France's Veil Ban Withstands Constitutional Scrutiny

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On July 18, 2013, Cassandra Belin was returning to her home in the Paris suburb of Trappes, France. Accompanied by her husband and her mother, and with her baby in tow, French police stopped her and asked her to identify herself.[1] The twenty-year-old mother, who had converted to Islam at age fifteen, was wearing a burqa – a clear violation of France’s legislative statute prohibiting French citizens, residents, and tourists from wearing clothing that covers the face, thereby preventing facial identification.[2]

In 2011, the French Assemblée nationale approved legislation prohibiting the wearing of clothing in public places that covers one’s face.[3] The law also empowered police, upon seeing anyone in a public place with their face covered by a full veil, a ski mask, or any other kind of clothing that covers one’s face, to explain the legislation, the consequences of non-compliance, and to verify the identity of the person whose face is covered – all part of a process called a “contrôle d’identité.”[4]

On July 13, 2013, however, Belin’s contrôle d’identité, in which police asked her to reveal her identity by removing her veil, quickly devolved.[5] Though a precise chronology is not clear, at some point Belin’s mother-in-law intervened, and her husband objected to his wife being made to uncover her face or be arrested.[6] Ultimately, both Belin and her husband, Michaël Khiri, were arrested and held by police[7] – Belin for wearing a burqa that concealed her identity in public as well as for verbally resisting the request of a police officer and her husband for objecting to the contrôle d’indentité.[8] During the following three nights, Belin and Khiri’s supporters rioted in the streets of Trappes.[9]

In October of last year, the Versailles court deciding Belin’s fate postponed her hearing.[10] Her lawyer had employed a defensive tactic that turned Belin’s minor infraction into a nationwide constitutional debate: in addition to contending with charges of wearing clothing that covers the face in public and arguing with police, Belin’s attorney petitioned for France’s Conseil constitutionnel to rule on the legislation’s constitutionality by requesting a QPC, question prioritaire de constitutionalité.[11] On January 8, 2014, however, the Versailles court that originally postponed Belin’s initial hearing convicted her for wearing a burqa in public and for not complying with the police who asked her to remove her veil.[12] Additionally, the court rejected the defense’s request for a QPC.[13] This past Wednesday, January 15, 2014, Belin’s attorney announced that she was appealing her conviction as well as the court’s declaring the QPCirrecevable.” [inadmissible][14]

Belin’s attorney asserts that the legislation at issue should be struck down for three reasons. First, the law – colloquially called the “anti-burqa” law in France – discriminates against Muslims, stigmatizing their position in public and in French society since most arrests under the statute are of Muslim women wearing full veils.[15] “The 1958 [French] Constitution,” Belin’s attorney told Radio France Internationale journalists, “says that a law [, when promulgated in France,] must have a general reach [that encompasses all French citizens] and not a reach “specifique” [specific][that applies to only one segment of the population].”[16] Second, he argues that in stigmatizing Muslims in this manner, the law infringes on the guarantees for religious freedom and for a life of “dignité humaine” [human dignity] which are enshrined in the French Constitution.[17] Third, the defense highlights the fact that when France’s Conseil constitutionnel initially ruled that the country’s “anti-burqa” legislation was consonant with French constitutional principles,[18] it did so without reviewing the law in a manner that was based on a fact pattern provided by a concrete court case.[19] In so doing, certain problems could not be assessed, specifically the gap that separates the law’s motivating policy (public security) from the difficulties of its application in certain neighborhoods that are largely populated by North-African Muslim communities yet policed by traditionally French police officers.[20]

These are not new arguments in France. Intense debate reverberated within both chambers of the Assemblée nationale and in the public’s debate when the legislation was contemplated and written.[21] To be clear, the legislation specifically prohibits “wearing clothing in public places that covers the face” and forcing or pressuring others to cover their faces in the same manner.[22] It does not mention veils typically associated with devout Muslim dress.[23]

Some French constitutional scholars are not surprised that the Versailles court turned down Belin’s appeal for a QPC because the Conseil constitutionnel already decided that the law did not contravene the French Constitution. According to Professor Anne Levade, the facts in Belin’s case – those immediately surrounding her arrest and not those concerning the ensuing three days of rioting in Trappes – indicate that no new factual circumstances have presented themselves in Belin’s situation.[24] In Levade’s view, the police enforced a law that they were obliged to enforce.[25] No novel factual nor legal circumstances have presented themselves to the court as a result of Belin’s case.[26] Due to this circumstance, she believes the court will likely not reconsider the legislation’s constitutionality.[27] Though the riots in Trappes illustrated strong yet generalized discontent with the legislation’s implementation in Belin’s situation, the facts of the case do not show that Belin had not broken the law nor that the police overreached when enforcing it. Proponents of the legislation who argue that France should “remain firm and resist” changing or repealing legislation that they view as consonant with French Republican values may win this legal battle.[28]

