Headscarf Bans in France and Religious Freedom

By William Reed

With Islamic extremism becoming more and more of a hot-topic in European politics and everyday life, the French headscarf ban debate has come under closer scrutiny.  In 2004, France outlawed all conspicuous religious symbols in the public space.  All Christian and Jewish symbols are also banned, but many critics believe the ban targets Muslim headscarves.  In July of 2014, the European Court of Human Rights upheld a French ban on all full-face veils in public, affecting specifically those women who wear a niqab or burqa.[1]  The ruling highlights the grey area concerning to what extent the state should be allowed to dictate the expression of its citizens, and how the state's rights interact with human rights.

                  The issue stems from the increasing visibility of Muslim identity across the globe and the Western view that headscarves are a symbol of gender oppression and extremism "forced onto women by a patriarchal religion."[2]  The obligation of Muslim women to wear headscarves comes from the Quran, the holy text of Islam.  Although there is no explicit reference to a headscarf use, the language of the text has been interpreted as such.  Thus, one side of the debate defends Muslims’ right to wear a headscarf as a legitimate expression of religion.  This view is protected not only by international human rights but also by many domestic state laws around the world.

                  Since wearing headscarves is assumed to be protected as a legitimate expression of religion, all international cases regarding headscarf bans must be analyzed based on whether or not the interference with that form of religious expression is justified.  This subjective analysis varies from country to country.  In France, there is a strong history of secularism, known as laïcité, whose sentiments lead the charge to outlaw all forms of religious expression in the public domain.  Further, France has tried to maintain a broad, inclusive, imagined national identity; some believe that overt religious expression undermines this identity.  However, religious freedom is guaranteed by the French constitution and is "limited only by restrictions in the interests of public order."[3]

                  There are a few reasons why governments decide to ban religious clothing, particularly the headscarf.  The first and most obvious reason is adherence to a strict division between church and state.  However, by banning certain forms of religious expression, governments may, paradoxically, become even more involved in religion.  Governments that impose such a ban justify the law based on morality in that they prevent women being coerced in to wearing headscarves.  The extent to which Muslim women are forced to wear headscarves is difficult to determine, but generally it is assumed that there is not much coercion and most women choose to wear hijabs or burqas for their own personal reasons.  Another argument follows that the state is protecting the equality of women.  The final argument is that headscarves can be seen as a symbol of terrorism and extremism and thus a threat.

                  The success of such goals is not easy to measure but can be analyzed to a certain extent.  First one must ask if women wearing headscarves are really contributing to the rise of global terrorism and religious extremism and if banning headscarves would thus reduce these threats.  Common sense points to the conclusion that sartorial choices are not a significant factor in the global war on terrorism and extremism.  Second, one must question whether Muslim women really need such drastic “rescuing” by Western governments from their oppressive religion.  Based on the guaranteed freedoms of expression and religion, women should be making the choice for themselves how they express their religion and governments should thus have no place judging the merits and morals of religions.[4] 

Additionally, Muslim women who wear headscarves are a minority within French Muslims and Muslims are a minority in France.  By removing such guaranteed freedoms, this already marginalized group is pushed even further away from mainstream society.  If bans are directed toward achieving equality, this is a step in the wrong direction.  Headscarf bans are extremely narrow, affecting a minority of a minority.  Similarly, such laws achieve no equality of religions because they are aimed at one religion only.[5]  While officially, the laws apply to all religious groups, they are clearly aimed at headscarves.[6]

Following the tragedies at Charlie Hebdo in France and other related incidents in the early part of 2015, the issue of religious control by the state will only become more prevalent in European politics.  The same incidents increase fear mongering and stereotyping in the West aimed toward Muslims.  The issue of the headscarf is a particularly heated argument, and France and court cases concerning the relationship between state control and human rights are gaining international publicity.  With recent developments, it seems that the headscarf issue can only become more divisive and contentious.  

