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1. How do France and Quebec support the banning of religious garments desp

by | Jun 22, 2022 | Religion and Theology | 0 comments


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How do France and Quebec
support the banning of religious garments despite the seeming contradiction of
legislating against religious rights?
Bowen, John, R. “How the French State Justifies Controlling
Muslim Bodies: From Harm-Based to Values-Based Reasoning,” Social Research,
Vol. 78(2), The Body and the State: How the State Controls and Protects the
Body, Part I (Summer, 2011), pp. 325-348.
This is an article that we read in class to help you.
John R. Bowen – How the French State Justifies controlling Muslim Bodies: From Harm-Based
to Values-Based Reasoning
leaders across Western Europe have increasingly pointed to Muslims’ bodily attitudes as
indicative of their refusal to join the wider society, and as indicative of the failure of the
society to sufficiently carry out programs of political socialization and assimilation.
 Among the targeted practices have been covering the hair or face (for women), wearing
loose, short trousers (for men), refusing to shake hands with those of the opposite sex,
and praying in the street (for men and women)
 Political actors have made both broader and more specific claims: that these badges of
separation show that some Muslims refuse the mies of common social life, and that
covering the hair or face shows that the oppression of women, either in particular cases or
generally, remains part of Islamic culture.
 Civic “normality” is thereby portrayed against images of its opposite: people who by their
bodily practices show themselves to be visibly and slavishly obedient, unmodern, and
 France’s Constitutional Council: In 2010, the council upheld a law against covering the
face in public by ascribing objective meanings to face coverings, a novel judicial
Why the Anti-Burqa Law is Constitutional
 The Constitutional Council (Conseil Constitutionnel) considers requests to pronounce on
the constitutionality of a law being considered in either chamber of Parliament
 The State Council (Conseil d’État), on the other hand, acts as a review body for actions
arising in public institutions such as schools or immigration offices; The State Council
decides whether actions taken by French bodies conform to the law, in the broadest sense
that includes international commitments and the French constitutions; the State Council
also issues reports on various matters and is routinely asked to inform Parliament of the
state of the law on questions of the day; State councilors also act as multipurpose agendasetters for a wide array of commissions and legal institutions
 the Court of Cassation (Cour de Cassation) receives requests to overturn decisions taken
by lower courts. Unlike a Supreme Court, but similar to high courts in other civil-law
countries, it limits its judgments to the question of whether the law was interpreted
correctly by the lower court in a particular case.
 Now to the law in question, passed in October 2010 and forbidding anyone “in public
space, to wear clothing meant to cover his/her face”
 The Constitution Council cited 2 principles:
1. It argued that covering the face “misrecognizes the minimal requirements of
living in society”
2. That those women who decide to wear a face veil “find themselves place in a
situation of exclusion and ineriority clearly incompatible with the consitutional
principles of freedom and equality”
 But they did add a restriction to the law, stipulating that it not apply to people who are in
public religious spaces, which means mosques, churches, temples, and so on; Thus a
woman now may cover her face in her automobile when she drives to the mosque (a right
recently upheld in court), and when she is inside the mosque, as long as she removes it
between the parking space and the mosque entryway
 The council’s 2 justifications:
1. Concerning the requirements of socialbility, echoes long-standing claims about
ways in which Muslim “communalism” hindered full civic participation
2. About the signs of female inferiority, makes a claim long avoided by judges and
jurisits: that head coverings signal Muslim patriarchy
 The council argued that religious freedom considerations were outweighed by the
arguments concerning socialbility and gender equality
2003: Preventing Harm
 Often forgotten is that during these 15 years, the State Council consistently held that
pupils had the right to wear the scarves as an instance of the religious freedom they enjoy
under European law and under French constitutions; The 2003 presidentially appointed
Stasi Commission, which gave the more or less official justification for the subsequent
law, acknowledged those rights
 However, the Stasi Commission argued that religious rights were outweighed by the need
to protect some girls, who did not wish to wear scarves, from the men and women who
were trying to force them to do so. No such girls testified at the public hearings held by
the Stasi Commission, and although frequent reference is made by supporters of the law
to the commission’s closed hearings, only one such testimony appears to have been taken
even in private
2008: Preventing Archaic Marriage Practices
 In April 2008, a court in Lille accepted a husband’s argument that his marriage should be
annulled on grounds that his wife had lied concerning “an essential qualify of the person,”
to use the language of the Civil Code, in this case her virginify
 Virginity is not essential to a marriage, declared the court, no matter what the couple
might have thought
 This decision left the couple once again married; they soon took the easier route of
simply divorcing
