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State ‘neutrality’ is prejudice

08 December 2023

An EU ruling on headscarves in the workplace is troubling, says Nicholas Reed Langen


SOON after the Islamic Revolution in Iran, in 1979, when Islamic theocrats overthrew the Shah and imposed sharia law, Iranian women were ordered to cover their hair in public with a hijab. Under the regime’s theocracy, women are subjugated, forced into traditional, subservient roles, depriving them of agency and fixated on their modesty.

In 2022, underground resistance to these religious dictates burst on to the streets, and girls and women refused to be cowed by their government’s self-styled “morality police”. Protests — which had intermittently broken out over the previous decade — erupted after the death in custody of a university student, Mahsa Amini, who was arrested for refusing to wear a hijab in accordance with the law (News, 14 October 2022). Now entering their 15th consecutive month, the protests have become a broader challenge to the Ayatollah’s Islamic rule.

There is a legitimate question to be asked whether the niqab or the hijab (the former a veil covering most of a woman’s face, the latter a headscarf) can ever be freely chosen by a Muslim woman, or whether it is so entwined in the patriarchal norms of many Islamic societies that it is a normalised manifestation of oppression. In societies such as Iran, the answer is self-evident: the headscarf is a not particularly subtle metaphor for the smothering of women’s rights.

But, in other societies, the question is not so straightforward. Many liberals, particularly those of an agnostic or atheistic bent, view any faith-inspired conventions as primordial. They are seen as remnants of a less rational, more superstitious age. Couple this with the fact that they divide society — clothing such as the burka physically and symbolically creates distance between the wearer and the outside world — while targeting women more intensely than men, and it can seem natural to ban outward expressions of religious belief in the public realm. In an effort to create a world of equals, religion is confined to someone’s interior life.

For a number of European nations, this is the solution. Some German states forbid teachers’ wearing the hijab, while Berlin (a city-state) forbids the displaying or wearing of religious symbols in public institutions. In France, the hijab is banned in state schools, as are other “conspicuous” symbols of religious faith. This is justified on the basis of laïcité, or state neutrality on religion. Belgium takes a similar approach, albeit on a provincial rather than national level: various municipalities implement prohibitions of religious clothing.

INEVITABLY, legal challenges have followed these bans, although with limited success. Variously, the French Constitutional Tribunal, the German Karlsruhe, the European Court of Human Rights, and the Court of Justice of the European Union (CJEU) have all upheld the proportionality of outright bans. Any interference with religious belief is considered a legitimate price to pay to preserve the neutrality of the State. The most recent case was brought before the CJEU by a Muslim woman employed by the Belgian municipality of Ans, who was forbidden to wear a headscarf at work.

The woman, who is anonymised in the judgment, had worked for the municipality since 2016 without any visible indication of her faith. It was only in 2021 that she asked to wear a headscarf to work. To this, the municipal board said “No.” In response to her application, the municipality set about changing its rules (while issuing a temporary edict forbidding her from “wearing . . . signs revealing her religious beliefs”), so as to prohibit any employee “from wearing any overt sign which might reveal their ideological or philosophical affiliation or political or religious beliefs”.

The CJEU said that this was a reasonable course of action. There is little discussion in the judgment about the purpose of a “neutrality” principle, and whether it pursues a genuinely legitimate aim. Even less attention is paid to the question whether an outright ban was proportionate, given its effect on religious freedom, or whether it is reasonable for a member of the public interacting with a state employee who is wearing a religious garment to conflate that with a conclusion that the State itself is no longer neutral. Instead, the Court observes that “the wearing of any sign, even a small-sized one”, “undermines” a policy of neutrality, and that “such a rule is therefore necessary.”

In many religions, outward displays of fidelity are fundamental. It is not only Islam that is affected by judgments such as this — although it is difficult to set aside the nagging doubt that laws prohibiting displays of faith are motivated by anti-Islamic sentiment, while other religions get caught up in the need for bans to be religiously neutral. Many Jews believe that they must wear a kippah, Sikhs a kirpan, and Christians a cross. Whether a beliefs is theologically justified, or even universal among adherents of the religion, is irrelevant, so long as the belief is genuinely held.

JUDGEMENTS such as this ignore the character of religious belief and deny religious freedom. They treat religious belief as an afterthought, the State’s need to demonstrate neutrality superseding citizens’ need to practise their faith freely. Ironically, in being neutral on all questions of religion, the State becomes hostile to all religious believers, prioritising its non-believing citizens or citizens who are sceptical or hostile to religions over its citizens who do believe. It is the inverse of the intolerant theocracy of Iran.

Such a stance suggests implicitly that citizens who have a faith are unable to act independently of it, condoning the idea that it is impossible to be a religious believer as well a member of Western society. The real issue is not with Muslims, or other believers who wish to follow their faith and exist within the public sphere, but with those who believe that anyone who has faith cannot also be a normal member of society. Decisions such as this sanction such prejudice.

Nicholas Reed Langen is a writer on legal and constitutional affairs.

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