Freedom of Religion and Nondiscrimination on the Basis of Religion: Banning the Full-Face Veil
Sarah H. Cleveland*
What is, or should be, the relationship between claims of violations of the right to manifest one’s religion as a result of a generally applicable law or policy, and claims of indirect discrimination on grounds of religion?
The interrelationship of human rights protections is not a new question. Just as rights may conflict, rights may also overlap. The arrest of a human rights activist for expressing her views could violate both the prohibition against arbitrary detention and her freedom of expression. Excessive use of force against peaceful demonstrators could violate their rights to freedom of assembly, freedom of expression, security of the person, and the prohibition against torture and cruel, inhuman, or degrading treatment or punishment. Certain actions or inactions may implicate specific rights, such as the rights to language and culture, and to freedom of religion, opinion, or belief, and may also constitute discrimination on those same grounds. The relationship between closely related rights such as the freedoms of expression and assembly also may not be well elaborated because human rights courts and other bodies at times may, for reasons of economy, restraint, or institutional tradition, refrain from examining some claims once they have found violations of others.
In Yaker v. France and its companion case before the Human Rights Committee and in S.A.S. v. France before the European Court of Human Rights, the two bodies reached inconsistent conclusions regarding the compatibility of France’s ban on wearing the full-face veil (the niqab or burqa) in any public space with France’s obligations under the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights, respectively. The French law purported to be religiously neutral, in that it prohibited all apparel concealing the face. However, Article 2 of the law exempted from that prohibition a large number of face coverings other than the full-face veil, and in practice, the vast majority of the checks conducted under the Act involved Muslim women wearing the full veil. Sonia Yaker, who was twice subjected to criminal fines for wearing the niqab, and the claimant in S.A.S., who wished to wear the full veil without risk of sanction, separately challenged the Act as violating, inter alia, their right to manifest their religion and as indirect discrimination on grounds of religion.
Both the Court and the Committee recognized that by subjecting to criminal penalties the Muslim women claimants who chose to wear the full-face veil in public, the Act interfered with their ability to manifest their religion under Article 9 of the European Convention and Article 18 of the ICCPR, respectively. The two bodies diverged, however, in their application of the limitations provisions of those articles and the nondiscrimination provisions under the two treaties.
Manifestation of religion
Under the European Convention, the question to be addressed under Article 9 was whether the interference with S.A.S.’s manifestation of religion was compatible with the limitations provisions of Article 9(2). In other words, did the legal prescription pursue a legitimate aim set out in that clause and was it necessary in a democratic society to achieve that aim?
The Court apparently accepted France’s contention that the Act was neutral with respect to religion and applied generally to all clothing that covered the face. The Court did not address the Act’s numerous exceptions, including the applicant’s observation that the law expressly allowed for covering the face in traditional Christian festivals, but prevented a Muslim woman from covering her face even during Ramadan. The Court acknowledged that Islamophobic statements had been made during debates over the Act, and that the ban had mainly affected Muslim women who chose to wear the full veil. However, it emphasized that “the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face.”
The Court concluded that France’s stated aim of securing “respect for the minimum requirements of life in society,” or “living together,” by ensuring that the human face would be revealed in public, was “linked to the legitimate aim of the ‘protection of the rights and freedoms of others’” under Article 9(2). Applying a “wide margin of appreciation” with respect to manifestation of religion, and in light of the subsidiary role of the Court in assessing local needs and conditions, the Court accordingly concluded that the law did not contravene Article 9.
Having found that the Act was necessary and proportionate to a legitimate aim under Article 9, the Court quickly dispensed with the applicant’s claim of indirect discrimination under Article 14, in conjunction with Article 9. The Court reiterated that a general measure that disproportionately affects a particular group may be discriminatory if it does not pursue a legitimate aim or if there is not a “reasonable relationship of proportionality” between the chosen means and the aim pursued (emphasis added). The Court acknowledged that the Act “has specific negative effects on the situation of Muslim women who, for religious reasons, wish to wear the full-face veil in public.” However, having already concluded that the Act was proportionate to a legitimate aim under Article 9, this same conclusion established an objective and reasonable justification, and defeated any finding of discrimination under Article 14.
