a Banning of the Hijab or Burqa Be Constitutionally Valid? to explain modest Muslim styles of dress in general), the burqa is a full dress covering a woman’s
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F o r u m o n P u b l i c P o l i c y 1 Religious Freedom and Section 116 of the Australian Constitution : Would a Banning of the Hijab or Burqa Be Constitutionally Valid? Anthony Gray , Associate Professor , University of Southern Queensland Introduction In recent years, the issue of the extent to which an individual has or should have the right to religious freedom, and to manifest that freedom by wearing particular items of clothing, has become very contentious. Some nations have seen fit to ban the wearing of particular items of clothing thought to have religious significance, at least in some contexts. Courts from a range of jurisdictions have sought to grapple with these issues, involving a range of values and sometimes competing interests. As we will see, they have done so in different ways, and some of the results are, at first blush, somewhat surprising. In this article, I will consider co nstitutional (and discrimination) issues that would arise if the Australian Parliament enacted legislation 1 prohibiting the wearing of particular items of clothing often thought to have religious significance, in particular the hijab , burqa or niqab . 2 While the ban could apply to other items of clothing or jewellery of religious significance other than Islam , given that most of the current debate concerns symbols of Islam, I will use this particular context as the focus of discussion. In so doing, I wi ll draw upon the rich jurisprudence concerning these issues in other jurisdictions, where much more litigation has taken place regarding the question than Australia. The volume of litigation elsewhere means that consideration of the Australian position is enriched by considering some of the specific issues that have been considered by overseas courts, with the likelihood that at some stage similar issues will need to be considered by Australian courts. These overseas developments should inform our conside ration of the interpretation of the Australian provisions, and assist in reaching an interpretation of the relevant provisions. As with all comparative analysis, it is necessary to bear in mind the different statutory, constitutional and convention contex t in which decisions are reached. I will also consider briefly whether a different result would apply if the ban were passed at State level. This is not an abstract argument; a current Senator in the Australian Parliament, has personally called for a b urqa New South Wales and South Australia to introduce such a ban, at least in some circumstances. In Part A, I set the statutory framework for the discussion that follows. In Part B, the meaning of the wearing of the hijab and burqa is considered. Part C considers how laws banning the wearing of religious dress or symbols have been considered in various courts. In Part D, I consider the validity of a Commonwealth law that banned the wearing of rel igious dress or symbols. 1 Of course, this presupposes that the Commonwealth has a head of power to enact such a ban. 2 The hijab is taken to refer to a head covering traditionally worn by Muslim women (the word can also be used to explain modest Muslim styles of dress in gener al), the burqa niqab ).
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F o r u m o n P u b l i c P o l i c y 2 Part A: Statutory Context of Freedom of Religion Section 116 of the Commonwealth C onstitution forbids the Commonwealth Parliament from passing a law establishing a religion, imposing a religious observance, or prohibiting the free exercise of religion, and forbids a religious test from being required as a qualification for office in the Commonweal th. 3 It is based on the American anti – establishment clause found in the First Amendment, and Article VI s3 regarding religious tests in order to take office. No law has ever been struck down as being offensive to the s116 prohibition. The prohibition app lies (expressly) only to Commonwealth laws, not State laws. The right to freedom of religion is recognised as fundamental in various international human rights documents. These include Article 9(1) of the European Convention on Human Rights, protecting th e right to freedom of religion and to manifest that religion in worship or practice, subject to limited exceptions. 4 distinctive clothing or headcovering. 5 Very similar provisions appear in Article 18 of the International Covenant on Civil and Political Rights , and Article 18 of the Universal Declaration of Human Rights . It has been suggested that freedom of religion and conscience may be the oldest of the i nternationally recognised human rights. 6 These rights protections have been borne out of a long history of violence and persecution in relation to religion, oppression of religious minorities, imposition of religion by states etc. As the United States Su preme Court noted A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favoured churches. The centuries immediately before and contemporaneous wi th the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy . 