Burqas in Britain

by Ronald Rychlak - August 7, 2009

Reprinted with permission.

One of the big issues under debate in the United Kingdom this summer is whether to ban the burqa. French President Nicolas Sarkozy said last month that the burqa debases women and is not welcome in his country; Britain is trying to decide whether to follow suit.

To begin with, there is some confusion over the term "burqa." It is spelled different ways, and depending on the particular garment, the more accurate term might be niqab or chador. The clothing at issue may be a sort of scarf that covers much of the bottom half of the face, a veil through which the woman can see, or a solid piece of cloth that completely blocks the face except for a small slit for the eyes.

Underlying the debate is concern about terrorism and the inability to identify the person under a burqa. The central question, then, is whether women should be permitted to cover their faces in public. While most of the Islamic women I know only cover their hair, on a recent bus ride through an Islamic part of London I saw a dozen or so women who covered most of their face. Eighteen years ago (the last summer I spent teaching at Cambridge), I doubt that there even was "an Islamic part of London" – at least, not one of any size. The growth of Islam here is forcing the British to confront issues that the United States will likely also face in a few years.

On one hand, people want to be respectful of other religions and cultures; on the other, some people think that the burqa itself reflects a rejection of British values and therefore should be banned in public. (It may be worth noting that Islamic women do not typically wear such veils inside their own home. Thus, banning them "in public" is essentially the same as banning them completely.)

Some non-Islamic British women (and, I presume, men) feel that the burqa turns back the clock on freedoms that British women have won over the past several decades. One concern often expressed is that the women who wear burqas are essentially slaves and not acting of their own free will. But many Islamic women don't feel this way.

One British journalist who lived in the Middle East for six months described her experience wearing very conservative Islamic clothing. Though she didn't specify whether her face was veiled, she nonetheless said it was very liberating, and she came to appreciate the complete covering of the human body. Rather than feeling like an old woman (she noted that she was in her 50s), she said the clothing made her an equal with all other women. (Of course, she only said that she felt equal to other women.)

On the other side of the debate, one professor expressed the opinion that the burqa strips the least powerful group in every society – young women – of their greatest asset, physical beauty. Another argument was made by a minister who wore a priest's collar: If the burqa was banned, he wondered, what would come next? Would nuns be forced to wear conventional clothing? Would he have to remove his collar? He clearly saw it as a matter of religious freedom and did not think society could draw those lines.

I am not sure I agree with the minister. First of all, societies can and do draw lines all the time. Moreover, we are not talking about religious garb or even clothing per se, but strictly covering the face. That by itself can provide a logical line between what is permitted and what is forbidden.

In many states, at least in the South, it is illegal to wear a mask in public. When I first heard of these laws in law school, they struck me as silly. I came to learn, however, that they were put in place to thwart the Ku Klux Klan. Unable to disguise their faces, these bigots (who terrorized blacks, Jews, and even Catholics) were unwilling to stand up for what they believed. While other factors were involved, many political observers point to anti-mask laws as having played a significant role in defeating the Klan.

Still, these laws leave something to be desired. What about Halloween and Mardi Gras parades, when masks are omnipresent? What about ski masks in winter? The standard reply is that the law is not enforced in those situations, but to my mind, that's indicative of a flawed law.

Anti-mask laws are also silly when applied to burqas. We are talking about grown women making their own choices about dress. A burqa might be intimidating, but the women who wear them are not. They wear these garments to shield their bodies, not to frighten others.

Yes, the burqa could provide cover for those who want to disguise themselves – but not much more than what could be achieved with other clothing. The only real governmental interest that might justify banning the burqa relates to security, and that concern can be addressed without banning it.

Women who wear burqas must be prepared to unveil for a female security officer at appropriate places; they might have to remove the veil for driver's license photos. Other accommodations may have to be made: I imagine that some versions are not safe to drive in, and in some situations the burqa may provide sufficient cause to justify a police officer paying additional attention to the wearer.

If, however, the women who wear the burqa are willing to make those concessions, they should be permitted to wear this very modest clothing of their choice.

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).