France outlaws burqas, veils

[SeattleUte]

This isn't an issue of time or place. It is about whether it is speech at all. Don't retreat defensively to platitudes this time out. Do more than skim those cases I mentioned and we can continue. They provide a framework for discussing whether this is speech at all. Or you can go back to browbeating the nonlawyers if that is what being done with me means.

Of course it can be religious expression. Whether it is speech is fact intensive and depends on the circumstances, as in all these cases, including the famous fuck the draft case. Hence, a blanket ban would certainly be unconstitutional. I GUARANTEE you that 100% of reputable Constitutional scholars and lawyers would agree with me that France's blanket 24/7 ban would be unconstitutional in our country. They are all on my side.

An 1842 Lithography work by James Rattray showing a Persian (Qizilbash) woman in Afghanistan with a burqa next to her.There is evidence that this type of dress was worn by some Arab and Persian women long before Islam. For example, the Roman African Christian Tertullian, writing in Chapter 17 of The Veiling of Virgins around 200 AD, praises the modesty of those "pagan women of Arabia" who "not only cover their head, but their whole face...preferring to enjoy half the light with one eye rather than prostituting their whole face."[2] Strabo, writing in the first century AD, also refers to covering the face as a practice of some Persian women (Geography 11.13. 9-10).

Many Muslims believe that the Islamic holy book, the Qur'an, and the collected traditions of the life of Muhammed, or hadith, require both men and women to dress and behave modestly in public. However, this requirement, called hijab, has been interpreted in many different ways by Islamic scholars (ulema) and Muslim communities (see Women and Islam).

The Quran has been translated as stating: "O Prophet! Say to your wives and your daughters and the women of the faithful to draw their outergarments (jilbabs) close around themselves; that is better that they will be recognized and not annoyed. And God is ever Forgiving, Gentle." [3].

Another verse in the Quran is translated as: "And say to the faithful women to lower their gazes, and to guard their private parts, and not to display their beauty except what is apparent of it, and to extend their headcoverings (khimars) to cover their bosoms (jaybs), and not to display their beauty except to their husbands, or their fathers, or their husband's fathers, or their sons, or their husband's sons, or their brothers, or their brothers' sons, or their sisters' sons, or their womenfolk, or what their right hands rule (slaves), or the followers from the men who do not feel sexual desire, or the small children to whom the nakedness of women is not apparent, and not to strike their feet (on the ground) so as to make known what they hide of their adornments. And turn in repentance to Allah together, O you the faithful, in order that you are successful"

[ame="http://en.wikipedia.org/wiki/Burqa"]Burqa - Wikipedia, the free encyclopedia@@AMEPARAM@@/wiki/File:TajMahalbyAmalMongia.jpg" class="image"><img alt="TajMahalbyAmalMongia.jpg" src="http://upload.wikimedia.org/wikipedia/commons/thumb/4/4d/TajMahalbyAmalMongia.jpg/180px-TajMahalbyAmalMongia.jpg"@@AMEPARAM@@commons/thumb/4/4d/TajMahalbyAmalMongia.jpg/180px-TajMahalbyAmalMongia.jpg[/ame]

[UtahDan]

Of course it can be religious expression. Whether it is speech is fact intensive and depends on the circumstances, as in all these cases, including the famous fuck the draft case. Hence, a blanket ban would certainly be unconstitutional. I GUARANTEE you that 100% of reputable Constitutional scholars and lawyers would agree with me that France's blanket 24/7 ban would be unconstitutional in our country. They are all on my side.

Apparently a blanket ban on mask wearing (well, no religious exception anyway) is not in the 2nd Circuit. Sotomayor was part of that opinion, but maybe she is a disreputable scholar. How many are reputable anyway? You may only have five out of five on your side you know. 100% of five isn't too impressive.

I'm trying to move you past the "everyone agrees with me" portion of your shtick to the merits, but you just won't come.

[SeattleUte]

Apparently a blanket ban on mask wearing (well, no religious exception anyway) is not in the 2nd Circuit. Sotomayor was part of that opinion, but maybe she is a disreputable scholar. How many are reputable anyway? You may only have five out of five on your side you know. 100% of five isn't too impressive.

I'm trying to move you past the "everyone agrees with me" portion of your shtick to the merits, but you just won't come.

None of your examples support your position. They support mine. It is fact dependent, and a generalized prior restraint on religious or any kind of expression is verboten. A statute that said dimply it's always illegal to burn a cross or wear a mask for whatever reason would be unconstitutional. Not much more to say, is there?

