Washington D.C. – There has been some hysteria surrounding the recent election of Donald Trump and the future of Muslims in the United States.
One of the questions being asked is if the United States can ban Muslims from wearing religious garb and more specifically if women can be banned from wearing hijabs, niqabs, and burqas.
Many Moroccans are more familiar with the French legal system than they are with the American legal system and while the bans on Muslim garb in France and several countries in Europe may be alarming, there are some key differences in the United States that are reassuring.
One huge difference is that a cornerstone of the French Republic is secularism, while that cornerstone in the United States is replaced with religious freedom. Europeans originally came to the Americas to escape religious persecution in Europe. The struggles these people faced in Europe resulted in the establishment of strong religious freedom rights in the United States that are now a core principle of our democracy.
There are several ways an individual can challenge a restriction on religious clothing but I will focus on the two most notable religious freedom protections that Americans have. These are the First Amendment, which I will analyze in this piece, and the Religious Freedom Restoration Act, which I will analyze in a subsequent piece. The jurisprudence on religious freedom in the United States is extensive. I cannot present every possible scenario and legal options and outcomes will change from jurisdiction to jurisdiction. This piece is meant to be a general overview to help further understanding.
The First Amendment Free Exercise Clause of the United States Constitution establishes the freedom to believe and the freedom to act upon that belief. The freedom to believe is absolute. There are no restrictions whatsoever on what a person can believe in the United States. However, the freedom to act upon that belief is not necessarily absolute. There are a few questions that must be answered before the government can restrict certain activity. Is the religious belief sincerely held? Is the law that restricts the exercise of religion generally applicable? Is it facially neutral and does it implicate religion? As you will see below, if a law specifically bans Muslim garb, it will be subject to the strict scrutiny test in which the government must show a compelling interest in having the law and that the law is narrowly tailored to achieving the specified goal.
The most current jurisprudence on this comes from the case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah. In this case the City of Hialeah passed an ordinance banning the ritualistic sacrifice of animals citing public health and animal cruelty concerns. The Church of the Lukumi Babalu Aye is a church that practices Santeria and sacrifices animals in their religious ceremonies.
After the ordinance banned this practice, the church sued the city to challenge the constitutionality of the ordinance and won the suit in the United States Supreme Court. The Court said that the ordinance was not neutral because it used the terms “ritual” and “sacrifice” which are terms that implicate religion. If the city were to prevail on the use of the term “ritual sacrifice” it would have to show a compelling state interest and that the law is narrowly tailored to override the unconstitutional use of the term. The city could not show that it had a compelling state interest in preventing animal sacrifices and the Court invalidated the ordinance as unconstitutional under the Free Exercise Clause of the First Amendment. The court went further to say that the ordinance was not generally applicable either because the ordinance only banned religious animal slaughter while still allowing animal slaughter of other types, for example, slaughtering animals for food.
The precedent established by this case is applicable to a ban on Muslim religious garb as well. Let’s say that New York City passes an ordinance that explicitly prohibits anyone from wearing a burqa or a niqab with the goal of encouraging the idea of “living together,” which was the reason the European Court of Human Rights upheld the law the effectively banned burqas and niqabs in France.
This hypothetical New York law would certainly be struck down because it is not neutral at all. The law specifically placed a ban on “burqas” and “niqabs.” This undoubtedly implicates religion so if the law had any hope of being upheld, the city would have to show that it has a compelling interest in banning these pieces of clothing and that the law was narrowly tailored. There is no conceivable legitimate reason for the city to enforce a blanket ban on burqas or niqabs, so the court would not uphold a ban that specifically singled out burqas or niqabs.
A ban like this would also fail the generally applicable test because the law does not ban face coverings of other types. A ban on burqas or niqabs would only be applicable to Muslim women and would not apply to people wearing face coverings of other types. This is the type of law that the First Amendment is meant to protect against.
The bottom line is that you will never see a law in the United States that says anything like “Burqas, niqabs, hijabs, and all types of Islamic garb are prohibited.” The Constitution of the United States protects religious freedom for all people within the territorial United States of all religions, including Islam.
However, if a city really wanted to prevent Muslim women from wearing burqas or niqabs, they would issue an ordinance banning face coverings of any type for all people, not just Islamic garb for Muslim women, much like the law that was passed in France effectively banning burqas and niqabs. This is where the Religious Freedom Restoration Act (RFRA) comes into play. A law like this would not be allowed to apply to religious clothing in the United States because of RFRA, and I explain why in my next piece.
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