French Court lifts Municipal Burkini Ban; & Why should you care what other people wear?

By Juan Cole | (Informed Comment) | – –

Nicolas Cadène, in an interview at L’Express analyzes the French court ruling issued Friday that struck down the ban by the mayor of Villeneuve-Loubet on Muslim women wearing modest clothing at the public beach. The ban was on the burkini, invented by a Lebanese fashion designer to allow observant Muslim women to go to the beach with their families. But women wearing loose street clothes at the beach have also been bothered by police.

Cadène is a rapporteur at the “Secularism Watchdog” (l’Observatoire de la laïcité), a Ministry of Education body that advises the French government on the implementation of the secularism provisions of the French constitution.

The Counsel of State found that wearing a Burkini creates no trouble for public order and is simply not illegal in current French law. In response, the French right wing has demanded that the National Assembly enact anti-Burkini legislation. L’Express worries that the French executive, or at least the ministry of interior, might be inclined to appease the Islamophobic and anti-immigrant right wing on this issue.

L’Express asked Cadène for his reaction. He said he wasn’t surprised and was very pleased that the court had upheld rights in such a clear way. He said that the court had reaffirmed the principle that secularism cannot be invoked to forbid wearing a piece of clothing in a public space, which creates no actual difficulty with regard to public order. And they found that the Burkini doesn’t generate any such disturbances.

L’Express pointed out that the logic of rights is not particularly visible in the realm of politics, since several members of parliament have already called for anti-Burkini legislation.

Cadène said that it is disquieting to see these reactions. He pointed out that August 26, the date of the verdict, is the anniversary of the 1789 Declaration of the Rights of Man. Article 10 says, “10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” He said the members of the National Assembly just are not reacting in accordance with the Rights of Man, which has constitutional force.

L’Express pointed out that the court did not address the question of whether the Burkini is “ostentatious” or not.

Cadène said that “ostentation” is a political judgment, not a legal one, and there are no laws forbidding it.

He instanced only three pieces of French legislation that observers have attempted to relate to this case, and dismissed all three as irrelevant.

There is the 2004 ban on wearing religious paraphernalia in K-12 schools. There, the rationale is to protect minors from any sort of pressure, so as to allow them to study in peace. He implied that such a rationale could not be invoked with regard to adults in public spaces.

There is also a prohibition on clothing that covers the face, but this provision, he said, is simply a matter of security, since it prevents the identification of the person who wears it. Again, this issue does not arise with regard to the Burkini, since it leaves the face bare.

He added that, third, government officials must avoid expressing their religious opinions. But this prohibition came about because they are representatives of the state and so must be neutral.

L’Express pointed out that some commenters look at the issue in the frame of women’s rights, seeing this beachwear as retrograde, and wanted to know if this debate can be pursued in the wake of the ruling.

Cadène said that the decision has affirmed the law that is in effect. It doesn’t forbid debating ideas. It should be decided whether this clothing is retrograde for the condition of women. But in a state based on the law, you can’t just prohibit things you don’t like with no legal basis.

I think Cadène’s location of choice of clothing as an expression of one’s opinion, and therefore protected under Article 10, is brilliant. In the US, this sort of issue would likely be decided in the light of our First Amendment.

Government laws dictating how people dress are called “sumptuary laws.” Although some delegates to the US constitutional convention wanted to specify such laws as a prerogative of the federal government, in the end they did not. (Some wanted to forbid aristocratic dress inappropriate to a republic). In the end, the federal government doesn’t have any right to tell us how we can dress. Local governments often pass decency legislation, but those laws typically mandate that people cover up, not that they uncover.

The French mayor wanted to make French women wear revealing bathing suits on the grounds that they are republican and secular, whereas Burkinis or loose street clothes on the beach are an ostentatious sign of a woman being pious and religious– inappropriate in the public spaces of a republic. This attitude comes out of the French conception of laïcité or secularism, which isn’t like the American. French in the strong republican tradition see religion as a little like we now view smoking, as something that is probably bad for people and which should be discouraged, but which is too popular to be banned. So banning a Burkini for the public good would be viewed by them as like banning cigarettes in public. But there are real problems with giving the state the right to regulate what is essentially a manifestation of private opinions on the part of a citizen, as was pointed out above.

