Guest Post by Merve Demirel, DC-based attorney and the International Law & Governance Fellow at Young Professionals in Foreign Policy.
Last month, a Constitutional Court in Germany refused to issue a preliminary injunction against the state’s neutrality law which bans legal trainees from wearing religious garments during certain court procedures. Two weeks later, a judge in Germany required a Muslim woman to remove her Islamic headscarf in court to proceed with her divorce hearing. Around the same time, the European Court of Human Rights (ECHR) ruled that Belgium’s law banning face veils in public is “necessary in a democratic society” and thus legal under the European Convention on Human Rights. These and other cases testing the legality of laws that prohibit Islamic veils and thus undeniably target Muslim women raise serious concerns for the future of religious freedom in Europe.
While laws regulating the wearing of the headscarf in various public forums are not a new concept, there has certainly been an increase in conversation on the subject on both sides of the political spectrum. The economic crisis in Europe as well as the simultaneous influx of Muslim refugees into Europe, leading to a populist wave over the continent, undoubtedly contributed to this increase. While populist far-right candidates have not yet been successful in winning elections in Europe, the anti-Muslim rhetoric has, at least partially, resonated with the public and even influenced other parties’ agendas.
Last year, after facing criticism for being soft on immigration, German Chancellor Angela Merkel called for a ban on the burka and the German parliament passed a partial ban on full-face veils including the burka and niqab. Austria, Bulgaria, France, and the Netherlands also adopted similar measures. The number of people who may be affected by these laws is thought to be very low; however, the resurgence in litigation shows that they do exist.
In Hesse, rejecting the preliminary injunction against the state’s neutrality laws, the judges explained that legal trainees must observe these policies as representatives of public entities. Additionally, the Court where a judge prohibited a Syrian woman from proceeding with her divorce hearing while wearing her headscarf commented that judges were responsible for conduct in the courtroom and that “religiously motivated” attire is not allowed.
These local German cases follow two significant decisions by ECHR. In 2014, ECHR ruled that France’s ban on full-face veils introduced in 2010 was lawful as it furthered the aim of “living together” between individuals. Just recently, the ECHR echoed this decision in upholding the Belgian law which prohibits people from wearing clothing that partly or completely covers the face. It explained that the ban’s aim was to guarantee the conditions of “living together,” as well as the protection of the rights and freedoms of others.
Religious freedom is protected under Article 9 of the European Convention on Human Rights which states that no restrictions shall be placed on its exercise except those that are “prescribed by law and… necessary in a democratic society.” By ruling that the aim of “living together” justifies a restriction on the expression of religion, the Court has, perhaps inadvertently, framed religious freedom as a somewhat less significant right than the murky concept of living together.
Living together is certainly a laudable goal in every society. It is meant to ensure that groups of people from different religions, backgrounds, classes, education levels, and interests cohabitate peacefully; in this instance, all groups except for Muslim women who choose to cover their faces. Instead of ensuring peaceful cohabitation, laws that ban full or partial covering of the face prioritize “living together” over deeply held religious beliefs and force some (Muslim women) to violate those beliefs. Leaving these women with the choice of forceful integration or alienation from the public sphere, these laws marginalize an entire group of people, achieving the opposite of their intended goals.
Further, such laws carry the danger of legitimizing or aggravating bigotry and at the very least prejudice against Muslims, which would further contribute to the alienation of Muslims from society. In this way, they are counterproductive to fostering a diverse and inclusive society or “living together.” By whitewashing, and creating preferences for or against certain religious or ethnic type of group they discourage diversity and subjugate tolerance to conformity. “Living together” is easy when everyone is the same.
Especially in light of increasing immigration into various European countries, the laws enacted by various states as well as the recent ECHR decisions jeopardize the integration of Muslims into their respective societies. Under the guise of “living together” these decisions run the risk of forcing assimilation on not only the recent immigrants but individuals who have called these countries home for decades. And while today most of the laws target burkas and niqabs, there is nothing preventing states from enacting laws that prohibit the more commonly worn headscarves. Prioritizing certain societal goals at the expense of religious freedom is a slippery slope.
Merve Demirel is the International Law & Governance Fellow at Young Professionals in Foreign Policy (YPFP). She earned her JD from American University. Merve has a background in foreign policy and international law.Guest contributor