My July Fourth post on the burqa prompted thoughtful responses, one of which, from Anthony, I reproduce in full here, in order to try to respond to it in full.
As always, my comments are bracketed, and in blue.
Agreed on the duty of the state. [UD wrote, in answer to Dance, another commenter, that “The state is under no compulsion to uncover the true feelings of every covered woman in its borders. It has a duty, rather, to understand its own founding principles, and to recognize and protect itself from gross insults to them.”] France’s action, however, does nothing to accomplish that goal. [Au contraire: If the goal is for a state, and for citizens of a state, to understand more fully that state’s founding principles, then the French action so far — which involves strong statements against the burqa by the leader of the country, NOT its outlawing. Yet. — has, it seems to me, done wonders to energize and clarify the state’s efforts, and its citizens’ efforts, to recognize what it means to live in a secular democratic republic. If the burqa lies, as I believe it does, on the cutting edge of civic life; if it represents a line you do not cross if you are a democracy, then it’s very much to the good, very much accomplishing a great deal, that many people in France are talking about and taking negative positions on the burqa.] I’m not particularly persuaded by dueling NY Times op-ed pieces on the subject. Rather, I’d look to France’s own statements on what it stands for, and the effects of this policy on it, to determine how the current government is doing living up to the duty you correctly identify. [The commenter will now analyze various founding statements having to do with French political identity. This is an important feature of arguments about the burqa, but I would caution that much in global responses, not merely French, to the burqa, has to do with unwritten customs. Allow me to quote from an opinion piece in Forbes:
“What if we were confronted, in our cities, by a neo-pagan cult with passionately held views that required all their votaries to walk around naked in our streets? No doubt after a hubbub of debate, largely stoked by loony freedom-of-speechers, we would soon arrest the cultists, wrap them in blankets and throw them in jail for indecent exposure.
But the questions will remain: Where do we get these notions of decency? With what right do we impose them on others? Why should our standards of dress trump those of the cultists? We may not resolve the matter intellectually, but this much, we will conclude, is clear: We do espouse a coherent set of rules about such things–at least we consider them coherent–and we are prepared to support them with legal sanctions. They may not be written into the Constitution, being largely a matter of self-evident cultural or civic or even moral norms, but we do stand by them.
… Yes our political traditions allow all manner of variegated freedoms of speech and action, but we do differentiate between the barbaric and the civilized. We are not only political animals. Our values do not end with those laid out in constitutions and bills of rights. In fact, one can argue that the U.S. Constitution does not comprise a morality in itself but rather lays down a framework that allows our actual code of values to operate, whether it’s one based on the Bible or Cartesian empiricism or a host of inherited cultural traditions.”]
[Back to the commenter now, and to my responses.]
For starters, France’s motto is “Liberty, Equality, Fraternity”. This policy would seem in conflict with Liberty (as you’re removing the choice from the woman) and Equality (who else will be subject to similar attire-based restrictions?). [On liberty: I, and many people, believe that it is intellectually impossible to accept, outside of assuming a person is perverted, that the burqa is something a rational person, a citizen rather than a slave, freely chooses. So I believe that there is no choice, outside of a preference for perverting oneself, in the wearing of a burqa.] Fraternity (as long as we forgive the implicitly gendered language) is trickier. It will probably be a net win (greater sense of inclusion in the surrounding society), but don’t discount the effects of isolating the woman in question from her existing local/familial/religious community. [One of strongest arguments against the burqa points to the fact that all democracies are open societies, in which freedom of assembly, and freedom to speak and act in conditions of human equality, are profoundly engrained, the very substance of our daily lives. Total anonymity makes engagement in the civic realm largely impossible. Not entirely, of course. But largely. And if a woman (recall that only women wear burqas) lives in a community that shuns her because she will not wear a burqa (by the way, the burqa has no religious grounding, so we cannot describe her shunning community as shunning her on the basis of religious grounds that the state must respect), then she is in the unfortunate situation of living in a cult. Plenty of people in democracies live in cults of various sorts, and we respect all sorts of anti-democratic behaviors from them within their cults. We have, however, a lot to say about how they behave when they leave the compound gates.]
Okay, let’s set the catchy motto aside and look for something a bit more substantial. The relevant sections from Article 1 of France’s current constitution, as revised, read:
“[France] shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.”
