We were studying the American Civil War in one of my middle school social studies classes when we were charged with the task of debating the pros and cons of slavery. I know, in retrospect it seems a bit odd to me as well. But, in a sense, what better way is there to learn about any historical subject than to debate it? And rather than debate the subject from the perspectives of late twentieth-century teens, we approached it as if we were abolitionists or southern plantation owners during Abraham Lincoln’s presidency.
I was placed on the pro-slavery side of the argument. I remember spending many an hour in the local public library poring over Time Life books. (The late 1980s were still a pre-Internet age.) It was during this period that I developed an insatiable appetite for history and began to devour history books of all shapes and sizes, as fast as I could read them. I thought that I would be able to unlock the mystery of human civilization, to gain a complete understanding of the world around me, and to peer far into the future of humankind. As an almost inexorable result, this was also when I began to loosen the tethers and fetters of religion from my wrists.
I read about the trials and tribulations of both escaped and freed slaves. I read about the cruel world waiting to pounce mercilessly upon penniless, illiterate, and uneducated former slaves. About how former slaves were torn from the stability of family and community and the paternalism of the slave owner (including the legal protections afforded slaves). About how former slaves struggled to rebuild their lives in a world that didn’t want them.
And then I had a eureka moment. Some—not many, but some—of the slaves didn’t want to stop being slaves. A small number wanted to remain with their owners or return even after being freed.
I knew I had just won the debate. And indeed, I did. I led our team to victory. The pro-slavery contingent defeated the abolitionists because, in a democracy, in the land of the free, who are we to tell people that they can’t be slaves if they want to be? Who are we to tell someone that she has to be free? Who are we to tell someone that she has to be regarded as fully human? It doesn’t matter that the alternative to slavery, which would mean walking away from everything one had ever known to recreate life anew without any resources, was regarded as healthier and more dignified. It was still the individual’s choice to make.
It’s ironic that I had to acquire that argument from a Time Life book, because I was living that argument. I was a slave who extolled the virtues of being a slave. I was a slave who insisted that I had chosen slavery of my own free will, of my own volition, as a conscious and educated choice. Because, you see, I was a Jehovah’s Witness who had been brainwashed from birth to believe that God had created me subhuman–below man. I had been indoctrinated to accept this truth as part of God’s divinely ordained scheme for mankind (not humankind), to serve the men in my family and community, and nothing more. I had been inculcated to wait patiently for my post-Armageddon blessings in the hereafter or suffer the dire consequences in the here and now, including demonic attack.
My mother had been raised in a largely secular home. Then, when she was a teenager, she fell for a bad boy and got pregnant. Her family moved away, but she stayed and married the bad boy (my father) and soon realized she was undone. He was abusive and cruel. She was trapped and alone, wallowing in self-loathing and misery. Then she found the Jehovah’s Witnesses, or rather they found her, as her husband’s family were Witnesses themselves. My mother had found her salvation, for the Jehovah’s Witnesses hated her, as a woman, as much as she hated herself. But that faith also provided justification for remaining in an abusive marriage. It was okay to hate and punish herself—this was God’s plan.
I decided that I didn’t want to hate myself anymore, no matter the cost. Even if it meant rejecting God’s plan for me. I chose to claim my humanity, my personhood, my human and civil rights. While I was still a teenager myself, I walked away from everything and everyone I had ever known. I made a new life for myself. A human life, not a subhuman, slave life. It was anything but easy and at times seemed like an impossible choice. I know that death and even suicide sometimes seemed easier. And now I think that maybe it shouldn’t have to be that hard to be human. Maybe we should make it a little easier to reject slavery.
The debate of our time is again about abolishing slavery. But this time it’s about abolishing the slavery of women, usually in the context of religion. It’s the same debate that was held in my middle school social studies class: should women get to “choose” to be slaves in a secular, liberal, constitutional democracy? This time, however, I don’t want to argue for the pro-slavery contingent.
We have decided that we won’t let human beings choose slavery as a result of their skin color, but we permit women to do so in the context of religion. I have been dumbstruck and dismayed by the lengths to which even my ostensibly freethinking peers will go in defense of a woman’s “choice” to be a slave, especially with respect to the free exercise of religion. I chalk most of it up to our deeply rooted notions of women as the sexual and reproductive chattel of their families and communities. Most recently, this debate has reared its head in Western Europe in the form of proposed public burqa bans in France, Belgium, and Spain.