Sometimes Islamophobic conservatives express outrage that Western progressives support Muslim rights that the conservatives want to curb. But progressives also support Sikhs, Haredi Jews and others who want to be different, as long as their being different doesn’t harm anyone. (Thus, Sikh construction workers have to wear a hard hat or they would cost everyone a lot of money in health care; and Haredi bus drivers can’t exclude women or girls because that would be a form of discrimination and a tort). The reason progressives support these groups is that we believe being different is an extension of the First Amendment. Conservatives have passed a raft of state and federal laws protecting religious groups from government interference, but they define religion as only evangelical Christians and they ignore the issue of actual harm religious practices can do (thus business people claimed the right not to serve African-Americans on religious grounds back in the 1960s and 1970s). In short, the progressive position is principled, the conservative one hypocritical and arbitrary.

Let me also point out that the French Third Republic was founded in 1870, and that this swimsuit for women was proposed in 1893 in the French specialty publication, the Fashion Monitor (Le Moniteur de la mode : journal du grande monde):


And here’s Edouard Manet, “On the Beach,” 1873:

You can say that wearers of Burkinis are harking back to early days of the Third Republic. You can’t say they are behaving in unprecedented ways for citizens of the Republic.

28 Responses

    • Yes, the swimsuit shown was the proper attire in the 1890’s, but there were already women going to the beach and shown in the fashion magazines wearing much less, and causing an uproar.
      Perhaps more to the point, Catholic nuns can go to the beach in their modest and overdressed nun clothes, so why can’t other women choose to do the same? This is what makes the French look not only racist, but ridiculous too. I have lived in France many times, and this is beginning to remind me of a rerun of the Dreyfus Affair and its anti-semitism; now instead of Jews it’s Muslim women. As Marx says, the first time it’s tragedy, the second time it’s farce.

  1. I personally loathe religion but does this give me the right to demand that people who wear a crucifix around their neck should take it off because it offends me? I cannot imagine why anyone would care what someone else is wearing. One should always be careful what powers you give the state as you might get what you wish for and regret it. Logically, if its just the clothing that’s at issue, then those participating in sub-aqua sports have got a problem.

  2. Thanks Juan. I live in France and am amused by the “secular” State with Holy Day holidays all over the place (Ascension, Assomption etc), feast days of Christian saints EVERY DAY on all the calendars. I know people in this country area who probably have never met a Muslim socially yet claim fear!
    With PM Valls a diehard Zionist and all of the Parliament rather pro-Israel, there is plenty of room for Islamophobia, but this instance shows how ridiculous has been this response, and it is great to see the Court agree.

    • Great column by Juan. And this comment has some good points about the hypocrisies of French secularism. But a clarification is in order: being Zionist does not mean one is Islamophobic. Many of us are not. I write about the dangers of Islamophobia. For me Zionism is defense of the basic right of the Jewish people to a sovereign state with a Jewish identity in a portion of historic Palestine. That is the strict definition of political Zionism. The fact that some have distorted it beyond recognition doesn’t mean that all Zionists should be lumped in with them. Plenty of us are very critical of the Israeli Occupation and defensive of the rights of Muslims. And that includes plenty of people in France.

  3. Stating that ‘wearers of burkinis are harking back to early days of the Third Republic’ is like saying that slave traders are harking back to the early days of the United States.
    Regardless of the subject, just because a certain behaviour has precedent does not lend it any legimacy, nor does it mean that it’s either wanted or beneficial. Pertinent to the covering of one’s body, it is exactly because France has left this culture behind that backlash against the burkini is so fierce.

    That being said, most of us Europeans are very much in favor of freedom of dress, that is very few people feel that we should ban the wearing of any clothing bar those that inhibit normal human interaction such as veils and balaclavas.

    However, the burkini is such a symbolic case because it confronts people with the fact that having finally managed to break free from their own religion (catholicism), here comes a whole new group of people who want nothing of the sort, in fact quite the opposite.
    I must say that the smoking analogy in this article is pretty spot on. Imagine a smoker lighting a cigarette in a crowded restaurant’s garden, or a mother smoking while driving her children to school. None of these are illegal, yet the average reaction closely mirrors the sentiment that is felt towards overt manifestations of religion. And in Europe’s case that religion happens to be Islam.