7 There was also the historical view that the monarch of the past, in whom lawmaking functions were reposed, was the representative of a higher religious authority. Links with theories of natural law may be acknowledged here. The separation of religion and state can 3 See also s14 of the Human Rights Act 2004 (ACT) and s3 of the Charter of Rights and Responsibilities Act 2006 (Vic). Section 46 of the Tasmanian Constitution provides for free profession and practice of religion Constitution Act 1934 (Tas). 4 Article 9(2) provides for limits to the freedom if they are prescribed by law and necessary in a democratic society in the interests of public safety, protection of the public order, to protect health or morals, or to protect the rights and freedoms of others. Related rights include the right to respect for private and family life (Ar ticle 8), right to freedom of expression (Article 10), the right to freedom from discrimination on the basis of religion (Article 14), and the right to education (Article 2 of the First Protocol). The interpretation of these limits must be strict, and lim its must be directly related and proportional to the specific need; they must not be applied in a discriminatory manner: Human Rights Commission General Comment No 22: The Right to Freedom of Thought, Conscience and Religion (Art 18)(Forty – Eighth Session, 1993). The European Court has found that nature: Manoussakis v Greece , App No 18748/91, 23 European Human Rights Reports 387, 407 (1997). 5 Hu man Rights Committee, General Comment 22: The Right to Freedom of Thought, Conscience and Religion (Art 18)(Forty – eighth Session, 1993). 6 American Journal of Comparative Law 617, 61 8; Abdullah Saeed and Hassan Saeed Freedom of Religion, Apostasy and Islam (2004) p10. 7 Everson v Board of Education 330 US 1 (1947).
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F o r u m o n P u b l i c P o l i c y 3 be seen in great contrast to the historical position of the monarch as lawmaker and religious figure. 8 Despite these provisions, 9 some jurisdictions have recently moved to ban some forms of religious expression. 10 As one example for discussion purposes, Law 2004 – 228, passed in France, prohibits in Article 1 in public elementary schools, colleges, junior high schools and high schools the wearing of signs and behaviours by which the pupils express openly a religious membership. On its face the Article does not single out a particular religion; however in practice it has been applied almost exclusively to require that the hijab and burqa not be worn at these venues. 11 In 2010, the French Government moved to extend th e ban beyond educational settings. Part B: Meaning of the Hijab and Burqa The fundamental question arises as to whether a banning of either or both the hijab and burqa hat religion in practice. It is necessary to refer to religious documents as well as views as to the symbolism of such dress in order to answer this question. An important source of information in answering this question are the relevant provisions of the Koran itself. Typically, the following passage is quoted: And say to the believing women that they should lower their gaze and guard, their modesty; that they should not display their beauty and ornaments except what (must ordinarily) appear the reof; that they should draw their veils over their bosoms and not their sons, their brothers or their brother . 12 As with many issues in religion, the above passage has been interpreted in different ways. A specific challenge with Islam is that, as Baker notes, there is no central authority figure, such that followers adhere to different forms and interpretations of Islamic tenets. 13 Opinions full body garment (burqa) be worn; others see the headscarf as being sufficient; others argue 8 Great advocates for religious freedom in the past have included John Stuart Mill On Liberty (1859) p51 – 52 and John Locke A Letter Concerning Toleration (1689). 9 M Todd Parker argues that legal precedents allowing restrictions on religious dress and other practice are often not faithful to the requirements of the International Covenant and Europ (2007) 17 Duke Journal of Comparative and International Law 91. 10 Links with post 9 – women who are readily identified as Muslim because they wear a headscarf or veil report that they have often been the target of racist violence and discrimination and that this increased post 9 – 11 as their clothing is now read to signify religious fundamen talism, danger and Macquarie Law Journal 71, 83. 11 Mark Levine reports that in the first year following the passage of the French law, 47 Muslim girls had been California Western International Law Journal 33, 42. 12 24: 30 – 31, 24: 60, 33: 59 and 33: 53; Abdullah Yusuf Ali The Qur an Text, Translation and Commentary (2001) p904 – 905. 13 Cardozo Journal of Law and Gender 341, 359.
