Martha Nussbaum's hijab ban stupidity

Why do some religions and some countries have a dress code? Examples are Salafi Muslim 'burqa' or 'hijab' as well as the Bhutanese national costume.

The answer is that such dress codes promote the underlying values of the religion or country. However, this may change as times change or circumstances dictate. This gives rise to the question- 'how might advocates or Judges or other concerned public intellectuals make arguments about dress codes?' 

Let us first consider an 'originalist' or 'literalist' approach which looks for some fundamental principle governing the matter. The problem here is that some statements in scriptural or constitutional texts may be 'injunctions' (vidhi in Sanskrit) while others are of a philosophical or moralistic type (arthavada) without a specific application. The former are 'informative' (khabar in Arabic). The latter are non-informative (insha). They may be imperative or hermetic or something else entirely. However, like 'obiter dicta' they may clarify a method of amending positive law which is not explicitly set forth but which nevertheless has always obtained. 

For any specific purpose, those with a common purpose may nevertheless not be able to reach good faith agreement on a question of this sort. However, they may agree to abide with an imperfect decision rather than let the issue fester. So long as there is a protocol bound, 'buck stopped', judicial or administrative process, no great harm is done to the public weal if such matters are left unresolved at the philosophical level.

Let us now turn to burqa bans of the French type. What is the bone of contention? Briefly, it has to do whether French Muslims- and other non-European migrants- must adopt a French version of Islam ('watanniya deen') or whether the French State must observe absolute neutrality in this matter. One reason why France went down the hijab ban route was the war on Terror and the claim that Muslims everywhere owe a superior allegiance to a reconstructed, trans-national, Caliphate. However, another reason was fear of 'demographic displacement' with Europeans falling as a proportion of the population as darker non European populations increased. 

European history has provided us plentiful examples of the Law being used to change the demographic composition of a territory. Religions too have been 'Nationalized' to some extent or another by operation of law. America, I need hardly say, presents a yet more dispiriting picture of naked genocide and slavery and judicial and extrajudicial killing and incarceration of darker skinned people. If America was 'accommodationist' in Religion, it was because Whites were busy killing or enslaving brown people. It only stopped this type of very overt violence and legal bigotry when it saw a use for its own darkies in killing gooks or ragheads or sand-niggers in distant parts of the globe. 

To English eyes, France had treated its Arab and African immigrants shamefully. It was a shock to me to find myself the only non-White dinner in many a typically middle class restaurant in Paris. The waiting staff were all dark skinned. Many spoke excellent English in addition to French and their own language. Why did they not cross the Channel to get a better reward for their talents? The answer is, they were French. The better educated white Frenchman might be willing to move to Fulham to enjoy higher pay and lower taxes but that was a sort of sanctioned rebellion. It didn't imply disloyalty or loss of an invaluable ancestral heritage. Darker skinned people didn't have that luxury. They must first raise up France to the foremost rank before they can think of leaving it. 

Hopefully, assuming Macron's people do well in the Assembly elections, France is now on a better economic and political trajectory. Only France can provide the nucleus of a cohesive European defense force capable of sealing its borders and fighting off invaders. French Muslims have proved themselves to have the same valor and patriotism as those whose ancestors resisted Caesar. Both Muslim and Christian Frenchmen fought the Kaiser and Hitler shoulder to shoulder. The rapper from the banlieue has the same 'esprit' as the flaneur strolling the boulevards of the second Empire. Under Macron, France may become a happier America whose 'coloreds' were never stigmatized under a 'one drop rule'. This would be a republic where Josephine Baker never had to battle Jim Crow. The spirit of Talleyrand- who scandalized the Americans, during his exile on their shores, by his choice of an African-American mistress- will be at peace. Islam's rationalism would be as utile to that Church of which he was a Bishop as was, in an earlier epoch, the texts of Avicenna and Averroes to the savants of the Sorbonne. 

As for the burqa in France- which does not matter at all because only 2000 women wear it and only 2 burqa clad women committed a crime (they held up a Post Office in 2010)- my prediction is that there will soon be an ultra-chic haute couture version of it whose slinkiness will, sadly, seduce elderly Hindutva hooligans like myself in to wearing it in a doomed attempt not to look so much like a fat sack of shit. I may mention I own three pairs of skinny jeans. Fuck was I thinking?

