Lift ing the Veil: France's New Crusade
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France is home to the largest Muslim population in Europe, comprising six percent of the French population, making Islam the second most practiced religion in France. With an influx of Muslim immigrants, France struggles with concerns over its national identity and culture. In 2009, the French government began to consider a ban on the face veil, or burqa, in public. Critics accused France of discrimination and Islamophobia, while officials calling for such a ban defended it on constitutional grounds: secularism and a belief that the burqa represents gender discrimination. On September 14, 2010, the French Senate approved the bill to ban women from wearing the veil in public and with the approval of the Constitutional Council, the law will go into effect in the Spring of 2011. This Note calls on the European Court of Human Rights to depart from its history of deference to Member State governments regarding issues of religious expression; instead, the court should ensure that any decision to restrict religious expression in France through a burqa ban does not violate the European Convention on Human Rights. [A]s long as women are in shrouds[,] . . . [h]alf the nation is not alive.Keywords:
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Recently, the United States Supreme Court passed a victory to the current President Donald J. Trump by revitalizing parts of a travel ban on individuals from six Muslim-majority countries that he alleged is needed for national security and the interests of the United States but that adversaries criticize and claim as biased and discriminatory. The justices lessened the scope of lower court decisions that had entirely blocked crucial parts of a March 6, 2017 executive order that Trump had said was required to avert terrorism attacks, permitting his temporary ban to go into effect for folks with no strong ties to the United States. In this domain, the court issued its order on the last day of its current term and agreed to hear oral arguments again at a later stage, so it can decide lastly whether the ban is legitimate in a foremost test of presidential powers and controls.
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Journal Article Under God but Not the Scarf: The Founding Myths of Religious Freedom in the United States and Laïcité in France Get access T. Jeremy Gunn T. Jeremy Gunn Senior Fellow for religion and human rights Emory University Law SchoolAtlanta, Georgia Search for other works by this author on: Oxford Academic Google Scholar Journal of Church and State, Volume 46, Issue 1, Winter 2004, Pages 7–24, https://doi.org/10.1093/jcs/46.1.7 Published: 01 January 2004
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I. INTRODUCTION In the summer of 2010, France's parliament banned the wearing of the Islamic full, head-and-body veil in places, colloquially known as the ban.1 The law prohibits person in areas from wearing an item of clothing for the purpose of concealing his or her face.2 A violation of this provision can lead to second-degree misdemeanor.3 The law also criminalizes forcing another person to conceal his or her face on the basis of gender with threats of violence, coercion, or by use of improper authority.4 A violation of this provision carries one year imprisonment and fine of C= 30,000 or, in case of force applied to minor, two year imprisonment and fine of C= 60,000.5 On October 7, 2010, the French Constitutional Council approved the law, finding that it allowed free exercise of religion in places of worship and that the punishment attached to the ban was not disproportionate.6 In the run-up to the law's passage, French President Nicolas Sarkozy justified the government's policy saying, [The burqa] is not religious symbol. It is symbol of servitude and humiliation.... We cannot accept, in our country, women imprisoned behind mesh, cut offfrom society, deprived of all identity... that is not the French republic's idea of women's dignity. 7 Sarkozy seems to be echoing the sentiments of the French populace, eighty-two percent of which approve of the ban.8 While other European countries have passed or are considering similar laws,9 no other European country has taken such definitive and harsh stance on Islamic veils. In the coming months, European countries will not only look to see whether France's law has positive effects, but whether it survives adjudication within the halls of the European Court of Human Rights (Court). This Note argues that, in its current form, France's legislation violates European law, specifically Article IX of the Convention for the Protection of Human Rights and Fundamental Freedoms and the Court's interpretation thereof. Moreover, because of the likelihood that the Court will strike down France's law as violative, this Note argues that France should revise the burqa ban in accordance with the Court's jurisprudence. In Part II, this Note will explain the use of the burqa as religious symbol in Islam and illustrate the underpinnings of its use as an expression of individual belief, despite the growing perception in the western world that its use is degrading to women. In addition, this Note offers historical account of the place of Muslims in French society. Part II also provides an explanation of the role of secularism in France and the principle of laicite that governs French decision-making, particularly its role in the current burqa ban. Part II concludes with an analysis of the Court's case law interpreting Article IX, framing the discussion around the use of personal, religious symbols. In Part III, this Note offers an analysis of France's law under the Court's jurisprudence. Specifically, Part III addresses the separate considerations that the Court would make in challenge to the burqa ban and demonstrates why the law would fail the Court's Article IX three-part test. Part III concludes with recommendations for ways that France may redraftthe law to make it more consistent with the Court's decisions and still accomplish its greater interests. II. BACKGROUND A. Use of the Burqa in Islam The burqa (or, alternatively, burka) is a loose enveloping garment that covers the face and body and is worn in public by Muslim women.10 The widely recognized source for Islam's rationale behind female body coverings can be found in two places within the Qur'an. The first reads O Prophet! tell thy wives and daughters and the believing women, that they should cast their outer garments over their persons (when abroad): that is most convenient, that they should be known (as such) and not molested.11 The second text reads [a]nd 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. …
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Ever since the dastardly attacks of 11 September 2001, terrorism has reached astronomical proportions. No place on earth is safe. In the case of Pham v Secretary of State for the Home Department [2015] UKSC 19 (25 March 2015), Lord Neuberger PSC, Lady Hale DPSC and Lord Mance, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath JJSC unanimously dismissed a suspected terrorist’s appeal. The UK Supreme Court held that Minh Quang Pham was a Vietnamese national at the time the Home Secretary deprived him of his British citizenship. Pham’s case makes particularly interesting reading against the newly elected Conservative government’s pledge (now postponed) to abolish the Human Rights Act 1998 and replace it with a “British Bill of Rights” which aims to “make our own Supreme Court the ultimate arbiter of human rights matters in the UK.”
