Friday, November 17, 2006

Netherlands proposes to ban burkas - Europe - International Herald Tribune

I think like any professional or student in a professional field and reading an article that touches on that profession is more often than not an exercise in frustration.

Owning to space, editorial and simply just general interest constrains, there is simply a limit to how much detail a journalist can put into a short article in a newspaper. Here, of course, I am distinguishing between op-eds and magazines like The Economist which does kick ass articles, making it a venerable bible for debaters.

Anyway, facts of this case
Five days before a national election here, the center-right government announced Friday that it planned to introduce legislation to ban burkas and similar garments in public places, saying the full- body garb worn by a small number of Muslim women in the Netherlands posed a grave security threat, both to the country's security forces and citizens

So let's parse this. The asserted governmental interest is national security. The mechanism is banning full covering garb that conceal the identity of the wearer in public e.g. burkhas.

Taking it from a legal perspective and in particular a US First Amendment perspective (note that it conflicts in quite respects to the ICCPR), let's analyse if the government is justified in doing what it does.

First off, is it speech? Speech has been defined fairly broadly to include expressive conduct such as flag burning. The idea is whether it sends a "particularised message" that in the circumstances, the viewer can be objectively taken to understand what it means, per US v O'Brien (draft card burning case). And I think it should be fairly evident that this is a form of expression i.e. the demonstration of what you believe to be appropriate dress for pious Muslim women.

Next, is the proposed legislative facially neutral or content based? If it's the latter, the government's actions will be subject to strict scrutiny and in all likelihood it's going to see (there has only been one case that has survived it and it has to do with a restricted zone around polling booths). If it's the former, then it would be subjected to intermediate scrutiny as per O'Brien. Well, I don't have the exact text of the legislation here but let's say we give the Netherland's government the benefit of the doubt and say no dress that conceals the identity of the wearer, so it would include hoodies and ski masks and say helmets and visors. If so, then it is facially neutral in that it is not content-based discrimination. Or in the language of O'Brien, the regulation seeks to restrict the non-expressive conduct as opposed to the expressive conduct.

The test then under this intermediate scrutiny is that there must be a) a substantial governmental interest (not compelling) and that b) the measure taken must substantially serve the governmental interest. Note that under (b), the government does not have to take the least restrictive alternative. It must simply be necessary such that the governmental interest will be greater served with the ban than without it. Plug in the facts and it should be fairly clear that the Netherlands has the ability to do so, nevermind the fact that it is arguably broader than it has to be. It doesn't really matter. It would have been a problem if it simply bans burkhas and not all forms of concealing garb of course.

And finally, let's see if there is a religious defense. Well the approach in the US as advocated by Scalia J. currently is that it does not violate the free exercise of religion where it is a law of general application. So sorry, not peyote tea even if you legitimately claim that it brings you closer to the divine.

I think that's roughly right, I find it inconceivable that despite the mass of scientific facts that persons with terminal cancer cannot use marijuanna to aliviated their pain but if you claim religion you could. But that's a rant for yet another day.


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