Friday, July 30

Burkini Enforcement: On The Hijab Training, En Francaise

skepticA very modest short-range extrapolation of recent events makes it quite reasonable to predict that, in the near future, France’s zeal to stand athwart the supposed Saracen tide ostensibly menacing European civilization will lead the French Senate and National Assembly to punish Muslim women who refuse to remove their burka-like beach- and swimwear by deporting them to some small, Third World country. But even if that possibility never materializes, the whole burkini prohibition does illustrate the difference between religious liberty as it exists in the US and as it exists in France, and in the process exemplifies the differences the European Enlightenment assumed in both places. It should also caution us left-wingers / progressives that, when conservative evangelical Christians critique “secularism” as a clandestine religion in its (secularism’s) own right, they are not altogether and categorically wrong.  They just direct their critique to the wrong target.


France’s relationship with the Church has had a long and contentious history.  Either de jure or de facto, the Catholic Church has been the established Church in France at least since the time of Charlemagne in c. 800 CE.  The University of Paris, home to such great theological minds as St. Thomas Aquinas and his theological adversary St. Bonaventure, was a Catholic institution.  Almost from the beginning, the civil government of France and the French ecclesial hierarchy worked hand-in-hand, to such an extent that, by the time of the French Revolution in 1789, the Church and the Crown had conspired to oppress and to impoverish the French people so as to drive the latter to revolution and into the arms of the subsequent Terror.  Consequently, when the people of France had an opportunity to extirpate Church influence in society root and branch, the leaders of the Revolution did so with a vengeance. It is no accident that the revolutionaries of 1789, early in their revolt, crowned a common street prostitute as Reason and paraded her through the streets of Paris in sacrilegious imitation of street parades in praise of the Virgin Mary in other Catholic countries of Europe.  The radical, thoroughgoing, uncompromising, and utterly ruthless secularization of French politics and culture in the late 1780s was essentially an overreaction in compensation for the corrupt symbiosis of Church and State that had governed France for the thousand preceding years. The old cliché turned out to be right:  “Payback’s a [female dog], ain’t it?” So the recent draconian police raids on burkini-clad Muslim women on the beaches of France is the continuation of a 227-year-long French tradition of expunging the tiniest particle, the feeblest scintilla, of religious observance, however innocuous, from the public square of the Republic. One may fairly consider this practice the equivalent of similar actions by the religion police of Saudi Arabia. Only the respective objects of scrutiny and religious enforcement are different:  burkinis in the former; skirt length in the latter.

To be sure, there is freedom of religious observance in France. But the difference between that “liberty interest” and the corresponding practice of “free exercise” in the States is that, while there is a wall of separation between Church and State in both countries, the wall is made of steel in France and of drywall in the US.  The former is impervious.  The latter is porous.  No one – except Donald J. Trump and his neo-fascist supporters and brownshirt-wanna-bes – gets terribly exercised about Muslim women wearing hijabs, or even burqas, in public in the US.  Or about Jewish men wearing yarmulkes and tallit shawls. Or Sikh men wearing ceremonial turbans.  Or Hindu women wearing the caste mark over the bridge of the nose. Or … (But wait a minute … would a Jewish man at a public beach in France be censured for wearing a yarmulke, or a Sikh man for wearing a turban? It would seem that there are also what Americans would refer to as “14th Amendment equal protection” issues here. But, after all, this is France and that is another rant for another time.) The crucial difference, it seems to me, is that, whereas France has had a de facto or de jure established Church since at least c. 800 CE, the United States has never had an official state church. In fact, one prominent reason for people immigrating into the US during the history of the original Colonies was as an escape from an established Church in the Old World.


The First Amendment ensures the continuation of this practice, originally at the Federal level:  Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof … . I.e., not "Congress shall make no law establishing a Church," but "Congress shall make no law respecting" any such establishment, i.e., Congress shall make no law whatsoever even casually flirting in any way, directly or by implication, with the establishment of an official church or religion at the Federal level. States were free to do so – Congress is a Federal institution – but, except for transient experiments like the State of Connecticut declaring the Congregational church the official State church of Connecticut in 1801, the practice never caught on because, even at the State level, the practice of non-establishment was so strong.  (The deal was officially sealed in 1925 by the Gitlow v. New York decision that began the process of “incorporation” of the Bill of Rights against the States, whereby the States are basically prohibited from doing anything the Federal government cannot do, though “incorporation” became an incremental process that has so far spanned most of a century:  the Second Amendment was “incorporated” against the States by the DC v. Heller decision of 2008.) So to say that the US has a secular public square is only to say that religious deference only becomes illegitimate when it is used as the exclusive and sole justification for any legislation. (E.g., murder is a sin for religious reasons, but it is also illegal for purely civil / secular reasons:  an accused murderer is tried in a criminal court before a judge, not in a Church court before an archbishop.) All other forms of religious observance are permitted, subject only to the usual “fire-in-a-crowded-theater” and “equal protection” qualifications (menorahs have to be allowed on court-house lawns during Hanukkah along with Christmas trees at Yuletide). So if there were a good civil / secular reason for prohibiting religious attire at American beaches, burkinis would be prohibited … but so would yarmulkes, Sikh turbans, and caste markings.