Should the French Conseil constitutionnel rule on the constitutionality of legislation without reviewing it under the scrutiny that a court applies when examining a piece of legislation’s legal and conceptual existence along with its concrete application when implemented in French neighborhoods? The European Court of Human Rights may decide this question. It is scheduled to deliver its decision for another case that contests France’s law.[29] This time, petitioners contest the law’s validity under European Union Human Rights law.[30] Both sides of this debate in France and those countries across the EU with similar legislation await the result.[31]


[1] Jèrôme Sage, Trappes: le procès de Cassandra Belin tourne au débat sur la loi sur le voile intégral, Le Figaro, (Dec. 11, 2013), http://www.lefigaro.fr/actualite-france/2013/12/11/01016-20131211ARTFIG00522-trappes-le-proces-de-cassandra-belin-tourne-au-debat-sur-la-loi-sur-le-voile-integral.php.

[2] Kimberly Bennett, France Court Upholds Burqa Ban Conviction, jurist.org, (Jan. 8, 2014), http://jurist.org/paperchase/2014/01/france-court-upholds-burqa-ban-conviction.php; Assemblée nationale, Circulaire du 2 mars 2011 relative à la mise en œuvre de la loi n° 2010-1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l'espace public [Memorandum Dated March 3, 2011], found at http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000023654701.

[3] Memorandum Dated March 3, 2011.

[4] Id.

[5] France: le voile revient sur le devant de la scène judiciare, rfi.fr, (Dec. 11, 2013), http://www.english.rfi.fr/france/20131212-france-challenge-burka-ban-constitution.

[6] Sage, supra note 1; French Court Convicts Islamic Veil Wearing Woman, rfi.fr, (Jan. 8, 2014), http://www.english.rfi.fr/france/20140108-french-court-convicts-islamic-veil-wearing-woman.

[7] Sage, supra note 1; Bennett, supra note 2.

[8] Sage, supra note 1.

[9] Lawyer Challenges French Burqa Ban, Woman’s Trial Postponed, rfi.fr, (Oct. 30, 2013), http://www.english.rfi.fr/france/20131030-islamic-veil-ban-faces-new-challenge.

[10] Id.

[11] Id. Question prioritaire de constitutionnalité is France’s approach to constitutional adjudication. The Conseil constitutionnel decides the constitutionality of law on both (1) the ex ante and abstract basis and (2) the ex poste and concrete basis. In the former instances, the council will rule on the constitutionality of statutes approved by the Assemblée nationale before promulgation and referred to the council by the French President, Prime Minister, Presidents of the legislative chambers, or groups composed of at least sixty députés (Conceil constitutionnel,A french legal success story: the "Question prioritaire de constitutionnalité"), http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/documentation/contributions-et-discours/2012/a-french-legal-success-story-the-question-prioritaire-de-constitutionnalite.115542.html (last visited Feb. 14, 2014); France: la justice conforte l’interdiction du voile intégral dans l’espace public, rfi.fr, (Jan. 8, 2014), http://www.english.rfi.fr/france/20140108-french-court-convicts-islamic-veil-wearing-woman; France: le voile revient sur le devant de la scène judiciare, supra note 5.; Camille Bordenet, Loi sur le voile integral: <<L’affaire de Trappes est un cas isolée>>, Le Monde, (Jan. 8, 2014.), http://www.lemonde.fr/societe/article/2014/01/08/affaire-de-trappes-ce-n-est-pas-une-loi-anti-burqa-ou-anti-niqab_4344361_3224.html.

[12] French Court Convicts Islamic Veil Wearing Woman, supra note 6.

[13] Id.

[14] Trappes: la femme au niqab fait appel, Le Parisien.fr, (Jan. 15, 2014), http://www.leparisien.fr/yvelines-78/trappes-la-femme-au-niqab-fait-appel-15-01-2014-3496643.php.

[15] Bordenet, supra note 11; France: le voile revient sur le devant de la scène judiciare, supra note 5.

[16] France: la justice conforte l’interdiction du voile integral dans l’espace public, supra note 11.

[17] France: le voile revient sur le devant de la scène judiciare, supra note 5.

[18] French Constitutional Court Approved Burqa Ban, jurist.org, (July 13, 2013), http://jurist.org/thisday/2012/07/france-parliament-approved-burqa-ban.php.

[19] France: le voile revient sur le devant de la scène judiciare, supra note 5.

[20] Id.

[21] Bordenet, supra note 11.

[22] Memorandum Dated March 3, 2011.

[23] Id.

[24] Bordenet, supra note 11.

[25] Id.

[26] Id.

[27] Id.

[28] Id.; Sage, supra note 1.

[29] Trappes: la femme au niqab fait appel, supra note 14.

[30] Id.

[31] Id.


Posted by Elizabeth G. Simmons on Wed. April 2, 2014 1:00 PM
Categories: France

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