How do some countries make political laws against the burka but not against nun habits?

Question

Throughout Europe, in recent years, the issue of the muslim burka and its potential ban has often been discussed.

I have heard a couple of reasons at most, and they all pretty much sum up to 'burka -> woman oppression -> bad'.

My question is, how would one then politically and legislatively navigate around the issue of banning the burka specifically, and not any other similar-looking clothing, such as nun habits? And even if one manages to ban the burka specifically and not the nun habit, how would one deal with muslim women throwing away their burkas and wearing the allowable nun habit?

Answer 1

How do some countries make political laws against the burka but not against nun habits?

The nun habit doesn't cover the face, that's the big difference.

The usual approach in Europe is to forbid/restrict face covering. Therefore a nun habit usually is allowed.

The European Court of Human Rights has allowed bans based on that approach, e.g. the French so called "Burka Ban."

Note that the French ban also prohibit non-religious clothing like this (taken from @Laurent PELE's answer with permission):

From Wikimedia.

Answer 2

It seems the answers posted so far fail to fully explain how these laws really work. Taking France as an example:

• The 2010 law does not mention religion at all, but the intent to cover the face. This sidesteps the thorny issue of defining exactly which type of garment is targeted and means that nun habits are obviously not covered. Interestingly, the European Court of Human Rights did not consider that the law was completely devoid of any religious subtext or entirely unproblematic. What it said in 2014 is that this law was indeed an infringement on articles 8 (privacy) and 9 (conscience and religion) but this infringement was acceptable as the law pursued legitimate goals (proportionality between the seriousness of the infringement and the objectives pursued is a staple of human rights case law in Europe). Some judges disagreed.

  And it's not the first time the ECHR delivers a decision like this one, it needs to walk a fine line between aggressive secularism and religious freedom as there are significant differences between European countries on these issues.

• At the same time, the law is definitely not about public safety, being able to identify people or some other ostensibly “neutral” consideration. Besides the opinion of the ECHR, another evidence for this is that it was prepared by the commission dealing with gender equality issues and preceded by an inquiry explicitly about the hijab. And of course, there is no law that makes it mandatory to be identifiable at all times or some such. The only context in which this issue comes up is the hijab.

  Therein lies some level of contradiction: It's not obvious that forms of hijab not covering the face or, indeed, nun habits are less problematic from a gender equality perspective. It seems likely that there are many more women wearing a regular hijab who feel pressured to do so, whereas wearing the niqab is almost certainly the result of a personal political or religious choice. But the law does not cover the former while banning the latter.

• Finally, the police knows who and what is targeted. It's not even religion in general but one religious practice in particular, what's called voile intégral in French (the word “burka” beside being inaccurate, isn't common anymore). The letter of the law does not matter so much in this respect, there is no effort to fight ski masks. But the French law does include such a provision and it's so broad as to belie the notion that the ban is generic, as covering the face is explicitly permitted for health and professional reasons, for sports, and as parts of celebrations, artistic or traditional events.

Answer 3

Consider the response of the communities involved to:

• An Islamic woman seen in public not wearing the burka, as proscribed by her religion
• A nun seen in public not wearing the habit, as proscribed by her religion.

The expectation is that failing to wear the burka would inspire a negative reaction, with physical hostility directed towards the offending woman. There is not a similar expectation of violence being directed towards the nun without the habit.

This establishes the general intentions of the 'burka ban', while leaving working space for concerns about security.

As to the how, it comes down to the definitions used by the law and how politicians explain it. They can't attack their perceived intentions of wearing the garment, oppression of women, because those who don it can simply claim it is their 'choice' to do so. This would create a 'personal freedom' concern.

Rather, engage in regulating the clothing itself. It fully covers the face, presenting security and visual identification concerns. Other jurisdictions have enacted legislation prohibiting fully covering the face.

Answer 4

Your question has a mistaken premise, the law forbids hiding your face in public. It is not related to religious issue. For example, such clothing is forbidden in public in France:

From Wikimedia.

Answer 5

It's impossible to come up with a loophole free law as there are constitutional limits on laws that discriminate against religion. Also, as pointed out by Sjoerd, the European Court of Human rights has allowed a ban, but note that the ruling has conditions that preclude banning a garment based for religious motives. So, while there is some room to ban the burka, you can't use it to ban Muslims from wearing appropriately modified versions of the burka.

