Conform or be confined: S.A.S. v France
The European Court of Human Rights ruled on 1st July that France’s ban on face coverings, known as the burqa-ban, does not breach the European Convention on Human Rights. The ban criminalises anyone wearing clothing designed to conceal the face in public.
Although not limited to the burqa, the legislative history of the provision makes very clear that this is its main target. It follows the well-known debate on the wearing of headscarves and other religious symbols in public employment and schools. Thus far, this debate has concluded in favour of allowing restrictions to religious dress, for example for teachers (Dahlab v Switzerland) and students (Sahin and Karaduman v Turkey), although the restrictions have been disallowed when they have been applied disproportionately (Eweida et al v UK) , or applied in public spaces more generally (Ahmet Arslan and Others).
What makes the French burqa-ban different is that it criminalises the manifestation of religion, which is highly symbolic, even if the penalty is small. It also applies to veiling at all times in public. There is no potential for opting out: even if the veil wearer is welcome in some venues, she cannot get there without entering the public space. She is effectively confined unless she conforms. These factors might lead one to expect a decision that the ban was unduly restrictive of religious freedom.
Indeed, the judgment builds a strong case against the ban. First, it considers relevant international law and practice, and concludes that a ban on the burqa in public would breach human rights standards and would be alien to European values. Second, the Court reviews the situation in other European states and finds almost universal consensus against bans in public spaces. Third, the court considered the legitimate aims that have been used previously to justify ban on religious symbols, and shows how the ban is unnecessary to achieve most of them. It finds that the aim of public safety does not require a ban on the burqa in all public spaces. It is not necessary to uphold gender equality; nor is it necessary for human dignity. The Court also notes that small numbers of women wear the veil, and that criminalisation in itself is serious and may ingrain negative stereotypes. These arguments are made so fully that it seems an almost inevitable conclusion that the ban will be found to breach Article 9 of the ECHR, protecting freedom of religion.
However, the court identified one final legitimate the aim: ‘respect for the minimum requirements of life in society’ referred to as ‘living together’. This must surely be one of the weakest of legitimate aims identified by the court. The dissenting judges label it ‘far-fetched’ and ‘vague’, and even the majority of the court concede that it is a ‘flexible’ notion which therefore needs careful examination to ensure its necessity. Yet despite its own recognition of its weakness, the court accepted it as legitimate and decided that, given the wide margin of appreciation applicable in religious freedom cases, the ban was proportionate. This conclusion is disappointing, particularly the reliance on the nebulous concept of ‘living together’, an aim which could equally be met by promoting a ‘live and let live’ attitude, and which moreover could lead to bans on anything that makes the majority feel uncomfortable.
The final decision thus seems something of a let-down, coming as it does after such a careful and well evidenced demolition of the standard arguments in favour of banning the veil.
Towards the end of the judgment, the Court acknowledges the need to exercise restraint in reviewing policies which have been agreed through democratic processes; and recent political changes in Europe towards Euro-scepticism (addressed to the EU but which may well have a spill-over effect on the Council of Europe) may go some way to explain its timid approach.
It remains a pity that, in the final analysis, the Court did not pay much regard to its own findings. Nonetheless, the decision has some positive aspects. The Court clearly dismisses some of the traditional arguments for burqa-bans based on public safety and gender equality. Moreover, the majority judgement, as well as the two thorough dissents, provide a rich source of material for those wishing to challenge wholesale bans in future.