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Rights in Immigration: The Veil as a Test Case

Published online by Cambridge University Press:  19 March 2012

Gila Stopler
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Abstract

Immigration often involves the migration of people of specific cultural and religious background to countries in which the predominant cultural and religious background is quite different. This may result in attempts by receiving countries to restrict the new immigrants ‘cultural and religious practices. The Article uses the debate surrounding the wearing of the veil in Europe as a test case for the way in which recognition rights may be affected by the process of immigration. First, the Article maintains that the balance of rights and interests involved in conflicts over immigrants’ rights changes along the process of immigration, and divides this process into three stages—the entry application, the application for citizenship, and the life as an immigrant in the receiving country. Subsequently, it lays out the conflicting rights and interests involved in the veil controversy—the conflict between immigrant and local cultures; the conflict between immigrants’ religious liberty and state interests such as maintaining religious neutrality/laïcité, and protecting from the perceived threat of radical political Islam; the conflicting claims regarding the effects of veiling on women's equality. Finally, the Article analyzes each of these conflicts along the three stages of immigration and offers an assessment of the validity of the conflicting claims surrounding the veil in Europe on the basis of this analysis, claiming that the restrictions on wearing the veil in the public sphere are not justified, but that a much narrower restriction pertaining to some instances of the wearing of the full face burqa can be justified.

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Articles
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Israel Law Review , Volume 43 , Issue 1 , 2010 , pp. 183 - 217
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 Casanova, Jose, Religion, European Secular Identities, and European Integration 1 (July 29, 2004)Google Scholar, available at http://www.eurozine.com/articles/2004-01#. “Secular” and “Christian” cultural identities are intertwined in complex and rarely verbalized modes among most Europeans.”

2 Sauer, Birgit, Conflicts over Values: The Issue of Muslim Headscarves in Eumpe, 2–3Google Scholar http://birgitsauer.org/onlinetexte/Conflicts%20over%20values-l.pdf (last visited Apr. 11, 2010).

3 While exact number are difficult to establish, due to problems with the census and under compilation of these figures, in 2004 Muslims comprised more than 8% of the French population; in Germany, they comprised 3.6%; in the Netherlands 5.8%; and in Switzerland 4.2% of the population. See Muslims in Europe: Country Guide, BBC News, Dec. 25, 2003, available at http://news.bbc.co.uk/2/hi/europe/4385768.stm.

4 My usage of “veil” refers to the Islamic scarf (hijab) that covers the hair and sometimes the shoulders, and “burqa” to the full-length garment that covers the entire body, including the head and face, and is also referred to as the “niqab.”

5 Saharso, Sawitri, Headscarves: A Comparison of public Thought and Public Policy in Germany and the Netherlands, 10 Critical Rev. Int'l Soc. & Pol. Phil. 513 (2007)CrossRefGoogle Scholar.

6 Id. at 527–28.

7 On the three dimensions of justice—recognition, redistribution and political participation—in the context of multicultural claims, see Stopler, Gila, Contextualizing Multiculturalism—A Three Dimensional Examination of Multiculturul Claims, 1 L. & Ethics Hum. Rts. 309 (2007)Google Scholar.

8 It is important to recall that different types of veils bear different meanings and that the most common form—a scarf covering the hair and neck—in itself has varied and complex connotations for Muslim women. See infra note 98 and accompanying text.

9 It is important to stress that because the purpose of this Article is to propose a framework for assessing conflicts of recognition in immigration, the analysis of the conflicts is restricted to this context and will not extend to areas such as national minorities or indigenous people.

10 On thin multiculturalism generally, see Tamir, Yael, Two Concepts of Multiculturalism, 29 J. Phil. Edu. 161 (1995)CrossRefGoogle Scholar.

11 This has been the case in Germany where the government kept insisting that “Germany is not a country of immigration,” while at the same time it has de facto become the chief destination for migrants in the 1990s, see Contesed Citizenship: Immigration and Cultural Diversity in Europe 1 (Koopmans, Ruud et al. eds., 2005)Google Scholar.

12 In a recent European Court of Human Rights decision, the Court affirmed France's denial of entry to a woman who had refused to remove her veil for a security check at the French consulate where she sought to apply for an entry visa to join her French husband in France. El Morsli – France, App. No. 15585/06, Decision Mar. 4, 2008.

13 CE, June 27, 2008, Rec. Lebon 286798.

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15 Id.