There are also problems from a completely non-religious perspective. There are laws that mandate that we should be dressed in public, with possible exceptions e.g. at nudist beaches. As pointed out here the inhibition we would feel when someone would suggest us to go outside naked is the result of indoctrination since childhood. So, we wear clothes not just to keep us warm, but also for the very same reason why some Muslim women wear the burka (from an atheist point of view, the religious reasons should be interpreted as social reasons) and our laws mandate that you have to wear clothes for exactly that reason. Banning all possible modifications of the burka would therefore undermine our laws that ban public nudity.

Answer 6

Being from one of "these countries" (France), the main reason is tradition.

For the past centuries, we have forged some cultural norms, changed and changed again (usually though some kind of revolution) and the current norm is based on freedom.

There are no nuns, today, who are forced to be nuns. Women choose to become one, and then choose to wear what they wear. They are also free to leave the convent. This is true in the traditionally conservative environments, say the countryside or Versailles.

Now take the case of Islam and the clothes all women are supposed to wear. One could say "never mind, I do not care". But unfortunately yes you do - if you go to places where traditional Islam is strong (the poorer suburbs), women are often forced (directly or via peer/family pressure) to wear conservatively.

This is the main reason: the freedom to choose. The French government and parliament is jumping through hoops to try to "force freedom" (this is certainly not a good way to do so) and we end up with such horrible laws.

Nobody cares about Shikh turbans, about people wearing crosses, stars or crescents, about people praying or not praying. If it was known that the choice to wear a whole-body wrap was strictly because of free will, nobody would care either.

Answer 7

Politically, discrimination against a minority is easy and generally needs nearly no justification. Usually you need strong arguments why protecting the particular minority is worthwhile, not the other way around.

So the question is, are there convincing reasons to make it politically infeasible to ban Muslim women from wearing body and face coverings?

There is going to be some xenophobics who will support oppression of Muslims. You are going to get some support from Feminists who hold that such body coverings are sexist patriarchal oppression of women.

Popular portarial (accurate or not!) of women wearing full-body coverings as being forced to do so under threat of violence from male family members makes the Feminist argument stronger, and would sway people who don't consider themselves particularly Feminist.

France has a "secular" tradition; their republic is rooted not only in freedom of religion, but also freedom from religion in the public sphere. It is illegal in france to wear a conspicuous cross in their public schools.

Legally, we have the court decision right here that uphend the constitutionality (at the EU level) of the french "Burqua Ban".

The Court examined the applicant’s complaints under Articles 8 and 9, with emphasis on the latter. While personal choices as to one’s appearance related to the expression of an individual’s personality, and thus fell within the notion of private life, the applicant had complained that she was prevented from wearing in public places clothing that she was required to wear by her religion, thus mainly raising an issue with regard to the freedom to manifest one’s religion or beliefs.

The Court found that there had been a “continuing interference” with the exercise of the applicant’s rights under Articles 8 and 9, as she was confronted with a dilemma: either she complied with the ban and thus refrained from dressing in accordance with her approach to religion, or she refused to comply and would face criminal sanctions. The Court further noted that the limitation in question was prescribed by the Law of 11 October 2010.

So the court found that her rights where restricted by the law.

The Court accepted that the interference pursued two of the legitimate aims listed in Articles 8 and 9: “public safety” and the “protection of the rights and freedoms of others”.

As regards the aim of “public safety”, the Court noted that the legislature had sought, by passing the Law in question, to satisfy the need to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud. It considered, however, that the ban was not “necessary in a democratic society” in order to fulfil that aim. In the Court’s opinion, in view of its impact on the rights of women who wished to wear the full-face veil for religious reasons, a blanket ban on the wearing in public places of clothing designed to conceal one’s face could be regarded as proportionate only in a context where there was a general threat to public safety. The Government had not shown that the ban introduced by the Law of 11 October 2010 fell into such a context. As to the women concerned, they were thus obliged to give up completely an element of their identity that they considered important, together with their chosen manner of manifesting their religion or beliefs, whereas the objective alluded to by the Government could be attained by a mere obligation to show their face and to identify themselves where a risk for the safety of persons and property was established, or where particular circumstances prompted a suspicion of identity fraud.

So the claim that "it is about face coverings" was considered by the court and rejected. The government attempted to justify the ban as being "no face coverings", but the court conisdered that not to be the reason for the law, and also the law was not an efficient way to advance the interest the government was claiming to advance. Due to the fact that the rights of the woman where interfered with, this was not considered sufficient justification.

