Veils and the choice of society

By Can Yeginsu and Jessica Elliott

On 1 July 2014, the Grand Chamber of the European Court of Human Rights held that France’s ban on wearing full-face veils in public pursued a legitimate aim because it reflected a “choice of society”. Although the Court found that the blanket prohibition amounted to an interference with the religious rights of the minority in France that wore the full-face veil, it was justified because it protected the rights of others to have the option of facial interaction with that minority. The Court accepted that this right of potential facial interaction forms part of the minimum standards of “living together” in French society and outweighs the right of the minority to express their religious beliefs through wearing a full-face veil.

The result of the decision is that ‘SAS’, the applicant Muslim woman in the case, was held not to have suffered a violation of her religious rights under the European Convention on Human Rights. S.A.S. v France is another recent example of the controversies which can arise in the field of law and religion but its significance goes beyond that: the case has given rise to a full and carefully-reasoned judgment from the Strasbourg Court which revisits and, in places, develops its jurisprudence in this difficult area of the law.

The Decision

Article 9 is the principal protection available for religious freedom under the Convention. When examining a potential Article 9 violation, the Strasbourg Court must establish whether the act complained of – in this case, the ban on the veil – interferes with the applicant’s religious rights. If so, the Court will then consider whether or not that interference is: (1) prescribed by law; (2) pursuant to a legitimate aim; and (3) necessary and proportionate in a democratic society.

In S.A.S, the Court found that the ban was prescribed by French law (the Law No. 2010-1192) and constituted an interference with the applicant’s religious beliefs. The critical issues for the Court were whether or not the blanket prohibition was: (i) in pursuit of a legitimate aim; and, if so, (ii) necessary in a democratic society, that is to say, proportionate.

The second paragraph of Article 9 sets out the only legitimate grounds on which religious rights can be interfered with: public safety, public order, health or morals, or for the protection of the rights and freedoms of others. The Court dismissed the French Government’s arguments based on public safety, and considered the other three arguments put forward – that the veil fell short of the minimum requirements of life in society; that it harmed equality between men and women; and that it was a manifestation of disrespect for human dignity – under the heading of the ‘rights and freedoms of others’. The Court rejected the dignity and gender equality arguments, and focused on whether the requirements of “living together” could be a legitimate aim. The Court found that they could. The core of its reasoning is at §122 of the judgment:

“[The Court] can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing in those places which would call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.”

The Court’s assessment of proportionality ultimately came down to the fact that the sanctions were, in the Court’s view, light (albeit criminal) and reflected a choice of society. France’s margin of appreciation in this area was such that it could, and should, make this choice without interference from an international court.

The Dissent

The joint partly dissenting opinion of Judges Nussberger and Jäderblom voiced a number of criticisms of the majority approach, of which the following are an important few:

• The concept of ‘living together’ as a right is ‘far-fetched and vague’.
• It seems unlikely that the veil itself is at the root of the French ban, rather than the philosophy linked to it. French parliamentary reports revealed that the true concerns are linked to the meaning of the veil: as ‘a form of subservience’, because of its ‘dehumanising violence’, and because of the fact that it represents ‘the self-confinement of any individual who cuts himself off from others whilst living among them’.
• The opinion of the majority is wrong to ignore an individual’s right to express herself, or her beliefs, in a way that shocks others. The Court’s mandate is to protect expressions of rights which ‘offend, shock and disturb’, as well as those that are favourably received.

The Discussion

Some actions, whether religiously motivated or otherwise, could be so objectively offensive to the operation of society that they require limitation in the name of ‘living together’. However, where the action in question is non-violent and generally without external impact, extreme care must be exercised in establishing why society’s right not to be exposed to an act outweighs the individual’s right to perform it. This is all the more so the case where the action in question is an expression of a religion which, as the judgment acknowledges, can too often be subject to social prejudice.

One of the key difficulties with the opinion of the majority in S.A.S is the extent to which the Strasbourg Court allows ‘society’s choice’ to govern state action where distinctly unpopular rights are threatened. The Convention seeks to establish and to enforce European standards of protection for the rights of every individual. The Convention is an instrument which supports ‘democratic societies’.  This is not in the political sense of allowing the dominant collective voice to decide the fate of all; societies are capable of achieving that without assistance. The Convention should ensure that the voices of all groups and individuals in the society – popular or otherwise – are heard, and afforded proportionate weight where state aims threaten individual rights.

As the partly dissenting opinion points out, Western societies are fearful of what the veil connotes. The grounds of argument rejected by the Court were in all likelihood the more honest ones: there was clear social discomfort about a practice which ran counter to ideas of gender equality and human dignity. The Court rightly discounted such arguments where the applicant could show that wearing the veil was a matter of choice. Absent the issue of force, it is simply a question of whether covering the face is so offensive to others that it outweighs the religious importance of the action. Some may well ask whether or not the S.A.S judgment has explained why the alleged social offence caused is more important than the interference with a right which is at the core of international protection.

The majority judgment is significant also for the arguments that the Court rejected. Gender equality was not accepted as a legitimate aim by the Court. This is a shift. In its previous case law on the Islamic headscarf, the Court had stated that “it appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination”: Dahlab v Switzerland; Leyla Sahin v Turkey. The position has changed:

“a State Party cannot invoke gender equality in order to ban a practice that is defended by women […] in the context of the exercise of rights enshrined in those provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (S.A.S., §119).

Similarly, the Court rejected the State’s public safety argument, finding that in the absence of a general threat to public safety, a blanket ban was a disproportionate interference with the applicant’s Article 9 right. That finding is in contrast to the Court’s earlier decision in Mann Singh v France, when the Court accepted France’s restrictions of religious rights on the grounds of public safety without requiring evidence of the necessity of the restriction.

Although this decision accords with the Court’s general approach to the protection of religious dress under Article 9, it significantly shifts the focus onto the choices of individual societies as legitimate restrictions on religious rights. Much attention was given by the Court to the particular consensus of French society as a counterbalance to the identified right of a religious minority; this could represent a considerable enhancement of the scope of the ‘rights and freedoms of others’ limitation under Article 9(2). It remains to be seen how the Strasbourg Court will define the limits of the democratic choice of Member States in future decisions: this is, and will remain, a difficult and developing area of the law.

Can Yeginsu is a barrister at 4 New Square Chambers in London. He is the co-author (with Sir James Dingemans, Tom Cross and Hafsah Masood) of The Protections for Religious Rights: Law and Practice. Jessica Elliott is a barrister at One Crown Office Row Chambers in London.

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