Last month, the image of three police officers standing over a woman on the beach in Nice, supervising the removal of her “burkini” (a wetsuit-like swimming costume favored by some Muslim women), provoked great outrage over the bans of the garments in five French seaside towns. The criticisms have been several. The bans are conceived as a trespass against freedom of expression, guaranteed in that foundational document of the French political imagination, the Declaration of the Rights of Man and Citizen (1789). Others have seen the bans as manifestations of patriarchy or symptoms of Islamophobia in the West. In the United States, the bans have been labeled assaults on the freedom of religion.
The debate over the burkini strongly evokes the 2010 debate over the niqab (the veil that conceals everything but the eyes) in French public spaces. That debate—itself related to France’s earlier debate about the hijab in public schools—issued in a national ban. The ban was implemented over and against the advice of the Conseil d’État, which advised the niqab could not be said to represent a sufficient threat to “public order” to justify it. When the burkini ban was challenged last week, the Conseil d’État overturned it, citing similar considerations. (The Conseil d’État has the power to nullify administrative actions but can only issue advisory opinions vis-à-vis legislation.) And yet the niqab ban persists: when it was challenged before the European Court of Human Rights in 2014, that Court allowed it to stand.