The Veil and the Burqa – Constitutional to Ban or Restrict?

     Five years ago France prohibited students in public schools from wearing head scarves and veils or other conspicuous religious symbols.  Two weeks ago in a dramatic speech to the French Parliament, President Nicolas Sarkozy denounced the wearing of the burqa as a symbol of "enslavement" and requested legislation that would outlaw the practice in France.  Would these laws be constitutional here?

          In his speech at Cairo University on June 4 United States President Barack Obama implicitly drew a sharp contrast between France and the United States on the matter of religious freedom.  He said,

Freedom in America is indivisible from the freedom to practice one's religion. That is why there is a mosque in every state in our union, and over 1,200 mosques within our borders. That's why the United States government has gone to court to protect the right of women and girls to wear the hijab [head scarf and veil] and to punish those who would deny it.

     The President is correct that in many cases American law protects the right of Muslim women to cover their faces, heads, or bodies for religious reasons.  The First Amendment precludes the government from interfering with freedom of expression or freedom of religion, and laws that are specifically directed against the practices of a particular religion would be unconstitutional.  Even general dress codes might be illegal depending on the circumstances.  Federal law requires employers to make reasonable accommodations for their employees in matters relating to religion – the wearing of religious symbols or clothing may be prohibited only if it would be an "undue hardship" on the employer to be forced to allow it. 

     However, the right to wear religious clothing or head coverings is not absolute.  In Goldman v. Weinberger (1986), the Supreme Court upheld an Air Force regulation which prohibited officers from wearing any head covering indoors.  Goldman was an psychologist, an orthodox rabbi, and a commissioned officer in the United States Air Force, and in the performance of his duties at a military hospital he wore a yarmulke.  His commanding officer ordered him to conform to military dress code.  Goldman refused and prosecuted his case to the United States Supreme Court, which ruled against him in a 5-4 decision. 

     More recently state courts are considering whether the law may prohibit Muslim women from wearing veils while driving or testifying in court.  When other people's rights or safety are at stake I think it makes sense to prohibit face coverings.

     What about Sarkozy's assertion that burqas are a symbol of "enslavement?"  On the one hand, it is troubling when minority groups use religious or cultural traditions to cut their members off from contact with the larger society.  However, we tolerate this behavior in various Christian and Jewish sects – why not among Muslims as well?  In Wisconsin v. Yoder (1972) the Supreme Court struck down a state law that required parents to have their children attend school until the age of 16.  The Court ruled that for religious reasons Amish parents have the right to take their children out of school when they had completed the eighth grade.  As the dissent pointed out, it is unlikely that people who lack a high school education will be able to find a place in our society if they should choose to leave their group, and yet the majority voted to uphold the practice.  Denying a young person a high school education is a graver blow to human freedom than requiring her to wear a burqa.  If Yoder is correctly decided it would seem that parents could not be prevented from requiring their daughters to wear burqas in school.

Tagged as: burqa, constitution, freedom of expression, freedom of religion, goldman v. weinberger, hijab, religious clothing, sarkozy, veils, wisconsin v. yoder