French burka ban, part 2

First, does the burka ban law violate the French constitution? Hell if I know. There are some likely relevant provisions:

La France est une République indivisible, laïque, démocratique et sociale. Elle assure l'égalité devant la loi de tous les citoyens sans distinction d'origine, de race ou de religion. Elle respecte toutes les croyances.

France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.

That's the official government translation into English, not just mine (PDF).

The text of the law doesn't mention religion and doesn't single out any one group literally, but the subtext is clear, and it's disingenuous to say that it's not targetting a particularly Muslim practice. So there's a tension there between those first few sentences of the French constitution, though I don't know how a burka-supporting group would challenge the law on French jurisprudence terms.

Now, it's important to remember how strong the separation of church and state is in France. In the U.S., we think of it as a wall of the "expression of the supreme will of the nation [on] behalf of the rights of conscience." The French, though, think of it as an electrified, barbed-wire fence, 50 meters high, surrounded by a shark- and crocodile-infested moat, and protected by Michael Vick-trained attack dogs. With frickin' laser beams attached to their heads. Why? Well, in America we had the Salem witch trials. In France, they had the St. Bartholomew's Day Massacre; the church's opposition to the Revolution; and literally centuries of history controlled by and circling around the history of the Roman Catholic church. From the Crusades to the Wars of Religion to the modern complicity in deporting Jews to the German deathcamps, tens of thousands of French people -- if not millions -- have died because of dogmatic, fundamentalist religion and religious conflict in France.

In 1905 France enacted its law on the Separation of the Churches and the State (texte en français). Its most striking line:

La République ne reconnaît, ne salarie ni ne subventionne aucun culte.

The Republic neither recognizes, nor salaries, nor subsidizes any religion.

This law followed hundreds of years of back-and-forth battles for power over the public fisc, establishment and disestablishment of Roman Catholicism as the state religion, and church interference with the transfer of power after the death of a ruler or régime.

You know how it's gotten nearly impossible to assert taxpayer standing in a First Amendment establishment of religion case nowadays, even though that was something James Madison specifically said you should be able to do if the state forces you to contribute your pence to a church? Well, maybe it's not clear to the Supreme Court lately, but it's pretty damn clear to the French that faith-based and neighborhood partnerships are anathema to a nation that values a real and true separation of church and state.

In short, France is a secular state. The French treasure this situation. The 1905 law on the Separation of the Churches and the State is as untouchable as our Brown v. Board of Education or the constitutionality of the Civil Rights Act of 1964.

So that's one place we're starting from: the French will give up their secular state when you pry it from their cold, dead hands, and if you're an immigrant whose religious practice conflicts with the rule of French law, you should choose a different country to immigrate to.

Another place we're starting from is women's rights. The French constitution also has some affirmative action for getting women into office:

La loi favorise l'égal accès des femmes et des hommes aux mandats électoraux et fonctions électives, ainsi qu'aux responsabilités professionnelles et sociales.

Statutes shall promote equal access by women and men to elective offices and posts as well as to position of professional and social responsibility.

This is nice, because women didn't get the vote in France until 1944 (en français), and, if I recall my French contemporary history correctly, they couldn't even sign a check without a husband's or father's countersignature until the early 1970s. Feminists have had a long, hard road in France. So it's seen as a huge step backward for the government to permit a practice -- and a religious one, at that -- the sole purpose of which is to subjugate women.

Argument for majority rule: Most Muslim women in France, and many of their religious leaders as well, reject the burka. Of some 5 million Muslims in France, only 2,000 women right now wear the burka. Call it tyranny by the majority to enact this law, but even in the States we ban some religious practices: using peyote religiously (Employment Division v. Smith, 494 U.S. 872 (1990)), or ritually killing chickens (Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)). But distinguish the situations here. French burka-wearers can still wear them in private, but religious peyote use and ritual chicken-killing are banned whether done in a church or in your basement.

Another point. Part of the social contract in France is that, in exchange for the rule of law and benefits and protections you get from the government, you do not run around anonymously, which breeds distrust and interferes with the peaceful, orderly, smooth function of society.

Si l’on accepte la burqa dans notre pays, il y aura d’un côté des femmes qui ont connaissance de leurs droits, et de l’autre des femmes qui connaitront la ségrégation et seront privées de liberté. (Ni Putes, Ni Soumises)

If we accept the burka in our country, there will be on the one hand women who know their rights, and on the other hand women who will know segregation and will be deprived of their liberty.

You can't be a full participant in society if you anonymize yourself. Women who are anonymized can't fully enter public life -- that is, enter politics and become participants in the French republican government. The burka ban is right and as a woman and a civil libertarian I'm happy to see it happen.

(If I've missed an argument, call me out on it and I'll address it in a reply or another post. I gotta go run errands.)