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French Court Strikes Down Burkini Ban

Bikini Burkini

A French Court has struck down the law banning so-called ‘burkinis’ from French beaches:

PARIS — France’s highest administrative court on Friday overturned a town’s ban on burkinis, the full-body swimwear used by some Muslim women, setting a precedent that challenges similar bans in at least 30 other municipalities, most of them on the French Riviera.

The burkini — and the decisions to ban wearing them on beaches — has become the focus of spirited global debates over women’s rights, assimilation and secularism.

In its ruling, the court, known as the Council of State, found that the ban in the town of Villeneuve-Loubet violated civil liberties, including freedom of movement and religious freedom, and that officials had failed to demonstrate that the swimwear posed a threat to public order.

The ruling also made clear that the bans in other municipalities could be similarly overturned, and the Socialist government seemed conflicted on how to respond.

In a statement, Interior Minister Bernard Cazeneuve suggested that it was time for the local officials to back down, saying it was now “up to each and every one to responsibly seek to ease tensions, which is the only way to avoid disturbances to public order and to bolster coexistence.”

But later on Friday, Prime Minister Manuel Valls said in a statement on Facebook that the ruling “doesn’t exhaust the debate that has opened up in our society on the question of the burkini.”

Mr. Valls, who last week likened the burkini to a form of “enslavement,” said in his comments on Friday that “condemning the burkini in no way questions individual liberties.”

The court’s decision seemed unlikely to end the controversy as France enters a presidential election season. The center-right former president, Nicolas Sarkozy, who has announced his plans to run for president again, supports a national ban.

Although the ruling has only suspended the ban, a future hearing is expected to strike it down completely. While the decision does not apply directly to the many other French cities and towns that have banned the burkini, it amounts to a warning that their prohibitions are likely to be overturned if challenged. The largest such community is the city of Nice.

The United Nations and the White House seemed relieved by the ruling.

“Obviously we welcome the decision by the court,” Secretary General Ban Ki-moon’s chief spokesman, Stéphane Dujarric, who had expressed concern about the burkini ban, said at a news briefing, emphasizing “the need for people’s personal dignity to be respected.”

Josh Earnest, a White House spokesman, said the United States did not want to “second-guess” France, but noted that President Obama “believes strongly in the freedom of religion.”

The Council of State said the “emotions and concerns that are the result of the terrorist attacks, most notably the one carried out in Nice last July 14, do not suffice to legally justify the ban.”

Restrictions on liberty “must be justified by proven risks to public order,” the court said, finding that the town’s mayor had failed to meet that criterion.

Anti-discrimination and human rights groups had challenged the restrictions in local courts, but the rules were upheld, leading the groups to appeal to the Council of State, which heard arguments from lawyers for both sides on Thursday.

The bans have also fueled an intense political debate and split the French government, with Prime Minister Manuel Valls expressing support for them and several female ministers opposing the restrictions, even as they voiced distaste for the garments.

Marine Le Pen, the head of the far-right National Front, said after the ruling that French lawmakers should expand a 2004 law that bans ostentatious religious symbols in schools to all public places, except for “religious personnel,” but she did not make clear how broad that exception should be.

The showdown over the burkini was only the latest controversy over the principle of laïcité, or secularism, that has been a defining feature of French political life since the Revolution. Critics say the principle is increasingly used to justify measures that single out Muslims, rather than keeping government out of religion and vice versa, the original intent.

Jean-Pierre Mignard, a legal expert who is close to Mr. Hollande, predicted that the controversy would continue. “The fact that some elected officials are already contesting the Council of State’s decision shows that they have now entered an ideological showdown,” he said, while adding that if an anti-burkini law were put forward in Parliament, it would not likely pass muster with the country’s Constitutional Council.

Paul Cassia, a professor of public law at the University of Paris, said the decision on Friday “creates a precedent that applies to all the towns,” and “a strong presumption” that such bans are unlawful.

He said that Friday’s ruling showed that the principle of laïcité had been misapplied.

“It means neutrality for the state, not the individual,” Mr. Cassia said.

He added. “I was in Nice two days ago. There are women in the street with veils. It’s completely unreasonable to ban them from the beach, while they are free to walk around the city. It’s hysteria.”

The Telegraph notes that Mayors in some of the towns that have adopted a ban are vowing to continue the fight, while politicians on the French right seem intent on making this a national issue:

“This judgment does not affect us here because we had a fight over it [the burkini],” said Ange-Pierre Vivoni, referring to a brawl on a beach in Sisco on August 13 which preceded the ban.

Mayors who contest the ban will be backed by Nicolas Sarkozy, the former conservative president who introduced France’s ban on the Islamic full-face veil five years ago.

