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Response from Alan E. Brownstein

Discussion Question: Are burqa bans oppressive to religious freedom or a defense of the rights and dignity of women?

This week an Italian parliamentary commission approved a draft law banning women from wearing veils that cover their faces in public. This sets Italy on course to join several other European nations with headscarf or burqa bans either already on the books or maneuvering through the legislative process. Are such garb prohibitions oppressive to religious freedom or do they in fact release Muslim women from an oppressive, medieval practice?

In a free society, the state must bear a heavy burden of justification when it uses coercive power to restrict the exercise of fundamental rights, such as religious freedom. In part, this is because a free society accepts a basic, but sometimes frightening assumption – that we can trust the people to make decisions about what to believe, who to associate with, and the substance of their speech. Thus, for example, the central principle of free speech doctrine is that the appropriate remedy for invidious or dangerous speech is good speech, not the suppression of evil expression.

If government intervention is necessary to respond to the exercise of a right that threatens harm to others, the state must employ the least restrictive means to deal with the problem. Often that suggests that the state should assist potential victims in escaping from the harm that might result from the exercise of a right, rather than abridging the right. Again, if we look at free speech doctrine as an example, in a captive audience situation, state action that enables individuals to escape from the speaker's expressive activity are favored responses over regulations that silence the speaker.

Prohibiting the exercise of the right should be the state's last resort, and should only be employed when the state's goal is legitimate and its interest is of substantial importance.

In this case, there are serious questions about the alleged goal of releasing Muslim women from an oppressive, medieval practice.

First, the idea that a religious practice can be condemned because it is medieval, old or antiquated should strike Christians, Jews, Muslims and adherents of other traditional faiths as an odd proposition. The antiquity of religious beliefs and practices is hardly a reason to disparage them.

Second, it is equally jarring to be told that the only way to free Muslim women from oppression is for the state to deny them the right to make decisions for themselves. I understand that the state may believe that Muslim women are subject to severe social pressure to conform to religious requirements. The cure here may be worse than the disease, however. Unless there is significant evidence that Muslim women are demanding and supporting the adoption of this law, the state seems to be insisting that it knows what is best for the members of this class rather than the members of the class themselves.

Finally, Italy has little credibility as a neutral decision-maker on this issue. Recently, Italy successfully defended its governmental policy of displaying a crucifix in public school classrooms before the European Court of Human Rights. When a government so overtly takes sides on religious questions by favoring Christian beliefs in the operation of its public schools, one can hardly be surprised that its decision to restrict the religious practices of a non-Christian faith will be construed to be an act of bias and oppression, rather than an attempt to liberate anyone.

Photo of Alan E. Brownstein

Author: Alan E. Brownstein

Alan E. Brownstein, a nationally recognized Constitutional Law scholar, teaches Constitutional Law, Law and Religion, and Torts at UC Davis School of Law. While the primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, he has also written extensively on freedom of speech, privacy and autonomy rights, and other constitutional law subjects. His articles have been published in numerous academic journals, including the Stanford Law ReviewCornell Law Review,UCLA Law Review and ConstitutionalCommentary. In 2008, Liberty was privileged to recognize Professor Brownstein for his passion and dedication to religious freedom at its annual Religious Liberty Dinner in Washington, D.C.

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