16 Law 2004-228 of 15 March 2004; Journal Officiel No. 65. Mar. 17, 2004, at 5190.

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21 Miller, infra note 36, at 196–99 (on the right to immigration).

22 Article 14 of the Universal Declaration on Human Rights, 1948, G.A. res. 217A (III), U.N. DOC A/810 at 71 (1948); United Nations Convention Relating to the Status of Refugees, July 28, 1951, 1989 U.N.T.S. 137.

23 Miller, infra note 36, at 199.

24 This issue is raised infra Part II, which focuses on immigration and cultural rights, and will be applied to the specific context of the veil in Part V.

25 States have very limited obligations with respect to granting nationality, and these apply strictly to stateless persons, and are enumerated in the Convention on the Reduction of Statelessness (Aug. 30, 1961, 989 U.N.T.S. 175) in pursuance of General Assembly Resolution No. 896 (IX) Dec. 4, 1954) (entry into force December 13, 1975)). For an argument for a broader right to citizenship, see Carens, Joseph, Immigration, Democracy, and Citizenship, in Of States, Rights, and Social Closure: Governing Migration and Citizenship 17 (Schmidtke, Oliver & Ozcurumez, Saime, eds., 2007)Google Scholar.

26 Walzer infra note 53, at 52–61.

27 Carens, supra note 25, at 20–21; see also Miller, infra note 60, at 7–8.

28 Kymlicka, Will, Multicultural Citizenship 105 (1995)Google Scholar.

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31 Kymlicka, Will, Do We Need a Liberal Theory of Minority Rights? Reply to Carens, Young, Parekh and Forst, 4 Constellations 72, 76–77 (1997)CrossRefGoogle Scholar. For criticism of this stance, see Joseph Carens, Iris Marion Young, Bhikhu Parekh, and Rainer Forst articles in supra.

32 Kymlicka, supra note 30, at 162–63; Kymlicka, supra note 28, at 31.

33 See, e.g., Casanova supra note 1, at 9–10.

34 Joppke, supra note 19, at 331–32. The text of the legislaticn is quoted id. at 332.

35 Miller, David, Immigration: The Case for Limits, in Contemporary Debates in Applied Ethics 193, 199–201 (Cohen, Andrew I. & Wellman, Christopher Heath eds., 2005)Google Scholar.

36 As Shachar explains, “[a]t the heart of many contemporary justifications for multicultural citizenship lies a deep concern about power, particularly about the power of the state and dominant social groups to erode minority cultures.” Shachar, Ayelet, Multicultural Jurisdictions: Cultural Differences and Women's Rights 22–23 (2001)CrossRefGoogle Scholar.

37 Miller, supra note 35, at 126–30; Kymlicka, supra note 28, at 101–05.

38 See, e.g., Casanova, supra note 1, at 1. A good example is the French insistence that the ban on the veil is intended to preserve laïcité in France, which is the French version of the secular state and of state neutrality in the public sphere. However, critics of the ban have argued that French laïcité should actually be termed “catholaïcité” because its neutrality is best suited to accommodate Catholic practices (for example, national holidays coincide with Christian holidays) and not Muslim or Jewish ones (such as wearing a veil or skullcap). Balibar, Etienne, Dissonances within Laïcité, 11 Constellations 354, 363 n.4 (2004)CrossRefGoogle Scholar.

39 Taylor, supra note 29, at 62.

40 Sullivan, Kathleen, Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195, 198 (1992)CrossRefGoogle Scholar.

41 See the discussion infra Part III on the distinction between liberal neutrality and republican neutrality and its implications for the rights of immigrant minorities.

42 For example, by way of such measures as revising dress codes and work schedules to accommodate their religious practices. Kymlicka, supra note 30. at 162-76.

43 Miller, infra note 60, at 14-15.

44 Kymlicka, supra note 30, at 170.

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46 Id. at 4.

47 Tibi, Bassam, Political Islam, World Politics and Europe: Democratic Peace and Euro-Islam Versus Global Jihad 212 (2008)CrossRefGoogle Scholar.

48 Id. at 215.

49 Tibi, Bassam, A Migration Story: From Muslim Immigrants to European “Citizens of the Heart?,” 31 Fletcher Forum World Affairs 147, 148 (2007)Google Scholar.