Human Rights Committee
Manifestation of Religion
The question before the Human Rights Committee under Article 18(3) of the ICCPR was whether the law interfering with Ms. Yaker’s manifestation of religion pursued a legitimate objective, and was necessary for achieving that objective, proportionate, and non-discriminatory.
Here the Committee diverged from the European Court with respect to France’s stated aim of protecting the rights and freedoms of others. Under Article 18(3) of the ICCPR, this limitation is framed in terms of “the fundamental rights and freedoms of others” — a textual difference from the European Convention. The Committee emphasized that this limitation was to be strictly applied, and that France had not identified any specific right of other specific individuals that was infringed by wearing the full-face veil. In particular, the Committee noted that France had failed to explain why wearing the full-face veil infringed the fundamental rights of others in a manner that other forms of covering the face allowed by the Act did not. The Committee emphasized that the ICCPR does not bestow on individuals a fundamental “right” to see the faces of, and interact with, all other individuals in the public space. The Committee further concluded that France had not demonstrated that a criminal ban on only certain means of covering of the face in public was proportionate to that aim, or the least restrictive means to achieving it that was protective of religion or belief. The ban and Ms. Yaker’s convictions thereunder, thus violated Article 18.
With respect to discrimination on the basis of gender and religion under Article 26 of the ICCPR, Ms. Yaker framed her claim in terms of indirect discrimination. However, in order to establish indirect discrimination, she contended that the Act was designed specifically to prohibit the full-face veil and that the Act had been disproportionately applied to the veil. Although only 2,000 women wore the full-face veil in a country of about 65 million, more than half of the persons subjected to checks under the Act were Muslim women wearing the full-face veil.
The Committee did not specify whether it was evaluating the Article 26 claim as direct or indirect discrimination. France argued that the law did not discriminate on the basis of religion in either respect – the law was not targeted at a particular form of religious dress but prohibited any covering of the face, and Muslim women could adequately demonstrate their religious faith by wearing a veil that did not hide the face. The Committee, however, noted that in the Act’s deliberations, the French National Assembly had focused on the full-face veil as a “radical practice” that was “contrary to the values of the Republic,” that the law exempted most other forms of covering of the face, and that it had been primarily enforced against women wearing the full-face veil. The Committee thus observed that “from the text of the Act, the debate preceding its adoption and its implementation in practice,…the Act is applied mainly to the full-face Islamic veil, which is a form of religious observance and identification for a minority of Muslim women.”
Like the Court, the Committee reiterated that a violation of Article 26 “may result from the discriminatory effect of a rule or measure that is apparently neutral or lacking any intention to discriminate.” Having previously rejected France’s claimed aim of “living together,” the Committee concluded that the Act failed to satisfy the requirements of reasonableness, objectivity, and legitimacy of aim under Article 26. Here, unlike the Court, the Committee focused, inter alia, on the exceptions provided for under the Act and France’s “failure to explain why a blanket ban on the veil [was] reasonable or justified, in contrast to the exceptions allowable under the Act.” The Committee observed that wearing the full veil could reflect a personal choice, and invoked its prior concluding observations to France that rather than liberating women, a comprehensive ban could result in the further exclusion and marginalization of Muslim women and girls. It also noted that the criminal penalties imposed, while low, had been imposed on some women multiple times, including Ms. Yaker. The Committee concluded that the law “disproportionately affects the author as a Muslim woman who chooses to wear the full-face veil, and introduces a distinction between her and other persons who may legally cover their face in public that is not necessary and proportionate to a legitimate interest, and is therefore unreasonable.”
Inconsistent but not Contradictory
The contrasting outcomes in the two cases reflect a number of institutional and doctrinal differences between the Committee and the Court, and the human rights instruments they are applying. From an institutional perspective, the European Court of Human Rights oversees a regional human rights system, which is founded on the assumption that member states share common commitments as democracies to the rule of law and protection of fundamental rights. The Court, therefore, in its practices emphasizes its subsidiary role with regard to the decisions of national authorities, including through its application of a margin of appreciation, a doctrine which itself is based in part on the premise that national authorities interpret and apply their human rights obligations democratically and in good faith. As a doctrinal matter, the European Court has embraced a particularly deferential margin of appreciation with respect to regulation of manifestations of religion, as the Court acknowledged in S.A.S. The Court’s embrace of France’s aim of promoting “living together” itself reflected a European, or even distinctly French, conception of acceptable forms of human interaction in the public space. On the other hand, aspects of the Court’s reasoning – such as its conclusion that there was no European consensus on the validity of a comprehensive ban on the full-face veil, despite the fact that no other European state at the time had adopted such a ban, seemed more political than principled.