[UtahDan]

None of your examples support your position. They support mine. It is fact dependent, and a generalized prior restraint on religious or any kind of expression is verboten. A statute that said dimply it's always illegal to burn a cross or wear a mask for whatever reason would be unconstitutional. Not much more to say, is there?

Not when you won't read the cases to find out otherwise, nope.

[UtahDan]

A couple of good reads:

AA's professor Martha Nussbaum strongly in opposition to the ban:

http://opinionator.blogs.nytimes.com...eiled-threats/

AA's other professor Richard Epstein and Boalt Hall Prof. John Yoo chiming separately in response to the article with nuanced views:

http://ricochet.com/conversations/Ba...Burqa/(page)/2

[SeattleUte]

A couple of good reads:

AA's professor Martha Nussbaum strongly in opposition to the ban:

http://opinionator.blogs.nytimes.com...eiled-threats/

AA's other professor Richard Epstein and Boalt Hall Prof. John Yoo chiming separately in response to the article with nuanced views:

http://ricochet.com/conversations/Ba...Burqa/(page)/2

Thanks for posting. Nusbaum's article is an especially thoughtful and considerate piece.

Except for Yoo's comment that the France ban "might have a chance" of surviving a legal attack in the U.S. because it is worded neutrally banning wearing full masks in public, and one brief exception in Nusbaum's article which I'll address below, none of them addresses directly whether the burqa ban would be legal under the U.S. First Amendment. They are addressing the larger moral issue from a philosophical standpoint. Yoo seems tacitly to recognize the reality that the French law was motivated by animus against burqas, and in the U.S., even in the off chance such a law were upheld, such a prejudicially motivated law would be problematic at least to the extent of discriminatory enforcement. Yoo's role here is of course somewhat to play devil's advocate, not completely agree with Nussbaum.

Epstein calls this a tough issue, but I doubt he's saying it would be a tough issue for U.S. courts; Epstein probably disapproves of much of our U.S. Supreme court First Amendment precedent or jurisprudence. If a legislature adopted the law, Epstein would likely support it on that principle alone. But that is his personal opinion of what the law ought to be, not what it is.

Nusbaum addresses the five rationales for the burqa ban in turn. First, security; second, related to this, the lack of earnestness and openness in covering your face (i.e., it's rude); third, objectification of women; fourth, women who wear them must have been coerced to do so; fifth, burqas are uncomfortable in hot weather.

What she adroitly shows is that if these rationales are applied consistently throughout society, what you wind up with is a police state. Here is my favorite passage from her essay (a more arresting and neutral version of my "metaphysical burqa"):

And what about the “degrading prison” of plastic surgery? Every time I undress in the locker room of my gym, I see women bearing the scars of liposuction, tummy tucks, breast implants. Isn’t much of this done in order to conform to a male norm of female beauty that casts women as sex objects? Proponents of the burqa ban do not propose to ban all these objectifying practices. Indeed, they often participate in them. And banning all such practices on a basis of equality would be an intolerable invasion of liberty. Once again, then, the opponents of the burqa are utterly inconsistent, betraying a fear of the different that is discriminatory and unworthy of a liberal democracy. The way to deal with sexism, in this case as in all, is by persuasion and example, not by removing liberty.

Other examples: Shall we ban fraternities because they are sources of female objectification and abuse? One she does not mention: I heard a study on NPR a while ago that female abuse increases during NFL Sundays (for whatever reason, the beer, the male bonding, the violent scenes on the field). Shall we ban football? It seems quite clear that a football ban would reduce brain injuries. And football uniforms can be ghastly uncomfortable in August and even September in places like Gainesville.

But I emphasize, Nusbaum is condescending to addressing the rights and wrongs of a ban on a cosmic scale. No one seriously believes the French law would have a chance in the U.S., which is the glory of the U.S. However, Nusbaum does note that religious discrimination or abridgement of free speech may occur under our Constitution when there is a "compelling state interest." This is a really high standard, and in fact her article, while exposing the mendacity and immorality of burqa ban proponents, also demonstrates that there is no compelling state interest here at all.

These are the kinds of issues I love: gay marriage, death penalty, the burqa; they expose true commitment to and clarity of thinking about liberty, or not.

[UtahDan]

I thought you would like Nussbuam. Yoo has obviously read the case law. I think the interesting discussion here is not whether it passes constitutional muster but whether it is desirable. The fact is that there are laws on the book in our country right now that are substantially similar to the French law.