    For me, if a woman wants to wear a symbol of a patriarchal system of oppression as a form of piety, I completely respect her right to choose. But that doesn’t mean I have respect her choice, or the system that it represents.

    • Freely wearing a certain type of swim-wear is equivalent to buying and selling human beings – and treating them as one’s ‘possessions’ – to buy/sell, beat, thrash, put to work, breed etc etc ?

      That alone illustrates the vapidity of your arguments.

      It is *your* opinion – and only that – that a ‘burkini’ is a symbol of a “patriarchal system of oppression” – in fact, a ‘burkini’ is nowhere mandated in the Islamic codes. At best, you could argue that it’s an attempt to some how map the burka to a ‘swimwear’ version. But that is already a violation of the received tradition. Also, Muslim women have minds of their own, and might have their own independent doctrinal justifications to wear ‘burkinis’ as and when they wish – without your personal interpretations of adhering to ‘patriarchal oppression etc’ automatically over-riding their views. This is something you would need to debate with them – not assume as proven in your favour.

      Finally, it’s simply silly to think that the ‘bikini’ is automatically a sign of freedom from ‘patriarchal oppression’. Plenty of feminist thought views such beachwear, and other fashion, as the work of commercial forces and implicit patriarchy forcing women into conforming to ‘fit-in’, developing unrealistic body-image, and goading women and girls into acting as ‘objects’ of male attraction.

  4. John Fullerton

    It’s not really the burkini of course, it is the statement it makes. Why? Why does a dog bark? Humans are not exalted, God knows.

  5. Bob Spencer

    Kinda amazing that assimilation is a critical issue, but the French repel people when they need to be recruiting.

  6. The inner reality of women told to wear in a certain way in countries, like Saudi Arabia and Iran, and France, is the same: They are TOLD to dress up in a certain way!

    The outer forms may be different, but the inner meaning is still the same.

    It’s sad to see the Iranization and Saudification of France.

    It’s secularism gone bad. It’s now neo-anti-Islam-Secularism, not secularism, meaning the governments staying out of people’s religions, and freedom of religion.

    The Royal Canadian Mounted Police (RCMP) allows Muslim women to wear the hijab.

    France can learn from Canada, that allowing Muslim women to cover their heads does not damage secularism.

    My suspicion is that those who support the banning of head covering do so because of two primary reasons:

    1. Anti-Islam sentiments.
    2. Colonial tendencies, which cause a sense of superiority, and a desire for control.

    The idea that Muslim women are universally pressured by Muslim men to cover is invalid.

    While there is some truth to it, it’s also the case that many, many women actually CHOOSE to dress modestly on their own, often against the wishes of their male relatives and husbands.

    It is incorrect to give covering up a negative meaning and assume that it is the same meaning ALL Muslim women give to their attires.

    So if someone thinks that the covering of hair, or even the face, is a symbol of oppression, it does not mean that others give it the same meaning.

    One might disagree with it, but it is possible that a woman is covering up because she associates it with modesty and her commitment to the Cosmic Consciousness/Reality.

    Same outer form, but two opposite inner meanings associated with it.

    Which is why, these things are a personal matter, in which the state should not interfere; the state should not associate an inner meaning to an outer form and impose it on everyone.

    One needs to look at the inner meanings of outer forms, and see unity in diversity.

    In some religions, men would take off their hats in religious places, while in others men would cover their heads.

    Two opposite outer forms, but they both have the same inner meaning to the adherents of these religions.

    Therefore, inter-faith dialogue is very important, so people develop a good understanding of the inner meanings of each other’s faiths and practices.

    Another thing: The Burkini is actually not considered Islamic by many conservative Muslims who live in Muslim majority countries.

    It is actually a manifestation of progressive trends within Islam in the West that want to integrate without compromising too much of their religious traditions.

    So to associate it with extremism is incorrect.

    Moreover, the Burkini has allowed many women to participate in activities in which they’d otherwise not participate.

