Washington D.C. - There has been discussion since the election about the possibility of a ban on burqas and niqabs, but as the religious freedom laws in the United States stand now, this cannot happen.
Washington D.C. – There has been discussion since the election about the possibility of a ban on burqas and niqabs, but as the religious freedom laws in the United States stand now, this cannot happen.
There have been alarming rollbacks of religious freedom in Europe, especially with Angela Merkel’s recent comments about banning burqas in Germany, but this is unlikely to ever happen in the United States.
My last piece focused on the protections the First Amendment of the United States Constitution gives to burqas and niqabs, and this piece focuses on the protections afforded by the Religious Freedom Restoration Act (RFRA) and gives a simple analysis of the law. RFRA is a statute that can technically be changed by Congress at any time, but both the House of Representatives and the Senate passed it with overwhelming support in 1993, and preserving religious freedom is very important in the United States across the political spectrum.
For the purpose of this article I am operating under the assumption that burqas and niqabs are religious clothing. Even if these garments originated as cultural clothing before the establishment of Islam, many Muslim women wear them today as an expression of their faith and sincerely held religiously based moral obligations. U.S. courts have never doubted that these garments are religious clothing. Even if burqas and niqabs are not considered to be religious clothing, the freedom of expression afforded by the U.S. Constitution gives clothing like this a great deal of protection.
The best protection that Muslims have against restrictions on religious garb is the Religious Freedom Restoration Act (RFRA). This is a federal statute and therefore only applies to the federal government, not state governments. If a state passes a law that is in conflict with religious freedom it would have to be challenged another way, but many states have very similar RFRA laws that work much like the federal RFRA statute. If a claimant finds herself in a state without a Religious Freedom Restoration Act her best course of action would be to make a claim under the First Amendment as I discussed in my last piece.
RFRA laws arguably give more protection to religious practice than the First Amendment does. RFRA works through a three-question analysis. First, you ask if the claimant has a substantial burden on a sincerely held belief. The claimant must have a sincerely held belief and that belief must be substantially burdened. The task of determining whether or not a belief is sincerely held is beyond the scope of this article, but for our purposes we can assume that the religious beliefs of any Muslim bringing a claim based on a restriction on clothing is sincere.
Determining if someone is substantially burdened is also complex but this is what many RFRA claims come down to. For a claimant to establish that there is a substantial burden, there must be proof that “a governmental regulatory mechanism burdens the adherent’s practice of his or her religion by pressuring him or her to commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates” (Warner v. City of Boca Raton, 887 So. 2d, 2004). If the claimant does not have a sincerely held belief or is not being substantially burdened, then the claimant loses.
If the claimant does have a sincerely held belief that is being substantially burdened, you move to the second question, which asks whether or not the government has a compelling interest in passing the law that burdens the claimant’s practice of their religion. A compelling interest of the government is typically something like health or safety. If the government has no compelling interest, then the claimant wins and the case is over.
If the government does have a compelling interest you move to the third question, which is whether or not the law is the least restrictive means for achieving the goal that the government had in mind when originally passing the law. In other words, you ask if there is a reasonable alternative that can be put in place to accomplish the same goal. If the answer is no and the court determines that the law is the least restrictive means of achieving the goal, then the claimant loses and the law is upheld. If the court determines that there is actually less restrictive means of achieving the goal, then the claimant will win.
When applying this to Islamic garb worn in the United States, the claimant will almost always win. Let’s say that the federal government imposes an anti-masking law and enforces it against Muslim women wearing burqas and niqabs. A woman wearing one of these garments who brings a claim will likely be able to show that her religion is substantially burdened because she is forced to choose between violating the law by covering her face or violating her religion by revealing her face. If for some reason the court decides that this is not a substantial burden, the claimant will lose, but a person in this kind of predicament is likely substantially burdened and will win on this first question.
If the court decides that this is a substantial burden, then the government has to demonstrate a compelling interest in preventing Muslim women from covering their faces. It is hard to imagine a great reason that the government has for this other than requiring the lifting of a veil at a border crossing or for law enforcement administrative procedures. The most likely justification the government would give for a face veil ban would be safety concerns. For safety reasons, it is possible that law enforcement may have a compelling interest in preventing people from covering their faces and hiding their identity in public. If the government cannot show a compelling interest like this, then the claimant wins, the case is over, and the law is struck down.
Let’s say that the government can show a compelling safety interest for the sake of completing the analysis. At this point, the government would have to show that there is no reasonable alternative law that would be less restrictive to Muslim women than a law that effectively bans burqas and niqabs. It is quite unlikely that there would not be a reasonable alternative to an outright ban.
For example, in the safety concern scenario outlined above, law enforcement officers, especially female officers, could make an effort to familiarize themselves with the women in burqas and niqabs in the neighborhoods they patrol. Recognizing these women might not be an impossible task considering the rarity of a woman wearing a burqa or niqab in the United States. This would eliminate any reasonable suspicion that officers would have when seeing someone with a veil because the officer would recognize the woman, thus eliminating the question of her identity.
If there were ever a safety concern with people wearing veils that resulted in a prohibition being passed, this is a much less burdensome solution that would allow the government to achieve its original goal. Of course, if the court finds that there is no other reasonable alternative to achieving the government’s goal, the statute will be upheld and the claimant will lose, but this is not likely to be the case with a law that effectively bans face veils.
Let’s discuss a situation in which a ban on burqas and niqabs would not be considered a substantial burden and would thus be upheld. In the case Freeman v. Department of Highway Safety and Motor Vehicles, a Muslim woman in Florida sued the Department of Highway Safety and Motor Vehicles under a RFRA claim after they invalidated her driver’s license because she was pictured with her veil on. The court ruled that a law requiring her to remove her veil briefly for a license photo to comply with a generally applicable law was not a substantial burden on her religion.
A law requiring Muslim women to lift their veils in order to have a picture taken for an official ID card would likely be upheld as not imposing a substantial burden. If for some reason it was ever considered a substantial burden, the law would likely still win on the second question of the compelling government interest because a license would not serve its purpose of allowing law enforcement to positively and official identify a person without a picture of their face. However, it would not be unreasonable for a Muslim woman to request that a female official identify her so she does not have to lift her veil for a man.
Apart from a few exceptions where a woman would have to lift her veil briefly, burqas and niqabs will not be banned in the United States. Religious freedom for all religions is a fundamental principle of the U.S. democracy and this is going to persevere through the Religious Freedom Restoration Act and the United States Constitution.
The views and opinions expressed in this article are those of the author and do not represent any institution or entity.
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