France,the Veil and Religious Freedom

Abstract

In 2004 France banned ostentatious religious symbols – most notably the Muslim veil – from state schools across the country. French lawmakers believed this ban would encourage integration and help the country understand itself in the light of increasing religious and ethnic diversification. As the riots in the autumn of 2005 so aptly demonstrated, however, tensions remained high. Not only does this call the purpose of the law into question from a social standpoint, but once again forces us to question it in the light of human rights law. In the first part of my article I examine the history of the debate around religious symbols in state schools and look at the deliberations of the Commission called to study laïcité in a ‘new France’, the same Commission that recommended a law be crafted. On the basis of ethnographic observations, I argue that the veil is but a symbol of a larger complex of issues that have to do with the dynamics of areas of low income and high crime that are bounded spaces. In the second part of my article I look at the law banning religious symbols within the framework of human rights. I show that the right to religious manifestation is a longstanding and consistently articulated norm that has in the last ten years been limited in its scope through a wide understanding of the limitations clause. Since France based its decision on the advice and judgments of the European Court I look at, and ultimately call into question, two decisions, Refah Partisi v Turkey and Sahin v Turkey. I argue that states are given too wide a margin of appreciation and that the judgments have been driven by a narrow and incorrect view of Islam.