The Veil--Torn Between Religion and Law in Spain

The Spanish newspaper El Pais reported on a movement that has been gaining much ground in the autonomous community of Catlunya this summer--the regulation of the veil within Catalan cities.  

Justice Minister Francisco Caamaño said on Tuesday that the Future Religious Freedom Law will restrict the use of the burqa in public areas, following the lead of several Catalonian cities that recently banned full-body coverings.
"There are elements such as the burqa that are hardly compatible with human dignity and, above all, with fundamental issues in public spaces such as the identification of individuals," said Caamaño.
The burqa and niqab are usedby very few Muslim women in Spain, unlike the headscarf or hijab.  On Monday, Barcelona decreed a ban on on the burqa affecting all public buildings.  Socialist Mayor Jordi Hereu defended the measure "for security reasons" and "out of common sense."  Tarragona and Lleida recently enacted similar bans.

Law Paves Way for Blanket Ban on Burqa, El Pais (English ed.) June 16, 2010.

These efforts remind us of one of the great consequences of globalization--the movement toward polycentricity in modern governance. Blommaert et al., "Polycentricity and interactional regimes in ‘global neighborhoods’", Ethnography.2005; 6: 205-235 In this case one encounters a particularly interesting example, public-private governance polycentricity in which overlapping political and religious communities compete and communicate  as they seek to preserve the integrity of their governance regimes among their members. Sharia As Discourse (Cultural Diversity and Law) (Jørgen S. Nielsen& Lisbet Christoffersen (eds., Ashgate 2010).  The movement in Spain to "manage" the veil reminds us both of the consequences of polycentricity between systems of different fundamental characteristics (state-law and religion-law systems int his case) and of the tensions inherent in efforts to use religious law and symbols to political effect in democratic systems.  The veil has long been transformed from a simple expression of religious faith to an aggressive symbol of law hierarchy within polycentric states, both in the dar al-Islam (e.g. Turkey and Egypt) and the dar al-harb (e.g., Europe).  In that context, especially in democratic states, there is always a danger that public policy will trump religious sensibilities.  As a political symbol, the veil loses its special character as an expression of religious expression.  And within that context, it is possible that the special protection extended in the West to religion may not be sufficient to preserve the privilege of politically asserted religious symbols where the privilege of such use clashes against other political values (state security) of potentially equal or superior value.  

It will be interesting to see what the European Court of Human Rights will eventually have to say. Recently, in Ahmet Arslan and Others v. Turkey (no. 41135/98) the European Court of Human Rights ruled that Turkey had violated the human rights of the adherents of a faith community by applying its anti terrorism law against them for wearing their distinctive religious garb. The facts of the case appear somewhat analogous.

The applicants are 127 Turkish nationals, including Mr Ahmet Arslan. They belong to a religious group known to its members as Aczimendi tarikatÿ.

In October 1996 they met in Ankara for a religious ceremony held at the Kocatepe mosque. They toured the streets of the city while wearing the distinctive dress of their group, which evoked that of the leading prophets and was made up of a turban, “salvar” (baggy “harem” trousers), a tunic and a stick. Following various incidents on the same day, they were arrested and placed in police custody.

In the context of proceedings brought against them for breach of the anti-terrorism legislation, they appeared before the State Security Court in January 1997, dressed in accordance with their group’s dress code.

Following that hearing, proceedings were brought against them and they were convicted for a breach both of the law on the wearing of headgear and of the rules on the wearing of certain garments, specifically religious garments, in public other than for religious ceremonies. They appealed against their conviction, but without success. In addition, their application to the Ministry of Justice, seeking leave to lodge a reference by written order was also dismissed.

Chamber Judgment Ahmet Arslan and Others v. Turkey - Press release issued by the Registrar 23.02.10  The Court found that the application of Turkish law was counter to the protections of Article 9 of the European Human Rights Convention. 

Article 9 – Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

But the grounds were also narrowly drawn:

The applicants’ conviction for having worn the clothing in question fell within the ambit of Article 9 – which protected, among other things, the freedom to manifest one’s religious beliefs – since the applicants were members of a religious group and considered that their religion required them to dress in that manner. Accordingly, the Turkish courts’ decisions had amounted to interference in the applicants’ freedom of conscience and religion, the legal basis for which was not contested (the law on the wearing of headgear and regulations on the wearing of certain garments in public).

It could be accepted, particularly given the importance of the principle of secularism for the democratic system in Turkey, that this interference pursued the legitimate aims of protection of public safety, prevention of disorder and protection of the rights and freedoms of others. However, the sole reasoning given by the Turkish courts had consisted in a reference to the legal provisions and, on appeal, a finding that the disputed conviction was in conformity with the law.

The Court further emphasised that this case concerned punishment for the wearing of particular dress in public areas that were open to all, and not, as in other cases that it had had to judge, regulation of the wearing of religious symbols in public establishments, where religious neutrality might take precedence over the right to manifest one’s religion.

There was no evidence that the applicants represented a threat for public order or that they had been involved in proselytism by exerting inappropriate pressure on passers-by during their gathering. In the opinion of the Religious Affairs Organisation, their movement was limited in size and amounted to “a curiosity”, and the clothing worn by them did not represent any religious power or authority that was recognised by the State.

Id.  Some European civil society elements have chosen to read the case broadly, suggesting a substantial limit on the power of states to manage dress, especially dress that (though it has political effect) is ostensibly worn by religious command.  "A wholesale ban on the full veil in public is incompatible with the European Convention on Human Rights and is likely to also run afoul of European Union laws against discrimination, Human Rights Watch said. " Human Rights Watch, Belgium: Muslim Veil Ban Would Violate Rights,  April 21, 2010 (commenting on efforts in Belgium to criminalize the wearing of full veils in public places). 

But the Arslan case must be read together with the earlier case of  Dogru v. France, where the Court of Human Rights affirmed the power of the French State to preserve the secular nature of its organization by managing the use of religious clothing within certain public establishments. 

The court observed that the purpose of the restriction on the applicants' right to manifest their religious convictions was to adhere to  the requirements of secularism in French state schools.
The court also said that the penalty of expulsion did not appear disproportionate, and noted that the applicants had been able to continue their schooling by correspondence classes.
"It was clear that the applicants' religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order," the court said in a press release.
It was also clear that the decision was based on those requirements and not on any objections to the applicants' religious beliefs. 

French headscarf ban no discrimination, says European rights court.  Free Library.  ""The court also reiterates that the state may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety," the ECHR said in its ruling in the case of Dogru vs France."  European court confirms headscarf ban in school no violation to rights, Hurriyet Daily News ("The Court noted in France, as in Turkey or Switzerland, secularism is a constitutional principle, and a founding principle of the Republic, to which the entire population adheres and the protection of which appears to be of prime importance, in particular in schools." Id.).   Spain might be in a somewhat weakened position, because of its traditionally strong relationship with the Catholic Church, so that legislative action that might subordinate other religious practice might be viewed more closely for neutrality and the strength of non-religious policy (like public safety) advanced in support of such measures.