Freedom of Religion and the Niqab

It is hard to think of anything more basic to our sense of what it means to be the free citizens of a democratic republic than freedom of religion. It’s an old idea, first enshrined in law on these shores by the Maryland Toleration Act of 1649 (which was long enough ago for the law to have been drafted by Lord Baltimore himself!), but known to most of us in its current legal guise from the U.S. Constitution. In Article VI of the Constitution itself, for example, the establishment of religious requirements for holding office is specifically banned. And, of course, freedom of religion is one of the essential freedoms specifically guaranteed to American citizens by the First Amendment. (The others are freedom of speech, freedom of assembly, freedom of the press, and the freedom to petition the government for a redress of grievances.) Furthermore, that same amendment specifically prohibits the establishment of a state religion in these United States. And the Fourteenth Amendment formally outlaws religious discrimination and bars individual states from abridging any rights, including the right not to suffer discrimination based on religion, guaranteed by the Constitution to the citizenry.

More or less every western democracy guarantees its citizens the freedom to worship as they choose. And yet the parallel notion that “church” should be totally separate from “state” appears to be a peculiarly American concept, or at least one that many other nations do not find necessary to embrace as part of their general effort to guarantee their citizens’ basic human rights. Many countries, for example, formally recognize state religions, which practice leads to policies that Americans would find intolerable. In Norway, for example, the king is required to be a member of the Evangelical Lutheran Church, recognized in the Norwegian Constitution as the state church, and more than half the members of the Norwegian Council of State are required by law to belong to that church. The British monarch too is required by law to be a member of the Church of England and is, in fact, recognized as the Supreme Governor of that church. Israel, founded specifically as a Jewish state, grants equal civil rights to citizens of every faith but also expects those citizens to sing a national anthem that is unabashedly about the fact that Israel exists in the first place as the fulfillment of specifically Jewish aspirations for the security that can only come with political freedom. Even in Canada the French version of the national anthem makes reference to Canada proudly carrying the cross forward across North America, presumably as part of its self-appointed mission to bring Christianity to the otherwise benighted aboriginal population, and no one seems to consider it problematic that a certain segment of the citizenry cannot sing those words without willing themselves first totally to ignore their meaning. (The English version of the anthem is not a translation of the French and has nothing at all about crosses in it.)

Americans have their own inconsistencies in this regard to consider, however. Christmas has been recognized as a federal holiday here since being so designated by President Grant in 1870. Every president since Dwight Eisenhower has attended the National Prayer Breakfast, formerly actually called the Presidential Prayer Breakfast, held each February in Washington despite the fact that it is an overtly Christian event. We have all long since made peace with Christmas trees and other overtly Christian symbols being displayed in theoretically secular settings such as public libraries and post offices. But despite these slight inconsistencies, a large majority of Americans appear to be united in the belief that laws must never be passed that curtain any citizens’ right to worship freely. And the few exceptions to this general principle—the restriction placed on the Mormon faith by laws prohibiting polygamy, for example, or on the Rastafarian religion by laws restricting the use of marijuana even for sacramental purposes—only really prove the rule that almost every religion in almost every context is permitted to follow its own path and to participate freely in its own rituals. (During Prohibition, the Volstead Act formally exempted “the manufacture, sale, transportation, importation, possession, or distribution of wine for sacramental purposes or like religious rites” from the general law, but this liberal inclination to make exceptions for religious observance does not for some reason appear to extend to cannabis. I wonder if the law would be different if pot smoking was a feature of Episcopalian worship rather than Rastafarian.)

And all this background material brings to me to the topic I wish to discuss with you today, which is a piece of legislation that became law in Quebec a few weeks ago and which requires citizens interacting with the government in public must do so with their faces uncovered. Clearly aimed at Muslim women who have chosen to wear a full face veil, popularly called a niqab, this law supposes that the greater good of society rests with individuals not being able to appear unidentifiably in public settings somewhat in the same way American courts have rules that the greater good of society outweighs the right of an individual Mormon man to have several wives at once. At first, this will sound to most of my readers as an obscure piece of unimportant legislation destined to affect almost no one. And, indeed, that is not that far from the case in that the Muslim Council of Montreal noted last week that there are probably no more than twenty-five women in all of Quebec who actually veil their faces in public. But it is just the latest manifestation of an issue that is not inconsequential and which will definitely not go away as time passes.

