Constitutionality of French Face-Covering Law Upheld

The Conseil Constitutionnel, France’s Constitutional Court, handed down its ruling yesterday on the constitutionality of the legislative prohibition on the wearing, in public space, of “any dress intended to cover the face” . This does not directly refer, but is nonetheless broadly intended as encompassing, the Islamic burqa and niqab – the objects of much polemic in France over the past year. The prohibition is wider than that recommended by the Gerin commission report which had recommended a partial ban in schools, public transport, etc; furthermore, the validation of the Conseil Constitutionnel comes despite the earlier warning by the Conseil d’Etat, in its advisory capacity, that any such general prohibition might contravene the Constitution as well as the ECHR.

The law had been referred to the Conseil by the Presidents of the National Assembly and Senate.  It defines “public space” as “public paths and roads as well as places open to the public, and used for public services.” It also provides in Article 3 that the prohibition does not apply to dress “justified by health or professional reasons, used in the context of sporting practices, for festivals, or for artistic and traditional displays.”  The Conseil referred to the legitimate public order restraints that could be imposed on the manifestation of religious beliefs within the terms of the 1789 Declaration of the Rights of Man and of the Citizen (which has constitutional force). It also referred to the values of gender equality recognised in the preamble to the Constitution of the Fourth Republic (which also has constitutional force). It recognised that women wearing the veil “voluntarily or otherwise” might be placed in a position of “exclusion or inferiority incompatible with constitutional principles of liberty and equality”, and that the legislator had proportionately regulated a potential threat to public order. Finally, it expressed one reserve or proviso to its decision: the law could not be interpreted as applying to “places of worship open to the public.”

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