By Alex Colvin
The passage by the French legislature of a law banning the wearing of religious apparel or symbols by students in state-run schools has brought to the fore a complex of issues involving freedom of religious expression, the relationship between church and state, rights of women, rights of children, and the assimilation of minority cultures in an increasingly pluralistic society.
The French law, which bans large crosses, Jewish skull caps, Sikh turbans, as well as Muslim headscarves, will go into effect in September. The President of France has indicated that he would like to see a similar ban for employees in public hospitals and government positions.
French supporters of the ban argue that they want to preserve the secular nature of the state. They say that this is not a violation of religious freedom because the ban extends to prominent display of religious symbols by members of all faiths.
Kenneth Roth, executive director of Human Rights Watch, disagrees. He has stated that “The proposed law is an unwarranted infringement on the right to religious practice. For many Muslims, wearing a headscarf is not only about religious expression, it is about religious obligation.”
Those who, like Roth, oppose the French law say that it is a clear violation of Article 18 of the Universal Declaration of Human Rights which declares:
“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom… either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
Other international treaties and agreements support this right with similar language. States are only permitted to interfere with the right of religious practice if it threatens public health, order or morals. Opponents of the law maintain that the wearing of headscarves poses no such threat.
Some advocates of women’s rights see the wearing of headscarves as repressive toward women. Yet Muslim women who choose to wear the headscarf assert that it is not repressive. It is an affirmation of their identity as a member of the community of Islam. For them, to be forced not to wear the headscarf in public is degrading and humiliating.
Some have also argued that children wearing headscarves in school may not be doing so of their own volition but may be coerced by their parents. However, international law respects the right and duty of parents to oversee the religious upbringing of their children. The state has the responsibility to protect minors from discrimination on the basis of the faith or practice of their parents or family members. While states also have a right to pass appropriate legislation to protect minors from abuse, opponents of the French law argue that unnecessary codes of dress or behavior should not be used under the guise of preventing abuse.
Some German states are following the French example. On April 1, 2004, Baden-Wuerttemberg became the first German state to ban headscarves. According to an article in The London Times, Culture Minister Annette Schavan defended the ban saying that Islamic headscarves, or “hijabs,” could be interpreted as a symbol of “Islamist political views” which had no place in the classroom. Baden-Wuerttemberg had previously banned a teacher from wearing a headscarf. The teacher appealed and the German Constitutional Court ruled in her favor but only because they found no statute banning headscarves in educational institutions. At the same time the court opened the door for bans on religious apparel by stating that German states could pass such laws if they believed that religious apparel would have an undue influence on children. At least six other German states are considering similar bans similar to the one passed by Baden-Wuerttemberg.
Belgium is also considering passing a similar law.
Ironically, Turkey, a Muslim country, first banned headscarves. Turkey was established as a secular state in the aftermath of World War I by Kemal Attaturk. There were no legal restrictions on headscarves until the early 1980’s when headscarves were banned in universities and other public institutions. Headscarves were seen as a visible sign of rising Islamic fundamentalism in the wake of the Iranian revolution, and have been perceived as a threat to the secular nature of the state. Controversy over headscarves continues to rage.
Uzbekistan is seeking to encourage the formation of an Uzbek national identity and a secular state. They view foreign “Wahabi” influences as a threat. Authorities make a distinction between traditional Uzbek patterned scarves which cover the head but leave the face uncovered and Arab or “foreign” headscarves of a solid color that are clasped in the front or cover the face. The former are permitted, the latter are prohibited. Students in schools and Universities attempting to wear such “foreign” apparel will be expelled and may be arrested.
According to a report on Uzbekistan titled “Class Dismissed: Discriminatory Expulsions Of Muslim Students” published by Human Rights Watch in October 1999, the rector of the Institute for Oriental Studies explained the policy as follows,
“...we are now on the threshold of the twenty-first century, when we want to build up a secular state like all the other countries. How is it possible that people can think like people thought thousands of years ago?”
On the other hand, in Saudi Arabia women are still expected to cover from head to toe when in public. Many women wear the “niqab,” a stricter version of the headscarf that only permits a slim slit at the eye- level. Grand mufti Sheikh Abdul Aziz al-Sheikh, the highest religious authority in Saudi Arabia, has described efforts to relax strict Muslim standards in the country “satanic and dangerous.” The mufti particularly criticized women who appeared unveiled at an economic conference in Jeddah. He has denounced the French ban as an infringement of human rights as have many other Muslim religious leaders.
The Taliban in Afghanistan had mandated the wearing of the strict Muslim apparel for women until the regime was deposed by US led occupation forces.
Amongst non-Muslim, non-European countries, Singapore does not allow Muslim girls to wear headscarves to school on the grounds that the prohibition promotes religious harmony. Singapore’s population is approximately 77 percent ethnic Chinese and 14 percent Muslim Malays. Schools do, however, allow Sikhs to wear their turbans. In 2002, four girls were suspended from school for wearing headscarves, known in Singapore as “tudongs.” A court challenge to the ban was initiated but abandoned when the Chinese government refused to allow a prominent lawyer from Malaysia to argue the case.
Contrary to the French model of the secular state that seeks to prevent religious expression in the public domain, the United States and some Western European nations such as the United Kingdom and Sweden have maintained that the state should maintain a neutral role in relation to religion while at the same time allowing a diversity of religious expression.
In the United States, the courts and the Justice department have adopted a course of defending the right of Muslims to wear headscarves. In February 2004, Muslims in Alabama won a court case allowing them to wear headscarves in photographs for drivers’ licenses. In April, a federal judge agreed to let the Justice Department join a lawsuit against a school district that suspended a Muslim girl for wearing a headscarf to school.
The issues surrounding the headscarf debate highlight the growing complexity of society worldwide. With large-scale immigration and an increasingly free flow of ideas via new technologies, national populations are becoming less homogeneous. How will societies assimilate ever growing minorities with cultural backgrounds different than that of the host country? This issue is especially pressing in European countries that have experienced large scale immigration in the past few decades.
These difficulties are aggravated by the increased tension and security concerns that have arisen due to the 911 terrorist attack in New York, the US-led war on terror, and subsequent bombings in Spain and other countries. Each country in the world faces a unique challenge balancing freedom and security.
Furthermore, many traditionalists in different faiths resent the changes induced by globalization and modernization and the threat that they perceive to their identity, faith and practice.
Within this complex environment, finding the right formula
regarding the wearing of religious apparel and powerful religious symbols is not
easy. Yet, given the central importance of freedom of conscience and religious
freedom, it seems all the more important for states to maximize these rights
while at the same time fulfilling their primary role of maintaining the peace.