The French can ban the veil but not the English

By Andy Ho, The Straits Times, 28 Sep 2013

SINCE 2011, France has banned the niqab from all public spaces. The niqab is the full-face veil that leaves just a slit for the eyes, which some Muslim women wear.

British Prime Minister David Cameron recently broached a niqab ban too. This is odd because a niqab ban may be consistent with French history and culture but not with English tradition.

In the English media, the issue is portrayed in terms of an individual's right to express her religion.

In French discourse, however, the issue is seen through the lens of laicite or "secularism". The free exercise of religion is guaranteed in France by the law concerning the separation of the churches and the state. Passed in 1905, it bears little resemblance to the separation of Church and state in the United States.

In the US, the state adopts a hands-off approach to religion. Competition among a diversity of faiths in the religious marketplace is supposed to lead to a stable and peaceable religious pluralism.

Not so in France, where the revolution that overthrew the regime of Louis XVI in 1789 was viciously anti-clerical. The revolutionaries perceived the Catholic Church as being in an alliance with the monarchy and smashed first the monarchy, then the Church. Setting up the Republic, they vowed never to let class or religion divide society again. So the republicans passed a law to confiscate all Church property in 1790, permitting the Church to use it only at the state's pleasure.

To this day, the state owns and maintains all churches constructed before 1905, including the world-renowned cathedrals of Paris, Chartres, and Reims.

In French society, the Church is thus kept reliant upon and subject to the state. French laws targeting Muslims arguably also aim to rein in Islam and make it subject to the state. (Earlier, in 2004, France also passed a law forbidding girls from wearing the hijab or headscarf in schools).

Such state control of religion since the revolution is justified in terms of laicite. Enshrined in the Constitution, it is a doctrine of citizenship grounded in liberty, equality and fraternity. In this conception, faith-based diversity of views can be seen as a threat to social cohesion.

A common school system tries to inculcate the national values of equality, non-discrimination and dignity. The French assimilationist project expects all, including immigrants, to give up their communal identities in public.

In public spaces, French people are to express their common values, especially human dignity, by treating no one differently. This requires that there be no segregation on the basis of gender, ethnicity, religion, class, disability and so on. In particular, explicitly religious expression must be sequestered from public affairs. For example, proselytising in public is not permitted. Thus also the ban on wearing the niqab in public.

There is apparently a wide consensus on all this - and that the state is the organ to enforce this laicite. This is evident from the fact that the senate, as elected representatives of the people, voted 335 to one to pass the 2011 law.

But this avowedly illiberal doctrine of laicite would have no place in England, where religion occupies a much larger place in the public sphere. Despite very low church attendance today, the Church of England has a unique constitutional position afforded by the Act of Supremacy 1558.

To this day, the Church's close ties with the state are constitutionally enshrined: Its archbishops and bishops are appointed by the monarch, who is its supreme governor, on the advice of the prime minister. The monarch may not convert to Catholicism or marry a Catholic; Church law cannot be changed without Parliament's approval; and, as of right, 26 Anglican bishops sit in the House of Lords with voting power on legislative Bills. Blasphemy against Anglican doctrine remains a crime.

Despite all this, however, the public role of the Church of England is largely ceremonial, not substantive. In practice, Anglicanism does not trump other religions.

In spite of this official entanglement of Church and state, religious liberty is widely respected as an individual right in what is largely a secular, liberal democracy with a pluralistic society.

Because the Constitution is unwritten, however, individual religious liberty rights were not formally guaranteed until the passage of the Human Rights Act in 1998. So while there is religious freedom by law, Church and state are not separated. But this long experience of state involvement in religion arms the British state with subtler tools of regulating religion. For example, the state has chosen to regulate a particular Muslim institution by accepting fully, since 2008, all arbitration decisions made by courts applying syariah law. (No other nation in Europe has such syariah courts.)

Muslims who consent to it may ask for syariah law to be applied to their disputes, especially family issues including divorce, child custody and inheritance. Organised under the Muslim Arbitration Tribunal, about 85 such courts are empowered to act under the Arbitration Act. Their decisions are fully binding in law. In England, then, it is permissible for Muslims to maintain a distinct and separate identity within a multicultural strategy of integration. Given that individual rights are the warp and woof of English life, in which expressing one's religious identity in public is widely accepted, there is no plausible rationale for banning the niqab.

This is in stark contrast to France's form of civic assimilation, where expressing any religious identity in public has no place. A niqab ban is thus arguably consonant in the French context but would be quite out of place across the Channel.