Legal Commentary

Jean-François Copé, the mayor of Meaux and majority leader in the French National Assembly, has this op ed in today's Times defending the impending bans, in France and Belgium, of the burqa and niqab (not, I should add, of the hijab).  He claims that attacks on the banning legislation have been "unfair," and offers two general defenses: the ban is necessary (1) as a "legitimate measure for public safety"; and (2) as a "reaffirmation of our ideals of liberty and fraternity."

As to (1), the claim is that the burqa and/or niqab is really "not an article of clothing," but "a mask worn at all times, making identification or participation in social life virtually impossible."  Copé points to a robbery that occurred in his town where the criminals wore burqas and were thus unidentifiable.  Public safety is under threat if "masked people are allowed to run about."  He concludes that a law is necessary to require "[t]he visibility of the face in the public sphere" for public safety reasons.

The claim as to (2) is that while the United States is, like France, committed to liberty "we also reaffirm our citizens' equality and fraternity."  Copé analogizes the burqa case to permitting people to "stroll down Fifth Avenue in the nude."  In both cases, says he, these are "insurmountable obstacles to the affirmation of a political community that unites citizens without regard to differences in sex, origin or religious faith."

Both of these reasons are not compelling ones to criminalize the burqa or niqab.  I am moved more by (1) than (2) but I think Copé is really relying on (2), not (1).

 As to the public safety rationale, I think that it is fair to point out that the burqa or niqab presents the danger of being unable to identify wrongdoers.  It's a problem that this style of dress thwarts law enforcement.  But I hardly think this is a problem unique to burqas and niqabs.  Sweatshirts with deep hoods present the same issues, as do large, broad brimmed hats (some raincoats have these sorts of hats).  In the wintertime, scarves, ski masks, and certain types of winter hats are no different.  If the "visibility of the face in the public sphere" were truly the concern, why not criminalize these other forms of dress as well?  Unlike the courtroom situation that I talked about in a prior post, where assessments of physical credibility really are deemed necessary -- and therefore seeing the face is important -- I am dubious that the same can be said for mere presence in "the public sphere."

No, the real reason for the ban is the sense that these forms of dress are socially irresponsible in liberal democracies.  "How can you establish a relationship with a person who, by hiding a smile or a glance -- those universal signs of our humanity -- refuses to exist in the eyes of others," he says, adding that that the niqab wearer "is a shadow among others, lacking individuality, avoiding responsibility."

I find this manner of speaking completely alien.  In the first place, I generally don't want to establish a relationship with others.  I want to be left alone -- I will decide in my good time with whom I'd like to establish a relationship, thank you.  I don't want to be compelled to be loved by my fellow man.  As James Fitzjames Stephen put it, when discussing the idea of "fraternity": "keep your love to yourself and do not daub me or mine with it."  (also, how exactly does walking down the street naked or clothed contribute to the "affirmation of a political community that unites citizens"?  I thought it had more to do with just keeping your pants on, or off!). 

But second, and more importantly, there is the distinct odor of self-deluding dishonesty about this op-ed.  It would be more honest of Copé simply to admit that France (like much of Europe) feels itself and its Western culture under threat by Muslims and their ways.  Copé does not want to ban the veil because he feels a fraternity with that population, or because he is acting with a view to their own "real" happiness, a happiness which they just can't see right now (oh, but they will!).  He wants to ban the veil for reasons which satisfy the French and the Belgian majorities because he wants to stigmatize what he deems to be a condemnable way of life -- to punish people whose ways of life he finds inimical to the survival of French culture.

To put all of this in the language of "fraternity," and to claim, as Copé does, that this legislation "is aimed at no particular religion and stigmatizes no particular community," or that it is really aimed at helping his fellow man, is the worst sort of self-deluding lie.  It is doubly false.  First, Copé does not feel fraternity toward the Muslims whose practices he aims to criminalize.  He feels enmity toward them.  And second, if he really wanted to make them happy, he would let them do as they wish -- rather than imagine that he actually knows more about what their religion demands of them than they do. 

I am not certain what the proper outcome is with respect to this issue of public policy.  But Copé's mask of a piece does nothing to make it any clearer for me. 

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