In a similar vein, the recent European Pact on Immigration and Asylum expresses the view of the Council of the European Union that Member States can demand respect for “their fundamental values, such as human rights, freedom of opinion, democracy, tolerance, equality between men and women, and the compulsory schooling of children,” while calling upon states to “combat any forms of discrimination to which migrants may be exposed.” Council of the European Union, European Pact on Immigration and Asylum, Sept. 24, 2008Google Scholar.

50 Miller, supra note 35, at 196-99 (on the right to immigration).

51 Kymlicka, supra note 30, at 219. The belief that it is the task of the government to protect the national culture and that this justifies restrictions on immigration is held mostly by nationalists and liberal nationalists. Conversely, cosmopolitans, who do not view the state as defender of the national culture, generally subscribe to an open-borders immigration policy. Id. It is important to note that restrictions on immigration can take any number of forms, and probably the least controversial of which is setting a limit to the number of immigrants allowed entry. For the purposes of this discussion, I focus solely on immigration restrictions that are based on the culture of the immigrants and the receiving community.

52 Hampton, Jean, Immigration, Identity, and Justice, in Justice in Immigration 67, 84 (Shwartz, Warren F. ed., 1995)Google Scholar; see also Volpp, Leti, The Culture of Citizenship, 8 Theoretical Inq. L. 571, 580 (July 2007)Google Scholar.

53 Walzer, Michael, Spheres of Justice: a Defense of Pluralism and Equality 62 (1983)Google Scholar.

54 Id. at 32:

[W]e who are already members do the choosing, in accordance with our own understanding of what membership means in our community and of what sort of a community we want to have. Membership as a social good is constituted by our understanding; its value is fixed by our work and conversation; and then we are in charge (who else could be in charge?) of its distribution.

For a critique of this stance, see Joppke, Christian, Selecting by Origin 9–11 (2005)Google Scholar.

55 Coleman, Jules & Harding, Sara, Citizenship, The Demands of Justice, and the Moral Relevance of Political Borders, in Justice in Immigration, supra note 52, at 18, 52Google Scholar. Gans argues that granting special priority in immigration on the basis of nationality can be justified under certain conditions as a means of preserving the national culture of the group/s comprising the state. Gans, Chaim, The Limits of Nationalism 124–47 (2003)CrossRefGoogle Scholar.

56 Id. at 49–51.

57 Miller, supra note 35, at 199–200.

58 Miller, David, Immigrants, Nations, and Citizenship, 16 J. Pol. Phil. 371 (2008)CrossRefGoogle Scholar.

59 Id. An exception to this are circumstances in which some cultural aspect such as language is clearly at risk, Miller, supra note 35, at 200.

60 Miller, David, on Nationality 128–29 (1995)Google Scholar.

61 Miller, supra note 35, at 204.

62 Arguably, it will also be contrary to norms of international law. Article I(3) of the International Convention on the Elimination of all Forms of Racial Discrimination (660 U.N.T.S. 195 (Dec, 21, 1965)) states, “Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.” According to General Recommendation No. 30: Discrimination Against Non Citizens, from January 2004 (General Recommendation: Discrimination against Non-Citizens. U.N. Doc. CERD/C/64/Misc 11/rev.3 (2004)) and issued by the Committee on the Elimination of Racial Discrimination, parties to the Convention must“[e]nsure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin.” The recominendation is not binding.

63 Gans, Chaim, Nationalist Priorities and Restrictions in Immigration: The Case of Israel, 2 L. & Ethics Hum. Rts. 325 (2008)Google Scholar.

64 Aktas v. France, App. No. 43563/08, June 30 2009.

65 Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 449 (the applicant in Dahlab was a former Catholic who had converted to Islam and later married a Muslim immigrant).

66 Entscheidungen des Bundesverfassungsgerichts [BverfG] [Federal Constitutional Court, September 24, 2003] Ludin Case (BverfG, 2 BvR 1436/02). Perhaps the most prominent case in which the European Court of Human Rights affirmed a state's ban on the veil is its decision in Şahin v. Turkey, 2005-XI Eur. Ct. H.R. 109 in which it affirmed Turkey's ban on students' wearing a veil at university. Nevertheless, since this case did not arise in the context of immigration it will not be discussed here.

67 On the distinction between liberal neutrality and republican neutrality, see Joppke, supra note 19, at 316-17. See also Bowen, John R., Muslims and Citizens: France's Headscarf Controversy, Boston Rev., Feb./Mar. 2004Google Scholar. Bowen distinguishes between “liberal laïcité,” which he associates with multicultural recognition of diversity, and “public laïcité,” which he associates with the ideal of a shared republican citizenship.