 Ten years ago- around the time I was making a fool of myself by buying skinny jeans- Martha Nussbaum wrote the following in opposition to the French hijab ban. Is there a single sentence in what she wrote which is neither false nor foolish?

Let's start with an assumption that is widely shared: that all human beings are equal bearers of human dignity.

This is not the case. We know that people hold different stations in life. Dignity means status. However for some specific purpose- e.g. the conduct of a law suit- they may be deemed to have equal status. 

It is widely agreed that government must treat that dignity with equal respect.

No. It is widely agreed that governments must treat some people- e.g. sovereigns or accredited diplomats- with superior dignity or respect for specific purposes. Moreover, a Government has a superior obligation to its own citizens when it comes to the provision of public or other goods and services.  

But what is it to treat people with equal respect, in areas touching on religious belief and observance?

That depends on the specific purpose which directs that treatment. Medically it may mean one thing. Legally it may mean another.  

We now add a further premise: that the faculty with which people search for life's ultimate meaning - frequently called "conscience" - is a very important part of people, closely related to their dignity.

This is an arbitrary procedure. There is no need for any further premise. Indeed, adding the opposite premise- viz. that there in no such thing as conscience and it holds no importance whatsoever- would not change the outcome of any line of reasoning which, to be clear, can always go any which way.  

And we add one further premise, which we might call the vulnerability premise: this faculty can be seriously impeded by bad worldly conditions.

In which case, 'bad worldly conditions' caused Nussbaum to add a stupid premise. We should micturate mightily upon her so as to remedy her bad worldly condition. At any rate it would be unconscionable not to adopt such a premise.  

It can be stopped from becoming active, and it can even be violated or damaged within.

Unless we mightily micturate on Martha as per the premise she permitted us to introduce.  

On the other hand, one could always justify any course of action by appealing to some faculty we wished to preserve or stimulate in our victim. Thus, when we throw a guy of a cliff, we wish to stimulate the faculty of flight in him.

Indeed, the first sort of damage, which seventeenth century American philosopher Roger Williams

He was a clergyman, not a philosopher. 

compared to imprisonment, happens when people are prevented from outward observances required by their beliefs.

Required by God. Williams was not interested in what was required by the beliefs of crazy savages or heathens of various descriptions. However, he said no Government not established by 'covenant' (i.e. by God) should interfere in any religious matters whatsoever.  The trouble was that some Churches claimed to possess that covenant or 'the keys of St. Peter' or some such thing. Williams, a student of Sir Edward Coke, saw law as 'artificial reason' and argued that it was safer to set limits to it lest we unwittingly break a covenant with the Lord. In this particular case, preventing an 'outward observance' may be contrary to God's plan in some manner we little guess at. Our case in the eyes of the Lord would be as if we were guilty of unjust imprisonment. Thus, as a matter of abundance of caution, we should seek to minimize the scope of the law in religious matters. 

Nussbaum is talking nonsense. It is not the case that damage is done if we imprison a person for their own good, it is just that we may have no authority to do so. We are obliged to let the fellow harm himself as he pleases unless we have legal warrant to take steps that will benefit him but which he is too stupid or crazy to consent to. 

The second sort, which Williams called "soul rape," occurs when people are forced to affirm convictions that they may not hold, or to give assent to orthodoxies they don't support.

Williams was aware that rape had a legal definition. It didn't mean having forcible sex. It meant sex which was against specific laws. Sir Edward Coke mentions a great lady who had sex with a baboon and conceived by it. But that was buggery not rape. Americans of the period derived much innocent pleasure in deciding which members of the House of Lords back in the home country were descended from the baboon in question. 

The vulnerability premise shows us that giving equal respect to conscience requires tailoring worldly conditions so as to protect both freedom of belief and freedom of expression and practice.

No it doesn't. We are not obliged to exterminate baboons lest some great Lady chooses to engage in buggery with a member of that species. On the other hand the 'vulnerability premise' coupled with the fact that great Ladies sometimes bugger baboons does suggest that some substantial barrier be placed between great ladies and those poor beasts.  