A good hip-pocket way to summarize the difference between the French and American practices is to say that the former emphasis is on secularism – which, as conservative Christian evangelicals keep pointing out, is indeed a religion – whereas the latter is secularity, which insists only on nothing more than equality before the civil law. (To privilege Christianity in civil government, as many conservative evangelicals continue to hanker for, would be to basically “Christian-ize” the secularism of France, i.e., a step backward from what has historically been the constitutional practice in the States.) This is why I get really nervous when my sibling left-wing progressives talk seriously about restricting freedom of speech with “safe zones” on college campuses, by declaring certain types of expressions subject to what amounts to content-based prior restraint / censorship, even to the point of circumscribing certain literary texts in the classroom.  At any university, but most especially at universities that receive taxpayer support from States whose constitutions have First-Amendment-like guarantees -- which is all States -- these kinds of prior-restraint restrictions are highly, highly problematical. (There are limits even here. Certain verbal racial, sexist, and sexual orientation slurs may indeed be subject to legitimate restriction as inconsistent with the purpose of a university where anyone may participate in free inquiry and expression. In most cases, this could probably be justified as a natural extension of the old "fighting words" restriction on spoken expression. Literary texts would be another matter altogether, however.) This is the discursive and educational equivalent of French burkini-raiding and not essentially different therefrom. Furthermore, such practices betray the very purpose of a university-level education, which is – or, anyway, ought to be – not to intimidate, humiliate, or deprecate anyone, but to challenge everyone, in the sense that, if your university education does not offend you or make you uncomfortable sometime about something, then you have wasted a ton of tuition money.  As a matter of practicality, it is not possible to do the former (challenge) and avoid doing the latter (personal deprecation) by adopting the meat-axe, one-size-fits-all approach of declaring certain types of expressions, written or verbal, as simply prohibited tout court, and in the absence of any interpretive context. Infantilizing students by prohibiting them from reading Catcher in the Rye or Black Like Me or the unexpurgated Mein Kampf or The Bell Curve is no more enlightened than French police forcing a Muslim woman to disrobe on a public beach. All liberty involves risk. So does all education. Similar remarks also apply about coming too close to the event horizon of the black hole of de facto quasi-religious regimentation in the matter of "privilege" -- another area where nuance is all -- a subject I deal with in next week's "Skeptic's Collection" column. A mature approach to all these issues is to suppress nothing and instead to perform the difficult balancing act among all the issues brought to the table: both liberty and security, both safety and risk, etc.

laugh_out_loudExtremism is by definition to be found where any one, single issue or value or priority is emphasized to the exclusion of any and all other issues and values and priorities, even if the issue being exclusively emphasized is a pristinely and religiously neutral public square or rooting out terrorist influences -- or even enabling students to be feel secure from judgment and censure on a college campus.  Forbidding certain types of harmless religious observance on the beach emphasizes security to the exclusion of equality.  So does attempting to achieve a "safe" campus environment at the expense of free inquiry.  One of the more unfortunate aspects of religious observance and discipline, especially in conservative monotheism, is just this fatal sacrifice of nuance in the achievement of one-size-fits-all regimentation masquerading as unanimity. Classical Calvinism emphasized the sovereignty of God to the exclusion of human free will. (By way of contrast, Aquinas, whose intellect was immeasurably more sophisticated and subtle than that of John Calvin, believed in both free will and [a certain type of] predestination.) The French Church in the late 1700s emphasized order to the exclusion of social dynamism. Sometimes progressivism at least flirts with the same kind of simplistic regimentation in the interest of achieving some goal -- safety, a judgment-free environment, etc. -- that is valuable only in context with other equally valuable goals.

Nuance, negotiation, and balance are all.

James R. Cowles

Image credits:
Burqa-clad woman: Hans Braxmeier ...  Creative Commons CC0 1.0 Universal Public Domain Dedication
Smiling woman in hijab:  Flickr ... CC BY-SA 2.0
Burkini-clad beach-goer ... Getty Images ... Daily Mail
French police with burkini-clad woman on beach ... Jihad Watch
Battle of Arcole Bridge ... Horace Vernet ... public domain

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