---

[1] Human Rights Watch. "France: Face-veil ruling undermines rights".  http://www.hrw.org/news/2014/07/03/france-face-veil-ruling-undermines-rights. Web.  July 3, 2014.

[2] Osman, F. "Legislative Prohibitions On Wearing A Headscarf: Are They Justified?." Potchefstroom Electronic Law Journal 17.4 (2014): 1318-1349. Academic Search Complete.

[3] Adrian, Melanie. "Laïcité Unveiled: A Case Study In Human Rights, Religion, And Culture In France." Human Rights Review 8.1 (2006): 102-114. Academic Search Complete. Web.

[4] Body-Gendrot, Sophie. "France Upside Down Over A Headscarf?." Sociology Of Religion 68.3 (2007): 289-304. Academic Search Complete. Web.

[5] Vickers, Lucy. "Religious Freedom: Expressing Religion, Attire, And Public Spaces." Journal Of Law & Policy 22.2 (2014): 591-611. Academic Search Complete.

[6] Thomas, Elaine R. "Keeping Identity At A Distance: Explaining France's New Legal Restrictions On The Islamic Headscarf." Ethnic & Racial Studies 29.2 (2006): 237-259. Academic Search Complete.

Alabama’s Controversy over Same-Sex Marriage

By Michele Bastacky

Since the 2013 decision from the Supreme Court to strike down Section 3 of the Defense of Marriage Act _[1], 37 states and the District of Columbia have removed their ban on same-sex marriage. _[2] The national legalization of same-sex marriage seems to be rapidly approaching.  However, with each new state comes new problems and barriers to enforcement.  Frequently, in more traditionally conservative states in the south and mid-west, objection to the lifting of these bans has become commonplace.  As is the case with the most recent state to overturn its ban, on January 23, Alabama has faced significant obstacles in trying to force local probate judges to issue marriage licenses for same-sex couples.

The ban was lifted in Alabama when a same-sex couple sued the Attorney General to recognize marriages. _[3]  After the ban was lifted, there was a temporary hold on marriages until Feburary 9^th, when US District Judge Granade ruled that all state officials must adhere to the revocation of the ban and the new allowance for same-sex marriage in their jurisdiction.  In addition, on February 9^th, the US Supreme Court and the 11^th Circuit Court of Appeals upheld the continuation of same-sex marriages and would not permit the hold to extend beyond February 9^th. 

The problem that has created significant conflict and controversy in the state is the result of a letter to state judges from Judge Moore, the chief justice of the Alabama Supreme Court.  Judge Moore claims that the federal court decision was an invasion of the sovereignty of states’ rights.  He therefore asserted that the state has the right to interpret the Constitution, and it is their judiciary obligation to correct “any condition or situation adversely affecting the administration of justice within this state”.  This position poses a significant problem for two reasons.  First, Justice Moore does not have jurisdiction in this case as the Supreme Court of Alabama was not overseeing any same-sex marriage cases at the time.  Secondly, the decision had already made by the Eleventh Circuit Court and the US Supreme Court upheld its enforcement.  Justice Moore’s proclamation that the state judges may ignore that decision, far oversteps his legal authority. _[4]

However, Alabama faces a barrier in that marriage licenses are issued differently than elsewhere in the United States.  In most states, clerks who fall under the jurisdiction of the attorney general or another state official can issue marriages licenses.  Differently, in Alabama, probate judges issue the licenses and therefore would not have to recognize this decision, as the attorney general of Alabama was the defendant in the case and he does not supervise probate judges.  Given this obstacle, a probate judge would likely need to see a case involving same-sex marriage to cause probate judges statewide to enforce this decision. _[5]

The issue of states’ versus federal rights has been an ongoing argument since the founding of the United States and has posed problems frequently throughout American history.  In the Constitution, the 10^th Amendment grants powers not explicitly given to the federal government, or prohibited by the states, to the state.  _[6] However, a major issue regarding supremacy was directly addressed in McCulloch v. Maryland, in 1819; with this decision, the Supremacy Clause, Article 6 Section 2 of the Constitution, was addressed to give the federal government authority over the states when a conflict arose over a law. _[7]  Since McCulloch v. Maryland case, more historical conflicts have arisen such as the issue of a states’ right of secession during the Civil War and have continued to current day such as the case in Alabama.  Although the current situation is more of a civil rights infraction, Justice Moore seems to have defended his decision as a state sovereignty concern.

