . . . in short would cause disruption in the school” (Conseil d’Etat Op. No. 345.893 (Nov. 27, 1989)). Over the next thirteen years, the headscarf controversy waxed and waned, but in 2002, the newly established Conseil français du culte musulman issued a statement rejecting the claim that the headscarf itself was an act of proselytization.
The Stasi Commission
In 2003, the Conseil d’État appointed a commission, led by Bernard Stasi, the National Ombudsman, to reconsider state policy on secularism and public schools. Although the Commission included academics, a headmaster, a lawyer, two politicians, and a former Ministry of Education bureaucrat, no theologians, clerics, or delegates from religious institutions were named. The so-called “Stasi Commission” issued its report on December 11, 2003, concluding:
Instances of behaviour and conduct that run counter to the principle of secularism are on the increase, particularly in public society. . . . The reasons for the deterioration in the situation … [are the] difficulties in integrating experienced by those who have arrived in France during the past decades . . . . In this context it is natural that many of our fellow citizens demand the restoration of Republican authority and especially in schools. It is with these threats in mind and in the light of the values of our Republic that we have formulated the proposals set out in this report. . . . for the school community . . . the visibility of a religious sign is perceived by many as contrary to the role of school, which should remain a neutral forum and a place where the development of critical faculties is encouraged. It also infringes the principles and values that schools are there to teach, in particular, equality between men and women. 9Commission de reflexion sur l’application du principe de laïcité dans la republique, rapport au president de la republique, at 6-7
The Stasi Report purportedly upheld the principle of laïcité, embodied in the 1905 French statute, Loi du 9 décembre 1905 concernant la séparation des églises et de l’état (Law Concerning Separation of the Churches and the State). The text of Art. 1 reads, “The Republic ensures freedom of conscience. It guarantees the free exercise of religion subject to the sole restrictions enacted hereafter in the interest of public order.” Although facially the recommendations of the Stasi Report violated the spirit of the statute’s language, the Report’s very existence (ostensibly for the sake of public order) suggested that a ban on signs of religious affiliation in public schools was a valid exception to the law’s guarantee of the free exercise of religion.
The 2004 and 2010 Statutes
Following the issuance of the Stasi Commission Report, the French legislature passed a statute codifying the Report’s recommendation by overwhelming majorities in the National Assembly and the Senate, as follows:
In schools, colleges and public high schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. The rules shall state that the implementation of a disciplinary procedure is preceded by a dialogue with the student (Article L141-5-1, Education code).
Arguably, the statute violated Article 1 of the French Constitution of 1958 (“France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs”). However, to challenge the constitutionality of the statute required an appeal before its promulgation by the President of the Republic, the Prime Minister, the President of the National Assembly, or 60 deputies or 60 senators.10loi no 74-904 du 29 octobre 1974, https://mjp.univ-perp.fr/france/co1958-4.htm, revising Article 61 of the French Constitution of 1958 The statute had the support of the Chirac government and its opponents could not muster sufficient votes to mount a constitutional challenge which, in any case, would first have to be referred to the Conseil Constitutionnel by the Conseil d’Etat, which authored the Stasi Commission Report.
Although it did not specifically take up the statute, the Conseil Constitutionnel made its views apparent in November 2004, when it commented on the constitutionality of the proposed EU treaty, by expressing its approval of the European Court of Human Rights (ECHR) decision Leyla Sahin v. Turkey (Application no. 44774/98, 10 November 2005), which upheld the ruling of the Turkish Constitutional Council barring the wearing of the Muslim headscarf in universities as follows:
Having regard to the above background, it is the principle of secularism, as elucidated by the Constitutional Court . . . , which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others [control]. . . , it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn.
François Fillon, the French Minister of Education, reported in January 2005 that 47 students had been expelled from French public schools. Later in 2005, the March 15 Freedom Committee, a French Muslim organization, noted that over 800 French students were adversely affected by the statute, resulting in either their expulsion from the French public schools, the removal of religious headgear, or their voluntary withdrawal from the French public school system.11 When Discrimination Masquerades as Equality: The Impact of France’s Ban of Religious Attire in Public Schools.” A Shadow Report by the International Center for Advocates Against Discrimination (ICAAD), United Nations Human Rights Committee, Country Report Task Force, 111th session (July 2014), at 5, https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/FRA/INT_CCPR_ICO_FRA_17451_E.pdf
In 2010, the French government took the next step in defense of its version of laïcité, passing a law which prohibited covering the face in public spaces. “No one shall, in any public space, wear clothing designed to conceal the face” (Art. 1). The statute did not give gendarmes the power to incarcerate individuals for such violations but it did give the government the power to levy a fine. More importantly, the statute proscribed any individual through “threats, duress, or constraint, undue influence or misuse of authority” from compelling another “by reason of sex” to “conceal their face” (Art. 4). The violator, if found guilty, would be subject to one year’s imprisonment and a fine of €30,000. If the person so compelled were a minor, the punishment increased to two year’s imprisonment and a €60,000 fine. The statute was clearly aimed at Muslim parents who required their daughters to wear a niqab or burqa. Indeed, the statute stated that the ban did not apply to covering the face “for health reasons or on professional grounds, or is part of sporting, artistic or traditional festivals or activities” (Art. 3). Accordingly, face masks for EMT workers, doctors and nurses were not prohibited nor were riot gear for police, head gear for lacrosse and fencing, ski masks for vacationers, nor theater masks for Mardi Gras and street carnivals. In short, the only ones affected in French life were Muslim females.