It suggests that freedom should be quite ample.

Except in zoos where great ladies must be kept away from the baboons which excite their lust for buggery.  

If we combine it with the equality premise, we get the principle that liberty should be both ample and equal - a principle very like John Rawls's idea that justice requires the "maximum liberty that is compatible with a like liberty for all."

Which, of course, could be zero liberty for everybody if you describe 'worldly conditions' in a dire enough manner.  

Thus the framers of the United States constitution concluded that protecting equal rights of conscience requires "free exercise" for all on a basis of equality.

OMG! Nobody told Martha about slavery! Poor thing. All these years she has been patting the wooly heads of darkies and enquiring how their people came to emigrate to America. Was it perchance by first becoming Master of Trinity College?  

The state constitutions of that time made it clear that the commitment was to ample liberty, not just equal liberty: for they permitted only a few extremely urgent public considerations, particularly those of peace and safety, to trump the religious claim.

Why do darkies get so worked up about slavery? Didn't they realize that all they needed to do was to say 'My Religion forbids me from plucking cotton on Massa's plantation. Do be a good chap and release me from my chains. Sorry to be a bother, but I've a conscientious objection not just to iron chains but also this hempen noose you have put around my neck.' Incidentally, Roger Williams sold native American slaves and himself turned slave-catcher.  

But what do these abstract principles really mean?

Some Americans have always been evil little shits- more particularly if they prose on about 'soul rape' and human dignity.  

What is truly equal liberty in religious matters?

The right to become Chief Rabbi while also being the Pope and living large in the Vatican.  

What type of state efforts to respect religious pluralism does a commitment to ample and equal liberty require?

None. Commitments don't commit you to anything unless you have another commitment to do so and another commitment to respect that commitment and so on and so forth.  

And what limits might reasonably be placed upon religious activities in a pluralistic society, compatibly with that commitment?

Whatever can conveniently be done may also be reasonably done- even if the thing is absurd.  

The philosophical architects of the Anglo-American legal tradition could easily see that when peace and safety are at stake, or the equal rights of others, some reasonable limits might be imposed on what people do in the name of religion,

or anything else. Thus what matters is limits on actions not the motivation for those actions.  

and that such restrictions, supported by urgent public interests,

or imaginary ones 

might still be compatible with a respect for equal liberty.

In their own opinion. But this would be purely arbitrary. There would be no 'categorical' reason for any impartial observer to come to a like view.  

But they grasped after a deeper and more principled rationale for these limits and protections.

While catching slaves.  

Here the philosophical tradition splits. One strand, associated with the seventeenth century English philosopher John Locke, holds that protecting equal liberty of conscience requires only two things: laws that do not penalize religious belief, and laws that are non-discriminatory about practices, applying the same laws to all in matters touching on religious activities.

No. Locke thought there was a 'natural'- i.e. non arbitrary- solution which all rational fair-minded people would agree on. He was wrong. Category theory explains why even if he were right, this 'natural' solution would be inaccessible in the life time of the universe. 

Arguably, if a good enough approximation to 'natural law' and 'natural religion' is accessible then the working of existing consciences can discriminate 'vulnerability conditions' and work to ameliorate them. But this would not 'protect equal liberty of conscience'. It would privilege some consciences above others and give them command over social resources. The problem is that slavery may seem 'natural' and so 'soul-rape' Williams ends up as a slave catcher.

From the Theistic point of view, this does not greatly matter. Synderesis or conscience may be an inbuilt inclination to the Good and Right. But God may not want that at all. It is a great mystery as to why some are Elect and some will forever remain denied His Grace. This is an Augustinian or even an Occassionalist thesis.  

An example of a discriminatory law, said Locke, was a law in England that makes it illegal to speak Latin in a church, but permits people to speak Latin in schools.

Ecclesiastical Latin has always been permitted in the Anglican Church though a translation must be provided or else the service must be of a private nature.  

Obviously the point of such a law is to persecute Roman Catholics.

This is not obvious at all. There were other sterner measures to persecute Catholics. The Anglican Church had its own Canon Law and its own Court- Doctors Commons. Its laws were intended to prevent schism or any very wide divergence in practice as might scandalize the faithful.  

