On March 19th, 2013 the French Court of Cassation (the highest administrative court in France) annulled the 2008 dismissal by a private day care center called “Baby-Loup” of one of its employees – Ms. Fatima Afif – on the grounds that she had refused to stop wearing the hijab. The hijab is a general term that refers to a variety of head coverings that can range from an ordinary head scarf to the nikab, which covers the whole face but only leaves the eyes open, and to the burkaq, a mesh-like gauze which shields even the eyes from others. While distinct in color, texture and style, reflecting different ethnic and geographic backgrounds, these clothing items are said to follow Islamic strictures obliging women to exhibit modesty in public spaces.
The Court’s reversal of the decision to dismiss Ms. Afif created yet another firestorm in French public life over what is commonly referred to as “l’affair du foulard” (“the scarf affair”), leading President Hollande to call for a law that would extend restrictions on wearing “prominent religious symbols” not only to all public institutions, where they are already banned, but to the private sector as well. Although the details of such a law are murky at this stage – would private firms, civil and religious associations as well as privately-funded educational institutions have to comply with it? – the ambition of French authorities to regulate religious life so intrusively is astonishing.
The Recent History of the “Foulard Controversy”
French law already bans pupils and students in public schools as well as state employees from wearing “ostentatious signs of religious belongings in the public sphere” such as Muslim headscarves, Jewish skullcaps, large Christian crosses and Sikh turbans. Passed in 2004 by the overwhelming majority of the French National Assembly, this law was the culmination of a long series of confrontations referred to as “l’affair du foulard,” which began in 1989 with the expulsion from their school of three scarf-wearing Muslim girls and continued with the mass exclusion of 23 others in November 1996. After nearly a decade, with this law the French National Assembly affirmed the principle of “laicité.”
Laicité is hard to translate into the familiar American terms of the separation of Church and State or even of secularization. It can best be understood as the public neutrality of the state toward all religions, institutionalized through a vigilant removal of sectarian signs, icons and items of clothing from official public spheres. Laicité can be traced back to the strident anti-clericalism of the French Revolution. The manner in which such laws affect many religions requiring specific forms of attire, diet and prayer from their adherents seems to occur almost as an “after-thought” in French public life, and ironically, if French law would forbid the wearing of “ostentatious” religious symbols not only in public but also in private organizations, orthodox Jewish kindergarten and schools could be no more exempt from dress code regulations than could Muslim ones. But as Esther Benbassa, an academic and senator from the Val-du-Marn, has observed, the real issue is that “Derriere la laicité, l’Islam” (Behind laicité, lies Islam).
Muslim Integration in Europe
France today is home to an estimated 5-6 million Muslims who have their origins in former colonies such as Algeria and Tunisia, some sub-Saharan countries such as Mali, and more recent immigrants hailing from Morocco, Turkey, India, and Pakistan. It is at the forefront of the general challenge faced by European countries about how to integrate sizeable group of religious minorities into their societies. Belgium and The Netherlands, in addition to France, ban the wearing of the niqab and the burqa in public places and impose fines on women who do. Germany as well as has had its own version of the “scarf affair,” – “die Schleieraffaire” – in which an Afghani-German teacher, Ms. Farashda Ludin, was banned from teaching history in German schools. With the exception of Berlin, all German Länder forbid teachers from wearing the hijab.
In Turkey as well, which is a majority Muslim country, adhering to its own version of laicité, the scarf affair, referred to as the “turban meselesi,” has led to many confrontation between the ruling AKP Party and the Turkish Constitutional Court, in an attempt to change the Turkish law which bans university students and public servants but not pupils from wearing the hijab. Common to all these cases is the assumption that wearing the hijab is not a free act of religious choice but an ominous symbol of something else.
The Symbolic Politics of the Hijab
For many women’s rights activists the hijab is a symbol of female oppression and the repression of women’s free agency and sexuality. For security theorists, the hijab is a manifestation of radical Islam’s growing influence among migrant communities in Europe. For secular democrats and republicans, it is a warning sign of the end of Enlightenment and modernity and of the belief that individual rights should prevail over communal norms.
Very often missing in all these interpretations are the young girls’ and women’s own voices. While undoubtedly, sometimes the hijab is a manifestation of female oppression, imposed on girls and women without their voluntary choice, often the hijab itself is an ambivalent sign of struggles around ethnic and gender identity. Many French pupils and students consider themselves proud French citizens and defy their parents’ wishes by wearing the hijab; others, from more conservative background, use the hijab to prove to their families that they can go to school, hold a job and become “modern Muslim” women while being pious. Yet others, such as those in Turkey, wear the hijab as an act of political and cultural defiance against the heavy-handed modernization and secularization efforts of the Kemalist elite.
There is no singular meaning of the wearing of the hijab. It is a symbol of the dilemmas faced by many communities of believers, and not only or exclusively by Muslim ones, in coming to grips with the religious pluralism of modern societies. Freedom of conscience and the free exercise of religion are human rights guaranteed by Article 18 of the Universal Declaration of Human Rights, by the International Covenant on Civil and Political Rights, and the European Convention on Human Rights. Balancing the free exercise of religion by all citizens and residents with concerns such as the maintenance of public order and security is never easy and that is why the docket of the European Court of Human Rights is full of cases concerning violations of Article 9 of the European Convention by France and other countries. Nonetheless, laicité is a top-down strategy that stifles the democratic negotiation of religious difference in modern pluralist societies.