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F o r u m o n P u b l i c P o l i c y 4 that the woman merely cannot wear cloth ing showing the outline of her bosom. 14 Others say that the headscarf is a cultural tradition that has nothing to do with Islam, and the hijab visitors, and is not a piece of clothing at all. 15 There have been other suggestions as to the significance of the hijab or burqa that are based around culture rather than religion per se . Tiefenbrun summarises these as including: (a) It is a positive symbol designating the cultural and religious source of protection, respect and virtue; (b) It is a positive sign signifying Muslim identity, which might (arguably) be seen as opposition to Western civilisation; (c) It is a positive sign allowing Muslim women to freely participate in public life , 16 (d) 17 for instance, Badinter claims an act of submis 18 14 University of Detroit Mercy Law Review 765, 779 – Connecticut Journal of Inte rnational Law Brigham Young University Law Review 419, 471; Robert 40 Vanderbilt Journal of Transnational Law 417, 438. 15 Brigham Young University Law Review 419, 471 – 472. 16 ed States: A Look at the Sociopolitical Influences on the Hastings Race and Poverty Law Journal 441, 441, 449: considered to be a (2009) 40 California Western International Law Journal 33, 41. Writing of the Iranian position, Susan Tiefenbrun politics, and their participation has in fact increased in some areas due to, and not in spite of, the compulsory Connecticut Journal of International Law 1, 19. 17 Connecticut Journal of International Law 1, 22 – rom French Public Temple International and Comparative Law Journal subjugation of Muslim w Republique ( Stasi Commission Report ) p46 – 2 Columbia Journal of European Law the message conveyed (by the wearing of the veil) depends on the carrier of the symbol as well as the audienc e University of California Davis Law Review 743, 746 – 747, 750 – 751. Chouki El Hamel argues the hijab ensures men wi ll maintain their status as providers and guardians of women Citizenship Studies Twin Evils of the Social Identities 18 Elisabeth Badinter, Interview with L Joffin The Nouvel Observateur (1989) p7 – 3) 70 Social Research 809, 817 – 818; Azar Majedi
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F o r u m o n P u b l i c P o l i c y 5 Some studies based on interviews with Muslim women suggest that while some Muslim women adopt the veil to comply with family values and expectations, it is becoming more common that women choose to wear the headsca rf themselves, often without pressure and forces males to deal with them on a mental level as equals, rather than sexual objects. 19 Economics may even play a fact or. 20 A multitude of reasons is plausible. 21 Baroness Hale engages with the complex symbolism of the wearing of religious dress such as the hijab or burqa in her judgment in R v Headteacher and Governors of Denbigh High Schoo . l 22 As Choudhury compulsory and, if so, what practices of dress constitute valid observance. 23 Given this range of views, it would be difficult for a court to determine emphatically that the wearing of the hijab or burqa either was, or was not, a manifestation of a religious practice. religious belief, acknowledging that religious belief is intensely personal : Emphatically, it is not for the court to embark upon an inquiry into the asserted belief and judge its validity by some objective standard such as the source material upon which the claimant found his belief or the orthodox teaching of the religion in views of others professing the same religion. Freedom of religion protects the subjective belief of an individual religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his vs Political Islam: A Series of Political Writings About the Devastating Effects of Political Is Situation and the Struggle of Women Against It Houston Law Review 1, rnment is seeking to create a limited area in which especially vulnerable students are free to consider all areas and possibilities, free from the constraints imposed by them by the religions and social Hastings Race an d Poverty Law Journal 441, 441. 19 University of California Davis Law Review 743, 761 – 763. Others note that in other cultures such a s the Berber – speaking Tuareg of West Africam men veil, and masks are common in other Cardozo Law Review 2745, 2 748 – 2749. 20 Houston Law Review 103, 118. 21 Houston L aw Review 81, 98; Women (2010) 18 Cardozo Journal of International and Comparative Law 159, 201; Karima Bennoune Columbia Journal of Transnational Law 367, 388; Christopher mocratic Jurisprudence: Viewing Islam Through a European Legal Prism in Light of the Sahin Columbia Journal of European Law 573, 583. 22  UKHL 15, , quoting Yasmin Alibhai – when they see a young woman in a hijab she may have chosen the garment as a mark of her defiant political 23 Columbia Journal of Gender and Law 199, 218.