 Although the appellate court took care not to denounce Islam as such, its decision has
been interpreted as “preventing taking account of communal or religious norms when
consenting to marriage,” and thus reducing the contractual element of marriage. Certain
values or considerations are now potentially considered essential to marriage, and other
ones, such as those of virginity, are not
2008 BIS: Keeping Subordinate Women Out of the Republic
 That same June came a second decision, which pushed the courts a bit further toward the
logic of values-based prohibitions of Islamic practices. The decision was taken by the
State Council, which refused to grant French nationality to a woman from Morocco
 The council ruled that her religious practices had led her to hold values that ran counter to
the equality of men and women and that caused her to suffer from insufficient
assimilation to become a French citizen. She suffered from a défaut d’assimilation. The
woman, named Faiza, had married a French convert to Islam who requested that she wear
a full face-veil. They had three children. She was reported to stay at home and to have
insufficient knowledge of the right to vote and the basics of laïcité.
 The state council argued that it wasn’t because of she was wearing the burqa but because
of a refusing to live as a being with equal human rights that, in the eyes of the State
Council— as it happens with a woman presiding—is incompatible with the condition of
 The government’s case was that her religious practice was radical not because of ways
she interprets the Qur’an or how often (or with whom) she prays, but in her choice of
clothing and the fact that she made that choice when marrying her husband; she wore
Islamic dress, with headscarf, in Morocco before meeting her husband, after they married
(in Morocco), and even after coming to France
 The government also linked Faiza to what they saw as radical Islamic (that is, Salafi)
movements judged incompatible with France, and emphasized her burqa as representative
of the gender inequality of those movements
 Consider the logic, for it foreshadows that of the 2010 ruling.
1. First, the woman wears a burqa, and the burqa is the preeminent sign of women’s
inequality. Therefore, we know from her dress, even if it was not forced upon her,
that she has not accepted women’s equality. This conclusion is strengthened by
several other bits of information: that she stays at home, that she did not know
much about laïcité or the right to vote. A third jurist specified that at issue is “the
wearing of the burqa and the behavior to which it leads”
2. Second, her husband is a Salafist, a radical version of Islam that must be opposed.
The jurist Vallar explains that one ground for rejecting claims to citizenship is if
the applicant is aggressive toward the republic. He then points out that her
husband claimed allegiance to Salafism and that, quoting the government’s
claims, this tendency “had reached their neighborhood after the passage of a
‘particularly vehement’ imam, which returns us to the jurisprudence against
aggressive proselytizing
 There appear, then, three elements in logical interrelation: burqa-wearing, rejection of
French values, and radical Islam. Burqas are signs of having rejected French values and
in some way also promote non-French ways of thinking
 The government representative argued that the burqa was not a “Qur’anic requirement”
but was merely part of custom, whose purpose is “to keep women under domination by
Back to 2010: A Dual Critique of Bodily Citizenship
 First, the council argued that normal citizens are autonomous in private as well as in
public life, and that certain religious views can undermine autonomy and thereby weaken
the conditions for citizenship. The couple requesting an annulment endangered women’s
equality because expecting a virgin bride was part of a patriarchy package—that the wife
may have agreed with the request made the danger only greater. The woman with the
assimilation defect wore the wrong clothes, but they were not a violation of public
secularity, because she reportedly stayed at home too much. Her clothes were a sign of a
basic personal flaw, one that comes from holding the wrong religious views. This is
precisely the claim carefully side-stepped by the Stasi Commission in 2003.
 Second, the decision evokes the idea that normal citizens are civil; they interact in the
“shared life” of civic France
 finding a legal justification for banning burqas because they inhibit mixing and civic
sociability had no clear basis in French jurisprudence.
 To accomplish its task of finding the anti-burqa law constitutional, the Constitutional
Council had to create a new judicial instrument and also to conceal the fact of that
invention. The instrument in question was a new notion of ordre public
 The Constitutional Council’s sphere of action was severely limited by existing
jurisprudence, however. First, the European Court of Human Rights (2010) had recently
ruled that simply appearing in public in a certain set of clothes could not be considered a
menace to ordre public or a threat to anyone. Therefore, the council could not base its
ruling on usual conceptions of ordre public, which have to do with the interests of
citizens taken as a whole. These interests can take on a nonmaterial form, such as moral
order and the respect of human dignity. In France, ordre public really concerns “public
moral order,” with its Durkheimian sense that the law protects socially embedded moral
conceptions (Bénabent 1996). But the State Council had already ruled that public moral
order could not be used to ban burqas in that these items of clothing did not present an
“immoral” character in any sense of the term

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