Secularism is under threat. Or least that’s how a growing number of secular societies perceive it. In light of globalised terrorism, the relationship between theists and atheists has become increasingly volatile, and isn’t eased by mounting migration that further diversifies already multi-cultural countries. Consequently, secular societies have attempted to enforce their conception of the ideals of secularism, what they deem to be a separation of religion and state. But secularism need not be seen in such a one-dimensional light. Charles Taylor refines the concept in “Why We Need a Radical Redefinition of Secularism,” by suggesting we are wrong to make a special case of religion. As a genuinely diverse society “can’t revert to a civil religion, or anti-religion… without betraying its own principles,” he proposes a form of secularism which is based upon an attempt to propagate the ideas of the “French Revolutionary trinity: liberty, equality, fraternity.” Secularism by this refinement, is the assurance of “free exercise of religion” (as in the US constitution), equality between religions, and the inclusion of all religion in determining the values of society. For Taylor, secularism is brought about by propagating these values of secularism, rather than building higher walls between church and state. By viewing secularism in this way, policy decisions made for secular societies are more appropriate. Unfortunately, some nations still use their misguided conception of secularism in order to justify the suppression of open religious expression. One such nation is France.
In April 2011, France prohibited citizens from concealing their face in public under Law No. 2010-1192. It was immediately contested. An unnamed French woman, known only as “SAS,” believed that the ban violated the European Convention on Human Rights’ (ECHR) provision of the right to privacy and freedom of religion. It soon escalated, and in 2014 it reached the highest European Court. Yet it was rejected. The French state justified their decision on the basis of three grounds: “respect for equality between men and women,” “respect for human dignity” and “respect for the minimum requirements of life in society.” This last phrase, also known as “le vivre ensemble,” was the tenet that they accepted as justification for continuation of the ban. The court rejected the gender equality and human dignity concerns, yet the idea of “le vivre ensemble”, a direct translation of the French principle of “living together” that stems from the idea of” fraternity”, being infringed upon was deemed convincing. In the eyes of the lawmakers, wearing a “full-face veil” represents a “denial of fraternity, constituting the negation of contact with others.” Their argument, reduced, was that the veil undermined sociability. But there are problems with this. In fact, it seems that the real motive for the French government to ban the veil lay in an interpretation of the symbolism of the religious garment, intertwined with an element of islamophobia within Western secular society. I’m not suggesting that religious rights should overrule the French constitutional principle of “le vivre ensemble.” Personal wants or desires, religious or secular, should never infringe upon the law. However, approaching this case through Taylor’s lens, I would posit that the wearing of the veil not only fails to violate this principle, as the European court concluded, but that the banning of the veil actively infringes upon “le vivre ensemble.” The repercussions of a “blanket ban” of the full-face veil have a disproportionately large on a minority group of Muslims, but a negligent impact on maintaining the secular value of “fraternity,”. A more sensible policy decision would have been to accept SAS’s claim and remove the burqa ban, or at least limit it to public spaces, where national security may be seriously compromised, such as airport security.
France’s secular values are not undermined by this interpretation though. Indeed, this perspective is consistent with common secular thought that religion should not be granted any special privileges. This is an idea rooted in Taylor’s argument, as he suggests that a “Kantian will justify the rights to life and freedom by pointing to the dignity of rational agency,” in the same way that a “Christian will speak of humans as made in the image of God.” In effect, the reasons behind why people hold certain beliefs are irrelevant. The source of someone’s “ethics” should not be treated as more or less reliable, and hence the state “must refrain from favoring any of the deeper reasons” behind them. Religion as a justification for beliefs should not have a unique podium. This seems to be an idea that the French National Assembly at least in part buys into. Within the case report, they’re quoted suggesting that they affirm that “the exercise of freedom of expression, opinion or belief cannot be relied on by anyone for the purpose of flouting common rules.” Religion isn’t unduly highlighted ahead of other sources of ethic. Importantly, this view of secularism that Taylor propagates is particularly relevant in this court case. His redefinition is based upon the French Revolutionary values, which are the very values that the case is judged upon: “Liberty, equality, fraternity.” For the ECHR to act in the interests of secular interests, these principals must be upheld. Unfortunately, in the policy decision regarding SAS vs. France, they were not. First let us address the tenets of liberty and equality.
In this instance, the ECHR acted correctly in rejecting the arguments. A common issue with the wearing of the full-face veil lay in the fact that it was seen as inherently sexist. The veil is not part of mainstream Islamic culture, and to wear it supposedly undermines the French Republic’s principle of equality as it degrades women who wear it. According to Recommendation 1927 (2010) of Viewpoint of the Commissioner for Human Rights of the Council of Europe, “the veiling of women… is often perceived as a symbol of the subjugation of women to men, restricting the role of women within society, limiting their professional life and impeding their social and economic activities.” The suggestion is that women are being oppressed into wearing certain clothes, which is representative of their social subjugation. Yet this argument is fallacious. The ECHR report on how the Court handled the SAS case acknowledges this, and rejects this claim of gender inequality as a justification for the ban. The issue with this claim is two-fold. First, it’s not conclusive that the women who are wearing this dress are being repressed. Those who have been interviewed so far present “a diversity of religious, political and personal arguments for their decision to dress as they do.” To ban a type of clothing because of unfounded speculation on female Muslim oppression is wrong. The gender equality argument is also contradictory. The idea of resolving a dispute about women being forced into dressing a certain way, by banning them from dressing a certain way reeks of the very oppression they claim to detest. Taylor agrees, highlighting that this argument is “dubious… in light of the sociological research carried out.” If the veil is not infringing on the Western secular values of gender equality, then France has no mandate to ban it on such grounds. The ECHR rightly agreed, and they reached the same conclusion regarding liberty. Using a similar argument to that of equality, opponents of the veil saw it as an innate contradiction of liberty, “because it was a symbol of a form of subservience.” Intertwined with the suggestion that women were being forced or pressured into wearing the veil, the claim that liberty is attacked by veil-wearers can be subjected to similar criticism.