The overriding problem now is whether the state will enforce the federal order or disregard it and act accordance to the directive of Justice Moore, recognized to be a conservative judge who has been removed in the past.  Since Justice Moore’s message, some judges in Alabama have begun issuing marriage licenses to same-sex couples, while other have refused to do so.  As of February 9^th, marriage licenses began to be issued and will likely continue in some districts as Alabama’s gay marriage ban was deemed unconstitutional. _[8]

The Supreme Court has recently decided to take up the two issues of state bans on same-sex marriage and a state’s ability to recognize a marriage license issued in another state.  The Court has brought up four cases to see in April with a ruling likely in June.  The ruling will be based off a decision made by the Sixth Circuit Court of Appeals that chose to uphold same-sex marriage bans in four states.  Seeing as the Supreme Courts plans to address these issues, the legal conflicts in Alabama may be resolved soon with the SCOTUS ruling.  _[9]

1.     US v. Windsor 12 U.S.. 307.

2.     "Map: Same-sex Marriage in the United States." CNN. Cable News Network, n.d. Web. 11 Feb. 2015.

3.     Lopez, German. "Alabama's Constitutional Crisis over Same-sex Marriage, Explained." Vox. Vox Media, 11 Feb. 2015. Web. 11 Feb. 2015.

4.     Ibid.

5.     Ibid.

6.     Amendment 10. U.S. Constitution

7.     McCulloch v. Maryland. 17 U.S. 316

8.     Lopez, German. "Alabama's Constitutional Crisis over Same-sex Marriage, Explained." Vox. Vox Media, 11 Feb. 2015. Web. 11 Feb. 2015.

9.     Denniston, Lyle. "Court Will Rule on Same-sex Marriage (UPDATED)." SCOTUSblog RSS. SCOTUSblog, 16 Jan. 2015. Web. 16 Feb. 2015.

And the Nominees Are… Best Court Case of the Supreme Court Term

By Jenna Spoont

The Academy Awards are coming up on Feb. 22. But what really needs an awards ceremony is this blockbuster Supreme Court term. The Supreme Court granted certiorari for monumental cases that will magnanimously change today’s society. I selected the nominees for “Best Case.” I nominated the cases according to their issues and according to the impact that the decision will make on Americans.

1.     DeBoer v. Snyder, Obergefell v. Hodges, Bourke v. Beshear, Tanco v. Haslam, or the same-sex marriage cases:

The Issues: “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” (SCOTUSblog).

Basically, the Court will decide whether or not same-sex marriage is a Constitutional right.

Background: In June 2013, the Court struck down the Defense of Marriage Act (DOMA) in a 5-4 decision that “states have the authority to define marital relations and that DOMA goes against legislative and historical precedent by undermining that authority” (Windsor v. United States, Oyez). The question of same-sex marriage in the states was not the issue in Windsor. However, in the past few years, the legitimacy of same-sex marriage in the states has come under question. There are 13 U.S. Courts of Appeals. The Supreme Court tends to grant certiorari for cases in which there is a disagreement among the U.S. Courts of Appeals. For instance, in the same-sex marriage case, five Courts of Appeals struck down bans on gay marriage, while the Sixth Circuit U.S. Court of Appeals upheld the bans. The Sixth Circuit hears appeals from Kentucky, Michigan, Ohio, and Tennessee.