The institutional position of the Human Rights Committee is quite different. That body oversees a universally applicable human rights treaty, with over 170 States Parties, many of them illiberal or authoritarian. For this reason, while the Committee necessarily defers, through various doctrines, to the decisions of national authorities regarding appropriate ways to implement their human rights obligations, the Committee does not apply a specific concept akin to the margin of appreciation, which is based on an underlying presumption regarding the bona fide democratic and human rights commitments of the relevant State. As a doctrinal matter, the Committee traditionally has taken a more protective approach to restrictions on manifestations of religion under both Articles 18 and 26, demanding specific explanations from States regarding the legitimate aim being advanced and the reasonableness and proportionality of the restriction. The text of Article 18(3), with its emphasis on respect for “fundamental” rights of others, comports with this more restrictive construction.
The Committee’s more restrictive approach in turn may reflect the Committee’s more universal institutional role. In assessing France’s specific contention regarding the importance of requiring Muslim women to reveal their face in public, as fundamental to promoting the ability of people to live together as a society, the Committee had to be conscious of the fact that, in a global context, the same claim could be advanced to justify precisely the opposite result. A State such as Saudi Arabia, for example (not currently a party to the ICCPR), could equally assert that requiring women to conceal their face, their hair, or other parts of their bodies, was necessary to promote the goal of “living together” in that society. Finally, facts matter, and the fact that the claimants in the cases before the Committee had, in fact, been criminally prosecuted and fined for violations of the Act – in the case of Ms. Yaker, more than once – whereas the claimant in S.A.S. was bringing a facial challenge could also have influenced the respective assessments.
Ultimately, however, the two decisions, while reaching different assessments of the validity of the law, did not place contradictory obligations on France. Nothing in the S.A.S. decision required France to maintain a ban on the full-face veil. France could comply with both decisions by revising its law in a manner that would comply with both treaty obligations. This situation is not unusual. It is often the case when a State is party to different instruments imposing multiple and somewhat differing human rights obligations. The State must conform its conduct to the most protective standard.
Manifestation of Religion and Indirect Discrimination
Beyond the differences in approach, however, the two decisions raise interesting questions regarding the relationship between the right to manifest one’s religion and indirect discrimination on the basis of religion under these two treaties. The European Court concluded that because the Act served a legitimate government aim and was proportionate to that aim for purposes of Article 9, it necessarily did not violate Article 14, because the law had a reasonable and objective basis. The converse reasoning, of course, does not apply. The religious freedom clauses of the European Convention and the ICCPR have explicit limitations provisions that specify the types of government aims that may be invoked to restrict manifestations of religion. They also require that any measure must be “necessary” (or “necessary in a democratic society”) to achieving that aim – a requirement that may go beyond a mere reasonableness or proportionality assessment to require that the measure be the least restrictive means to achieving the stated aim.
Moreover, at least under the Committee’s jurisprudence, a restriction on the manifestation of religion that is discriminatory is not compatible with Article 18(3). Restrictions may not be imposed for a discriminatory purpose or in a discriminatory manner. Thus, a finding of discrimination with respect to manifestation of religion is also likely to establish a violation of Article 18.
By contrast, the nondiscrimination clauses do not contain express limitations provisions. The assessment of the validity of the aim justifying the restriction, and the reasonableness and proportionality of the restriction to that aim, is conducted as a matter of interpretation. At least in principle, therefore, an aim could be considered legitimate, or a measure reasonable and objective, for purposes of a nondiscrimination assessment, even if it did not satisfy the more specific legitimate aim or necessity requirements of the religious manifestation clause. In this manner, a measure could violate the freedom to manifest religion, but not constitute discrimination.
