Now that the debate’s well played out… Did you read the article in the OP?
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My favorite contemporary philosopher takes on the arguments underpinning burqa bans.
I edited the argument for length, and it was still too long, so I hid supporting arguments on various points in spoiler quotes for your convenience.
[quote=“NYT/ Martha Nussbaum: Veiled Threats?”]As it turns out, a long philosophical and legal tradition has reflected about similar matters.
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[color=#0000FF]…the framers of the United States Constitution concluded that protecting equal rights of conscience requires “free exercise” for all on a basis of equality. [/color] What does that really mean, and what limits might reasonably be placed upon religious activities in a pluralistic society? The philosophical architects of our legal tradition could easily see that when peace and safety are at stake, or the equal rights of others, some reasonable limits might be imposed on what people do in the name of religion. [color=#0000FF]But they grasped after a deeper and more principled rationale for these limits and protections.[/color]
Here the philosophical tradition splits. One strand, associated with another 17-century English philosopher, John Locke, holds that protecting equal liberty of conscience requires only two things: laws that do not penalize religious belief, and laws that are non-discriminatory about practices, applying the same laws to all in matters touching on religious activities. An example of a discriminatory law, said Locke, would be one making it illegal to speak Latin in a Church, but not restricting the use of Latin in schools. Obviously, the point of such a law would be to persecute Roman Catholics. But if a law is not persecutory in this way, it may stand, even though it may incidentally impose burdens on some religious activities more than on others. If people find that their conscience will not permit them to obey a certain law (regarding military service, say, or work days), they had better follow their conscience, says Locke, but they will have to pay the legal penalty.
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Another tradition, associated with Roger Williams, the founder of the colony of Rhode Island and the author of copious writings on religious freedom, holds that protection for conscience must be stronger than this. This tradition reasons that laws in a democracy are always made by majorities and will naturally embody majority ideas of convenience. Even if such laws are not persecutory in intent, they may turn out to be very unfair to minorities. In cases in which such laws burden liberty of conscience ─ for example by requiring people to testify in court on their holy day, or to perform military service that their religion forbids, or to abstain from the use of a drug required in their sacred ceremony ─ this tradition held that a special exemption, called an “accommodation,” should be given to the minority believer.
[color=#0000FF]On the whole, the accommodationist position has been dominant in U. S. law and public culture ─ ever since George Washington wrote a famous letter to the Quakers explaining that he would not require them to serve in the military because the “conscientious scruples of all men” deserve the greatest “delicacy and tenderness.” [/color]For a time, modern constitutional law in the U. S. applied an accommodationist standard, holding that government may not impose a “substantial burden” on a person’s “free exercise of religion” without a “compelling state interest” (of which peace and safety are obvious examples, though not the only ones).
[…]I believe that [color=#0000FF]the accommodationist principle is more adequate than Locke’s principle, because it reaches subtle forms of discrimination that are ubiquitous in majoritarian democratic life.[/color] It has its problems, however. One (emphasized by Justice Scalia, when he turned our constitutional jurisprudence toward the Lockean standard in 1990) is that it is difficult for judges to administer. Creating exemptions to general laws on a case by case basis struck Scalia as too chaotic, and beyond the competence of the judiciary. The other problem is that the accommodationist position has typically favored religion and disfavored other reasons people may have for seeking an exemption to general laws.
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[color=#0000FF]Five arguments are commonly made in favor of proposed bans.[/color] Let’s see whether they treat all citizens with equal respect. First, it is argued that [color=#0000FF]security[/color] requires people to show their faces when appearing in public places. A second, closely related, argument says that the kind of [color=#0000FF]transparency and reciprocity[/color] proper to relations between citizens is impeded by covering part of the face.
What is wrong with both of these arguments is that they are applied inconsistently.[…] What inspires fear and mistrust in Europe, clearly, is not covering per se, but Muslim covering.
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A third argument, very prominent today, is that the burqa is a [color=#0000FF]symbol of male domination[/color] that symbolizes the objectification of women (that they are being seen as mere objects). […]The first thing we should say about this argument is that the people who make it typically don’t know much about Islam and would have a hard time saying what symbolizes what in that religion. But the more glaring flaw in the argument is that society is suffused with symbols of male supremacy that treat women as objects. Sex magazines, nude photos, tight jeans — all of these products, arguably, treat women as objects, as do so many aspects of our media culture. And what about the “degrading prison” of plastic surgery? Every time I undress in the locker room of my gym, I see women bearing the scars of liposuction, tummy tucks, breast implants. Isn’t much of this done in order to conform to a male norm of female beauty that casts women as sex objects? Proponents of the burqa ban do not propose to ban all these objectifying practices. Indeed, they often participate in them. And banning all such practices on a basis of equality would be an intolerable invasion of liberty. Once again, then, [color=#0000FF]the opponents of the burqa are utterly inconsistent, betraying a fear of the different that is discriminatory and unworthy of a liberal democracy. The way to deal with sexism, in this case as in all, is by persuasion and example, not by removing liberty.[/color]
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A fourth argument holds that women wear the burqa only because they are [color=#0000FF]coerced[/color]. This is a rather implausible argument to make across the board, and it is typically made by people who have no idea what the circumstances of this or that individual woman are. [spoiler]We should reply that of course all forms of violence and physical coercion in the home are illegal already, and laws against domestic violence and abuse should be enforced much more zealously than they are. Do the arguers really believe that domestic violence is a peculiarly Muslim problem? If they do, they are dead wrong. […] There is no evidence that Muslim families have a disproportionate amount of such violence. Indeed, given the strong association between domestic violence and the abuse of alcohol, it seems at least plausible that observant Muslim families will turn out to have less of it.
Suppose there were evidence that the burqa was strongly associated, statistically, with violence against women. Could government could legitimately ban it on those grounds? The U. S. Supreme Court has held that nude dancing may be banned on account of its contingent association with crime, including crimes against women, but it is not clear that this holding was correct. […] What is most important, however, is that anyone proposing to ban the burqa must consider it together with these other cases, weigh the evidence, and take the consequences for their own cherished hobbies.
[…][/spoiler]
Finally, I’ve heard the argument that the burqa is per se [color=#0000FF]unhealthy, because it is hot and uncomfortable[/color]. (Not surprisingly, this argument is made in Spain.) This is perhaps the silliest of the arguments. […] But more pointedly, would the arguer really seek to ban all uncomfortable and possibly unhealthy female clothing? Wouldn’t we have to begin with high heels, delicious as they are? But no, high heels are associated with majority norms (and are a major Spanish export), so they draw no ire.
[color=#0000FF]All five arguments are discriminatory. We don’t even need to reach the delicate issue of religiously grounded accommodation to see that they are utterly unacceptable in a society committed to equal liberty. Equal respect for conscience requires us to reject them.[/color][/quote]