I continue to maintain that this is not expression on the part of the wearer who I don't believe has a meaningful choice as to whether or not to do it in many cases. Nussbaum's answer to that is that "we don't really know that." Rubbish, that isn't an argument. Its a concession of ignorance. To me this is more like the peyote case where we ask where the limits are in terms of what we will accept in the name of religion that is otherwise repugnant or illegal. Particularly when faced with a cultural that is malevolent, violent and malignant. The analogy to the Klan is almost perfect in that regard.

[SeattleUte]

I thought you would like Nussbuam. Yoo has obviously read the case law. I think the interesting discussion here is not whether it passes constitutional muster but whether it is desirable. The fact is that there are laws on the book in our country right now that are substantially similar to the French law.

I continue to maintain that this is not expression on the part of the wearer who I don't believe has a meaningful choice as to whether or not to do it in many cases. Nussbaum's answer to that is that "we don't really know that." Rubbish, that isn't an argument. Its a concession of ignorance. To me this is more like the peyote case where we ask where the limits are in terms of what we will accept in the name of religion that is otherwise repugnant or illegal. Particularly when faced with a cultural that is malevolent, violent and malignant. The analogy to the Klan is almost perfect in that regard.

The fact that you paint all Muslims with this brush, or even all Orthodox Muslims with this brush, says it all about why you want a burqa ban. You hate Muslims. It's that simple. Because only people who hate Muslims or even Orthodox Muslims paint the with so broad a brush.

But guess what; I know this is hard for you to accept, but in our country even the Klan has a Constitutional right to assemble and wear their outfits in public places.

http://www.firstamendmentcenter.org/.../overview.aspx

[Katy Lied]

Also, here is a link to an interesting opinion piece in the NYTimes by a law/philosophy/divinity professor. Her piece is very insightful and does a good job of taking down some of the arguments for a ban. The comments also worth the read.

I was unconvinced by Nussbum's arguments. Not sure how I feel about the issue in general, but if I had to rely only on Nussbum's article, I wouldn't be against a ban. Some of her arguments are pretty flawed. Plus, I think she made up the reasons why Turkey banned the burqa. I'm sure that unveiled women were being harassed, but that is definately not why the burqa was banned.

polygamy being a horrific manifestation of barbarism and oppression of women truly comparable to genital mutilation.

I know, I agree. This terrible institution still practiced today by muslims in countries such as Saudi Arabia, Jordan, and Egypt out to be outlawed. Islamic polygamy is a terrible, terrible thing. I think every islamic immigrant that emigrates to western countries ought to be forced to give up wives numbered 2, 3 and 4. And children from these polygamous marriages should be left behind and not allowed to come over.

..

The rest of your posts here are interesting. Even the flailing about ones.

"Metaphysical Burqa" sounds like either an overwrought senior thesis or the best Lilith Fair headliner EVER!

Lovely.

[Moliere]

Just wondering if anyone in this thread has ever spent time in France. I have (of course but I'm no expert) and this type of law does not surprise me one bit. France is being overrun with Muslims much in the same way that the US is being overrun with Mexicans (not saying either is inherently bad but that both are true). The difference though is that the French seem to be less tolerant (or more racist if you will) towards the Muslims than Americans are to the Latinos. I would bet the real reason for the law was for the French to strike back at the Muslim community for their continued intrusion into France. It is kind of ironic given the late 1800s French attempt at colonization in northern Africa and the subsequent explusion of the pieds-noir from Algeria. Maybe this is just the French continuation of their attempt to humanize/modernize/colonize Africa.

[Indy Coug]

I think every islamic immigrant that emigrates to western countries ought to be forced to give up wives numbered 2, 3 and 4. And children from these polygamous marriages should be left behind and not allowed to come over.

Maybe it's the lack of sleep or maybe it's prolonged exposure to this summer's heat & humidity, but is this a sarcastic comment?

[Moliere]

polygamy being a horrific manifestation of barbarism and oppression of women truly comparable to genital mutilation

This is true in some cases, but there are some experts that would disagree with you in that many progressive polygamist marriages can be very rewarding, liberating and beneficial to all involved. I'm no advocate for polygamy but absent the crazy arranged marriages, controlling/dominant patriarch, and underage women polygamy is not always what you make it out to be.

[UtahDan]

The fact that you paint all Muslims with this brush, or even all Orthodox Muslims with this brush, says it all about why you want a burqa ban. You hate Muslims. It's that simple. Because only people who hate Muslims or even Orthodox Muslims paint the with so broad a brush.

