As recently reported by the
New York Times and elsewhere, a debate is raging in Turkey about whether women should be banned from wearing headscarves (
hijab) and other religious attire in public universities and other state institutions.
(map credit)Turkey imposed a ban to promote a vision of secular democracy that traces its broadest roots to the founding of the modern Turkish state by
Mustafa Kemal Ataturk (below left) in the 1920s. (The law in question apparently does not single out
women; certain types of beards and other forms of religious attire were also prohibited). Similar bans have been in place on and off since the days of Ataturk. In a departure from this long history, Turkey’s parliament recently backed constitutional amendments that would enable the lifting of the ban. These proposals have brought about protests in the streets seeking to maintain the ban and related protections for secularism (below right).
(photo credit)Such restrictions on religious expression
implicate
well-established international human rights protections. As in the
1st Amendment to the U.S. Constitution, many of the omnibus human instruments treaties include reference to the right to religion in conjunction with freedom of expression and thought. For example, the 1953
European Convention on Human Rights & Fundamental Freedoms (ECHR) at Article 9 articulates
broad protections for freedom of thought, conscience, and religion that include the right to change one’s religion and to express it in community with others. The right to manifest one’s religion, however, is subject to a potent “clawback” clause at Article 9(2), which authorizes the state to prescribe limitations on the exercise of the right in certain circumstances. Article 9(2) reads:
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society
► in the interests of public safety,
► for the protection of public order, health or morals, or
► for the protection of the rights and freedoms of others.
Similar language appears in the universal
International Covenant on Civil and Political Rights (ICCPR), drafted more than a decade after the ECHR. Thus, the human rights treaties
treat internal convictions differently than external religious manifestations: restrictions may be placed by the state on the latter so long as they are prescribed by law and necessary to achieve a legitimate, and enumerated, state aim.
Ironically, perhaps, the ban that Turkey is now considering lifting has already received the
blessing of the European Court of Human Rights (below right).
That blessing came in response to a complaint by
Leyla Şahin, a medical
student at the University of Istanbul who was denied access to lectures, courses and two written exams because she was wearing a headscarf. Şahin alleged a violation of several articles of the ECHR and its Protocols: ECHR Articles 9 (freedom of thought, conscience and religion), 8 (right to respect for private and family life), 10 (freedom of expression), and 14 (prohibition of discrimination), and Article 2 of
Protocol No. 1 (right to education). The case is
Şahin v. Turkey.
In a judgment that was 5 years coming, the Grand Chamber (analogous to
en banc review) rejected Şahin’s claims. While it ruled that the ban was an infringement on her rights of religious expression, the Chamber considered the restriction justified within the Turkish context. In particular, it ruled that Turkey was acting within its
margin of appreciation when it considered the ban to be necessary to protect
two legitimate state aims: the
rights and freedoms of others and
public order. With respect to the first articulated aim, the Chamber reasoned that that the headscarf is perceived by many as a compulsory religious duty. Allowing it to be worn in state institutions would impact the rights of others who chose not to wear it. (Here, the Court cited
Dahlab v. Switzerland, in which the court held that a pre-school teacher wearing a headscarf may affect the freedom of conscience and religion of her very young charges). This, the Court reasoned, would threaten the right of gender equality that pervades the ECHR.
With respect to the second legitimate aim — the protection of public order — the Court ruled that the ban was justified in light of the
danger posed by political Islam to the secular democratic state. The Court determined that Turkey was within its right to ban the headscarf in the face of extremist political movements that are seeking to dismantle the secular republic and impose their religious values on society as a whole. In this way, the Court accepted that the headscarf in Turkey had become a symbol of “political Islam” or “radical Islam” and that allowing women to wear the scarf is the equivalent of allowing political Islam to take root.
The
Şahin decision turns largely on the concept of the
margin of appreciation, a jurisprudential abstention that grants states some measure of discretion in implementing their human rights obligations in their unique historic, cultural, and social contexts. Similar to U.S. constitutional adjudication, the more fundamental the right and the more extreme the restriction, the narrower the margin of appreciation. In this case,
Turkey was granted a wide margin of appreciation in light of the fact that the European Court could identify no European consensus on regulating religious symbols and thus declined to impose one on the rest of Europe. (This aspect of the ruling prompted a vigorous dissent from Françoise Tulkens, the Belgian judge, who lamented the lack of “European supervision” offered by the Court.) In addition, the Court noted that Turkey’s specific historical experience with fundamentalism and constitutional secularism justified the ban.