This seems a pretty clear violation of respecting all beliefs, unless you’re going to assert that *no* woman wears the burqa by choice, which seems pretty bold. [I’ve always been bold. Note that the language says we must respect all beliefs. Not that we must respect all actions.] I think we’re also looking at a pretty pronounced violation of the equality of religion; are we going to look at Christian nun’s habits? Is it just the veil that matters? It’s noteworthy that culture is not explicitly protected; I’m not sure if the authors made the common mistake of equating race with culture (hey, it was 1958) or made a more conscious decision; either way, trying to squeeze this into a cultural determinant with no religious component seems pretty sleazy. [Once again, the full burqa has no religious component except perhaps in the minds of the people trying to enforce it. Here we must make a distinction, as all states must, between moral relativism and tolerance.]
We can find similar problems in Article 5.
In the United States, when evaluating laws that potentially run afoul of things like First Amendment protections, the courts use the Least Restrictive Means test: assuming the desired goal is valid (in this case, presumably, “liberating” women forced to wear the burqa, which I’d certainly agree is a valid goal), is the proposed law the least restrictive means of arriving at that goal? Yes, that’s US not French law, and I’m [not] fluent enough with French constitutional law to know if they have anything equivalent, but the idea holds up well: faced with conflicting principles, are we doing the least damage to them possible?
I think it’s clear that in this case the answer is a resounding “no”. The problem here is not the garment, it’s the culture of forced anonymity that frequently accompanies it. No woman should be forced to wear a burqa, but it’s the forcing, not the burqa, that’s the problem. A solution which targeted the correct half of the situation – the verb, not the noun – would be both less restrictive and more effective. [This would be very difficult to do, if I understand what the writer’s suggesting, since virtually all women in burqas will, when asked, assure an interviewer that they couldn’t be happier.]
I have absolutely no objection to the idea that many women are forced into clothing and lifestyle choices against their will. But where are the restrictions on stilettos and minis? I’ve heard more men tell their partners something akin to “wear something tight” than “wear this bed sheet”. Whereas the burqa can be (mis)used to anonymize, generalize, and neutralize a woman’s appearance and thus (arguably) a portion of her identity, the over-simplifying and hyper-sexualizing of her image caused by all manner of other fashion choices is no less damaging (arguably to herself and her peers). [Here we really part ways. Laws exist against nudity and offense to community values, etc. The idea that there could be any equivalence in terms of self-degradation between tight clothes that reveal a good deal and the burqa, explicitly designed to annihilate a person, is unpersuasive.]
Do you really want the state getting into those decisions? [Not necessarily. I agree that laws banning the burqa are not such a great idea. I do see them in play, however, in countries like Turkey, and they seem to work just fine. Yes, I’m aware Turkey has its traditions that make this law more easily assimilated into the population, perhaps. Yet as with many laws that people have argued against on the basis of the horrid things they’ll bring about — Plenty of people anticipated fatal mayhem on airplanes when frantic smokers went mad after three hours without nicotine. — it’s usually the case that the laws settle in pretty smoothly.]
So. I’ve done anonymity and perversion. Why death? Because I’ve noticed, reading through scads of opinion pieces and comments about the burqa, that people keep referring to it as a death shroud.
I think there are many reasons why people like me respond very strongly to the burqa — why the leader of France, when he announces it’s not welcome on French soil, gets almost total and enthusiastic approbation from the French people. The burqa disturbs us very, very deeply, and we shouldn’t shrink away from the fact of that deep disturbance to some bogus neutral statecrafty attitude. We should, as Michael Sandel urges, feel that emotion, experience that moral outrage, take it seriously, consider it from all sides. The burqa is appalling because it is a pall. Because it carries among us the animated corpses of women who deserved a life. That is extremely demoralizing to have around, especially to have around young women just beginning to get a sense of their own power and possibilities in a democratic society.
So no. I’m not at all sure about the idea of outlawing the burqa. But I am sure that we should, when confronted with it, understand that it is an obscenity.
July 7th, 2009 at 12:50PM
First, let me say that I was a bit sloppy, jumping ahead from Sarkozy’s condemnation to the desired legal weight. I should have separated those two things out better, but since that’s the direction the discussion is headed, only the form of some of the debate changes, not the core content.
To that point: I’m fully ready to agree that the burqa is contrary to prevailing French (and, generally, "western") values, and perhaps you’re right that having that made clear is beneficial. My problem comes when we then assert that it’s the state’s duty or right to enforce those values beyond their impact on others.