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F o r u m o n P u b l i c P o l i c y 6 own religious beliefs, however irrational or inconsistent they may seem to some, however surprising. 24 I will now consider the question of how bans or restriction s on religious dress have been answered in other jurisdictions. 25 Given that these issues, as with many other legal issues, are of universal rather than territorial concern, and given that the issues have been explored by courts in other jurisdictions at s ome length, it is sensible to consider how other courts have approached these issues. T he High Court of Australia and courts in other nations ha ve increasingly been willing to consider legal developments in overseas jurisdictions in developing Australian jurisprudence. 26 R ecently the High Court has resorted more frequently 24 R (Williamson) v Secretary of State for Education and Emp loyment  2 AC 246, [22 – 23](Lord Nicholls); Employment Division, Department of Human Resources of Oregon et al v Smith et al 494 US 872, 887 (1990); Syndicat Northcrest v Amselem (2004) 241 DLR (4 th ) 1, 27 (para 52); Multani v Commission Scolaire Marg uerite – Bourgeoys  1 S.C.R 256, (para 35);; Manoussakis v Greece (1997) 23 European Human Rights Reports 387, 45; cf early cases, where the Court appeared judgmental of the religious views of others whose opinions the judges presumably did not share: Krygger v Williams (1912) 15 CLR 366, 370 – 372; Mormon Church v United States (1889) 136 US 1, 49. 25 This raises a separate question as to the extent to which Australian law is, or should be, influenced by developments overseas. There is a rich jurispruden ce on this question: see for example Hilary Charlesworth, Madeleine Chiam, Devika Hovell and George Williams No Country is an Island: Australia and International Law (2002) 29 Melbourne University Law Review Melbourne University Law Review 95; Hilary Charl (1998) 20 Adelaide Law Review 57. 26 Justice Kirby was a consistent advocate of the importance of international law; see for example Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CL R 513, 657 – important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that i ts text Kartinyeri v Commonwealth there is a strong presumption that the Constitution is not intended to violate fundamental human rights and Al – Kateb v Godwin (2004) 219 CLR 562, 616 – Australian Journal of Huma n Rights 109. In the landmark Mabo development of the common law, especially when international law declares the existence of universal human Mab o v Queensland (No2)(1992) 175 CLR 1, 42. Some judges have been less enthusiastic: for example, Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 (Gummow and Hayne JJ), AMS v AIF (1999) Constitution , its provisions are not to be construed as subject to an implication Western Australia v Ward Constitution are not to be read in conformity Al – Kateb v Godwin Constitution by reference to the provisions of international law that have become accepted since the Constitution was enacted in 1 900 The claim that the Constitution should be read consistently with the rules of international law has been decisively rejected by members of this Court on several occasions. As a matter of constitutional Roach v Electoral Commissioner (2007) 233 CLR 162, 221 (Hayne J) and 225 (Heydon J)(denying that international instruments such as the International Covenant on Civil and Political Rights or European Convention on Human Rights could (should) have any influ ence on interpretation of the Australian Constitution . Those who take this view often do so on the basis that the founding fathers could not have been influenced by these documents which post – dated the drafting of the Australian Constitution ; however such a view reifies the intent of the founding fathers at the expense of a living organism view of the Constitution which has gained orthodoxy in the High Court. There is also evidence of British judges interpreting the common law consistent with, for example , the European Convention on Human Rights even prior to the enactment of the Human Rights Act : Attorney – General v Guardian Newspapers (No2) 1 AC 109, 283 – 284; R v Advertising Standards Authority Ltd; ex parte Vernons Organisations Ltd  2 All E R 202; Derbyshire County Council v Times Newspapers  QB 770, 811 – 812: see for discussion H Mountfield