In a 2012 film titled World on Trial, Penn State’s Center for Global Studies arranged a debate on the justice of the French headscarf ban, moderated by Cherie Booth, a British barrister and the wife of the former UK Prime Minister Tony Blair. Charles Ogletree, a Harvard Law school professor and famous trial attorney in his own right, represented critics of the statute, while Rémy Schwartz, Rapporteur of the Conseil d’État and a member of the Stasi Commission, supported the law.
Schwartz presented three arguments in defense of the law. First, he suggested that it was merely a dress code; however, the rationale for the Stasi Commission’s recommendation belied that claim (“the visibility of a religious sign is perceived by many as contrary to the role of school, which should remain a neutral forum and a place where the development of critical faculties is encouraged”). Secondly, he argued that the law was not specifically targeted at Islam but rather at any conspicuous religious symbol worn to school by children belonging to any religious tradition. Ostensibly, the Stasi Commission believed that it was advancing the hallowed French tradition of laïcité; however, laïcité and the 1905 statute on which it is based seeks to protect the state from undue influence by religion, and in its particular historical context, the manipulation of the government of the Third Republic by the Roman Catholic Church. Neither the 1905 statute nor laïcité seeks to protect society or, most importantly, the individual from religion. The Stasi Commission’s interpretation distorted the original meaning of laïcité to serve the political interests of a government hostile to Muslim immigrants and their culture. Finally, Schwartz argued that the statute was designed to protect young Muslim females from the so-called “law of the brothers.”
As Karima Bennoune, a professor at the University of California-Davis School of Law, whom Schwartz called as a witness, argued, “the banlieues had become a zone governed not by the law of the republic, but rather where individual men in the community enforced the ‘law of the brothers.’”12 Karima Bennoune, K. (2008). The Law of the Republic versus the ”Law of the Brothers:” A story of France’s Law Banning Religious Symbols in Public Schools, in HUMAN RIGHTS ADVOCACY STORIES 155, 173 (Dena Hurwitz & Douglas Ford, 2008). Veiling was the only way that these young women could protect themselves from harassment and physical assault by men in their families and neighborhoods. “One of the concerns of those who oppose the 2004 Law is that by banning the headscarf in schools the law stigmatizes veiled girls and women in French society. However, supporters of the law turn this argument on its head, postulating that the wearing of the veil in school by some stigmatizes other unveiled girls as bad Muslims.”13 Id. at 175. Hence, by prohibiting the headscarf, Bennoune claimed that the statute protects those young Muslim women who do not wish to wear the veil.
The “Law of the Brothers” argument used to support the statute, however, seemed particularly strained. First, there did not seem to be any empirical data that the “brothers” controlled the banlieues. Secondly, the argument suggests that it is acceptable to protect the rights of some by violating the rights of others, i.e., the state may infringe upon the rights of young Muslim women, who wish to wear the hijab, to protect the rights of other young Muslim women, who are compelled to do so by the “brothers.” Thirdly, if the “brothers” physically harass or physically or sexually assault young women with impunity for their refusal to wear the hijab, the French authorities are simply failing to carry out their legal responsibilities to protect its citizens from assault and battery.
Like Bennoune, Hanifa Cherifi was called as a witness by Schwartz. She had served for some 10 years as a mediator between the French Ministry of Education and students who had complained about the attempts of school administrators and teachers to force the removal of their hijabs. A member of the Stasi Commission, she argued that the statute extended beyond the hijab. “The problem is not just the veil, but what the veil generates. . . . What has frequently happened is that a young girl wearing a veil will say, ‘I can no longer wear a swimsuit or exercise clothes.’ She will also say, ‘I must always remain separate from boys.’ So, a young girl who adopts the veil also adopts all the restrictions demanded by the veil.”14 Jennifer Joan Lee, Expulsions over Veil Intensify French Debate on Secularity, N.Y.TIMES, Oct. 21, 2003, https://www.nytimes.com/2003/10/21/news/international-education-expulsions-over-veil-intensify-french-debate-on.html Cherifi makes clear that Muslim women who adopt traditional Islamic practices suffer from a défaut d’assimilation or assimilation defect. They cannot be considered French and therefore the French government should undertake any measures necessary to discourage the spread of Islamic religious culture.