But if a law is not persecutory in this way, it may stand, even though it may incidentally impose burdens on some religious activities more than on others.

But a persecutory law too might stand provided it doesn't violate natural law which sadly turns out not to exist. The English soon decided that Locke was a silly man. Apparently the American founding fathers read him but only in between catching slaves and talking bollocks.  

If people find that their conscience will not permit them to obey a certain law (regarding military service, say, or work days), they had better follow their conscience, says Locke, but they will have to pay the legal penalty.

Unless they kill those who try to exact it the way Nature intended.  

Another tradition, associated with Roger Williams, founder of the colony of Rhode Island and copious writer about religious freedom, holds that protection for conscience must be stronger than this.

If leisure from slave catching permits which it didn't because slave catching paid the bills and money is honey my dear sonny and a rich man's joke is always funny.  

This tradition reasons that laws in a democracy are always made by majorities

Very true. The majority of Americans wrote the laws which enable the super rich to pay a smaller portion of their Income in tax than do their cooks and janitors.  

and will naturally embody majority ideas of convenience. Even if such laws are not persecutory in intent, they may turn out to be very unfair to minorities.

Equally, people may choose to pretend that something which is perfectly fair is actually a terrible injustice. Everybody may accumulate and store up such grievances so as to have retaliatory rights' violations claims against everybody else. 

In cases in which such laws burden liberty of conscience - for example, by requiring people to testify in court on their holy day, or to perform military service that their religion forbids, or to abstain from the use of a drug required in their sacred ceremony - this tradition held that a special exemption, called an "accommodation," should be given to the minority believer.

This was merely a case of 'economia'- discretionary management of a pragmatic type. Nussbaum's mistake is to seek for 'akreibeia'- a greater precision than the subject matter allows.  

On the whole, the accommodationist position has been dominant in United States law and public culture.

Indeed, Pragmatism is America's indigenous philosophy.  

For a time, modern constitutional law in the United States applied an accommodationist standard, holding that government may not impose a "substantial burden" on a person's "free exercise of religion" without a "compelling state interest" (of which peace and safety are obvious examples, though not the only ones).

Accomodationism remains dominant in US law and public culture.  

The landmark case articulating this principle concerned a woman who was a Seventh-Day Adventist and whose workplace introduced a sixth workday, Saturday. Fired because she refused to work on that day, she sought unemployment compensation from the state of South Carolina and was denied on the grounds that she had refused "suitable work." The United States Supreme Court ruled in her favour, arguing that the denial of benefits was like fining Mrs Sherbert for her nonstandard practices: it was thus a denial of her equal freedom to worship in her own way. There was nothing wrong in principle with choosing Sunday as the general day of rest, but there was something wrong with not accommodating Mrs Sherbert's special religious needs.

Sherbert v Verner followed from Braunfield v Brown where Jewish shopkeepers got to stay open on Sundays.  The other side of the coin is Hein v Freedom from Religion. George W Bush's use of tax payer money for a Faith based initiative was kosher because tax payers don't have the right to challenge the constitutionality of certain Government expenditures. Who knew? 

I believe that the accommodationist principle is more adequate than Locke's principle, because it reaches subtle forms of discrimination that are ubiquitous in majoritarian democratic life.

If you have the money and clout to force the issue- sure. 

All societies make choices regarding holidays, workdays, drug and alcohol restrictions, and a host of other matters touching on people religious observances.

Some do so on the basis of a State religion.  Nussbaum is generalizing on the basis of American exceptionalism. 

The choices of a majority are usually supported by some type of reasoning; thus they will pass a weaker "rational basis" test.

Religion may condemn any 'rational basis' test and the State may decide to found itself on Religion alone.

They may, however, be extremely harsh to minorities, rendering their liberty unequal.

They may kill or enslave them wherever they may be found. 

To grant them accommodations on grounds of conscience, in areas ranging from employment to military conscription to sacramental alcohol or drug use, is to restore a standard of equal liberty.

No. The thing is irrelevant. The first Amendment did not help slaves at all.  

Accommodation has its problems, however. One is that a system based on individualized exemptions is difficult for judges to administer.