    And to learn how to swim can be life-saving.

    So it is ironic that on one hand some non-Muslim Westerners want Muslims to integrate, while at the same time discouraging integration.

    The most amusing, and silly, part of this ban is that full-body sweat suits are allowed, and some of the policemen who forced a woman to uncover were fully clothed. Shouldn’t they have gone to that beach half-naked?

    Also, what if a Muslim woman went to the beach dressed up like a nun? Would that be allowed?

    Something tells me it wouldn’t be, since the ban is exclusively for the Muslims.

    My hope is that humanity will someday rise in its collective consciousness and will empower women to make her own choices.

  7. I am a Muslim female practicing attorney who is admitted to the bar in two states, one being New York, which is considered one of the hardest bar exams to pass in the United States. I am accomplished. As is my husband, a Muslim man.

    And I enjoy wearing both hijab and Burkini with PRIDE.

    I feel that I should correct a lot of the hurtful comments I see on supposedly liberal newspaper websites.

    As for the argument that France should not allow Burkini if Saudi Arabia doesn’t allow bikini, I would like to ask those individuals if they have ever travelled to the Middle East. In 2010 in YEMEN I saw Russian women in bikinis at the public beach. Women may also swim in bikinis in Morrocco, Lebanon, Indonesia and a ton of other countries.

    And what type of nonsensical argument is this? Do we wish to become like Saudi Arabia now? Saudi Arabi is not a model country – never has it been and never will it be. They have Mecca and Medina. That’s it. Saudi Arabia is also not going around the world and preaching about its exemplary human rights practices – but we see France doing so. Speaking of which, has France ever apologized for the colonization and war in Algeria?

    As for the example that even women who claim to choose Burkini are still brainwashed, imagine this– a person converting to Islam– her choice, without at the time having any family or friends who were Muslim- and finding the hijab to be a source of religious pride mixed with letting go of vanity – a way to have control over showing one’s own body and destiny (that person would be me).

    For those who say it is demeaning to men, and it means that Muslim women think men can’t control themselves, I disagree and have faith in men. Women make these decisions with themselves in mind, not others. Please don’t jump to patronizing conclusions.

    For those who say men in Morrocco and Germany and elsewhere harass or abuse women more than other ethnic groups – that is a lie. I work with DV victims who come from all ethnicities and circumstances. Women also get harassed walking down the street in the US just as much as Morrocco and Egypt.

    For those who say that women should not HAVE to wear Burkini if men don’t, I say that your statement presupposes that women “have” to wear it – that there is some force or brainwashing at play. Further, if you travel to the Middle East, or have thoroughly done your research, you would know that men have a strict dress code as well. Whether they want to follow it is another story – but I can’t control what a man wears just as he can’t control what I wear. I have seen men on beaches in Yemen who usually do not take off their shirts or wear shorts – and if they do take off their shirts, they pull their swim trunks up over their belly button, which is seen as awra.
    Further, do people ask men in yarmulkes why they are oppressed and why their wives don’t wear them as well? Different religions have different customs.

    And finally, for those who call it a blanket, bulky or any other demeaning names or even say it is a hygiene issue– that is highly offensive and untrue. Burkini is no different than a wet suit with a swimming cap. The Burkini I have is made of special material that dries within 5 minutes after getting out of the water. I do not feel hot in it (but even if I did, so what? It’s MY choice). It also does not present a safety risk as far as drowning, anymore than a wet suit would. I also LOVE how when a huge wave comes, I don’t have to worry about any of my body parts falling out the way it would happen with a bikini (I know women know what I mean).

    And last but not last, I would never EVER denigrate someone’s religion, whether Jewish, Buddhist, Atheist, Hindu, Christian, etc., the way people have done to mine.

    I love people and their religions. I smile when I see Jewish people walking on Saturdays instead of taking the car out because I know we all have a common bond and they believe as strongly in their faith as I do mine.

    Please respect one another and get to know one another. We are all eccentric and do not fit into neat little stereotypes.

    I will leave you with a quote: “We must respect all religions, for every human must get to heaven his/her own way.”