To be clear: I am not defending the burqa. I think it is, by and large, an awful symbol of the most repressive aspects of a culture and, in practical terms, is a tool used to deprive many women of voice. What I’m arguing is that France’s proposed actions in response are addressing the problem incorrectly at a high cost both to the fundamental liberty they’re founded on and likely to the very women they’re supposedly trying to help.
Intellectually, I have lots of problems with your assertion that no woman could choose to wear the burqa. It’s a nicely insular argument: you’ve already discounted as uniformly brainwashed the only people who could conclusively disprove it. But it also is not as useful an argument as you think. The very women who most fit the model you’re attributing to all those who wear the burqa – and I have no doubt that it applies to many – are the ones that need protecting. But the effect of this sort of restriction on them is not going to be an increase in liberty. Given a cultural and religious drive that says, in effect, "women cannot leave the house without a burqa" and a government that says "women can’t leave the house in a burqa", do you really think the oppressive culture in question will simply bow to the wishes of the State? Unlikely. There’s a much simpler response which happens to fit both of those mandates: don’t let women leave the house. The restriction on the burqa will drive the women most oppressed further underground and remove what little voice and agency they have.
That leads to another problem with your argument: it’s pretty clearly disingenuous to claim that the burqa has no religious grounding. True, it’s not explicitly called for in the koran, but the drive for it from its proponents is based directly on their understanding of hijab. More moderate muslims (and much of the rest of the world) might agree it’s a poor interpretation of hijab, but that’s where it comes from. You’d do equally well to assert that celibacy of Catholic priests is not religiously based: lots of Christian communities come to different interpretations, and even for the Catholics the doctrine, in historical terms, was largely a response to other influences. Still, it’s clear that the modern basis for the doctrine is based on a particular interpretation of their religion. In both cases, the State should absolutely not be in the business of interpreting religious doctrine or scripture.
No, again the issue comes back to the State demonstrating harm if it’s going to try to take some "corrective action" that otherwise restricts liberty. In this way, regardless of your position on the specific questions, the problem is the same as for advocates of prohibition of pornography: they might firmly believe it harms women, and it might be so, but how do you prove it? We’re dealing with governments here, which are inherently blunt instruments. We must hold them to a very high standard of proof before we allow them to dictate aspects of our lives such; before we allow them to contravene fundamental liberty, even in small ways. And they just haven’t made their case.
You argue that combatting the coercion, rather than the tool thereof, would be "very difficult", and that might be true. But it would also be more effective and inflict less collateral damage. Especially when dealing with governments (but really it’s a good guiding principle generally), that’s a very strong mandate to try the difficult course if we can see one. And I believe we can. The problem is far more extreme but similar in kind to dependent people who stay in abusive relationships or, as you suggest, a cult because of lack of options. By doing a better job of providing alternatives (largely in the form of social services designed to provide an "out" to women truly in repressive situations, or simply better enforcement of existing laws), perhaps with better targeting towards the affected population, we can replace the heavy hand of prohibition with a more effective set of tools.
Again, all this is really talking about the proposed prohibition. But really, I have a hard time not believe that’s where this is all going, particularly when seeing language like "obscenity" tossed around. Perhaps your right that "we", the people, private individuals, shouldn’t shy away from our emotional reactions to the burqa. That reaction is our right. But the State, and Sarkozy as its agent, should be more reserved. Very, very bad things happen when we allow our governments to bow to such emotional reactions.
July 7th, 2009 at 1:33PM
Heavy stuff and well argued by both sides.
Recall UD said: "So no. I’m not at all sure about the idea of outlawing the burqa."
I guess I’ll have to fall on the side favoring NOT outlawing it. Where do you draw the line? At the muslim women at Target who choose to wear a red head scarf. The state of Minnesota, briefly, tried to outlaw driver’s license pictures of women wearing scarves.
I also think of all those dear old nuns, pretty much covered, except for their faces.
Yes the burqua disturbs me. At my wife’s Unitarian church a few years ago I purchased a burqua for Barbie. The burqa is now displayed in my lab on a knock-off Barbie.
Even so, I don’t think France or any other government should prohibit burqas.
July 7th, 2009 at 4:40PM
European countries are also in a very different place then we are. Importing all those North Africans was a bad idea.
I knew a few NOI offshoot women. They were black Americans who liked wearing the hijab because it took them out of the staring/catcalling environment. It was also the culture they flipped into. For them it was a positive. I thought they were OK.
The burqa in Europe is a different matter.