Efforts by French politicians to “ban the burqa” hit the wall of constitutional reality today when the Council of State, France’s top administrative court, said there was no legal way Paris could completely outlaw full Islamic veils in public. The issue has been at the centre of complex and sometimes heated debate in France in recent months, but it wasn’t clear until now how far French and European law would allow the state to go. We still don’t know exactly what the law will look like, but the back story to today’s report is a tale in itself.

Sarkozy launched the veil debate last year in a replay of an earlier campaign strategy to capture votes from the anti-foreigner National Front by veering to the right. Regional elections were coming up this March and his right-wing UMP party hoped to win control of more than the 2 regions it governed out of the 22 regions in metropolitan France. In the end, they lost one of them in an embarrassing election wipeout that saw a strong showing for the National Front. So, shortly after that slap in the face, Sarkozy toughened up his stand a bit more. Among the measures he promised was a law banning the full Islamic facial veil.

“The full veil is contrary to the dignity of women,” Sarkozy said. “The response is to ban it. The Government will put forward a draft law prohibiting it.” He gave no details, though, because he was waiting for the Council of State’s opinion. The Council has now warned the government that it cannot take some of the giant steps the politicians want, and spelled out some precisely defined measures that should be constitutional.

There’s an interesting wrinkle in this procedure that could be called the “Sarkozy shuffle”. The Council of State usually rules on the legal conformity of new laws after they have been passed. Asking its advice in advance is an unusual step, which the government took to avoid the embarrassment of passing a stern law amid protests from French Muslims and other groups and then seeing it rejected by the top administrative court. Some politicians have been so vocal in demanding that facial veils be fully outlawed that legislators could well have gone too far in formulating the ban. So Sarkozy and his government promoted a sometimes raucous debate about national identity and banning Islamic veils, while consulting the Council of State in advance to make sure any law was kept within bounds.

The Council of State report (here in French, with a summary in French) makes some interesting points in the introduction to its summary:

— “There appears to the Council of State to be no legally unchallengeable justification for carrying out such a ban.”

— “However, the Council of State believes that public security and the fight against fraud, reinforced by the requirements of some public services, would be likely to justify an obligation to keep one’s face uncovered either in certain places or in performing certain procedures.”

It noted that full facial veils were already banned for civil servants and in schools, both on the basis of France’s separation of church and state (laïcité), and that managers could ban them for employees if they were deemed an impediment to the “good functioning” of the business.

But there are procedures that would require an uncovered face, it said, such as identity controls, photographs for picture IDs and legal acts such as marriage, voting, university exams, medical treatment or the handing over of children to mothers at the end of the school day. Access to certain places such as banks, jewellery shops, some sports events, consulates and airport departure lounges would also require an uncovered face, as does access to certain services such as buying drinks linked to a minimum age limit.

The Council of State does not seem to have noticed the irony of choosing the sale of alcohol as an example of a service to be denied to a Muslim woman who refuses to lift her veil.

The Council knocked down two of the most frequently used arguments by supporters of a full ban. It said that France’s trademark laïcité cannot be used as a legal basis to ban full veils in public, because it applies only to the relationship between public services and religions or followers of religions. It said the argument that full veils violate a woman’s dignity and the principle of equality between the sexes “could hardly apply in this case, even if they both have solid constitutional foundations and very strong jurisprudential applications”.

None of this was really surprising so far, since appeals to strict respect for laïcité, women’s dignity and sexual equality in this case but not across the board were not credible. But the Council then cut the legs out from under another argument that seemed to be the most solid basis for any “burqa ban” in public: “Public security cannot be a basis for a general ban on only the full veil, since no specific inconvenience is associated with it as such. A limited ban on the full veil would be fragile in terms of the principle of non-discrimination, and probably difficult to impose.”

So the report concludes that a ban on full veils could be legal if it is limited to situations where certain official or commercial procedures would require an uncovered face. Fines could be imposed for infractions and forcing a woman to wear a full veil.

The supporters of a full “burqa ban” are not taking this Council recommendation lying down. Jean-François Copé, the parliamentary leader for Sarkozy’s UMP party, said the National Assembly didn’t have to follow the Council’s advice. Another staunch supporter of a full ban, the UMP deputy Jacques Myard, said the “pusillanimous opinion of the Council of State … is and remains only an opinion.”

The “burqa ban” issue has stirred up a lot of debate on these pages. If you’ve been following this, let us know what you think of the Council of State’s advice.

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