As to the “protection of the rights and freedoms of others”, the Government referred to the need to ensure “respect for the minimum set of values of an open democratic society”, listing three values in that connection: respect for gender equality, respect for human dignity and respect for the minimum requirements of life in society (or of “living together”). While dismissing the arguments relating to the first two of those values, the Court accepted that the barrier raised against others by a veil concealing the face in public could undermine the notion of “living together”. In that connection, it indicated that it took into account the State’s submission that the face played a significant role in social interaction. The Court was also able to understand the view that individuals might not wish to see, in places open to all, practices or attitudes which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, formed an indispensable element of community life within the society in question. The Court was therefore able to accept that the barrier raised against others by a veil concealing the face was perceived by the respondent State as breaching the right of others to live in a space of socialisation which made living together easier. It added, however, that in view of the flexibility of the notion of “living together” and the resulting risk of abuse, it had to engage in a careful examination of the necessity of the measure at issue.

This is where the court found the governments case convicing. The constitution permits the government to pass laws enable life in society "living together", and found that the governments interest in this case was sufficient to restrict the rights for people to wear religious face coverings.

It then judged the balance, and basically said that France has a wide margin here, and let them keep the ban. They cited the lack of otherwise universal agreement among member states as one of the sources of that wide margin.

2 judges (Nuβberger and Jäderblom) disagreed with this.

Answer 8

This is a tricky one and for the most part, comes down to a mess of religion, culture, oppression, and the like.

First to try to make the law, one must make a case for why it is bad. Most of the time the "why is it bad" for the "burka" (which I think is the wrong name) is that is helps to foster oppression and abuse in Muslim women. The general argument is that a Muslim women, even in the US or Europe that doesn't ware the burka in public, can and most likely will get beaten, abused and so on. This is made more "common" then it actually is, but it does happen. Specially in strong Muslim-American communities. So you have an event, that can act as a reason, even though it's out of proportion to reality. (Important note, I am not saying that 80% of Muslim women that go out with out a Burka are beaten by their husbands, what I am saying is that it's easy to get a large enough number of people to believe that)

The nun's habit on the the other side, does not have that same stigma. For one reason or anther, no one believes that a nun is going to get beat for going outside without their habit.

This makes the "burka" forced, while the "habit" is a choice. And this gives the "reason" why it's "ok" for a law to exist.

Now the actual way to do it, because you can't just say "Muslims can't ware burkas" is to focus on the differences. In this case, the habit, doesn't cover the face, while the "burka" does. So I can create a law that says: "No face coverings can be worn in a bank or federal building". It doesn't target Muslims, technically, and while it may seem a bit unfair to them, that "ok" because we have the reasons above to "let it slide".

Again, I am not saying I find it OK. Just that it's how a law like that can be made, and continue to exist.

Now the real trick in the US, is that the constitution kind of forbids it. It's true that because it didn't single out Muslims the law it's self passes the "first test", but one could argue that it poses a unfair burden to a religious group. Now Muslims can't send women to the bank (for example). But this means a court case and hearing after the law is already in place. That takes money, and could be hard to win, because there are plenty of Muslims in the US that are perfectly fine not wearing a Burka.

So in essence:

• There is a reason (even if not totally valid)
• The law it's self doesn't target Muslims because it focuses on technical differences (face covering, without saying why)
• It may still be illegal in some countries, but that would require a hearing of some kind to establish.
• Cultural norms in those countries make it so the number of people effected are really small. Again in the US example there are far more Muslims that don't ware a "burka" then there are those that strictly follow that rule AND go to banks and federal buildings (in this example).

Answer 9

The false premise being put forth by this question is that the law is based upon religious bias. This premise is being assumed because the individual asking the question used religious examples. As I said, this is a false premise. The law is not based upon religion, but rather upon coverage. It's that simple.

Answer 10

Separation of church and state is a relatively recent concept in human history, and is not strictly adhered to even in the countries that claim to recognize and respect it. A state may decide to create any laws whatsoever, without regard to what you personally feel is just, moral, fair, oppressive, even-handed, discriminatory, etc. If you are looking for the rationalization for a specific law, you'll have to inquire of the lawmakers who created it. (But, per Bismark, you may not like what you see.)