68 European Convention for the Protection of Human Rights and Fundamental Freedoms, arts. 1 & 56, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter ECHR].

69 Dahlab v. Switzerland, supra note 65, at 11, 13.

70 Id.

71 Id. The applicant was teaching children between the ages of four and eight.

72 On the margin of appreciation doctrine, see Bakircioglu, Onder, The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases, 8 Ger. L. J. 711 (2007)CrossRefGoogle Scholar.

73 Grundgesetz für die Bundesrepublik Deutschland (Basic Law) arts. 4 (1) & (2) prescribe as follows: “(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. (2) The undisturbed practice of religion shall be guaranteed.” While the constitutional guarantee of religious liberty in Germany is far more stringent than at the European level, the German Constitutional Court has held that it is not an absolute freedom and that restrictions are permissible, although they must “‘follow from the Constitution itself’ and … the legislature could not impose limits beyond what was envisaged by the constitution.” Gerstenberg, Oliver, Germany: Freedom of Conscience in Public Schools, 3 Int. J. Const. L. 94, 95 (2005)Google Scholar (quoting the 1995 crucifixes decision in which the Court prohibited the presence of crucifixes in state classrooms, 1 BverfGE 1087/91, May 16, 1995).

74 The German system of church-state relations is based on a principle of a church-state partnership, whereby the churches and state are partners in the endeavor to ensure a prosperous and stable German society. Moreover, in the German system, freedom of religion is understood as a positive freedom, meaning that the state has a positive duty to ensure that religious people and religious associations can exercise their religious freedom (Monsma, Stephen V. & Soper, J. Christopher, The Challenge of: Pluralism: Church and State in Five Democracies 155 (1997)Google Scholar). Accordingly, state religious neutrality is conceived of as a duty to support all religions without giving preference to any one religion. Thus, the German Constitution allows the state to grant religious associations the status of corporations under public law and permits these religious associations to levy taxes to finance their operations and to enjoy public subsidies. Article 137 (5), (6), of the German Constitution of 1919.

75 Gerstenberg, supra note 73, at 98.

76 Id. at 96; Joppke, supra note 19, at 329.

77 Joppke, supra note 19, at 331–32.

78 Scott, Joan Wallach, The Politics of the Veil 97–99 (2007)Google Scholar.

79 Quoted in Bowen, supra note 18, at 157–58.

80 Scott, supra note 78, at 12–13, Bauberot, infra note 83.

81 The French understanding of equality is based on the notion of equality through sameness. For this reason it is also prohibited under French law, for example, to record religion, ethnicity, or national origin in French censuses. Id. at 12.

82 Bowen, supra note 18, at 229.

83 Bauberot, Jean, Two Thresholds of Laicization, in Secularism and its Critics 94, 133 (Bhargava, Rajeev ed., 1998)Google Scholar.

84 Id. at 134–35.

85 For a concise description of the legal developments surrounding the wearing of veils in public schools in France, including Conseil d'etat decisions, the Stasi Commission and the 2004 amendment to the Education Act, see Dogru v. France (Application No. 27058/05), 4 December 2008 sections 17–32.

86 Id.

87 Dahlab v. Switzerland, supra note 65.

88 Dorgu V. France, supra note 85, at 17, 19–20.

89 This reasoning was not discussed by the ECtHR in the veil cases which arose from Muslim immigration into predominantly Christian countries. However, it was applied by the ECtHR in the Turkish Şahin case. In upholding the Turkish ban on the veil in universities, the Court relied, inter alia, on the existence of extremist political movements in Turkey, which seek to impose their religious conception of society on the general population. Şahin v. Turkey, supra note 66, sect. 115.

90 On militant democracy, see Patrick Macklem, Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination, University of Toronto Faculty of Law Legal Studies Research Paper No. 05-03, available at http://ssrn.com/abstract=702465.

91 Tibi, supra note 47, at 188–90.

92 Id. at 215. See also Tibi, supra note 49, at 149–51 (discussing the dangers posed by radical political Islam).

93 Tibi, supra note 47, at 213–15.

94 See, e.g., the debate between Saharso, Sawitri, Feminist Ethics, Autonomy and the Politics of Multiculturalism, 4 Feminist Theory 199–215 (2003)CrossRefGoogle Scholar and Chambers, Clare, Autonomy and Equality in Cultural Perspective: Response to Sawitri Saharso, 5 Feminist Theory 329–32 (2004)CrossRefGoogle Scholar.