If judges and lawyers get paid, fuck do they care?  

Creating exemptions to general laws on a case by case basis struck Scalia as too chaotic, and beyond the competence of the judiciary.

Yet that was the raison d'etre of the industry he was in. A restaurant chef may grumble about having to deviate from the recipe so as to cater to guys with allergies, but if that is what he is paid to do, then do it he must.  

Thus, though he thought that accommodations created by legislation would be permissible - such as the change in our Controlled Substances Act that legalized the sacramental use of peyote - he was opposed to granting such exemptions judicially.

Just as a chef may feel horror at having to remove a canonical ingredient from a prestigious dish. However, if that is what he is paid to do, do it he must.  

Another problem faced by the accommodationist position is that it has typically favoured religion and disfavoured other reasons people may have for seeking an exemption to general laws - family reasons, for example, or reasons having to do with personal commitments to art or even to a secular ethical creed.

So, accommodationism is really about religious groups flexing their muscles and establishing a 'discoordination game' such that their members feel they have a special status. This increases 'in group' transactions and creates arbitrage opportunities. But the same could be said of a Trade Union or Professional Association or other group dedicated to the advancement of a particular ethnicity or ideology. Thus lesbians who oppose trans rights may organize and gain an exemption from an anti-discrimination law. Indeed, they may have the clout to reverse laws favorable to trans people. 

To some extent, it is possible to deal with these other commitments in other areas of law - through a capacious free speech principle, for example, and through laws protecting family leave.

This merely shifts the boundary where a 'wedge issue' can be located.  

But not all problems can be handled this way. And some scholars think this a sufficient reason to deny accommodations for all, thus reverting to the Lockean position: if the system of accommodations cannot be made fair for all, it should not exist. They thus revert to a position that is both less ample and less equal in regard to religious liberty, but on grounds that are not without their merit.

The problem here is that such 'scholars' are stupid and useless.  

So the Roger Williams position has not yet shown that it can defeat the Lockean position.

Both can catch slaves. Why bother with either? 

This is a thorny issue that requires lengthy discussion.

No. The thing is a shitshow.  

But we don't need it, because the recent European cases all involve discriminatory laws that fail to pass even the weaker Lockean test - although in the special case of French secularism this will take some time to show.

No test is weak in itself. What matters is what people believe, or find it convenient to believe, about states of the world.  

For it might seem that French laicite is that rara avis, a policy that restricts liberty across the board, while protecting equal liberty: liberty is less ample, but everyone suffers from the same restrictions.

It might not seem like that to anybody has visited France or who has much acquaintance with its literature. 

Things are actually more complicated, as I shall argue.

Things are actually simpler. 

Let me demonstrate this by working through the five most prominent arguments in favour of banning the burqa

There is only one. Fuck with Muslims pre-emptively. Otherwise they will slit our throats. Nussbaum was writing this 10 years ago. Few thought there'd be an election where a guy who supports the hijab ban would be facing off against the daughter of a Holocaust denier who wanted something much more stringent.  

are made inconsistently in ways that tacitly favour majority practices and burden minority practices.

This is a bizarre view of things. It is not practices which are objected to. Rather the aim is to cow or uplift a particular community.  

They are thus not compatible with a principle of equal liberty,

they may be. Equal liberty doesn't mean one group may not have its feelings of superiority reinforced in social interaction whereas another group feels like shit because it is treated like shit.  

and thus, in turn, not compatible with the idea of equal respect for conscience from which that principle springs.

In the opinion of a cretin. There is no necessary connection between the two. I have equal liberty to publish books about boy wizards stroking their magic wands but nobody in their right mind would have equal respect for me and JK Rowling because she has a literary conscience. She does not write careless, illiterate, garbage. I do. 

Modern evolutionary theory suggests that 'conscience' may be deceptive and strategic. Accepting this theory does not militate against an equal liberty principle. Rather it reinforces it because everybody in this bath-house is naked.  

Indeed, all are cases of seeing the mote in your brother's eye while failing to appreciate the large plank that is in your own eye: for all target situations alleged to be present in Muslim communities while failing to note their ubiquity in the majority culture.