Are there other considerations that distinguish an assessment of indirect discrimination from a violation of freedom to manifest religion? In Yaker and its companion case, the Committee found a violation of Article 18 with respect to claimants who chose to wear the full-face veil, and then found a violation of Article 26 based on largely analogous reasoning; the State party had not identified a legitimate justification for the Act, and in particular for its seeming specific targeting of the full-face veil, nor was the measure sufficiently proportionate to any justification that France had advanced. In this context, of course, the Committee was addressing a generally applicable law, with knowledge that roughly 2,000 women in France wear the full-face veil – a tiny portion of the population – and that the law had been disproportionately applied to a large number of these women. The Committee was also confronted with two nearly identical challenges to the law by different women, in addition to the prior claim brought by S.A.S. in the European Court. Thus some number of the full-veil wearing Muslim women in France considered the law discriminatory and an affront to their religious faith. Was this additional information necessary for the Committee to conclude that the violation of Ms. Yaker’s right to manifest her religion also discriminated against her as a Muslim woman? In other words, to what extent did the finding of indirect discrimination require a showing of systemic harm? Would Ms. Yaker have been discriminated against on grounds of gender and religion, if she were the only woman in France who affirmatively wished to wear the full-face veil? Would Ms. Yaker have been discriminated against on grounds of gender and religion if the French law had in fact prohibited all apparel concealing the face in public, without exception?
These and other questions will be explored further over the course of the upcoming, valuable symposium.
* Louis Henkin Professor of Human and Constitutional Rights, and Faculty Co-Director, Human Rights Institute, Columbia Law School. Former Vice Chair and Member, Human Rights Committee (2015-18). The author participated in the Committee’s decision in Yaker v. France, discussed herein.
 See, e.g., ICCPR art. 26 (prohibiting discrimination on “any ground such as…language, religion, political or other opinion…”).
 See Yaker v. France, CCPR/C/123/D/2747/2016 (2018) and Hebbadj v. France, CCPR/C/WG/123/DR/2807/2016 (2018); S.A.S. v. France, App. No. 43835/11 (ECHR 2014) (Grand Chamber).
 Act No. 2010-1192, art. 1. The French Constitutional Council also interpreted the law to exempt covering of the face in religious spaces open to the public. Decision no. 2010-613 DC (Oct. 7, 2010).
 Article 2(II) of the Act exempts from the prohibition clothing worn for “health reasons,” on “professional grounds”, that is “part of sporting, artistic or traditional festivities or events” including “religious processions”, or that is prescribed or legally authorized by legislative or regulatory provisions.
 Both bodies concluded that the Act could not be justified on France’s stated aim of promoting public safety, since the law was, inter alia, disproportionate to that aim. The European Court also rejected France’s stated aim of combating gender discrimination, and France did not advance that aim before the Committee.
 S.A.S., supra, para. 151.
 S.A.S., supra.
 S.A.S., supra, para. 161.
 Yaker, supra, para. 8.5.
 Id., paras. 3.13-3.14 and n. 11.
 The history of the ban also indicated that France initially had proposed banning only the full-face veil, but the French Conseil d’Etat had expressed concern that such a prohibition would raise freedom of religion concerns, among others. See Conseil d’Etat, “Study of Possible Legal Grounds for Banning the Full Veil” (March 2010) at 19 (“Prohibition of the full veil would violate various fundamental rights and freedoms [including] freedom to manifest ones convictions, notably religious, and prohibition of any discrimination.”), available at http://www.aihja.org/images/users/1/files/fullveil.en.pdf?PHPSESSID=f83dg63dqj61vokoep4kk44fu1. The Conseil d’Etat also expressed concern that a general ban on covering the face would be legally infirm on grounds of, inter alia, indirect religious discrimination. Id. at 25-26.
 Yaker, supra, para. 8.13.
 Id., para. 8.15.
 Id., para. 8.17.
 Yaker, supra, para. 8.4, note 20, citing General Comment No. 22, The right to freedom of thought, conscience and religion (Art. 18), CCPR/C/21/Rev.1/Add.4 (1993), para. 8.