Conseil d’État rejects proposed prohibition of burqa, niqab

The French Conseil d’État, in its capacity as advisory body rather than as administrative court of final appeal, yesterday issued a lengthy report, on the request of the Prime Minister, on the “legal possibilities surrounding the prohibition of the full veil.” This follows controversy and debate in France in recent months surrounding the wearing of the burqa in particular, the publication of the Gerin parliamentary report in January, and the report today that Belgium appears likely to become the first European state to legislate on this issue. In a measured, comprehensive and nuanced report, the Conseil concluded, somewhat predictably, that an outright prohibition on the wearing of the full Islamic veil would like contravene a number of provisions of the French Constitution as well as the European Convention on Human Rights (the report is published online here and the very useful summary here; it is unlikely, however, that either will receive an official translation into English).

France’s Héran report on racial and ethnic statistics

France’s Committee on the Assessment of Diversity and Discriminations (Comedd) issued its report on ethnic statistics last week, stating that legislative reform is not needed in order to permit the State to better assess and combat discriminations on racial and other grounds in various contexts. Le Monde noted that “the defenders of the single and indivisible Republic had rejected the idea that distinctions could be made between French citizens on the basis of their ethnic origins. They were opposed by those who believed that discrimination could only be combated through such distinctions.” The committee argued that statistical methods currently permitted under French law – such as the assessment persons’ origins on the basis of their nationality, parents’ nationality or country of birth – was sufficient in order to measure diversity and discrimination, as an alternative to the controversial use of ethnic and racial criteria in state censes.

Public education and migration: the patronage system under scrutiny

As the Irish Independent reported yesterday, the OECD “has proposed that the Government set up new state-run primary schools to better cater for the new multi-ethnic pupil population.” In its review of migrant education in Ireland, published in December 2009, the organisation observed: “the Irish authorities should consider creating net new capacity and re-deploying existing capacity through this channel [of multidenominational schools].” Furthermore, it notes: “a new model of primary school patronage, under the VEC structure, catering for children of all beliefs and none, reflecting the increasing diversity in this area, is currently in operation in two locations in Dublin.”

The system of educational patronage, through which the public education function in Ireland has historically been delegated to bodies owned by, and operated according to the ethos of the religious denominations prevailing in particular areas, has been the subject or renewed contestation since the publication of the Ryan and Murphy reports in particular. Although the State remains formally neutral in law between different religious denominations, most notably in the Education Act 1998, which gives legislative status to school “patrons” – to whom boards of management are accountable for the upholding of the ethos or “characteristic spirit” of schools – Ireland nonetheless has a de facto hegemony of Catholic-ethos schools, with parents in many areas of the State having little choice but to avail of these. For recent commentary on the patronage system from the standpoint of the republican premise of non-domination, see Tom Hickey’s recent post on this site.

Hickey on Religious Patronage of Irish Primary Schools and Republicanism

This guest post is contributed by Tom Hickey, a PhD candidate at the Law school, NUI Galway, under the supervision of  Prof. Gerry Quinn.  He attended Princeton University on a Visiting Student Research Collaborative Scheme in 2009, under the supervision of Prof. Philip Pettit, at the University Center for Human Values.

“The current management of schools is working exceptionally well. The patron is in place in terms of ethos but has nothing to do with the overall management of schools. That is the responsibility of the board of management.”

Minister for Education, Batt O‘Keeffe T.D., Dáil Éireann, December 2009.

The recently published Ryan and Murphy reports have suddenly brought the issue of the extent of religious patronage in the Irish primary school system into very sharp focus. Most of us involved in public discourse in Ireland are by now familiar with a statistic we may not have been familiar with six months ago: 92% of our primary schools are run by Catholic institutions. And despite the Minister’s assertion in the Dáil in early December, there seems a growing consensus that this is neither appropriate nor sustainable. Archbishop Diarmuid Martin has even suggested that the Church divest itself of control of at least some of the schools, and has described the current level of control a “near monopoly,” “untenable,” and a “historical hangover.” Indeed, the Archbishop went further and suggested that the present situation is “in many ways detrimental to the possibility of maintaining a true Catholic identity in Catholic schools,” a thought that should interest the many families across the state who still want this kind of education for their children.

Mass cards challenge fails

The High Court dismissed yesterday a challenge to s. 99 of the Charities Act 2009, which creates an offence of selling a Mass card “other than pursuant to an arrangement with a recognised person.” A “recognised person” is defined as a bishop, or a provincial of an order of priests recognised by the “Holy Catholic Apostolic and Roman Church.” The provision, giving legal effect to certain discriminations pertaining to clerical status within a particular church, and confining the sale of a religious product  to those authorised by certain authorities within that church, was challenged by a Longford retailer. While the written judgment is not yet available, early media reports have suggested that the ruling turned partly on the fact that the there was no evidence that the sale of pre-signed Mass cards constituted the profession or practice of his religion. More interestingly, McMenamin J. has apparently suggested that the State may justifiably lend its weight to a discrimination of status deriving from within Roman Catholicism. It is unclear, as of yet, whether the Court has dismissed the claim on the basis that the plaintiff, as a retailer, cannot rely on the rights of a hypothetical third party which might be engaged in the practice of religion in issuing an “unauthorised” mass card, or whether it does not believe that the rights of such a party would, in any case, be violated by the state’s buttressing of the internal rules of the church. More detailed analysis will follow once the judgment becomes available.

Swiss Minarets and Dubious Constructions of Religious Freedom

An interesting aspect of the Swiss ban on minaret construction is the surrounding discourse on the nature and scope of religious liberty rights. This conflict goes to the heart of the question of whether religious liberty is defined from the departure point of the recognised doctrinal requirements of religion itself, or whether it is defined independently of determinate doctrine, and relates instead to the question of whether legal rules incorporate religious criteria. Do lawyers care about the position of minarets within the Islamic religion, and if so, why? This mirrors, to an extent, the debate surrounding the question of various Islamic garments, the question of whether they are in fact a compulsory aspect of Islamic practice, and therefore, one line of argument goes, protected by religious freedom principles. In the Times (London), it was suggested by Taj Hargey last week, for example, that since the construction of minarets is not a compulsory or essential facet of Islamic religious practice, the Swiss ban does not contravene religious freedom principles.

While the response of the ECtHR to such arguments would undoubtedly be interesting, the expression of such views is significant for what it reveals of the prevailing way in which religious freedom is conceived, in intellectual, media, political and popular circles. In one sense, it is a more expansive conception of religious freedom principles than others because it defines religious freedom from the departure point of the requirements of religion itself – hence the term, grating and clumsy, of “religious rights.” On this view, religious freedom means the freedom to act as required by a particular, identifiable religious tradition, a conception which may be used to justify exemptions, legislative or judicially-imposed, from generally-applicable or “neutral” laws which are not directed at religion per se. For example, we might look to the accommodations extended to Sikh men wishing to incorporate turbans within public service uniforms in jurisdictions, such as the United Kingdom and Canada, which vaguely tend towards some conception of normative multiculturalism. Such accommodations of religious objections within the scope of secular, neutral laws, are generally refused in jurisdictions with principles of constitutional secularism.