The Court did not independently consider Şahin’s other claims involving her right to education
or privacy on the ground that those claims did not raise any issues separate from the claims under Article 9. The Court’s ruling considers the issues
entirely in the abstract, even though there was no evidence in the record that the applicant sought to undermine the ethos of secularism (in fact there was testimony that she supported it), that there was any disruption at the university upon her wearing the scarf, that she subscribed to any extremist movements, or that her goal was to proselytise or attack the convictions of others. (An interview with Şahin is available
here). Even in the abstract, the opinion
lacks analytical rigor as to how the ban advanced the state’s legitimate goals of maintaining secularism and public order. This is the thrust of the lone dissent by Judge
Françoise Tulkens (left). In her view,
the principles of secularism, equality and liberty should harmonized, not weighed against each other. Furthermore, the sadly ironic result is that the European Court has disempowered women who choose the wear the headscarf out of religious conviction and ratified their exclusion from public universities — all in the guise of promoting gender equality. (It may also provoke a female “brain drain”; Şahin apparently now practices as a doctor in Vienna).
Although the case applies to just Turkey as a technical matter, the Court’s jurisprudence applies to all of Europe. This raises the question of how the Court would consider a similar ban in place elsewhere in Europe, such as the one in France (French tympanum with motto, below left). In 2004, France banned the wearing of
“ostentatious” symbols symbols of religious affiliation in state institutions that on
its face applies equally to Sikh turbans, Yarmulkes, headscarves, crosses, etc. In drafting a “neutral”
statute the French Parliament claimed to be guided by the concept of
laïcité, or state secularism, that purportedly undergirds the French state. And yet, the statute is inherently subjective, and the French majority practice will be taken as the standard against which all other practices will be compared. (In the U.S., this formulation would be immediately declared
void for vagueness, because it allows for too much discretion in determining what constitutes “ostentatious.”) The French measure has been given judicial approval by the
French Conseil Constitutionnel, which cited the
Şahin case for support. (The best discussion of this issue, the French law, and the relevant decisions can be found in
Joan Wallach Scott’s The Politics of the Veil (right), which inspired this post and its title.)
These concerns about the wearing of the headscarf create
simplistic associations between religious traditions and Islamic fundamentalism, radicalism, and terrorism. This belies the fact that the headscarf and related articles of Islamic clothing (a useful guide may be found
here) are in many ways unstable signifiers. Some who choose to wear the headscarf or other coverings find support—if not an obligation—for them in the Qur'an. In these circumstances, the headscarf and other coverings act as symbols of individual religious conviction, spiritual duty, and piety. In the “diaspora”—where the custom may not be mandated by religious edict, familiar pressure, or social norms—wearing the headscarf may express nostalgia for a homeland (perhaps never known), operate as a fashion statement or a form of adolescent rebellion against assimilationist parents, or assert an ethnic or religious identity against perceived cultural hegemony. Of course,
how we dress is not devoid of political significance; religious fundamentalist movements
have appropriated the headscarf and other coverings for political ends. In these contexts, mandating that women cover themselves can result in female subjugation by preventing women from fully participating in society. While ostensibly shielding women from the male gaze, the headscarf and other coverings may also operate to control and suppress women’s sexuality and sexual autonomy. As a symbol of chastity, the headscarf can also serve as a shaming symbol against others who resist the practice. The headscarf thus can be used as an expressive symbol
by—and against women—depending on the context. Opinions like
Şahin ascribed the headscarf with a monolithic meaning: the wearing of the headscarf signals ideological support for political Islam. In today’s context, this meaning has in many ways eclipsed the prior simplistic equation of the headscarf with women’s oppression.
Putting legal arguments to the side,
such bans are flawed as a matter of policy. As Scott argues in her book, such ban simply reaffirm the status of Muslims as “outsiders” who inevitably pose a threat to mainstream culture and society. By outlawing the wearing of the headscarf,
it inevitably becomes a symbol of resistance and an expressive act. At the same time, such bans conveniently give the illusion of action: they
are easily implemented and compliance is easily verified. Such quick fixes are
no substitute for the really hard work of genuine assimilation, which must involve the adaptation of the host culture to infusions of new cultures in the face of inevitable processes of globalization and migration. In any case, denying young women the right to a public education and to public employment is a perverse and counterproductive reaction to a practice with deep religious and cultural moorings.
I am pleased to announce a new program on international dispute resolution that I’ll be helping to teach this summer. It will take place in Cyprus, a venue that provides a unique and important context for the study of international dispute resolution.
Our innovative study abroad program is inspired by this history.