  8. At first, I thought this almost humorous-the French police enforcing a fashion law. Fashionista fascists, anyone?
    One stereotype of the French is reinforced: The French are fashion-obsessed.

    Laws against the Burkini also bring another French stereotype to life, the stereotype that French men are sex-obsessed. That is the conclusion I draw from a law that women have to be almost unclothed at the beach.

    It’s reminiscent of the US silliness that led to “Freedom Fries.” Which reinforced an American stereotype, that we obsess on fast food.

  9. Such a clothing ban is also difficult to enforce. How is a police officer supposed to determine that he can’t fine one woman because her covering is for sun protection, but he should fine another woman because her covering is to indicate that she is pious?

    If overt religious reference in public is considered wrong, then the officer must go after the covered-up Amish tourist as well as the French Muslim citizen.

    Go look at the sun protective swimwear at this website: link to A woman could wear the swim shirt, the skirted swim leggings, and either the shade cap with cross over drape or the headkini–all outfits not designed for religious expression but for sun protection–and meet the requirements for conservative Islamic dress.

    I live in Southern California, and I see far more runners and swimmers who cover up because they don’t want their skin to look like an old leather bag splotched with stains, and they don’t want skin cancer.

    Imagine the police officer harassing someone whose body was burn-scarred or who had skin cancer all because he thought her clothing looked like an Islamic burkini!

    The police have better things to do with their time than force women on the beach to take off their cover-ups. I think most of the French would prefer that their police were apprehending murderous terrorists.

  10. So Sarkozy and ilk thinks the Burqini ™ is a “provocation” and represents some hypothetical regression to a nasty past.

    That’s quite something for a piece of clothing which was developed in Australia so that, according to the designer “I wanted to make sure we blended in with the Australian lifestyle.”

    link to

    The argument should basically end there.

    This is a practical compromise that is probably actually healthier for wearers than the modern French passion for expressing oneself semi naked.

    France has ~1800 deaths by skin cancer every year.

    In any case, it doesn’t take very long to find pictures of crypto-Islamists like Bridgette Bardot, Catherine Deneuve and Grace Kelly sporting head scarves or that subversive Jacques Cousteau and his garb to make swimming more tolerable. Apparently, what these clothes symbolize depends on who is wearing them!

  11. We need to lighten the frock up!

    Ebbing Flowing Darkly Inky Controversial Black Burkini

    She was delayed when she came to the water
    She was disturbing to those who could see
    She was delayed when she came to the water
    She was delayed by the powers that be
    Du, twa, qua–no more ooh in ooh la la!

    It was an ebbing flowing darkly inky controversial black Burkini
    That she wore to la mer on that day
    An ebbing flowing darkly inky controversial black Burkini
    Down on the sand where she started to lay
    Du, twa, qua–oh mon dieu, no ooh la la!

    She was unafraid to be out in the open
    Some people snickered, crying “ha ha”
    Unafraid to be out in the open
    Only she could see what she saw
    Du, twa, qua–no more ooh in ooh la la!

    It was an ebbing flowing darkly inky controversial black Burkini
    That she wore to la mer on that day
    An ebbing flowing darkly inky controversial black Burkini
    Down on the sand where she started to lay
    Du, twa, qua–oh mon dieu, no ooh la la!

    She’s like a seal having fun in the water
    The surfers are eyeing her keen
    Just like a seal having fun in the water
    On the front page of Surf Magazine!
    Du, twa, qua–no more ooh in ooh la la!

    It was an ebbing flowing darkly inky controversial black Burkini
    That she wore to la mer on that day
    An ebbing flowing darkly inky controversial black Burkini
    Down on the sand where she started to lay
    Du, twa, qua–oh mon dieu, no ooh la la!

    (plus ça change)
    Let’s go surfing now!
    Everybody’s learning how
    Come and wear Burkinis with me!
    Come and wear Burkinis with me!

  12. The simple truth is that modern French society is classist, elitist, and racist. Over the door of thousands of government buildings is emblazoned the motto “Liberté, Égalité, Fraternité” (freedom, equality, brotherhood). The truth is that the “Republican principle of laïcité (secularism), which is supposed to make the State neutral in its laws and administration, has been perverted into a State religion that would compel all people to be its votaries, except when they are closeted in their homes. When police officers surround a woman on the beach and force her to remove her burkini, which is no more offensive than the wet suit worn by surfers or the traditional habit worn by some nuns when they wade in the surf, where is the freedom, equality and fraternity?