95 On intersectional discrimination against minority women, see Yuval-Davis, Nira, Intersectionality, Citizenship and Contemporay Politics of Belonging, 10 Cri. Rev. Int'l Soc. & Pol. Phil. 10 561, 564–66 (2007)Google Scholar.

96 See, e.g., Okin, Susan Moller, Is Multiculturalism Bad for Women? (1999)Google Scholar; Shachar, Ayelet, On Citizenship and Multicultural Vulnerability, 28 Pol. Theory 64 (2000)CrossRefGoogle Scholar.

97 Weil, Patrick, Lifting the Veil, 22 French Pol., Culture & Soc. 2004Google Scholar. Weil, who was a member of the presidential commission that recommended the ban on the veil, describes the basis for his support for the recommendation:

[W]e had to face a reality which was perceived at the local level, but not at the national nor obviously at the international one: wearing the scarf or imposing it upon others has become an issue not of individual freedom but of a national strategy of fundamentalist groups using public schools as their battleground.

See also Salvatore, Armando, Authority in Question: Secularity. Republicanism and “Communitarianism” in the Emerging Euro-Islamic Public Sphere, 24 Theory, Culture & Soc. 135, 149 (2007)CrossRefGoogle Scholar.

98 In one study, for example, it emerged that there are seven possible meanings to wearing this type of veil: 1) an act of religious faith, dictated by the wearer's conscience and expressed publicly; 2) protection against sexual objectification by men; 3) an expression of self-esteem and self-confidence as a Muslim woman; 4) an expression of belonging to the Islamic political movement; 5) a symbolic distinction between the wearer as a member of a minority and the non-veiled majority; 6) a personal statement against cultural modernity, including sexual equality; or, 7) an indication of the coercion of the woman to wear the veil and assume a Muslim woman's traditional role. See Sauer, supra note 2, at 4–5 (discussing a study by Monika Hoglinger made in 2002).

99 For example, the majority of the German Constitutional Court in Ludin found that wearing the veil is not necessarily an expression of the subjugation of women and that it might also represent a religious symbol freely chosen by the woman in order to allow her to lead an autonomous life while still adhering to her religion. Gerstenberg, supra note 73, at 96. Similarly, Weil explains,

While for a majority of women the headscarf is the expression of the domination of women by men (this meaning was, for example, strongly expressed by many women refugees from Iran), it can be, and is, understood differently. It can also be the expression of a free belief, a means of protection against the pressure of males, an expression of identity and freedom against secular parents and against Western and secular society.

Weil, supra note 97.

100 On the condition of Muslim women in France, see Amara, Fadela, Breaking the Silence (2006)Google Scholar; for an interesting overview of the situation of Muslim women in France, Germany, and Britain, see Poggioli, Sylvia, Exploring the Status of Muslim Women in Europe, NPR Series, January 2008Google Scholar, available at http://www.npr.org/templates/story/story.php?storyId=18330334.

101 Miller, David, Immigrants, Nations, and Citizenship, 16 J. Pol. Phil. 371 (2008)CrossRefGoogle Scholar. See the discussion in supra II(D).

102 See supra Parts III(A) & III(B).

103 See supra Part II(C).

104 See supra note 8 and accompanying text.

105 This does not apply to refugees that the state has an explicit duty to receive.

106 In the Silmi case, discussed in Part I (Stage II), the social services employee who interviewed Ms. Silmi for her naturalization application reported to the court that “[s]he lives in total submission to her male relatives. She seems to find this normal, and the idea of challenging it has never crossed her mind.” Bennhold, supra note 14.

107 Miller, supra note 60, at 19.

108 Although some Muslim women in Europe have begun wearing the burqa as a political statement as to their identification with radical political Islam, this does not seem to detract from the validity of the argument, both because this phenomenon is true only of a small minority of women, already residing in Europe, and because the choice to embrace radical political Islam is in itself a resounding rejection of liberal values.

109 Decision of Counseil d'Etat NO. 286798, June 27, 2008. See the discussion of the case in Part I.

110 See supra Part I.

111 See, e.g., Miller, supra note 36, at 200; Carmi, Na'ama, Immigration Policy: Between Demographic Considerations and Preservation of Culture, 2 L. & Ethics Hum. Rts. 387, 391 (2008)Google Scholar.

112 Kymlicka, supra note 30, at 31.