I’ve been following the arguments about burka bans, and much as I hate these coverings and what they represent (and think countries like Syria are smart to ban them), I think any ban on an article of clothing is not only impossible in the United States, but runs afoul of the First Amendment.
I want to explain why I think the religious arguments — discussed by Martha Nussbaum and refuted here by Massimo Pigliucci — are a bit of a red herring. Any apparel worn for religious reasons is as protected under the First Amendment as any apparel would be if worn for any other reason. It is legally impermissible to ban Nazi uniforms or Klan garb, and it is irrelevant whether a religious nut might claim that his Klan robe (which like the burka, is a covering) reflects his relationship with God.
(A related issue is that deliberately offensive anti-religious attire, like gay drag queens wearing nun’s habits to protest the Catholic Church, would also be similarly constitutionally protected.)
A burka might be worn for religious reasons, but any ban would have to be religion-neutral, or else it would be religious discrimination. Take, for example, the analogy between the burka and human sacrifice:
Nussbaum is a sharp thinker, and arguably one of the most incisive public intellectuals active today. In her essay she introduced the issue in terms of two philosophical traditions concerning the rights of minorities, in particular religious ones. According to John Locke, the law should not penalize religious belief, and should not be discriminatory, that is it should be applied equally to all practitioners of specific religions. Nussbaum’s example is a Supreme Court decision that allows ritual animal sacrifice for religious purposes (yup, you read correctly!) because not allowing it would represent an instance of religious persecution against a specific group (in that case, the Santeria worshippers). I do wonder what the Supreme Court would say if a religious group petitioned to carry out human sacrifices…
The problem with that argument is that no legislature in the United States would limit a ban on human sacrifice to, say, the Aztec religion. Human sacrifice is murder and it is illegal regardless of whether the murderer believes in a particular religion, or no religion.
So, any ban on the burka would not band burkas only for Muslims; it would ban burkas period. No head and face coverings.
Which would mean one of the numerous American cranks (there are libertarians like me who don’t like the government telling me what I can’t wear) would immediately take umbrage, put on a burka, and run out into the street to get arrested, contest the law, and ultimately win.
Now, the state has a right to compel an individual to bare his or her head for a drivers license, and I don’t think they have any business telling businesses they have to hire burka wearers (I would refuse to hire one), but banning the burka?
Forget it. I don’t think it would survive a legal challenge.
Whether that’s a good thing I don’t know. Freedom is not without its costs, and allowing deluded women (or other nutcases) to cover themselves is one of them.
Comments
8 responses to “A burka ban would suck more than the burka”
I like the thought of police lifting the burka in public to look for harry legs. Assuming they were looking for a man in disguise.
Defile the woman in Muslim eyes while performing a legal search. Now the question is: since the police are looking for a man should all the searches be done by women? With men watching as backup.
If a woman in a burka is driving and gets pulled over remove the face mask to check against the picture.
I can definitely see a clash of cultures coming even if burkas are legal.
And if we get car-B-ques (a la France) – I can see trouble coming.
Another one of my famous typos: harry legs
But apt.
I think it is entirely reasonable to prohibit driving by people with face coverings, as it can interfere with their vision and is thus a safety issue. And obviously, the police have every right to demand that burkas be removed on demand to ID people. If they won’t remove it, they can be arrested for interference with an officer in the performance of his duties.
Another mistake that is being made is portraying these women as “victims.” Many of them are aggressively anti-American and covering themselves to flaunt it.
Hmmmm.
All good points except for one:
The burka is cultural garb, not religious.
Yes, and I think it’s very political too.
The use of face masks may need to be banned in public places as a matter of crime control. Also, anything that interferes with vision should be forbidden while driving as a matter of public safety and accident prevention.
My bank has a small sign on the door indicating that anyone entering is required to remove sunglasses, hats, and hoods before entering.
While I don’t consider it a First Amendment issue (clothing as speech?), it would be hard to hang it on other precedents or laws. I suppose that’s close enough for government work. Excuse the pun.
A number of American jurisdictions have anti-mask laws, mainly as a response to the KKK. A number of such laws have survived court challenge, though they remain controversial. Some anti-mask laws have been struck down.