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Old 10-30-2010, 05:21 AM
ledocs ledocs is offline
Join Date: Sep 2007
Location: France, Earth
Posts: 1,165
Default Re: Values Added: Women and Islam (Mona Eltahawy & Claire Berlinski)

I did some superficial reading about the French anti-burqa legislation. It is apparently not written in a way that announces society’s intolerance of a religious or cultural practice. There was fear of falling afoul of European law. It is written as a kind of public security legislation. Again, this is based upon superficial reading of press reports. And it passed by an overwhelming majority, something like 378-1.

Stephanie said at one point that burqa-like attire would certainly be tolerated in the US, if it were worn for secular reasons. But I demurred, asking what would be the imagined secular purpose of such attire. The nearest example of such attire worn for secular purposes that has occurred to me is the attire worn by the Ku Klux Klan, which, tellingly, was mainly worn at night and generally indicated a kind of criminal intent. If there was not legislation barring the wearing of this attire in public, there certainly could have been, and there probably should have been. So it seems to me that, if it is a fact that there is no legislation barring this kind of full-body covering being worn in public, for any conceivable purposes other than to protect the health of the wearer or to shield extreme wounds or deformities from public view, that is just a matter of chance. It’s just not that easy to think of examples of such attire, or of reasonable reasons for wearing it, outside of the practice of some women who happen to be Muslim. The point here is, according to Stephanie, if there were existing laws on the books that outlawed the wearing of burqa-like concealing attire and the laws exhibited no intent to discriminate against a particular religious practice, then the religious practice could be barred constitutionally, because the reason for barring the practice is not an intent to discriminate against a peaceful religious practice.

So my point here is, if it is the case that there are no such laws, that is a highly contingent fact, an arbitrary fact, and, to repeat, I don’t agree that it is obvious that this kind of attire would or should be tolerated under laws having to do with decency, criminality, or security. The reason I think this is important as a general matter is that the whole argument (“it’s OK to bar polygamy, because that prohibition has historical pedigree and does not result from an intent to discriminate against any particular religion, but it’s not OK to legislate against the burqa, because there is no history of legislation barring this kind of attire outside of the realm of religious practice) strikes me as analogous in some ways to the demand that constitutional interpretation has to derive entirely or in the main from the intent of the Framers. That whole demand strikes me as absurd, because I do not think it reasonable that 21st century society should be governed by the intentions of men in the 18th century. If it did not occur to anyone in the US to legislate against full-body covering in which only the eyes are revealed, I don’t see why society should now be prevented from doing so. If it did not come up, it’s because Southerners were racists or because the Klan made no attempt to wear its attire in public during daylight, or both.

Stephanie has convinced me that there are probably substantial barriers to formulating an anti-burqa law in the US that would be constitutional. As I suggested before, I think ways both could and would be found around that problem if, as a sociological matter, burqa-wearing were to become much more commonplace than it is in the US. Stephanie has not convinced me that the existence of the constitutional barriers is reasonable and non-arbitrary. I nevertheless understand, of course, the general principle of wanting to protect the free exercise of religion as a historical matter. I just think that this particular practice, whether it is religious or cultural, is egregiously offensive in the contemporary Western context and that society would be well within its rights to bar it. The fact that the French have attempted to do so should tell one something. If examples of similar attire being worn by people who are not Muslim women, not members of the Ku Klux Klan, or not people disguised temporarily for some sort of costume celebration can be cited, I would like to know what they are. The only other examples I can think of are of people who are protecting themselves from sand storms in the desert or the so-called Elephant Man. I don’t think people have a legal right in the US to do their shopping in ski masks.

As a cultural matter, I would be considerably more sympathetic to the idea that people should have a right to go to the opera in the nude than to the idea that they have a right to to so in a burqa. Leaving aside all legal questions, I would be interested to know which practice average Americans would find more shocking.

Last edited by ledocs; 10-30-2010 at 05:35 AM..
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