Why banning the burkini is possible in France

Every society is, in large part, the product of its history. France is no exception. In analyzing the widespread attempt by French municipalities to ban the full-body female swimsuit known as the burkini that some Muslim women insist on wearing on public beaches, it is essential to understand the historical underpinnings of the concept of religious freedom — not as we know it here, but as it has developed in France. When French local officials try to ban the burkini they do so within a historical context.

It must be remembered that for a thousand years, France was dominated by the Catholic Church. The Church wielded great power, controlled much of the wealth of the nation and stifled freedom, especially religious freedom. Non-Catholics, including Protestants, but especially Jews, were barely tolerated and were frequently persecuted.

When the French Revolution overthrew the absolute monarchy, its leaders also sought to break the power of the Church. However, they could not end the emotional hold of the Catholic faith on the people of France, nor did they really end the political power of the Church. That did not occur until 1905, when, in the wake of the Dreyfus Affair, separation of church and state was finally legislated.

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In a first effort to establish new freedoms in revolutionary France, in 1789, the French National Assembly adopted a Declaration of the Rights of Man and the Citizen. That document was inspired by the American experiment with freedom. However, it also reflected a specifically French approach.

Article 10 of the declaration addressed the same issues as were addressed by the First Amendment to our Constitution. However, it did so in a distinctly different manner, with a recognition of the near homogeneity of religious belief then prevailing in France. Our First Amendment reads in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The text of Article 10 of the French Declaration, however, reads: “No one ought to be disturbed on account of his opinions, even religious,” but then, significantly, adds, “provided their manifestation does not disturb the public order.”

The intent of giving citizens the right to have their own religious opinions is the same as with the American approach, but the manner of dealing with that right is dramatically different. Reflecting the Catholic tradition that then still held great sway over the vast majority of the French population, the text of Article 10 articulates concern about putting alternative religious expressions in the public arena — or, to use a modern turn of phrase, in the face of the Catholic majority. The French revolutionaries, for all of their desire to overturn the old order, were realistic about deep-seated religious sensitivities.

The task of balancing freedom with societal sensitivities is never easy. In a nation such as ours, where heterogeneity has been a hallmark since virtually our very creation, it is much easier to accept public expressions of religious belief, even if they are profoundly offensive to some segments of the population. In a nation such as France, where the vast majority of the population shares a set of common religious beliefs, the propagation of opinions, especially religious ones, which may be offensive to that majority can engender serious risks.

As a consequence, while in the United States, wearing a kippah, a Muslim head scarf, a Sikh turban or any other ostentatious religious symbol in public does not pose any threat to societal stability and could not conceivably be banned, that is not necessarily the case in France. (France’s highest administrative court recently reversed the burkini ban, but some municipalities continue nonetheless to apply it.)

Freedom is not an abstract concept. It is a very real and practical balancing act. When a nation’s self-conception is tied to its almost homogeneous religious identity, sensitivity to that identity is essential to the preservation of tolerance for other religious identities.

The burkini, which is not in and of itself a religious vestment, is a very public manifestation of a religious identity. Denying its presence on public beaches is not necessarily the repression of a religious opinion. It is, however, the repression of a manifestation of that opinion that can be considered a disturbance to a delicate public order. This is not to justify any ban of the burkini anywhere, but it is to understand why in France it is even possible to contemplate imposing such a ban.

Over the course of its modern history, France has tried to be a tolerant society, but it has frequently failed to devastating effect, such as during World War II, when its government collaborated in the destruction of a large part of its Jewish population. Today, in its efforts to be tolerant, France has to take its very difficult history into account and has to be conscious of its traditions. Simply put, religious freedom in France does not necessarily have to look precisely like religious freedom in our nation.

Gerard Leval is a partner in the Washington, D.C., office of Arent Fox LLP.