It takes me back to the same kinds of issues raised a month ago. Then, in our class presentation on Feminism and Religion, a few of my classmates and I presented the case of Leyla Sahin v. Turkey [A good discussion of it is here, at the ComparativeLawBlog]. A companion case in France, "L'affaire du foulard," or "The Headscarf Affair" --no, it is not a Norman Mailer novel-- occurred in 1989. Both dealt with the same issues of women's autonomy and choice, state paternalism, and Europe's often very loose relationship with the concept of free exercise. I find the whole issue fascinating.
Coming into that week, I already knew that in some cases what is purported to be a free expression of religion is in fact an instance of little choice, and that, in some more fundamentalist Muslim circles, the practice was and is enforced by so-called cultural police. To the extent that the enforcement involves violence against women, the practice is troubling on a criminal and moral level; to the extent that enforcement involves nonviolent coercion, it can still be unsettling. Enlightened observers often find it difficult to accept instances where women's (and not men's) freedom is cabined by society's and husbands' proscriptions of what they may and may not wear. My more liberal sentiments find that manipulation of women's public self particularly disturbing.
Yet I also recognize that that is but one part of the bigger picture. I now realize that Muslim headdresses are, for the most part, not just individual women's choices, they are in fact vital choices -- symbols of allegiance to God, and willing sacrifices of the self to that end. In fact, Muslim friends of mine have told me that only the most devout Islamic groups even require hijab as a part of their religious practice. These are the same kinds of signs of worship used by Jewish men who wear yarmulkes, or Catholics who confess. They are choices, and they are obligations. That a niqab, for example, so demonstrably covers a woman's face is to many a distinction without a real difference.
In that respect, then, the decision by the European Court of Human Rights (ECHR) to uphold the Turkish school's ban on wearing hijab on campus was a powerful underestimation of the importance of a woman's peaceful religious expression. The ECHR majority opinion expressed its need to respect religious pluralism, which it said "has been dearly won over the centuries," yet was all too ready to dismiss that hard-fought principle because the Turkish state had deemed such expression disturbing to the public. I couldn't help but think of that series of free(ish) speech cases from the US in the first half of the twentieth century -- where the discussion and promotion of anti-war and pro-Communist teachings was a potential source of societal implosion. Decades later, during which freedom of expression and religion have found voice in countless national and international instruments, the ECHR used its majority opinion to give its imprimatur to the Turkish government's similar brand of fearful moralizing.
But I digress again. What I find as troubling as the Court's treatment of religion is the heavily paternalistic rhetoric advanced by those who support the Turkish and French bans on hijab in schools. Nicholas Sarkozy, for example, perhaps the best spokesman for France's brand of secularism, said in 2009, "We cannot accept to have in our society women who are prisoners behind netting, cut off from all social life, deprived of identity... That is not the idea that the French Republic has of women's dignity. The burqa is a sign of subservience. It will not be welcome on the territory of the French Republic." (as found in International Law: Norms, Actors, Processes, Dunoff, Ratner, Wippman, Eds.). This kind of thinking may be understandable to some, but it is an awfully shaky foundation for the creation of national legislation.
A similarly troubling element informs the Canadian court case mentioned at the start of this post. There, the defense attorney adamantly opposed a Muslim woman's (named N.S.) wish to wear her niqab while testifying against a cousin and uncle she accuses of sexual and physical abuse. In this case, the headdress is no less a religious symbol. Yet here the societal need is arguably much greater: the need for a fair trial for the defendants. There is a lot at stake for both sides, argued the defense attorney, and allowing N.S. to wear her niqab would rid the jury of the vital ability to use her facial expressions as a way to judge her credibility.
That may be so. Yet it also may have been overstated a bit. For one thing, the defense attorney surely knew that if N.S. would bve required to take off the niqab, she may refuse to testify, and the state would lose its key witness. There would likely be a dismissal or a mistrial, and I am sure that factor played a huge role in the attorney's urgency. Moreover, in stressing the importance of a witness' facial expressions, the defense attorney may have misrepresented the jury's concerns. He discounts the myriad other ways the jury could judge the witness' character, and presumes that a full facial view would have a tremendous impact.
Yet for all the defendants' concerns, it is N.S.'s concerns that would get short shrift if the court prohibits her from testifying in the niqab. First, it would put her in the impossible position between having to choose between testifying against her attackers, or defying her religious obligations. That is a horrible dilemma for the court to place her in. The chilling effect on the Muslim women community of Canada would be even worse. One can only imagine the drop in witness testimony by women afraid of the prospect of having to discard their very identities as women and as people of faith.
In the end, with this case, as with the European headdress cases, this all feels as if there are important decisions being made over women's matters. Yet the women in question aren't the decision-makers. They await word from the ECHR, or the Canada Supreme Court, to find out what limits will be placed on their right to publicly express their identities. What often gets lost in heated public debate about how things should be is adequate consideration of what women choose things to be. Hopefully, the Canada Supreme Court will recognize that a woman's choice between prosecuting her offenders and defying her religious self is no choice at all.