Americans have their own version of this issue to consider, for example, in the case of Sultaana Freeman, the Florida woman formerly known as Sandra Keller who converted to Islam when she married a Muslim man and who then sued the State of Florida for the right to be photographed for her driver’s license wearing a niqab. She did not win the case because a Florida appellate court ruled that the state was not in violation of her civil rights in that she had previously been granted the right to be photographed without her veil solely in the presence of female employees of the Florida DMV.

Behind all these cases rests the same issue of how a state can or should balance the rights of its citizens to pursue their spiritual paths in life unimpeded by intrusive legislation with the obligation any government has to pass laws designed to serve the public weal by creating a just and hospitable society for the members of the public to inhabit. Since 2004, France has had a law on the books that formally prohibits “the wearing of symbols or garb which show religious affiliation in public primary schools.” Because the law was widely understood to be specifically targeting the headscarves some Muslim girls wear as part of their general obligation to dress modestly in public, it was considered highly controversial at the time. As the years have passed, however, the law has been interpreted more liberally to forbid Muslim girls from wearing headscarves, Sikh boys from wearing turbans, and Jewish boys from wearing kippot in public school, but not to constitute a ban against less prominent symbols of religious affiliation such as small crosses, stars of David, or hamsas worn as pendants around the neck. And so the French public, traditionally far more fiercely in favor of keeping religion out of public life than Americans, has accepted the law as reasonable. In a poll dating back to the year the law was enacted, for example, almost 70% of the public was in favor. That the way the law was received also has to do with the much larger issues surrounding the place of the Muslim population in French society and the ill ease with which the general (i.e., non-Muslim) population views the growing number of Muslims living in France who show only limited interest in assimilating into French culture goes without saying. Yet, six years later, the law remains in effect and clearly will remain on the books indefinitely. And now French president Nicolas Sarkozy had announced his intention to submit a bill to the French parliament next month that will call for a ban “in all public places” on the niqab and the full body cloaks some Muslim women wear known as the burka or the chador. The bill is deemed at least likely to be made into law.

Clearly, there has to be a point at which the right of an individual to practice his or her religion has to be weighed against the good of society in general.

Photographing people for driver’s licenses in a way that precludes a police officer from identifying them is clearly a bad idea. Permitting the use of illegal drugs in the context of religious observance, but not by the same people when they gather the next evening in some less spiritually charged context, does not sound like a reasonable or even workable plan. (In this regard, readers will want to recall that Prohibition didn’t work either. It is estimated that there were between 30,000 and 100,000 speakeasies in New York City alone by 1925.)

And yet the issues are more complicated than they seem at first blush. To the French, it seems reasonable to forbid a boy from attending school wearing a yarmulke. To Americans, it seems rational not to allow parents to mutilate their daughters’ genitalia even if they identify with religions that endorse the practice correctly called “female genital cutting” but sometimes also called “female circumcision.” Yet we bristle mightily at the suggestion, regularly made by some very vocal groups, that brit milah itself should be forbidden until a boy comes of age formally to consent to having his foreskin removed. And Jews are almost universally, and entirely correctly, filled with contempt for the laws in Sweden, Iceland, and Norway that prohibit Jews from slaughtering animals according to the shechitah laws that govern kosher slaughter, supposing that these laws are at least as prompted by anti-Semitism as they are by concern for the welfare of the animals in the abattoir. Nor do I think it would be fair to say that we Jews are in favor of the government leaving us alone but controlling everybody else’s practices. Or maybe it would be a little bit fair…but the bottom line really has to be whether the best interests of the public are or are not going to be served by any proposed legislation that would inhibit any particular aspect of religious observance.

As an American, I can’t imagine how it could possibly be argued that banning something as hardly visible as the kippah on a child’s head could be justifiable with reference to the greater good of society. I suppose that I don’t really understand why consenting adults should not enter into whatever kinds of marriage relationships they wish without the government interfering in what is, in the end, among the most personal of life’s decisions. Nor do I find it at all difficult to explain why I find it totally reasonable for the government to safeguard the rights of workers employed in kosher slaughterhouses, but totally unreasonable for the same government to become involved in the specific laws that govern kosher slaughter itself. In the end, laws exist to make society just and safe, and that should constitute the basis for evaluating their reasonableness. If there is no discernable negative or detrimental effect that some specific form of religious observance might conceivably have on society as a whole or on individual members of that society, then there can be no justification for government interfering with the freedom of religion that is one of the most basic foundation stones of our American society.