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F o r u m o n P u b l i c P o l i c y 8 prohibited f rom wearing symbols or clothing through which they conspicuously evince a The legislation was, on its face, applicable to all religions; however the intention apparently was, and the practice has been, that the legislation has over whelmingly been applied in relation to the wearing of the hijab, and to a lesser extent, the burqa. 33 France has a long and complex history concerning the relation between church and state, and a formal separation which occurred in a 1905 Act arguably compl eted the separation that commenced in 1789, with the Revolution creating the secular nature of the State, and the – ability to regulate ecclesiastical matters. 34 This principle of secularism, also known as laicite , has com e to be associated very strongly with French identity and notions of equality, such that differences based on culture, ethnicity or religion, or things that symbolise such differences, may be seen as problematic. Questions have arisen as to the extent to w hich the wearing of religious dress such as the hijab or burqa infringes the French concept of laicite one of the three High Courts of France (the others being the Cour de Cassation and Conseil Constitutionnel) found that laicite and the wearing of religious dress could be compatible: engagements that the principle of laicite in public education, which is one of the elements o f laicite of the state and of the neutrality of all of the public services, requires that education be dispensed with respect, on the one hand, for this neutrality conscience manifest their religious beliefs inside educational establishments (as long as such expression is done) with respect for pluralism and for the freedom of others, and without detra program. 35 ressure, provocation, 36 33 Nusrat Choudhury notes that 45 of the 48 students expelled in the four months following theimplementation u Foulard and the Challenge of Columbia Journal of Gender and Law 199, 201; Stefanie the Hijab in the Temple International and Comparative Law Journal law was enacted with the specific intent to eliminate the Muslim hijab, or headscarf, from French public school 34 Public Schools: Back to War? The French Statute of March 15, 2004 (2006) 54 American Journal of Comparative Law Cardozo Jour nal of Law and Gender 341, 343 – Drake Law Review Role of Religion and Culture in Fren Texas International Law Journal 581. 35 36 Revue Francaise de Droit Administratif Texas International Law Journal 581, 611.
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F o r u m o n P u b l i c P o l i c y 9 However, a very different approach was evident in a report by the Stasi Commission, set up to study the French concept of laicite. In its 2003 report, the Commission concluded that a tension existed between laicite and the wearing of religious dress or symbols, justifying a ban on wearing them in public institutions such as schools. As discussed earlier, this recommendation was legislated into existence in the followi ng year. Part of the argument that the Commission provided to justify this recommendation was that the wearing of religious dress or symbols often represented an involuntary act: Pressures exert themselves on young girls, forcing them to wear religious sy mbols. The familial and social environment sometimes imposes on them a choice that is not theirs. The Republic cannot remain deaf to the cries of distress from these young women . 37 However, critics of such findings counter that the reasons why an individu al might wear religious dress or symbol are often complex and multiple. The Stasi Commission did not commission research to support its assertion that the wearing of religious dress was usually or often the product of pressure from others, and there is e vidence to the contrary , as has been noted above . 38 Further, the ban implemented is far from complete; it only bans the wearing of such dress in a (public) school environment, but not in society more generally. If it really were about avoiding the oppress ion of people who might feel forced to wear religious dress or symbols, why is the ban confined to the wearing of such dress at (public) school? Why does it not apply to students in private schools? Or banned in any context? 39 Further, as Custos notes, t he ban is confined to expressions of religious affiliations through the wearing of dress or symbols; in contrast, oral or written expressions of religious affiliation are not prohibited or confined, whether at school or elsewhere. 40 It may have the effect of alienating Muslim youth, denying young women an education and discouraging integration within French society. 41 The French Government may have been emboldened in its decision to ban the wearing of religious dress in a school decision by some decisions in terpreting the right to freedom of religion in this context. Somewhat surprisingly, several European Court of Human Rights 37 Houston Law Review 103, to go to school. By removing her cover, she is suddenly more receptive to other ideas rega rding matters of faith and can now freely choose among them. This reasoning indicates a woeful lack of understanding about the 38 Eur Columbia Journal of Gender and Law Schools: Back to War? The French Statute of March American Journal of Comparative Law (2004) Brigham Young University Law Review 419, 468 – the University of Detroit Mercy Law Review 765. 39 The French Government moved to extend the ban in 2010 beyond the educational context. 40 nch Statute of March 15, American Journal of Comparative Law 337, 373. 41 Temple Int ernational and Comparative Law Journal 251, 252.
