Why Is There No Headscarf Affair in the United States? (original) (raw)
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Notre Dame Law Review Online, 2017
The issue of accommodating Islam, especially in the workplace, is spreading throughout the West, engaging legal regimes, and broadening the gap between the United States and Europe. Although both of these jurisdictions theoretically are committed to protecting religious freedom and combatting discrimination, their recent judicial developments differ in the values that they prioritize. An employee's right to wear the Islamic headscarf is a very good example. While the United States through Title VII of the Civil Rights Act of 1964 imposes the accommodation of such a right, the Court of Justice of the European Union has recently affirmed that a company's policy of neutrality can justify general headscarf bans, with virtually no exception. Where the U.S. case law seeks balance, the European Court prioritizes economic activities over religious freedom, neutrality over Islam, and sacrifices pluralism instead of protecting it.
Visible through the Veil: the Regulation of Islam in American Law
This article examines the Muslim headscarf in light of recent debates about the accommodation of religion in U.S. public institutions. Recent quarrels over such matters as the phrase 'one nation under God' in the Pledge of Allegiance and the posting of the Ten Commandments in courthouses and other government buildings, foreground American attitudes about whether wearing the Muslim headscarf is a practice deserving First Amendment protection. What legal claims have been raised by or on behalf of Muslim women wearing the headscarf in the United States? How do these comport with judicial doctrine on the separation of church ar\d state? And what roles have religious advocacy groups played in promoting positions that have a bearing on how the headscarf is viewed? Viewing the law of regulation as productive rather than protective of the subject, this article analyzes how discourses and practices of secularism have been formed with respect to the question of wearing the Muslim headscarf in a variety of contexts.
Keeping Identity at a distance: Explaining France's new legal restrictions on the Islamic headscarf
Ethnic and Racial Studies, 2006
Since 1989, France has endured repeated, contentious debates about the 'Islamic' headscarf. In February 2004, French legislators approved a new law prohibiting students from wearing conspicuous 'religious signs' in public schools. Contrary to some observers' assumptions, this measure was not caused mainly by new efforts to combat terrorism or by pro-Christian prejudice. Explaining France's decision to pass this surprising new legislation requires attention to both historical continuities of French political thinking and the changing French and international context. French republican understandings of citizenship and secularism have long made the headscarves issue peculiarly sensitive in France. However, the new law marks a clear departure from previous French policy. Explaining that rupture requires attention to more immediate social and political factors, most importantly: dissatisfaction with the previous policy; effective mobilization of public sympathy by new feminist groups; concern about rising anti-Semitism; and, somewhat paradoxically, developments in international human rights law.
The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the USA
2012
Six years after prohibiting the wearing of headscarves by students in public schools, the French state passed a law prohibiting the wearing of burkas in public places. Compared to France, in the United States there is more tolerance for wearing signs of religious affiliation. The difference in legal responses can be understood in reference to a different background understanding of the fundamental presuppositions of republicanism in the two legal and political orders, which also define their conception of secularism. The law enacted in France can be understood in a general frame of a paternalistic state, which is seen as permitted to dictate the proper exercise of their reason to the citizens. In the United States, the dominant understanding of republicanism attempts to reconcile the natural rights philosophy with the conception of the common good. The trust in the use of collective power and the legislature dominant in France can be opposed to the distrust towards the same elements...
From the headscarf to the burqa: the role of social theorists in shaping laws against the veil
Opposition to the burqa is widespread in Europe but not in the United States. What explains the difference? Focusing primarily on the French case and its Belgian facsimile, we seek to underscore the role of social theorists in legitimizing bans on the full veil. Ironically, this role has been largely disregarded by Anglophone theorists who write on the veil, and who often oppose its prohibition. This article suggests that Europe tends to be more repressive towards full veils because its political process is more open to multiple theoretical representations of the phenomenon of veiling. Conversely, the United States is more open to the provocative display of religious symbols in public because the political process is pre-structured by legal conventions that tend to filter out social theory. The push to ban the burqa in France principally derives from its brand of republicanism rather than being a product of racism and Islamophobia. Of particular significance in the French case is the emphasis on reciprocity as a political principle, a principle that is elongated into an ideal of sociability by French theorists in different disciplines. The arguments of these theorists are described, their rationale is explained and the impact of their intervention on the policy process is documented. The French case, where the popular press and legislature play a major role in shaping policy towards the burqa, is contrasted with that of the United States, where the judiciary, defending religious freedom, remains the most influential collective actor. Each country has correspondingly different attitudes to democracy. In France, the mission of democracy is to extend political equality to the social realm whereas in the United States it is religion that is prioritized so as to protect that which is deemed most sacred to the individual.