Why Banning the Burkini is Possible in France


Every society is, in large part, the product of its history. France is no exception. In analyzing the widespread attempt by French municipalities to ban the full-body female swimsuit known as the burkini that some Muslim women insist on wearing on public beaches, it is  essential to understand the historical underpinnings of the concept of religious freedom — not as we know it here, but as it has developed in France. When French local officials try to ban the burkini, they do so within a historical context.

It must be remembered that for a thousand years, France was dominated by the Catholic Church. The Church wielded great power, controlled much of the wealth of the nation and stifled freedom, especially religious freedom. In a first effort to establish new freedoms in revolutionary France, in 1789, the French National Assembly adopted a Declaration of the Rights of Man and the Citizen. That document was inspired by the American experiment with freedom. However, it also reflected a specifically French approach.

Article 10 of the declaration addressed the same issues as were addressed by the First Amendment to our Constitution. However, it did so in a distinctly different manner. Our First Amendment reads in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The text of Article 10 of the French Declaration, however, reads: “No one ought to be disturbed on account of his opinions, even religious,” but then, significantly, adds, “provided their manifestation does not disturb the public order.”

While in the United States, wearing a kippah, a Muslim head scarf, a Sikh turban or any other religious symbol in public does not pose any threat to societal stability and could not conceivably be banned, that is not necessarily the case in France.

The burkini, which is not in and of itself a religious vestment, is a very public manifestation of a religious identity. Denying its presence on public beaches is not necessarily the repression of a religious opinion. It is, however, the repression of a manifestation of that opinion that can be considered a disturbance to a delicate public order. This is not to justify any ban of the burkini anywhere, but it is to understand why in France it is even possible to contemplate imposing such  a ban.

In its efforts to be tolerant, France has to take its very  difficult history into account and has to be conscious of its traditions. Simply put, religious freedom in France does not necessarily have to look precisely like religious freedom in our nation.

Gerard Leval is a partner in the  Washington, D.C. office of Arent Fox LLP.

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