Questions of liberty and equality were seen as insufficient to support the banning of the full-face veil, yet the Court upheld the decision because this issue of religious freedom allegedly undermined the value of “fraternity.” The law report agreed with the French government: “Le vivre ensemble” is assailed by the wearing of the veil. The judges decided that the vague ideal of “fraternity” was mutually exclusive to the “systematic concealment of the face” which “falls short of the minimum requirement of civility that is necessary for social interaction.” The argument goes that “living together” relies on “interpersonal exchange” that facial expression has a crucial role in. Apparently the face “expresses the existence of the individual as a unique person” and to conceal “one’s face in public places is to break social ties.” If the burqa were to compromise “fraternity,” the decision to ban the burqa would be justified. But the conclusiveness of the decision on this matter appears rash. The face is oft-used in social situations but it is not essential. As the case report rightfully asserts, nobody would suggest that it is impossible to communicate or build a relationship with someone wearing a ski mask or motorcycle helmet. People don’t necessarily need eye contact to live up to the ideas of “le vive ensemble” which puts the veil’s attack on “fraternity” into question. Another blow thrown towards the legality of wearing a full-face veil was that it comprised of a threat to security, and thus “le vivre ensemble.” Concealing oneself means that identity fraud, theft and general crime would be made easier as identification would be incredibly difficult. This claim overlooks how small an issue this poses. In French controlled territory only “1900 women were concerned by the end of 2009.” For any small gain in “fraternity” that could be made here, to implement such an objective “blanket ban” seems unnecessarily inflammatory. Concerningly, for the justness of this policy decision it seems a poor trade-off, as the ban is actually actively unconducive to the value of “fraternity” that it was initially meant to safeguard,
Despite having the best intentions of protecting “fraternity,” the prohibition of the veil undermines it and secularism as a whole. France is a multi-cultural society. Pluralism and different cultural perspectives should be seen as expected, and as part of this, so should the diversity of religion. Religion should not be excused from the society’s laws, however true secularism as Taylor understands it is damaged by the repression of a certain religious group. By banning the burqa, Muslim women feel marginalised which leads to an assault on “le vivre ensemble.” There are problematic consequences of this policy dispute. As the woman in question underscored in her appeal, the ban would lead to Muslim women who wear the veil having to face the choice of following their religion and being able to interact with society at large. This internal conflict is so vast in comparison to the relatively small social conflicts that an extreme minority of veiled women creates. Most French citizens will realistically never meet a veiled woman in their entire lives, whereas those affected by the ban will face deep repercussions. The report provides an excellent example in that veiled women might avoid “public institutions like hospitals or government offices.” This could lead to grave repercussions, particularly regarding their health, and this outweighs the discomfort that some of the public find with the idea the burqa or niqab. On purely utilitarian grounds, the “fraternity” of society seems to be ripped further apart, rather than sustained.
It is difficult not to question whether this policy dispute is also tarred with elements of Islamophobia, which are not conducive to the secular values of equality of religion. It is not the ban itself which seems to rub against the ideas of equality, but the exceptions to the ban. According to the case report, the ban is not applicable if a face-covering veil is worn for “festivities or artistic or traditional events.” However, Muslim women are still prohibited from doing so during Ramadan. This is even in the face of Christian festivals that involve wearing clothes that violate the law, such as, a Father Christmas costume. The French government iterates the point that the veil ban is not discriminatory of religion, gender or race, and that it would be discriminatory to not include a religious group like Muslims. However, this ignores the fact that Muslim women are disproportionately attacked for it in a way that other groups, such as nuns, are not. Moreover, the entire concept of a veil ban can be conceived as an attack on “fraternity,” and therefore secularism as a whole.
The ECHR were attempting to protect France’s secular values in this report, yet they’ve fallen trap of a simplistic an outdated definition of secularism. Abiding by Taylor’s view, it’s misguided to focus too intensely on keeping all aspects of religion from the public domain. Of far more importance is to promote the values of the French Revolution, which unfortunately this policy dispute does not. Society is not brought closer together – it is fractured as a result of this “sectarian message.” A reversal this decision, or an allowance of the ban in very specific public places (e.g. those where identification is crucial, such as airport security) would be an appropriate solution in light of this. As a whole, Taylor’s theoretical perspective does well to highlight the issue of the ECHR’s decision, but it could do with more depth. The decision was made under the knowledge that religious freedom was being curbed back (i.e. liberty), but upheld because of the supposed threat on fraternity. Decisions often have conflicting impacts on these three crucial tenets of good secularism, which can lead to confusion on what’s best for the sake of a secular country. If someone were to propose a more nuanced version of Taylor’s secularism, then other policy disputes may include less uncertainty.