European Court hijab ruling reveals the fundamental problem with laïcité

The failure of the EU court to defend what should be a basic liberty highlights two competing interpretations of the concept of secularism.


Samira Achbita and Asma Bougnaoui refused to remove their headscarves at work and were fired for it. Achbita was told she broke an “unwritten rule” against wearing religious symbols. Bougnaoui was given no such pretext, only told that her wearing a headscarf posed problems for her company’s clients. These cases happened in Belgium and France, respectively, and were referred to the European Court of Justice, where the women - and their civil freedoms as well as those of millions of others - lost.


The ruling is not discriminatory, so the court argues, because it bans symbols of all religions, but that is beside the point. The mere visual expression of one’s religion doesn’t impede one from doing their job, and the only rationale for a ban is that it allegedly creates tension in the workplace. In Europe today, not all religions attract the same hostility; could we imagine clients feeling as uncomfortable receiving a service from a man in a kippah or someone wearing a cross around their neck? And, if so, could we imagine those objections finding as much sympathy in the court of public opinion?


The failure of the EU court to defend what should be a basic liberty highlights two competing interpretations of the concept of secularism.


In 1801, Thomas Jefferson – then President of the newly independent United States - received a letter from a committee of Christian Baptists from Danbury, Connecticut, who were afraid that their status as a religious minority would put them at the mercy of the majorities in regional legislatures. In his response, Jefferson assured them:


“…Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship… I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State…”


The wall that Jefferson speaks of is secularism. On one side stands government and its force and on the other is religion and its practice, ever separated by a barrier impermeable to influence. It has long been commonly understood in the United States that secularism is a coin that must necessarily be two-sided, with “freedom of” as well as “freedom from” religion being equally precious, and – crucially - equally protected.


“Not a provocation, just my freedom of conscience” // AFP


France (and Europe generally), by contrast, has traditionally seen secularism, or “laïcité”, as a one-way street. The French revolution was fought to rid the nation of the influence of the monarchy and church, and that legacy is palpable; France remains a fiercely republican nation, scornful of anything resembling hereditary power, or of any undue religious influence in public affairs. The absence of religion in government, however, is not accompanied by its corollary: the absence of government in religion.


This is perhaps most prominently exemplified by France’s controversial ban on the wearing of conspicuous religious symbols in public schools. The state makes no edicts on private worship, but confuses the open expression of an individual’s religion with proselytization. Whereas in the United States it would be unthinkable, by virtue of the First Amendment, for an employer to tell an employee they cannot display - as opposed to promote - their religion, no such protection exists in Europe.


FN leader Marine Le Pen has long advocated bans on religious symbols © Philippe Lopez / AFP


Prominent voices in France, including that of Front National leader Marine LePen – who may become the next president - have long called for an expansion of strict laïcité from public schools into wider French society. In a vague, albeit watered down parallel to the concept of “Sameness” from the classic Lois Lowry novel, The Giver, there is a pervasive strain of thought that if one can minimise people’s differences, then society will be more cohesive and less prone to internal conflict.


The effect that this ruling could have on a significant cross-section of the French populace should not be understated; anyone who wears a yarmulke, a turban, or a hijab would be forced into a series of compromises on issues fundamental to their identity. Do I sacrifice my spiritual life, or my civic life? On a scale from piety to atheism, how French am I?


Across the Atlantic, the intra-secularist debate is once again raging in Quebec around Bill 62, a legislative proposal which would, among other things, ban the niqab for public workers, but it has been argued by lawmakers in opposition parties than the bill isn’t sufficient.


François Legault, from Coalition Avenir Quebec, who was a proponent of a burkini ban as well forbidding religious symbols worn by schoolteachers, has stated that while it’s “important to welcome newcomers”, they must “limit religious symbols so [they] can live better together”.  Jean-Francois Lisée, leader of Parti Quebequois, has advocated for a full ban on religious symbols on public officials including law enforcement officers and judges. This is done for the sake of “religious neutrality”, mistakenly conflating individual expression with public representation.



Whatever one’s aversion towards a garment like a hijab, it has no bearing on whether or not it should legally be worn. It is not the place of a liberal state to dictate that a woman should be barred from wearing one any more than it is the place of an Islamist state to demand she does.


There should be no religious influence in government or legislation. But equally, there should be no intrusion by the state into how an individual can express their faith on their person. While an employer may be a private entity who doesn’t wield state power, that should not absolve them from the responsibility of ensuring their workers can observe their religion in a manner which does not impede their work.


It’s ironic that cohesion is the end goal of these rules and proposals, as alienation is their ultimate effect. Secularism isn’t a zero-sum engagement; religious identity doesn’t have to give way to national identity. Both things can be true, and they must be.

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