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[From the Introduction]. On 10 February 2004, by an overwhelming majority, the French National Assembly voted to ban state school pupils wearing obvious religious symbols, including large Christian crosses, Jewish skull caps, Sikh turbans and headscarves, such as the Islamic Hijab on school premises.(1) The ban was approved by the Senate on March 3rd, and will come into force in time for the beginning of the new school year in September 2004.2 While the proposed ban has aroused controversy throughout Europe and beyond, there has been little consideration so far given to the question whether, if the ban is enacted, it can successfully survive European legal challenge in the French and European courts. The existing case law on the subject in national supreme courts such as the Judicial Committee of the House of Lords, the British supreme court, and the Bundesverfassungsgericht, the German supreme court, does not provide much comfort to the French authorities. In each case, although for differing reasons, these supreme courts have rejected as disproportionate absolute prohibitions on the wearing of clothing suffused with religious symbols, such as headscarves and turbans.
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This is the common view.It is also true, however, that the Polish Constitution of 1791 included the Charters of Rights and Freedoms as previously given to the nobility:We recognize all the nobility to be equal among themselves, not only in seeking for offices and for discharge of services to the country that bring honour, fame or profit, but also in the equal enjoyment of the privileges and prerogatives to which the noble estate is entitled, and above all we desire to preserve and do preserve the sacred and intact rights to personal security, to personal liberty, and to property, landed and movable, even as they have been the title of all from time immemorial, affirming most solemnly that we shall permit no change or exception in law against anyone's property and the government instituted by it shall lay no claims to any citizen's property in part or in whole under pretext of jurium regalium or any other pretext whatsoever.Wherefore we do respect, vouchsafe and confirm the personal security of, and all property rights belonging to, anyone, as the true bond of society, as the corner-stone of civil liberty, and we desire that they remain respected, ensured and inviolate for all time to come.Polish Const. of 1791, art.III (emphasis added).These rights, especially the old neminem captivabimus nisi iure victum principle (the Polish equivalent of Habeas Corpus, established in 1342) had been extended by special laws to the burghers and to Jews.Stanislaw Salmonowicz, Les Droits de l'homme dans la Constitution du 3 Mai 1791 et la tradition des libertés de la noblesse polonaise, in THE ORIGINS OF HUMAN RIGHTS, supra note 1, at 59.The Constitution also reiterated the freedom of practicing all religions, notwithstanding the official status of the Catholic faith, and placed contracts between landlords and peasants under the protection of the government.Professor Salmonowicz also points to the
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Since President Trump took office, his administration has issued a number of variations of what has become known as the “travel ban,” an order that temporarily banned the entry of aliens from a number of predominantly Muslim countries. Focusing on anti-Muslim statements that Trump made during the presidential campaign, opponents of the ban and a number of lower federal courts have argued that the imposition of the travel ban violates the First Amendment. This article, which will appear in a forthcoming symposium on immigration law that will be published in the Lewis and Clark Law Review, contends that these arguments are without merit.
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In March 1994 news organisations from around America and the world focused considerable attention on what appeared to be a relatively minor parade controversy boiling over on the streets of the predominantly working-class community of South Boston. After three years of legal wrangling, the state's highest court was about to speak to the question of whether sponsors of a traditionally-themed and privately organised St. Patrick's Day Parade could ban, without violating the state's public accommodation law, a gay activist group from marching behind a banner proclaiming its homosexual orientation. When the Massachusetts Supreme Judicial Court affirmed the decision of the trial court that the Allied War Veterans Council's traditional parade, replete with Irish flags, shamrocks, bag-pipe bands, pro-life, POW, political, religious and cultural message, was not expressive enough to be protected under the First Amendment to the United States Constitution, and because of this, could not exclude a group with an antithetical, non-traditional message from participating, the stage was set for a historic constitutional confrontation. In this important book on how the dismantling of the First Amendment occurred, the authors chronicle the social and legal arguments from trial court all the way to the United States Supreme Court, offering the reader a rare glimpse into how a legal controversy makes its way to the nation's highest court against a network of biased court judges, politically correct law firms, a state anti-discrimination agency, academe, and a timid municipal administration.
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The “veil” debate had crossed the Atlantic, and landed in Canada. The Supreme Court of Canada (SCC) ruling in N.S. bears all the potential for drawing a line in the sand regarding the status of religion in Canada, and for that matter – re-conceptualize its mosaic. N.S., a petitioner wearing a niqab (face veil revealing only the eyes) is accused a family member and a family friend of sexual assault during her childhood. An unexceptional sexual assault case, it had climbed up to the SCC on procedural grounds. Insisting on the right to visually face their accuser during trial proceedings to assess her demeanor as part of their defense, and determined to prove her religious piety a sham, the accused tossed a hot potato into the courts’ hands. Attracting negligible media and public attention, this serious – and substantive – matter possibly represents one of the more momentous constitutional challenges so far to the Canadian management of cultural diversity. Coinciding with the Conservative government’s newly created Office of Religious Freedom, the case – and the open-ended SCC judgment – stand to eventually intensify the debate concerning the place of religion in Canada’s democracy. It is a misconception to expect State-Church relations to lend themselves to neutral consideration, devoid of legal values, by any legal institution (court and government), society, or the individual person. Ultimately, the matter boils down to a determination of a moral choice.
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