A decision last month from France's top court stops the French city of Grenoble from allowing 'burkinis' or "loose-fitting bathing suits" in municipal pools (Photo: Wikimedia)
The summer has started and this is the time of the year when the French top administrative court, the Conseil d’Etat, is more or less expected to adopt a brief ruling or ‘ordonnance’ on swimming gear.
The decision it has issued in 2022 stops the French city of Grenoble from allowing certain “loose-fitting bathing suits” in municipal pools.
Yet the same court had considered in 2016 that it would have been unlawful for mayors to invoke secularism to try and police what people were wearing on beaches in the Côte d’Azur.
The two injunctions, which of course concern the burkini, are not inconsistent.
And the debate around them — about freedom of religion, living together and, ultimately, majority views on decency and the law — will most certainly acquire a pan-European dimension.
Sooner or later, the European Court of Human Rights (ECHR) in Strasbourg will have a final say on the matter and its judgment, like the one permitting the outlawing of full-face veils, risks influencing policymaking across the continent.
Starting with freedom of belief, the basic premise of the June 2022 decision of France’s highest administrative court is that one cannot rely on his/her religious convictions to refuse to abide by general rules governing the relationship between individuals and public authorities.
Far from reflecting extreme views on laïcité [secularism], this principle was upheld by the US Supreme Court in a 1990s case about the ritual smoking of prohibited substances.
However, federal and state legislation was enacted to tone this absolutist position down and the ECHR has since issued many decisions that balance respect for religious views against the public interest promoted by the general rule complained of.
Had the Conseil d’Etat (CdE) followed Strasbourg’s approach, Grenoble may have won.
The security risk posed by the presence of suction valves in pools, which has been invoked to ban trunks, shorts (and by extension burkinis), appears negligible. As for hygiene, this seems to be adequately protected by another rule requiring users to change into their bathing suits shortly before entering the water.
This is not, however, the only debatable aspect in the CdE’s reasoning. The CdE also considered — in what constitutes, for a French court, positive forward-looking thinking — that laïcité did not prevent cities from voluntarily making group exceptions from general rules to accommodate users’ religious beliefs, provided that certain conditions were met.
The condition that Grenoble was supposed not to have met was that of equality; it had only tried to accommodate Muslim pool-goers. Although this sounds reasonable, the CdE did not take the trouble of explaining which other beliefs were not taken into account; and this is another reason why its ordonnance may not be fully convincing.
The above weaknesses in the legal reasoning cannot, of course, substantiate any accusations that the CdE harbours negative attitudes towards Islam, especially when the Côte d’Azur decisions are taken into consideration.
One must concede that these cases were different from Grenoble’s in that they did not concern the use of public services.
However, the 2016 CdE injunctions did seem to favour, to a degree, religious lifestyles over other ‘vestimentary’ preferences. The court found, for example, that public discomfort with the way people dress may not, in principle, cancel civil liberties.
Topless
Yet public discomfort with nudity seems to continue to justify certain restrictions on what you may (not) wear on the beach. (In modern civilised societies, the reason for such restrictions is not prevention of disorder or crime but ‘decency’.)
So, whether we like it or not, vague majority views on social acceptability still influence rule-making. What do we have to do then to protect individual freedoms and avoid criticism about the law being inconsistent and our highest courts opportunistic?
The Grenoble decree might be pointing us in the right direction since, according to the press, it also allowed topless swimwear. By doing that, it consistently defended the right to cause discomfort, among not only militant secularists but also social conservatives.
Should we then be hoping that Grenoble might be vindicated by the European Court of Human Rights? Although, for technical reasons, this particular dispute might not be ready to be heard, we may get some indications on the prospects of success sooner than expected since Strasbourg has recently agreed to examine a similar case from Belgium.
This article may have started on a humorous note. However, the burkini controversy should not be taken lightly.
It is illustrative of many dilemmas European societies face today. Pursuing respect for human rights and social cohesion might require us to make a genuine effort to accommodate people with strong religious beliefs (with regard to holidays, prayer time as well as clothing and food preferences) while resisting a host of other claims related to restrictions on freedom of expression and the return of social conservatism.
And the above CdE decisions may have paved the way for some serious rethinking on what it takes to ‘live together’.
Source: euobserver.com