The Islamophobic views of the French government and dominant political parties have resulted in various absurdities. One Muslim entrepreneur developed a beach outfit for observant Muslim women so that they could enjoy the water without violating their religious conscience. Dubbed the “burkini” by French observers, the costume, which looks remarkably like a wetsuit worn by surfers and divers, had been banned in numerous towns on the Cote d‘Azur and Corsica, resulting in the issuance of summonses by French police to Muslim women — ironically — for not “wearing an outfit respecting good morals and secularism.”15 French Police Make Woman Remove Clothing on Nice Beach Following Burkini Ban. (2016, August 23). The GUARDIAN, Aug. 23, 2016, https://www.theguardian.com/world/2016/aug/24/french-police-make-woman-remove-burkini-on-nice-beach. These dubious local injunctions were legitimized by the 2021 statute which protects local officials from violence or any actions which seek to “intimidate” them. The law calls for a prison term of up to five years and a fine of €75,000 for online “hate,” however prosecutors might interpret it. Ostensibly, a Facebook post protesting such local ordinances could be regarded as a violation.
The 2021 statute included more draconian measures. Associations, including religious organizations, must register with the government and may be held responsible for the acts of their members and subject to dissolution under Art. L-212-1 of the French Internal Security Code. Incitement to discrimination, hatred, or violence by a minister of a religious association is punishable by up to five years in prison. Apparently, that would include encouraging practices that discriminate against women, e.g., the wearing of headscarves. Political meetings, including organizing members to vote, are prohibited. French Muslim parents who attempt to circumvent the law governing French public schools are barred from homeschooling their children. Homeschooling will henceforth be permitted only in cases where circumstances adversely affect the state of health or disability of the child, the practice of intensive sports or artistic activities, family homelessness, or a situation specific to a child’s “educational project.” An “undeclared school,” created by parents, may be shut down by the government.
It is clear that the headscarf itself is not the issue. If a young French woman decided to wear a headscarf to school in the chic tradition of Audrey Hepburn in the 1963 film Charade, it would not violate the statute, whereas the identical headscarf worn by a Muslim young woman out of religious devotion would violate the law. It is therefore not the wearing of the headscarf that offends; it is that the young woman is a Muslim. Of course, an observer would not be able to determine whether the wearer’s intent or mens rea was religious without specifically asking the reason for her choice, unless the observer made an assumption based on the wearer’s race, skin color, or language.
These statutes allegedly do not discriminate against any particular religion, but rather place limitations on all religions; however, that grates on the ears of Americans whose Constitutional tradition of government neutrality bars legal hostility toward religion per se. This claim is also disingenuous since discrimination against all religions rather than just one targeted faith arguably violates both the 1905 laïcité statute’s guarantee of the free exercise of religion and Article 1 of the 1958 French Constitution. Nevertheless, despite the claim that the ban on headscarves is incidental to the statutes’ supposed purpose of prohibiting all ostentatious religious signs and symbols in French public spaces and discrimination against women, their historical context reveals the true motivation: Islamophobia. There is no question that these laws, as justified by its proponents, specifically target a particular religion, Islam, a goal plainly averse to the American Constitutional tradition.16 See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US 520 (1993). Ordinance 87-52, passed by the City Council of Hialeah, Florida, prohibited animal sacrifice not carried out for the primary purpose of food consumption. The ordinance targeted practitioners of Santeria, a religious tradition affiliated with candomblé and voudon, and descended from indigenous West African religious traditions brought originally to the Western Hemisphere by slaves. The Lukumi majority concluded, “The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void” [emphasis added](522). ♦
James McBride, Ph.D., J.D., is Clinical Professor of Liberal Studies and Chair of Law, Ethics, History & Religion in Global Liberal Studies at New York University. His most recent articles on law and religion appear in the GCAS Review, Revue Française d’Études Américaines, Sophia, International Journal of Philosophy and Traditions, and the anthology The Meaning of My Neighbor’s Faith: Interreligious Reflections on Immigration, as well as a forthcoming article in the Journal of Race and Policy.
McBride, James. “The Qur’an, Islamic Veiling, and Laïcité: French Law and Islamophobia.” Canopy Forum, September 23, 2021. https://canopyforum.org/2021/09/23/the-quran-islamic-veiling-and-laicite-french-law-and-islamophobia