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F o r u m o n P u b l i c P o l i c y 10 decisions have apparently condoned such restrictions on the right of an individual to manifest their religious views, despite the st rong protection given to religion by the Convention. 42 It is to these decisions that I now turn. In Dahlab v Switzerland , 43 the court considered a Swiss law restricting the wearing of religious clothing, in this case applied against a teacher who wished to wear an Islamic headscarf. The court found that although there was an interference with the right to freedom ing a teacher to wear the scarf would violate the notion of institutional neutrality associated with public schools. It was relevant that the teacher taught students aged 4 – 8, where their vulnerability was high. (However, the court acknowledged there was no evidence that the teacher had attempted to indoctrinate her students in any way). wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non – discrimination that all teachers in a democratic society must convey to their pupils . 44 In Sahin v Turkey , the court considered a ban on the wearing of an Islamic headscarf at a Turkish University. 45 Sahin was excluded from the University because she refused to comply with the ban. Her arguments to the European Court of Human Rights were unsuccessful. By a majority of 16 – 1, the Grand Chamber dismissed her case. They held that although there secularism and gender equality, important values in the Turkish Republic. 46 The Court reiterated the value of secularism, to protect equality and liberty. The majority found the and 42 Article 9 of the European Convention on Human Rights provides that everyone has the right to freedom of practice and observance. This right is subject only to such limitations as are prescribed by law and necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or protection of the rights and freedoms of others. 43 (2001) Europe an Court of Human Rights 1. 44 Emory International Law Review 557, 572 – sign of 45 nature of the state. However, in an earlier T urkish case in which the government dissolved a political party a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety (and) impose on its serving of future civil servants the d uty to refrain from taking part in the Islamic fundamentalist movement, whose goal and plan of action is to being about the pre – Refah Partisi (The Welfare Party) v Turkey App Nos 41340/98, 41343/98 and 41344/98, 37 European Hu Journal of Transnational Law and Policy 167. 46 eal Issue: Evaluating the Sahin v Turkey (2006) 91 Cornell Law Review 129, 153.
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F o r u m o n P u b l i c P o l i c y 11 non – 47 Referring to the Dahlab case, the majority noted that the court in that represented, and questioned whether it might have a proselytising eff ect, given it was worn as a religious precept that was difficult to reconcile with equality. 48 The majority claimed that In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf to be worn. 49 reasons for wearing the headscarf, or that she was seeking to make any particular statement, or achieve any had, or would likely, cause disruption on the campus. As the Judge noted: Merely wearing the headscarf cannot be associated with fundamentalism and it is to impose the headscarf as they do other religious symbols. Not all wom en who wear the headscarf are fundamentalists and there is nothing to suggest that the applicant had fundamentalist views. She is a young adult woman and a university student and might reasonably be expected to have a heightened capacity to resist pressur e, it being noted in this connection that the judgment fails to provide any concrete exercising the right to freedom of religion and to manifest her religion by an external sy mbol cannot be wholly absorbed by the public interest in fighting extremism. 50 The judge noted that Sahin in her evidence said she wore the headscarf of her own free will, giving the lie to the suggestion of the majority that allowing Sahin to wear it would be perpetuating inequality or intolerance. The judge asked what the connection was between the ban and sexual equality, accusing the majority judgment of paternalism. 51 As has been noted, if the government really were serious about promoting equality, an d really did believe that a ban was necessary to promote or preserve it, the ban actually implemented was grossly inadequate to the task the ban should have been applied to all of Turkish society rather than in schools and government. 52 Further, the effect of such laws may be, in effect, to deny 47 Para 111. 48 and Cultural Challengers Israel Law Review 596, 613. 49 Para 116. 50 Para 10. 51 The judge said it was not for the court to make an appraisal of this type on a religion or religious practice. See Columbia Journal of Gender and Law American Journal of Comparative L aw 637; Natan Willamette Journal of International Law and Dispute Resolution 65; Cindy Skach (2006) 100 American Journal of I nternational Law American Journal of Comparative Law 637. 52 Enforce the Turkish Headscarf Ban in Sahin v Turkey Cornell Law Review 129, 162. Further critique
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