But guess what; I know this is hard for you to accept, but in our country even the Klan has a Constitutional right to assemble and wear their outfits in public places.

http://www.firstamendmentcenter.org/.../overview.aspx

I do hate people who subjugate women and treat them as property, it is true. I view the burqa as no different than if the woman were required to wear a metal choke chain with the other end of it in a male family member's hand. The reason you and I talk past each other here is that we have the issue framed in very different ways. I don't see the burqa as being speech for the same reasons courts have found that the mask of the Klan is not speech (are you ever going to read those cases?). Do you defend the burqa because of your love of the tools of oppression and subjugation? What other conclusion could there be?

I realize you are seeing this through a libertarian lens, but I don't see the slope as being as slippery as you do. You a missing the critical nuance that this is not necessarily a speech issue, Sotomayor writing for the 2nd Circuit and Professor Yoo seem to understand the complexity here. Surely you have a summer associate you could ask to brief those cases for you if you can't be bothered to read them yourself?

[CardiacCoug]

I do hate people who subjugate women and treat them as property, it is true. I view the burqa as no different than if the woman were required to wear a metal choke chain with the other end of it in a male family member's hand. The reason you and I talk past each other here is that we have the issue framed in very different ways. I don't see the burqa as being speech for the same reasons courts have found that the mask of the Klan is not speech (are you ever going to read those cases?). Do you defend the burqa because of your love of the tools of oppression and subjugation? What other conclusion could there be?

I realize you are seeing this through a libertarian lens, but I don't see the slope as being as slippery as you do. You a missing the critical nuance that this is not necessarily a speech issue, Sotomayor writing for the 2nd Circuit and Professor Yoo seem to understand the complexity here. Surely you have a summer associate you could ask to brief those cases for you if you can't be bothered to read them yourself?

Delegating a summer associate to do research for a CUF argument -- awesome!!

I'll have to think of a CUF-related assignment for one of my residents or interns.

As far as Burqas go, I don't think they can be banned outright, but a middle road approach makes sense. They obviously have to come off for any interaction with law enforcement and for drivers license photos, etc.

[SeattleUte]

I was unconvinced by Nussbum's arguments. Not sure how I feel about the issue in general, but if I had to rely only on Nussbum's article, I wouldn't be against a ban. Some of her arguments are pretty flawed. Plus, I think she made up the reasons why Turkey banned the burqa. I'm sure that unveiled women were being harassed, but that is definately not why the burqa was banned.

Lovely. You aren't convinced but can't tell us why. Maybe you too just hate Muslims.

I know, I agree. This terrible institution still practiced today by muslims in countries such as Saudi Arabia, Jordan, and Egypt out to be outlawed. Islamic polygamy is a terrible, terrible thing. I think every islamic immigrant that emigrates to western countries ought to be forced to give up wives numbered 2, 3 and 4. And children from these polygamous marriages should be left behind and not allowed to come over.

I have never suggesed any such thing. I brought up polygamy and characterized it the way I did because people are comparing the U.S.'s polygamy ban with the burqa ban. Viewed in the least charitable light possible, the burqa is more comparable to a Klan outfit or a swastika. Polygamy is comparable to genital mutilation in that it is physically injurious and permanent.

I also allude to polygamy to highlight the irony of Mormons' lack of empathy with immigrant Muslims in France or America. Ultimately, I really do think this is proably because of a chauvinistic attitude toward other religions, racist doctrines, and a culture of authoritarianism in Mormonism that result in an unreflective nativist oulook on the part of many Mormons and a comfort with authoritarian solutions.

History is on my side in terms of polygamy's morality. Your own post is an impressive catalogue demonstrating that polygamy is legal today only in nations that are among the most primitive in terms of respect for human righsts and liberty. Christianity ended the practice among the European barbarians, and the Romans and Greeks always rejected it. As the linked articles show, it was the women's liberty movement in the U.S. that pressured congress to enforce bigamy laws against Mormons. Alongside slavery, polygmy is truly a relic of barbarism.

The rest of your posts here are interesting. Even the flailing about ones.

With respect to a purely civil libertarian perspective (care to speculate on the ACLU's position on the burqa ban?), and First Amendment law in the United States, I have been absolutely correct, as demonstrated by Nusbaum's analysis, cases like Skokie, and even Yoo's comment that only if the motivation and objective of the law were affirmatively misrepresented it might have a chance in U.S. Courts (it would be hard to hide all the legislative history and statemenst to the press by lawmakers about burqas).