Some Muslims are killing people- including fellow Muslims- for religious reasons. Hindus aren't. Christians in France aren't. It is foolish to pretend that decapitation or suicide bombing is ubiquitous in the 'majority culture'. 

Let's look at each argument in turn, asking whether it treats all citizens with equal respect.

Citizens aren't treated with equal respect unless they are deemed equally respectable. That is why some citizens are in jail while others are Judges.  

Arguments 1 and 2: Security and Transparency

First is the argument from security: it holds that security requires people to show their face when appearing in public places.

No. Security can be established in numerous ways- e.g. by killing anyone who looks a bit suspicious. Having a visible face in a public place may promote public security. Some public spaces may require you to remove your hoodie or baseball cap so that CCTV can capture your image and you can be identified and prosecuted if you engage in criminal conduct.  

In such cases, the question arises whether the requirement is proportionate. Even otherwise it may be felt obnoxious or burdensome to the law-abiding majority. 

A second, closely related, argument, which I shall treat together with it, says that the kind of transparency and reciprocity proper to relations between citizens is impeded by covering part of the face.

This is not closely related at all. Public security considerations are disjunct from those which arise in inter-personal relations. Transparency and reciprocity may require two people to get naked and mount each other. This may not be allowed in public spaces for security reasons- e.g. thieves pick your pocket as you gawk at Macron eating out Zelenskyy. What? Stuff like that goes down all the time on Pornhub.  

What is wrong with both of these arguments is that they are applied inconsistently.

Arguments should be applied inconsistently because uncorrelated asymmetries obtain.  

It gets very cold where I live in Chicago. Along the streets we walk, hats pulled down over ears and brows, scarves wound tightly around noses and mouths. No problem of either transparency or security is thought to exist, nor are we forbidden to enter public buildings so insulated.

But, in Summer, a guy with a balaclava over his head wearing a trench coat under which a sawn off shot gun is hidden would attract attention.  A policeman may draw her weapon on the fellow and force him to take off the balaclava and take off his trench coat. 

Ambient temperature gives rise to an uncorrelated asymmetry. The bourgeois strategy is to wear a balaclava and a trench coat only in Winter, not in Summer. Arguments should be inconsistent on the basis of what uncorrelated asymmetries obtain. 

Moreover, many beloved and trusted professionals cover their faces all year round:

Apparently in Chicago, surgeons go to the shops and to restaurants, dressed in scrubs and holding a scalpel in their hand.  

surgeons, dentists, skiers and skaters.

Including Muslim surgeons. 

The latter typically wear a full - face covering with slits only for the eyes, similar to a niqab. Some are even more covered than the typical burqa wearer. In general, then, what inspires fear and mistrust in Europe, and, to some extent, in the United States, is not covering per se, but Muslim covering.

D'uh. Moreover, it was only after some Muslims started slaughtering us that we turned against Muslim covering. No doubt Martha Nussbaum would say 'both Osama and Obama ordered the killing of Muslims. Why don't we order Obama to be abducted by Marines who then fling his corpse into the ocean?' The answer is that an uncorrelated asymmetry arises. Obama was our leader. We want him to have a big house and lots of Secret Service protection. Osama was our enemy. We are pleased he was killed.  

So, what to do about the threat that all bulky and non-revealing clothing creates?

One thing people could do is pre-emptively remove the threat by shooting the person concerned. High gun-owning districts in America have less burglary because a guy in a balaclava tends to get shot before he can explain that he is actually an ice-skating surgeon who wandered into your house accidentally.  

Airline security does a lot, with metal detectors, body imaging, pat-downs, and so on (one very nice system is at work in India, where all passengers get a full manual pat-down, but in a curtained booth by a member of the same sex who is clearly trained to be courteous and respectful).

Which unfairly benefits homosexuals. Still, it's nice to know that Martha has a solution to the French hijab problem. Half the population can gain employment patting the other half down. 

Sport stadiums search all bags (though more to check for beer than for explosives, thus protecting the interests of in-stadium vendors). Retailers or other organizations who feel that bulky clothing is a threat (whether of shoplifting or terrorism or both) could institute a non-discriminatory rule banning; They could even have a body scanner at the door, but they don't, presumably preferring customer friendliness to the extra margin of safety.

