France’s Burkini Ban Declared Illegal. Now What?

By Rim-Sarah Alouane

If you’ve been following the ongoing burkini debacle in France, you may have concluded that since hijabs and niqabs are already banned in certain circumstances and since anti-Muslim sentiment continues to increase, that a national affirmation of the burkini ban would have been a fait accompli. However, the French legal system’s view of the  public expressions of Muslim life do not necessarily correlate with that of public opinion.

In fact, there was an apparent red line regarding religious expression that French courts would not cross, but that the public was willing and eager to.

The Council of State – France’s highest administrative court – declared the burkini ban illegal on the grounds that an alleged disturbance of public order was not proven and that basic liberties protected by the French constitution (e.g., freedom of conscience, freedom to come and go, personal freedom, etc.) were seriously infringed. In other words, the Council of State ruled that the Constitution’s understanding of human rights precludes a burkini ban.

Nothing new under the sun, this is how the rule of law in liberal democracy works.

So what now? Well in theory you can go swimming in France with your burkini, your bikini, your speedos or any other garment freely and enjoy the sweet taste of liberty by having a nice swim by the sea. But in spite of the obligation of the representants of the Republic to follow the law, many mayors are refusing to remove the ban in defiance of the Council’s decision, and those who refusing to comply with the decision are being sued (a couple of bans have been suspended by the administrative court/are currently being challenged).

But another issue is emerging: The narrow legal debate around municipal bans has metastasized into a broader social debate where some are calling for an urgent implementation of a narrowed interpretation of laïcité (a concept which implies a strict religious neutrality of state institutions) that would prohibit visible Muslim religious signs, while at the same time highlighting French Christian roots and values.

Entrenched Anti-Muslim Sentiment Fueling the Ban

This is not only revealing of how little these proponents know about what laïcité and secularism mean, but also of an anti-Muslim sentiment so entrenched that some will openly advocate for the restriction religious freedom in order to target religious minorities (specifically Muslm) whom they consider to be a threat to the existence of the nation. This is part of a century-long trend in which any visible signs of religion within public spaces are erased, and that the politics of belonging imply a total submission (social if not legal) to a strict and narrow interpretation of laïcité, as a sine qua non condition to assimilation.

Right-wing proponents of the ban are even suggesting amending the constitution and bypassing article 9 of the European Convention on Human Rights on religious freedom, which provides provides a right to freedom of thought, conscience and religion and which guarantee freedom to manifest one’s religion or beliefs in the  limitations prescribed by the law and the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

First, as it is in other countries, is not easy bypass France’s constitution, international treaties and multinational conventions as you please. Second, such a ban would means a complete overhaul of the law of separation of Church and State as well as the very uniquely French concept of laïcité, which is currently interpreted to enforce religious neutrality in civic institutions and not public spaces. Even here, laïcité is narrowly applied in only two cases: Banning religious signs worn by civil servants and by students in public schools, per 2004 legislation covering laïcité and conspicuous religious symbols.

Extending this ban to all public spaces is complicated and controversial, opening the doors, for example, to the removing of traditional Christian street processions in many cities dependent on them for tourist income, or extending the current Muslim-only impact to Jews, Sikhs, Hindus, and other religious groups. Such a ban goes against the essence of laïcité (at least how it was understood when it was originally conceived) and the concept of state neutrality in matters of religion. Given the recent ruling of the Constitutional Council, any test of constitutionality for future bans will most likely be declared invalid, based both on the Constitution as well as supra national texts such as the European Convention on Human Rights to which France is a party.

Looking for a Loophole in the Burkini Ban

A national burkini ban in the wake of this ruling is unlikely for a couple of legal reasons. First, the Council of State emphasized in its decision on the burkini ban in Villeneuve-Loubet that public order disturbance was not proven and constitutionally protected liberties were seriously infringed. This implies that legislators need to be extremely creative in finding solid legal grounds to prove that a burkini is a threat to civil liberties and public order. Whereas the full-face covering debate in 2010 invoked public security threats (particularly the need for public identification) in addition to violations of a women’s human dignity (an argument which was rejected both by the Council of State in its Study of Possible Legal Grounds for Banning the Full Veil of 2010) and also in the European Court of Human Rights decision S.A.S v. France of 2014)  it would be very challenging to prove, for example, that a loose wetsuit with a hood disturbs public order, violate good morals, and is fodder for radicalization and terrorism.

In addition, how would such a ban be implemented? Would women wearing a regular scuba diving wetsuit be fined/sued? What about women covering for a religious reasons? What about women wearing a wetsuit without a hood? This kind of ban would not only be discriminatory, but would also be very difficult, if not impossible, to implement. Furthermore, the principle of separation of Church and State suggests that it is not the role of the state to define what is a religious garment or not.

But in France, anything is possible. Chances are actually high that legislators will try to find a loophole within which they can ban the burkini in order to satisfy public opinion. As we witness politicians calling for bypassing the constitution, legislators proposing amendments to the Constitution to ban the burkini, or mayors who refuses to submit to the Supreme Court’s decision, we should also have faith (pun intended) in our judicial system to push back.

From freedom of religion, France has slowly fallen into freedom from religion, affecting not only Muslims but all other non-Christian religious groups who want to practice their religion freely without being oppressed by public authorities. This kind of behavior should be anathema to a liberal advanced democracy like France, which also happens to be one of the cradles of the Enlightenment. Attempts to culturally unite the French people is being achieved at the expense of the affirmation of differences and diversity.

It is time for France to finally follow the voice of the reason and to stop restricting religious freedom and civil liberties. France needs to rethink its relationship with religious minorities — particularly Muslims — and ensure that laïcité does not continue to morph into a divisive political ideology (or worse, a state religion). The ideal to strive for is one that is inclusive of diversity, making all citizens equal before the law regardless of differences of belief or origins.

France has a culture that has inspired the world and is admired by many other civilizations. France should have enough confidence in the strength of its culture and values to not feel so threatened by alternative expressions. Will this happen? Given the current climate of political turmoil, distrust and tensions, I highly doubt it. But that doesn’t change the fact that it needs to.

Rim-Sarah Alouane is an international human rights jurist and a Ph.D. candidate in Public Law at the University Toulouse-Capitole in France. Her research focuses on religious freedom, civil liberties, constitutional law and human rights in Europe and North America. Rim-Sarah’s expertise is sought by international conferences, scholarly journals, and major media outlets with respect to the challenges facing religious minorities in the West. A version of this essay originally appeared on the author’s personal blog.