    The current Constitution includes the Declaration of the Rights of Man (1789) and therefore says:

    “La France est une République indivisible, laïque, démocratique et sociale. Elle assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances.” (France is an indivisible, secular, democratic and social Republic. It guarantees equality before the Law for all its citizens, with no distinction on account of origin, race or religion. It respect all [religious ] beliefs.)

    That is the hypocrisy of modern France. The principles are clear and enshrined in law, but they are flouted and scorned by both the people and the government.

    As La Bruyère wrote long ago: “Le voile de la modestie couvre le mérite, et le masque de l’hypocrisie cache la malignité.” (The veil of modesty cloaks merit, and the mask of hypocrisy hides malice.)

  13. As if this French Mayor and other supporters want to require women beach goers to reveal breast and butts. What would they call it pro show tit s and ass law? So arrogant, anti choice . You know “retrograde”.

  14. I believe the most unattractive apparel any human being can wear anywhere is a chip on his or her shoulder.

  15. The worldview that would “liberate ” Muslim women from the Burkina is the same worldview that “freed” French sex workers by criminalizing paying for sex. Whether your too pious or too libertine, the state must rescue you from men, like it or not.

  16. Why are the French lovers of fashion — and well known for a favourable multicultural attitude are dead against the burkini.

    A Sikh professor tweeted a comparison of the banned burkini with the utterly accepted wet-suit..
    “If you agree, we must enact a #BurkiniBan to keep us safe, than you’ll agree that wetsuits definitely #MustBeBanned” Simran Jeet Singh@SikhPro

    Human rights activist Ken Roth posted a picture of nuns frolicking in the surf in their habits ( traditional nuns dress) and wondered if they too, would be banned.

    Why do the French hate the Muslim women’s attire? Can not they agree to disagree on the cultural diversity of immigrants?

    Why do the French expect immigrants to abandon cultural symbols of difference? —

    The nuns are white French women so their habits(covering) are OK but burkinis are something to do with Islam and so NOT OK?
    But after all, all religious laws are based on cultures acceptable by the and for the God’s messengers, or prophets such as David, Solomon, Jacob, Joseph, Moses, Jesus and Muhammad
    (peace on them)

    No religious culture propagated, amplified and advocated by a God’s messenger allowed women not to cover their breasts or genitals.

    If any culture allows (allowed) that, then God-consciously talking, that culture is (was) outside the receivers of the divine messenger or they changed and nullified the teachings of the God chosen messengers.

    So garments of both men and women are something to do with the Islamic jurisprudence.

    French politicians security argument is completely bogus. This is 100% about electoral politics, an incomprehensible nonsense

    This is taking blaming the victim to new lengths.

    The Paris Mayor initially said he did not mean to ban “the veil, the kippa or the cross.”

    He said that other than the burkini, the only swim garb that might prompt an arrest was an Indian sari, because it could interfere with a life-guard’s rescue efforts!
    Let him go to Varanasi, where he can see hundreds of women bathing, and indeed modestly changing their saris, without any apparent risk of drowning.

    Intelligent people wonder what he would do if someone complained that a topless bathing suit was not reflective of “good morals.”

  17. Is this farcial “Burkini” thing being raised to cover-up something far more serious in France :

    The French company that won the bid to design Australia’s new $50 billion submarine fleet has suffered a massive leak of secret documents, raising fears about the future security of top-secret data on the navy’s future fleet.

    link to

    The leak will spark grave concern in Australia and especially in the US where senior navy officials have privately expressed fears about the security of top-secret data entrusted to France.

    In April DCNS, which is two-thirds owned by the French government, won the hotly contested bid over Germany and Japan to design 12 new submarines for Australia. Its proposed submarine for Australia — the yet-to-be-built Shortfin Barracuda — was chosen ahead of its rivals because it was considered to be the quietest in the water, making it perfectly suited to intelligence-gathering operations against China and others in the ­region.

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