The West Can Have Burkinis or Democracy, but Not Both

Some stories are both provincial comedies and national tragedies, insignificant on the face of it and yet of much deeper importance than meets the eye. The strange fall and rise of the French burkini is one such story.

After the terrible attack in Nice, France, when an Islamist terrorist guided his truck down the Promenade des Anglais, murdering scores of innocents on their way home from a fireworks display on the city’s stunning beach, local politicians wanted to be seen as doing something — anything. But since it’s pretty difficult for the mayor of a small town to make much of a contribution in the fight against the Islamic State, Lionnel Luca, the mayor of Villeneuve-Loubet, turned to a symbolic solution. Since a Muslim had killed people near a beach, he sought to address the grave problem of Muslims and beaches. And since he who seeks shall find, Luca came up with the brilliant solution of banning women from wearing burkinis — essentially, wetsuits that allow women to swim without exposing their hair — on his city’s beaches. That’ll show ‘em.

Fourteen towns quickly followed suit, and local police forces all over France bravely set out to fulfill their duty. When policemen in Nice spotted a woman wearing a headscarf on the beach, they duly fined her 38 euros. According to media reports, bystanders approved, shouting, “Go home!” and treating the cops to a round of applause.

It wasn’t just the local beach bums who applauded the burkini ban. Right-wingers like former President Nicolas Sarkozy and Marine Le Pen, the leader of the xenophobic National Front, also endorsed it. Manuel Valls, the center-left prime minister, grandiloquently proclaimed that the French Republic had to defend itself against such “provocations.” A clear majority of the population agreed. According to Ifop, a respected French pollster, only 6 percent of French people are in favor of allowing the burkini to be worn on public beaches, while a walloping 64 percent support the ban. (The remaining 30 percent are indifferent.)

In a sense, this sorry spectacle is unsurprising. After three major terrorist attacks in 18 months, hatred of Muslims has become palpable in many aspects of French life. Le Pen, whose hostile stance toward Muslim immigrants forms the core of her political appeal, is more popular than ever. As in so many other countries in Western Europe, North America, and beyond, rising popular anger has even been pushing politicians who were once moderate toward increasingly illiberal policies.

In France, this rising anger has entered an unholy alliance with the country’s deeply restrictive understanding of secularism. In the United States or Germany, the separation of church and state invokes the liberal principle that the state is not allowed to impose religious views on its citizens. In other words, a secular political order is supposed to protect ordinary people from religious coercion, whether by the state or by private individuals, even as it gives them ample space to heed their ethical or religious principles in their own lives. French secularism, by contrast, has long had a more militant commitment to keeping most forms of religion out of the public sphere. Any attempt at conspicuous religiosity in public, on this view, is a full-frontal attack on the cherished value of laïcité — what Valls would call a “provocation.”

Since it is very much in the eye of the beholder what is or is not conspicuous, this principle has always restricted the freedom of French Muslims more than it has that of French Christians. In the country’s imagination, a nun in traditional dress is simply going about her day, whereas a woman going for a walk in a headscarf is conspicuously colonizing public space in the name of Islam. In the last years, the slippery slogan of laïcité has thus stood at the center of big debates about any number of imagined provocations: Should girls be allowed to wear the veil in schools? (No.) Should full-face coverings be allowed in public? (No.) Is it acceptable for school canteens in immigrant-heavy neighborhoods to serve halal meat? (No again.)

But even by the strange standards of France’s illiberal conception of secularism, the burkini ban was extreme. As Aheda Zanetti, the garment’s inventor, pointed out in a recent op-ed for the Guardian, she had aimed to “give women freedom, not to take it away.” Inspired by a niece who wanted to play netball without the obstruction of an unwieldy headscarf, she designed the garment to enable women who cover their hair to be more comfortable while doing sports or swimming. And as the critics of the burkini ban quickly pointed out, seeing the burkini as a call to arms by jihadis is ridiculous given that the least tolerant forms of Islam, like the one that’s the ruling ideology of Saudi Arabia, don’t permit women to swim on public beaches at all, even under the cover of a terrorist-sympathizing burkini.

When France banned schoolgirls from wearing the veil, it could at least claim the fact that some of them covered their hair due to pressure from their families. When the country banned the burqa (a step that Germany is now considering emulating), it could at least point to the fact that the full-body covering could conceivably pose a security risk. No such thin veneer of liberal neutrality was available for the burkini ban. The illiberal venom that lurked behind many of the previous restrictions on France’s Muslims was finally out in the open.

That helps to explain why the Conseil d’État, France’s highest court — which is usually much more circumspect about interfering in the political process than the Supreme Court of the United States — struck down the burkini ban in the clearest terms on Friday. The municipal ordinances, it ruled, “seriously, and clearly illegally, breached … fundamental freedoms.”

In the short run, this is a cause for celebration. The burkini ban was discriminatory, counterproductive, and needlessly cruel. The court’s judgment makes French laws more humane, consistent, and liberal.

And yet, the judgment reveals a much wider tension that will shape Western societies long after we have forgotten all about the burkini. Because of a mix of economic anxiety, growing fears about terrorism, and an unwillingness to accept ethnic and religious minorities as true equals, illiberal passions are growing more intense in many democracies. The widespread French support for the burkini ban is only the latest in a string of similar findings: Across Europe and in the United States, majorities favor real restrictions on the religious liberties of unpopular minorities and are increasingly open to discriminatory immigration policies.

Political elites in the most liberal democracies will therefore face more and more dramatic versions of the choice faced by France’s constitutional court: They can either heed the anger of their constituents — turning their countries into places where the people rule but individual rights are regularly violated. Or they can insulate the political system from the views of the people by giving more and more power to unelected institutions like constitutional courts, independent bureaucratic institutions, or international organizations — turning their countries into places where individual rights are upheld but the views of the people go ignored. One way or the other, liberal democracy is increasingly under siege. Over the next few years, it is likely to decompose into its constitutive elements, facing us with a tragic choice between illiberal democracy (or democracy without rights) and undemocratic liberalism (or rights without democracy).

For all of its perniciousness, the temporary ban on the burkini had a comic side; in part because the immediate stakes were comparatively small, it was a perfect way for journalists to fill the dead days of summer. And yet the fall and rise of the burkini also hints at a truth that is at the heart of the political conflicts that will define our era. As restive voters become more willing to embrace discriminatory policies, we may eventually be forced to choose between two of our most fundamental values — individual rights and the collective will.

Photo credit: FADEL SENNA via Getty Images