He demanded a nationwide burkini ban this week, placing Islam, immigration and security at the heart of his campaign to win back power from the Socialists in elections next year.

An ally of Mr Sarkozy, Guillaume Larrivé, said: “We support 100 per cent the mayors who introduced bans.”

He said parliament could still pass a law banning the burkini, which a poll suggested would be backed by two-thirds of French people.

Florian Philippot, deputy leader of the far-Right Front National, accused Mr Sarkozy of “poaching ideas from the FN to dupe our voters into backing him”.

Support for the bans is not confined to the Right.

The Socialist prime minister, Manuel Valls, has described the burkini as a “symbol of the enslavement of women” unacceptable under France’s secular constitution.

“Denouncing the burkini is not jeopardising an individual freedom. There is no freedom that locks up women! It’s denouncing a deadly, backward Islam,” he wrote on his Facebook page on Friday.

However, opponents of the bans, who include the Moroccan-born education minister, Najat Vallaud-Belkacem, have argued that they only served to fuel a racist political agenda as the election campaign kicks off.

The court’s decision was welcomed by the French Muslim Council, which described it as a “victory for the law and wisdom … that should make it possible to reduce tension”.

Feiza Ben Mohamed of a Muslim group based in Nice said it “gives Muslim women back their dignity”.

As I noted yesterday, the ban on the burkini is related to a much longer history of secularization in France that has roots going back to the French Revolution. In recent years, though, the effort to enforce that secularization has increasingly become a way for French authorities, civilians, and political leaders to target the nation’s growing and restive Muslim immigrant population. Long before the burkini came along, French law was banning the wearing of the Hijab, the Niqab, the Burka, and other forms of Muslim garb traditionally worn by Muslim women, including in at least some cases Muslim women who are otherwise quite cosmopolitan in their values rather than part of one of the fundamentalist sects typically associated with these forms of dress. The ban on the so-called ‘burkini’ is just the latest example of an effort by French authorities, on the left and the right, to enforce one view of what is considered acceptable dress on a minority and, even though it purports to apply regardless of religion, it’s plain that the ban, and it’s enforcement, was chiefly aimed at Muslim women, which appears to be at least part of the basis for the Court’s ruling in the case at issue here.

The fact that national political leaders such as Nicolas Sarkozy appear to be vowing to take up the issue of making the ban a nationwide one makes it clear that this debate is one that will continue in France long after the summer has ended. In that respect, it will become part of the much larger debate going on in France over immigration and how French culture ought to handle the large influx of Muslims from the Middle East and North Africa who have become such a large part of the populations of several French cities. As recent events in France have shown us, how France answers that question is likely to have important repercussions going forward. In the end, though, it seems clear that France, as well as other European states, is going to have to decide whether it wishes to become more open to immigrants and refugees, or whether it is more important to protect “French culture” from being changed by outsiders. If they choose the second option, then it’s rather obvious that accepting more immigrants is not a viable option. If they want the first, then they will have to accept the fact, as Americans largely have, that immigrants shape the nation that accept them as much as they are changed by their arrival in a new home. There is no way to reconcile the two visions of France, or Germany, or any other European nation based primarily on ethnicity otherwise.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. bill says:

    well all kidding aside, i’d rather most women covered up their flab/hail damaged butts/thighs and such and leave bikini’s to those who should wear them.

    and speaking of fashion, who ever let her out of the house wearing this?

    http://www.wnd.com/2016/08/who-wore-it-better-you-wont-believe-hillarys-new-outfit/

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  2. MikeSJ says:

    It’s obvious that the Burkini ban is a symptom of Frances’ unease with overt religiosity. I’ll go further and surmise if it was Vietnamese women that were wearing traditional outfits at the beach nobody in France would care in the least.

    The truth is the French are frightened by Muslims and Islam. They consider it at best a backwards and misogynistic practice; at worst barbaric and evil. Far too many French do not trust their Islamic neighbors and believe (with some cause) that if they could they would impose Arab customs – no alcohol, no pork, no uncovered women – in a heartbeat.

    Arrogant and intolerant French get to butt heads with arrogant and intolerant Muslims. The simple fact is France is stridently secular and it now has a population that is stridently religious.

    This religion can also be quite intolerant and vocal in requesting things like sex segregated pools, classrooms and the like. The French are adamant that this will not be allowed.

    I don’t have a solution to any of this. I think if a women wants to wear an outfit that provides full covering at the beach then she should be allowed to do so. I hope a middle ground can be found. Yes to the Burkini, no to the Burqa. I’m sitting on the fence about the Hijab.

    But I can say if one is stridently religious then France may not be the best place to decide to live. I’d also say if the general population is angry and frightened by you then you have a real problem.