During this past year I have been working in Paris, France, as an international human rights fellow with Ni Putes Ni Soumises (NPNS—Neither Whores Nor Submissives). NPNS is an international human rights organization that advocates on behalf of women’s rights as universal human rights without compromise. They condemn cultural relativism, obscurantism, and communitarianism. NPNS grew out of a ferocious grassroots response to the unfathomable violence being perpetrated against the women and girls of the banlieues (the ghettoized suburban housing projects surrounding the major cities of France, which are primarily comprised of marginalized Muslim immigrant communities). NPNS continues to be led by sub-Saharan and North African French Muslim women from immigrant backgrounds. They denounce both the burqa and the niqab (both of which hide the face) as un-Islamic and barbaric patriarchal cultural traditions, as the enslavement of women, and the demonization of female sexuality. They promote secularism, gender equality, and gender desegregation as the necessary pillars supporting a truly egalitarian public space in which all citizens enjoy equal rights and equal protection under the law.
NPNS wholeheartedly and unequivocally supports the anticipated public burqa ban in France as a straightforward public safety measure and as a women’s rights measure to ensure secularism, gender equality, and gender desegregation in the public space. We have been protesting against the burqa and in support of the public burqa ban in front of parliament and the various political party offices in Paris. Lubna Al Hussein, the Sudanese journalist and women’s rights activist who faced forty lashes of the whip for wearing pants in Khartoum, is visiting France as the guest of NPNS. She has joined forces with our organization in support of the anticipated ban.
I find that most Americans are quite dismissive of the European approach to this issue. The majority French stance is quite literally that there is no room for slavery or segregation in an egalitarian public space in a secular, democratic republic in which all citizens enjoy equal civil and human rights and equal protection under the law—regardless of religion. Regardless of culture. Regardless of sex. It is a universal stance. It is also my position.
For the record, I am an incipient First Amendment lawyer and a staunch church-state separatist. I am an intractable free speech defender and a vehement opponent of hate crime legislation. I stake the claim that morality has no place in the law. I support the anticipated public burqa ban in France. And I would support a similar ban in the United States and anywhere else in the world.
But, as an incipient First Amendment lawyer, I know that only neutral, generally applicable laws pass constitutional muster in the United States. Neutral, generally applicable laws that incidentally encroach upon the free exercise of religion are constitutionally valid. The French bill, which overwhelmingly passed in the lower house of parliament on July 13, is officially called “the bill to forbid concealing one’s face in public,” however this clunky appellation is rarely used in place of burqa ban. I like “anti-mask law.”
An anti-mask law is not neutral in name only. It is substantively neutral in that it doesn’t matter who’s wearing a mask in public or why. Opponents of anti-mask laws proffer such straw men as Halloween masks and cold weather gear, however, secular governments may provide for secular exemptions to secular laws. We do it all the time. In fact, many U.S. states and municipalities already have anti-mask laws on the books, including exemptions. One of the advantages of secular democratic legislation over religious laws is that they tend not to feign absolutism. And so a general prohibition on obscuring one’s identity in the public space can be a very straightforward matter of public safety and security coupled with democratic representation. Because it is beyond ludicrous to think that any society can maintain a liberal constitutional democracy with its electorate walking around in public with their identities wholly obscured.
You first have to claim your humanity before you can claim your human rights. You first have to claim your citizenship before you can claim your civil rights. This isn’t possible without claiming your identity. Identity is power. Why do you think misogynists impose the burqa upon women? To render them powerless.
What about those women who claim wearing a burqa makes them feel closer to God? Some women may have been brainwashed into believing they are storing up riches in heaven by publicly effacing and segregating themselves. But heavenly concerns are not the concerns of a secular government. We don’t allow racial segregation in the public space, so why would we allow gender segregation? Both are equally an affront to a liberal constitutional democracy, even when practiced by the oppressed minority rather than imposed by the oppressive majority. In France the government is entirely secular, and the French enjoy a strict wall of separation between religion and government, termed la laïcité. The French enact laws based upon secular principles and objectives and concerns. They don’t enact laws based upon religious doctrine, either to conform or defy. Islam is irrelevant. It simply isn’t a term in the equation of lawmaking.
The advancement of women’s rights almost necessarily undermines religious patriarchy. But the enactment of laws to advance gender equality and desegregation doesn’t aim to undermine religious patriarchy. This isn’t a distinction without a difference. This is a distinction with a paramount legal difference.
As a devoted defender of the right to free speech, even I am willing to concede that freedom of expression isn’t unlimited. Compelling government interests may justify impinging upon fundamental rights and still lie within the constraints of constitutionality. Reasonable people can and do disagree about whether identity obscuring face coverings in the public space should be protected as free speech and in which contexts and to what extent. Ultimately, this is a question for legislators and courts.