After COVID that sort of stuff was kicked up a notch. Some buildings measured your temperature as you came in.  

What I want to establish, however, is the invidious discrimination inherent in the belief that the burqa poses a unique security risk.

Far better to have open discrimination. La Pen may well have introduced forcible repatriation. China has certainly gone in for 're-education' in a big way. Martha's stupidity is linked to her not being able to imagine actual political alternatives some of which previously had been codified in Law.  

Reasonable security policies, applied to similar cases similarly, are perfectly fine. A reasonable demand would be that a Muslim woman have a full face photo on her driver's license or passport.

Actually, that would be unreasonable if someone worse than La Pen has a chance of getting elected. A Muslim woman who discards her hijab so as to avoid being sent to an extermination camp may be detected under her new Christian name by facial recognition software with access to the DVLA database.  

Incidentally, most Hanafi jurists in India agree with a fatwa that photography is a sin. Both he who does it and he who submits to it violates God's commandment. 

With suitable protections for modesty during the photographic session, such a photo could be required, and I don't think that this requirement would be incompatible with equal liberty.

It may be, it may not. There is no a priori way to be certain. 

Moreover, I've been informed by my correspondence that most contemporary Islamic scholars agree: a woman can and must remove her niqab for visual identification if so requested.

So what? They may change their tune if the Caliphate is established and their own neck is in danger of the executioner's axe.  

However, we know by now that the face is a very bad identifier. At immigration checkpoints, eye-recognition and fingerprinting technologies have already replaced the photo. When these superior technologies spread to police on patrol and airport security lines, we can do away with the photo, hence with what remains of the first argument.

Who will pay for all this technology? Martha lives in a bubble where infinite resources are available to satisfy her own personal crotchets and shibboleths.  

Sometimes people argue that even if a burqa ban would be both over-inclusive (banning dress worn by harmless peaceful women) and under-inclusive (failing to ban many forms of attire that terrorists might choose), still, it is a good proxy for what is truly dangerous, and this sort of profiling is perfectly legitimate.

That may be. There is an economic theory of what is or isn't a good proxy at any given time. But this is an ideographic, not a nomothetic, matter.  

We can certainly debate the empirics here,

if we want to debate a cretin- sure 

and we should.

No we shouldn't. Arguing the toss with tossers makes one stoooooopid.  

But within reasonable limits we do think that airports are entitled use profiling in determining whom to search.

Unless you are a Hindu flight attendant and resent having your anus probed for suicide bombs twice every working day. 

This, however, is not what we are contemplating. We are contemplating not extra searches, but an outright ban on a religiously mandatory item of clothing.

Which, the French feel, is a good proxy for getting the ultra-orthodox nutters out of the public sphere- or, at any rate, satisfying those Whites who simply want to slit the throats of Muslims pre-emptively. Obviously, this will involve killing lots of peeps who look like they might be Muslim or who could conceivably be thinking Muslim thoughts. 

 Apparently there has been some 'reverse brain drain' among educated Muslims who are leaving France for more Islamic countries.  

In the context of such a severe burden, the fact that the proposed ban is greatly under-and over-inclusive for security purposes is highly relevant.

Only on a narrow view of 'security purposes'. It is perfectly proper for National Security to guard against potential threats- e.g. a wave of suicide bombing perpetrated by hijab wearing terrorists. 

Argument 3: Objectification

A third argument, very prominent today, is that the burqa is a symbol of male domination that symbolizes the objectification of women: it encourages people to think of and treat a woman as a mere object. A Catalonian legislator recently called the burqa a "degrading prison." President Sarkozy said the same thing.

Society is perfectly at liberty to change its mind regarding what is or isn't deemed repugnant. Islamic Societies have changed their mind re. veils for women on more than one occasion during my life-time. Other Societies are free to do the same. A countries laws may be unjust or inconsistent or foolish in some respect but that does not mean that they lack legal force. Societies have the right to have bad laws.   

It hardly needs to be said that the people who make this argument typically don't know much about Islam and would have a hard time saying what symbolizes what in that religion.

It does need to be said that the people who originally made this argument were Islamic scholars who didn't want their countries to fall farther and farther behind the West.        

