France is in the news this week because of an incident in Nice which four armed police officers forced a woman on a beach, in front of onlookers, to remove some of her clothing, consequent to the city's ban on "clothing that overtly manifests adherence to a religion." Since that occurred, possibly in an attempt to demonstrate that they weren't discriminating against Muslims, the city's deputy mayor insisted that habited nuns weren't welcome on the beach either, and then a French high court overturned the rule -- probably setting precedent for dozens of similar rules enforced at the municipal level all over France. This still leaves open the possibility that the national legislature could craft a law explicitly empowering local officials to ban beach clothing that contravenes their sense of laïcité, or could even craft one that sets national policy.
Here are a few related links that set some context for the matter:
Wikipedia article on the 1905 French law concerning the separation of church and state
Wikipedia article on the 2004 French national law banning certain religious symbols and clothing
Raphael Liognier writing in the Macquarie Law Journal in 2009: "Laïcité on the edge in France: Between the theory of church-state separation and the praxis of state-church confusion." This article is critical of French policy, but it provides a good historical review of how the French state put itself in this situation, explains the cultural concept that now bears the name "laïcité," and describes some of the incongruities in the existing law.
At Feministing, "A Guide for White People on the #BurkiniBan and Discussing Muslim Women" by Mahroh Jahangiri. This piece reminds us of the political history of colonialists' efforts to police Muslim women's dress, reminds us that there isn't just one true feminism, and, I should hope, reminds us not to treat Muslim women as political objects. Her seven pointers for writers are worth reading.
(I don't go as far as the author to say that it's always wrong to make analogies to other kinds of societal clothing-policing, but I sympathize. A well-crafted analogy can powerfully force an honest interlocutor to "see it from the other side" and thus open minds, but a poorly-crafted analogy can be legitimately offensive. If you're not sure how well yours is crafted, it's likely better to keep it to yourself.)
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So, not wanting to repeat what other people have written on the topic, I'll just make a couple of comments.
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First of all, I have a strong preference for American-style civil liberties. I come very close to being a free-speech absolutist, interpreting "freedom of the press" to be a freedom possessed by the owner of the press, and "press" interpreted broadly to mean any means of publishing, paying for, or disseminating speech, and interpreting "freedom of expression" to mean one's entire way of life in and out of the public sphere. So I don't like the French system, no.
At the same time, I am interested in different possible ways to assemble a consistent legal approach to philosophical diversity. I like our ideal of massively free expression; but no real system is perfect, and one does run up against conflicts from time to time, and lurking behind it always is the logical problem of tolerating intolerance, or of somehow having to respect philosophies that themselves do not respect philosophies -- the fundamental logical flaw of all relativism. Could there be better ways to deal with it than ours? Maybe. And it's interesting to explore systems that may have solved some of our own persistent problems while creating problems that we don't have. Also, I'd like to pay a little lip service to state sovereignty and to there being the possibility of having a set of priorities that is different from ours, that wouldn't fly in U. S. culture, but that makes sense and respects human persons in its own way. So I don't want to write them off entirely right off the bat -- at least not just because it's not the American way.
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So, it strikes me that one of the inherent weaknesses in the French approach to law here is in banning a kind of "symbol." An inherent with symbols is that they are not universally agreed upon, and that they are context-dependent. So the French have a truly fundamental legal problem here, namely, that they have written their law in inherently ambiguous language. Perhaps it is impossible to write laws that contain no ambiguity whatsoever, but zero ambiguity is the standard for which all laws ought to aim; one could even say that to remove ambiguities is the entire point of having laws at all, so that people can securely know how to comport themselves so that the state will not lock them up or seize their property, and so that the people have a means of creating a state whose power extends to agreed-upon bounds and no farther.
So we're stuck, because sometimes a cigar is just a cigar, and sometimes an article of clothing is just an article of clothing. Jahangiri's piece in Feministing points out that it is the white colonialist mindset that first interpreted Muslim women's wear as a symbol of Islam, imposing a meaning upon it from outside. White feminists and rejected males alike continue to say implicitly or explicitly, "this is not clothing, it is a symbol." French laïcité means a freedom from certain symbols in the public square; maybe this sounds okay, a legitimate expression of a state (not consistent with the American expression, but trying to be open-minded and tolerant here toward la peuple française and their distinct culture); the problem is that apparently, for the French majorité to be free from what they see as symbols, some French minority women have to be free from what they see as their clothes.
It would be less problematic if the French had just come out and said "We are banning visible crucifixes that are longer than 325 mm, and little round hats worn on the back of your head, and when we said that you have to show your face in public, we also mean your hair, unless it's below a certain temperature Celsius or raining enough that drivers have to turn on their windshield wipers." At least the ambiguity would be gone, and though we might object to the infringement on personal freedom, we could at least say, "Well, it's clear," and then we could debate its rightness or wrongness. But no, they had to ban "religious symbols," which means one thing to one person and another thing to another. Which puts government in charge of deciding what your clothes really mean. And which means that you will never be judged on what they mean to you, but only on how they are received by other people, whom you cannot control. In other words, in a regime that bans "symbols" rather than banning specific objects and articles, individuals are liable for other people's thoughts about them, whether those thoughts are correct or incorrect. And that is about as illiberal as you can get.
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Third, it is important for Americans to understand the French system as a kind of warning of where we might go, if the forces of "freedom from" get out of balance with the forces of "freedom to."
Already there are hints of this in all the parts of the First Amendment. Politicians are speaking, it seems, more and more often of religious freedom interpreted as a "freedom to worship," which is rather closer to the traditional French understanding than to the more expansive American one; our tradition is one of "freedom of expression," meaning the freedom to live our lives, private and public, in accord with our beliefs. Speech codes which attempt to give people the freedom to live without hearing offensive speech are constantly being crafted at government institutions, struck down, and tweaked to sneak back in; they enjoy a great deal of popular support; and yet they exist in opposition to the American ideal (I won't say tradition, because it has been so unevenly lived by minority communities in this country) of the freedom to express minority ideas. Interpreting expensively produced publications and expressions as a financial transaction that can be regulated -- for some government-friendly spending entities and some points of view and not others -- is another way the definition of "freedom of the press" is being interpreted narrowly. Some "presses" are favored as shrines of freedom of expression; other "presses" derided as mere businesses, the speech they produce interpreted as a product for consumption, and subject to intense regulation.
The French problem is a warning to us. They have tried to favor "freedom from" over "freedom to." If we object to the results of that effort, we can learn from it and try to craft a balance between the two that will result in something more to our particular American taste.