Nicolas Cadène, in an interview at L’Express, analyzes the French court ruling issued Friday that struck down the ban by the mayor of Villeneuve-Loubet on Muslim women wearing modest clothing at the public beach. The ban was on the burkini, invented by a Lebanese fashion designer to allow observant Muslim women to go to the beach with their families. But women wearing loose street clothes at the beach have also been bothered by police.
Cadène is a rapporteur at the “Secularism Watchdog” (l’Observatoire de la laïcité), a Ministry of Education body that advises the French government on the implementation of the secularism provisions of the French constitution.
The Counsel of State found that wearing a Burkini creates no trouble for public order and is simply not illegal in current French law. In response, the French right wing has demanded that the National Assembly enact anti-Burkini legislation. L’Express worries that the French executive, or at least the ministry of interior, might be inclined to appease the Islamophobic and anti-immigrant right wing on this issue.
L’Express asked Cadène for his reaction. He said he wasn’t surprised and was very pleased that the court had upheld rights in such a clear way. He said that the court had reaffirmed the principle that secularism cannot be invoked to forbid wearing a piece of clothing in a public space, which creates no actual difficulty with regard to public order. And they found that the Burkini doesn’t generate any such disturbances.
L’Express pointed out that the logic of rights is not particularly visible in the realm of politics, since several members of parliament have already called for anti-Burkini legislation.
Cadène said that it is disquieting to see these reactions. He pointed out that August 26, the date of the verdict, is the anniversary of the 1789 Declaration of the Rights of Man. Article 10 says, “10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” He said the members of the National Assembly just are not reacting in accordance with the Rights of Man, which has constitutional force.
L’Express pointed out that the court did not address the question of whether the Burkini is “ostentatious” or not.
Cadène said that “ostentation” is a political judgment, not a legal one, and there are no laws forbidding it.
He instanced only three pieces of French legislation that observers have attempted to relate to this case, and dismissed all three as irrelevant.
There is the 2004 ban on wearing religious paraphernalia in K-12 schools. There, the rationale is to protect minors from any sort of pressure, so as to allow them to study in peace. He implied that such a rationale could not be invoked with regard to adults in public spaces.
There is also a prohibition on clothing that covers the face, but this provision, he said, is simply a matter of security, since it prevents the identification of the person who wears it. Again, this issue does not arise with regard to the Burkini, since it leaves the face bare.
He added that, third, government officials must avoid expressing their religious opinions. But this prohibition came about because they are representatives of the state and so must be neutral.
L’Express pointed out that some commenters look at the issue in the frame of women’s rights, seeing this beachwear as retrograde, and wanted to know if this debate can be pursued in the wake of the ruling.
Cadène said that the decision has affirmed the law that is in effect. It doesn’t forbid debating ideas. It should be decided whether this clothing is retrograde for the condition of women. But in a state based on the law, you can’t just prohibit things you don’t like with no legal basis.
I think Cadène’s location of choice of clothing as an expression of one’s opinion, and therefore protected under Article 10, is brilliant. In the US, this sort of issue would likely be decided in the light of our First Amendment.
Government laws dictating how people dress are called “sumptuary laws.” Although some delegates to the US constitutional convention wanted to specify such laws as a prerogative of the federal government, in the end, they did not. (Some wanted to forbid aristocratic dress inappropriate to a republic). In the end, the federal government doesn’t have any right to tell us how we can dress. Local governments often pass decency legislation, but those laws typically mandate that people cover up, not that they uncover.
The French mayor wanted to make French women wear revealing bathing suits on the grounds that they are republican and secular, whereas Burkinis or loose street clothes on the beach are an ostentatious sign of a woman being pious and religious– inappropriate in the public spaces of a republic. This attitude comes out of the French conception of laïcité or secularism, which isn’t like the American. French in the strong republican tradition sees religion as a little like we now view smoking, as something that is probably bad for people and which should be discouraged, but which is too popular to be banned. So banning a Burkini for the public good would be viewed by them as like banning cigarettes in public. But there are real problems with giving the state the right to regulate what is essentially a manifestation of private opinions on the part of a citizen, as was pointed out above.
Sometimes Islamophobic conservatives express outrage that Western progressives support Muslim rights that the conservatives want to curb. But progressives also support Sikhs, Haredi Jews and others who want to be different, as long as their being different doesn’t harm anyone. (Thus, Sikh construction workers have to wear a hard hat or they would cost everyone a lot of money in health care; and Haredi bus drivers can’t exclude women or girls because that would be a form of discrimination and a tort). The reason progressives support these groups is that we believe being different is an extension of the First Amendment. Conservatives have passed a raft of state and federal laws protecting religious groups from government interference, but they define religion as only evangelical Christians and they ignore the issue of actual harm religious practices can do (thus business people claimed the right not to serve African-Americans on religious grounds back in the 1960s and 1970s). In short, the progressive position is principled, the conservative one hypocritical and arbitrary.
Let me also point out that the French Third Republic was founded in 1870, and that this swimsuit for women was proposed in 1893 in the French specialty publication, the Fashion Monitor (Le Moniteur de la mode : journal du grande monde):
And here’s Edouard Manet, “On the Beach,” 1873:
You can say that wearers of Burkinis are harking back to early days of the Third Republic. You can’t say they are behaving in unprecedented ways for citizens of the Republic.