The Supreme Court, naturally, wants to end the disagreements among the U.S. Courts of Appeals.

Dates: To be determined. If you’re planning on attending the oral arguments, you may have to line up in front of the Supreme Court days in advance.

2.     *Elonis v. United States, or the online “true threats” case:

The Issue: Does a speaker have to have the intent to carry out a true threat in order to be convicted of making a true threat? Or does the recipient only have to be afraid in order for the speaker to be convicted? The case involves the First Amendment’s guarantee of the freedom of speech.

Here’s the story about Anthony Elonis and his Facebook posts. In 2010, Mr. Elonis was convicted on four counts for writing threatening posts on his Facebook page. The posts targeted his wife, local law enforcement, an elementary school, and a Federal Bureau of Investigation agent. Mr. Elonis, 31, claims that his Facebook posts were rap lyrics that served as an outlet for him to let off steam during a difficult time in his life. At the time of his posts, Mr. Elonis was fired from his job and Mr. Elonis’ wife left him after seven years of marriage, taking their two young children with her. Mr. Elonis was sentenced to 44 months in prison and three years of probation.

The Court’s decision, which will most likely come out this summer, will set a precedent for First Amendment protections on social media sites.

            Dates: This case was argued on December 1, 2014.

3.     *Zivotofsky v. Kerry, or the Israeli passport case:

The Issue: Does Congress have the power to pass a law requiring the State Department to record the birthplace of an American citizen born in “Jerusalem” as born in “Israel” on a U.S. passport, or would the law infringe on presidential recognition power? (C-SPAN, November 4, 2014).

Basically, this case involves the separation of powers.

Manachem Zivotofsky was born in Jerusalem in 2002 to parents who are citizens of the United States (Oyez). When he was born, his parents requested for his passport to say “Israel” as the place of birth, rather than “Jerusalem.” But, the State Department refused to do so. The U.S. Court of Appeals for the District of Columbia Circuit “held that the section goes beyond the scope of Congress’s passport power to affect United States foreign policy, which is a realm the Constitution reserves for the executive branch” (Oyez).

So, the Court is not deciding whether or not to recognize Jerusalem as a part of Israel. Rather, the Court is figuring out Legislative-Executive Branch relations when it comes to recognizing foreign states on a passport.

This case was argued on November 3, 2014. The justices will most likely release the decision for this case in the summer.

4.     King v. Burwell, or the Affordable Care Act case:

The Issue: “Whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges by the federal government under Section 1321 of the Patient Protection and Affordable Care Act” (SCOTUSBlog).

The dispute over the Affordable Care Act, or “Obamacare,” continues in this case. Recall in June 2012, the Supreme Court ruled in a 5-4 decision that the Affordable Care Act was valid under the Taxing Clause, but not valid under the Commerce Clause (National Federation of Independent Business v. Sebelius). In King v. Burwell, the case tests “whether lower-income individuals can get federal subsidies to help them afford health insurance in the thirty-four states where an Affordable Care Act insurance marketplace is run by the federal, rather than a state, government” (Denniston, SCOTUSblog, December 29, 2014). The Court will essentially look at four words in the Affordable Care Act—“established by the State”—to decide whether or not federal government marketplaces are valid if the state does not open their own exchanges.

Tom Goldstein wrote in SCOTUSblog, “But if a state refuses, the federal government will provide the exchange. The law then provides tax credits for people who need financial assistance. Without the subsidy, many people will not be subject to the ‘individual mandate’ to buy insurance” (SCOTUSblog, July 23, 2014).

Dates: March 4, 2015. If you’re planning on attending the oral argument, you may have to line up in front of the Supreme Court days in advance.

*I attended the oral argument for the case.

Who do you think the winner should be?

DeBoer v. Snyder, Obergefell v. Hodges, Bourke v. Beshear, Tanco v. Haslam

Elonis v. United States

Zivotofsky v. Kerry

King v. Burwell

Poll Maker