Additionally, and personally, I would argue that women’s emancipation is a compelling government interest that justifies impinging upon the right to anonymous public speech (via an identity-obscuring face covering), if such a right exists. Gender equality and desegregation should be as compelling an interest to the government as diversity. (Unfortunately, American jurisprudence has yet to catch up with me on this point.) No liberal constitutional democracy can survive for long with a de facto multi-tiered hierarchy of citizenship. In other words, no one gets to “choose” to be a slave.
While I see the burqa/niqab issue as rather simple and straightforward, the hijab (traditional headscarf) and chador (a cloak-like robe that doesn’t cover the face) are decidedly less so. Because the hijab and the chador don’t obscure one’s identity, Muslim women living in secular democracies in the West have the right to wear them in public, and the fight against these tools of misogyny and oppression must, for the greater part, be waged in the public marketplace of ideas, not the courts. Of course, if there are legitimate security situations that require everyone present to remove their head coverings, then Muslim women wearing headscarves shouldn’t be exempt, just as others who don religious head coverings shouldn’t be exempt.
I would, however, be opposed to an elected public official wearing a hijab in the course of her official duties for the same reasons that I would be opposed to a Christian legislator wearing a visible cross around his or her neck while proposing or voting upon legislation. While engaged in official duties, an elected public official isn’t engaged in private, individual speech, but is rather speaking and acting on behalf of the government and the citizenry. This is textbook government speech. Ostentatious religious symbols convey the message that the elected public official is only representing the interests of his or her Muslim or Jewish or Christian constituency. They convey the message that the government sees certain adherents of certain religions as political insiders and everyone else as political outsiders. The same may be said for public school teachers, police officers, and judges.
I also think we have to acknowledge that it’s difficult to talk about credible choice when one has been indoctrinated as a child or when one resides in an isolated, patriarchal, and oppressive community. Having recently made an extensive tour of the suburbs surrounding Paris, I can speak to this issue. The fear and menace in many of these communities is palpable. I have seen very young girls—maybe five years old—in hijab. No one can tell me a five-year-old chooses to wear a hijab.
There is no more universal symbol for gender discrimination, segregation, and inequality, for the oppression of women and the demonization of female sexuality than the hijab, the chador, the niqab, and the burqa. A group of young Muslim men, whom I had befriended in Rabat, Morocco, were unequivocal about the purpose of women’s garments. They serve to mark a woman as a sexually available whore, a marriageable virgin, or the claimed sexual property of another Muslim. These young men believed that the system was designed by Allah and espoused by Muhammad. But, while the design may have been divine to them, the purpose couldn’t have been more earthly—the branding of women like cattle. To say it’s as Allah intended simply makes it easier to convince women and girls to submit to such treatment, lest they risk their immortal souls.
Recently, NPNS organized an open, public debate on the anticipated anti-mask law in a suburb of Paris with a diverse population. A group of Islamists disrupted the event by shouting down every comment about gender equality or secular government with a reference to the Koran or the Hadith. The debate erupted in violence at the hands of the Islamists when the secularists refused to discuss the tenets of Islam in relation to secular democratic governance. Many of the participants and spectators who had been on the fence walked away from the evening totally convinced of the necessity of the French anti-mask law.
The only way to stop those who feel divinely authorized to oppress and victimize the more vulnerable members of their communities is by implementing legislation that affirms the civil and human rights of the individual. While the French law does include a nominal fine for the woman wearing a niqab or burqa in public, the law provides for [enforces?] a significant penalty for anyone who forces a woman to do so. Recent estimates suggest that approximately 2,000 women in France wear the niqab or burqa in public. However this isn’t just a struggle for French women’s rights or Muslim women’s rights or French Muslim women’s rights. This is a struggle for women’s rights as universal human rights without compromise.
Women all over the world are trying desperately to be free from having to cover themselves. They are harassed, ostracized, disowned, beaten, raped, and murdered for refusing to wear body and face obscuring garments. Every day women call NPNS and complain about being forced into a hijab, chador, niqab, or burqa by their families and communities. They’re afraid for their safety, their wellbeing—for their lives. They feel they have no choice. The truth is that at this point they do have a choice, but if the French anti-mask law passes, they—and more importantly their oppressors—will be left with no choice but to lift the veil and to see what true liberty looks like.
Sarah Braasch is the James E. Tolan International Human Rights Fellow at Ni Putes Ni Soumises (Neither Whores Nor Submissives) in Paris, France, and a recent graduate of Fordham University School of Law in New York. The Tolan Fellowship is administered by the Leitner Center for International Law and Justice at Fordham Law School. This article is dedicated in loving memory to Jacob Michael Braasch (January 28, 1986 – February 2, 2010)