    I’m hoping that in this day and age we won’t see pogroms reappear but I wouldn’t want to take a bet on that on either side.

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  3. Thor thormussen says:

    bill, you’re like the absolute perfect conservative.

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  4. gVOR08 says:

    So someone in the French government does have some common sense. Kudos. This seems to be like our situation, courts having to be the adults and stop politicians’ right wing pandering.

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  5. Gustopher says:

    I hope the kerfluffle ends up making burkinis more popular — people should be comfortable at the seaside, and it seems like an incredibly practical garment for people who burn too easily.

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  6. Kari Q says:

    Any time you pass that a law where enforcement requires police to force women to disrobe in public, you’ve made a bad law.

    I have been disturbed by a couple of liberal friends who have argued in favor of the ban saying that it is okay because it is “forcing equality” on women. I fail to see how requiring a woman to put her body on display against her wishes is a blow for equality.

    @Gustopher:

    I read an interview with the creator of the burkini. She says that 40% of her sales are to non-Muslims. I also have a friend who burns easily who says she’s thinking of getting one. It does look like a good option for the extremely fair skinned.

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  7. Guarneri says:

    If those two beasts are representative I vote for burlap sacks.

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  8. Neil Hudelson says:

    @Guarneri: @bill

    I just can’t fathom how Republicans are doing so poorly with women.

    I guess life just has some mysteries that will never be explained.

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  9. michael reynolds says:

    @Neil Hudelson:

    Is there such a thing as grandpabro? Granbro? Elderbro? Graybro? Alzheibro?

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  10. Guarneri says:
  11. anjin-san says:

    Ah, our conservative peanut gallery at work. When you listen to guys talking like about women like that its not a bad bet that their real world experience with women is somewhat limited…

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  12. stonetools says:

    Get ready for 4-8 years of nonstop female-body-shaming “humor” by conservatives.

    Sigh. Do any of these guys have mothers? grandmothers? sisters? girlfriends?

    Or do they just do the inflatable doll thing?

    Kudos to the French courts for restoring sanity. Hope the politicians who thought of this get turfed out next election.

    Interestingly, 70 years ago it would be the girl on the left who would be attracting police attention. Amazing how things change.

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  13. Gromitt Gunn says:

    @MikeSJ: i’m not sure I understand what objection anyone could have to a woman wearing a hijab. There are plenty of cultures across the planet where a head covering is customary, spanning most major religious faiths and multiple continents.

    I have never had a student perform less effectively in my classroom due to wearing a hijab. Nadiya did quite well for herself on The Great British Bake Off while wearing a hijab. Her husband tweeted his support and pride in her accomplishments over the course of season, and her best friendship among the contestants was with the openly gay doctor, Tamal. And we just had a woman who wears the hijab come home wit Olympic gold.

    I can understand why a burqa would cause consternation for a multitude of reasons, and the public safety concerns related to any sort of veil that hides a person’s face. But head coverings of any sort seem to be on a very different level.

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  14. Just 'nutha ig'rant cracker says:

    @stonetools: I would go with inflatable dolls except I don’t think that they can get inflatable dolls to agree to go out with them.

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  15. Anonne says:

    @stonetools: It’s because they’re all secretly into porn. Family values!

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  16. michael reynolds says:

    @Gromitt Gunn:

    A fellow GBBO fan!

    I’ll have you know that by episode three last season I had picked all three semi-finalists, including getting Nadiya as winner. So basically I’m the Nostradamus of the Bake-Off.

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  17. anjin-san says:

    @michael reynolds:

    A fellow GBBO fan!

    I knew you guys were Euro-Socialists!

    Trump will make baking great again…

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  18. Lounsbury says:

    @MikeSJ:
    Insofar as the Muslim population of France is largely of non-Arab -Berber – background and until this “secular”(i.e. anti-muslim) push started around ten years ago, barely practising, your analysis is complete ignorant bollocks.

    The French need to honestly address profound racism in their society (as the documented fact that a CV with a Muslim or “non-French” name drops your chances of a job interview by 50%) or their integration problem gets vastly worse.

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  19. Lounsbury says:

    @Gromitt Gunn:
    Quite right. The conflation of the hidjab with the Saudi Ninja costume with the face veil (niqab) is rather common. I’ve always liked this Syrian cartoonists’ summary of the wide range of hidjab (including sexy hidjab, a bizzare and not uncommon approach)

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  20. Grewgills says:

    @Lounsbury:

    including sexy hidjab, a bizzare and not uncommon approach

    I saw that quite a bit when I lived in the Netherlands, women covered head to toes with only face and hands showing, but clothing so tight that it left less to the imagination than most of the other women on public transport.

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