But the more glaring flaw in the argument is that society is suffused with symbols of male supremacy that treat women as objects.

This is an argument for the legalization of rape. Trust Nussbaum to make it.

Sex magazines, pornography, nude photos, tight jeans, transparent or revealing clothing - all of these products, arguably, treat women as objects, as do so many aspects of our media culture. Women are encouraged to market themselves for male objectification in this way, and it has long been observed that this is a way of robbing women of both agency and individuality, reducing them to objects or commodities. And what about the "degrading prison" of plastic surgery? Every time I undress in the locker room of my gym, I see women bearing the scars of liposuction, tummy tucks, breast implants. Isn't much of this done in order to conform to a male norm of female beauty that casts women as sex objects?

Nussbaum is blonde. The relevant male norm is that she should be as stupid as shit. Why is she conforming to it?  

If the proposal were to ban all practices concerning which a ministry of feminism had concluded that they objectify women, the proposal would at least be consistent, although few would endorse such a sweeping restriction of liberty or the authority it would vest in a small number of alleged feminist experts. But it is not made consistently. Proponents of the burqa ban do not propose to ban all these objectifying practices. Indeed, they often participate in them.

Proponents of criminalizing rape don't propose banning all sex. Indeed, they often participate in such activities. 

Once again, then, the opponents of the burqa are utterly inconsistent,

in the same sense that Nussbaum is inconsistent. Why does she wipe her own bum but not wipe everybody else's bum?  

betraying a fear of the different that is discriminatory and unworthy of a liberal democracy.

Why isn't Biden wiping Trump's bum? He is unworthy to be the President of a liberal democracy. No doubt he has a fear of the 'different' (Trump's tushy is velvety whereas Biden's is hairy) which might turn him gay. This is totes discriminatory. 

Inconsistency is fine where uncorrelated asymmetries arise and 'bourgeois strategies' are rational. Kids may whine about how unfair it is that Mummy and Daddy get to set their own bed-time and teenagers might whine about Mummy's hypocrisy in not letting her daughter have sex when she herself is getting plenty of action. But that's how the grown up world works. 

In effect, they arrogate to themselves the position of the inquisitorial ministry of feminism - but only for certain people, people whose real motives and understandings they are particularly likely not to understand clearly, not for their own sort. The way to deal with sexism, in this case as in all, is by persuasion and example, not by removing liberty.

Free all incarcerated rapists and wife beaters now! 

Of course, things that are legal can still be disapproved of. What I am arguing is that equal respect for persons requires equal conditions of liberty.

So, Nussbaum is arguing that no equal respect for persons can obtain so long as there are uncorrelated asymmetries. Fine. The thing is just pi-jaw. But equal conditions of liberty is operationalizable.  

But it does not require equal personal approval of all religious practices. Legality is not approval. Many things are legal that most of us would consider deplorable: unkindness, stinginess, intemperance, incivility, narcissism.

Nussbaum writing stupid shite etc. 

And in a society based upon equal respect for persons, people with one religious or secular view remain perfectly free to disapprove of some religious practices, or even of all of them and of religion itself.

In which case 'equal respect for persons' means you could have public officials coming up to you and saying 'I hate you and I think your religion/race/class/gender is evil. Have a nice day.' Who the fuck would want any such thing? 

Respect is for the person, and is fully compatible with intensely disliking many things that many people do.

No it isn't. I don't feel greatly respected when people say they intensely dislike the fact that I'm breathing air. They would esteem it a personal favor- not to mention a great service to mankind- if I could simply suffocate to death.  

So in a society dedicated to equal liberty people remain perfectly free to think and to say that the burqa is an objectionable garment because of the way in which it symbolizes the objectification of women. Still, such a person ought at least to think about consistency, and I think a duty of civility suggests that she ought at least to try very hard to understand. One should listen to what women who wear the burqa say they think it means before opining.

It would be preferable to have less opining. On the other hand Nussbaum should listen very carefully to women, or men who may claim to be women, who think she should stop breathing immediately and just suffocate to death. I am always prepared to listen to such arguments provided my drinks are paid for.  

In general, we needn't approve of the forms of dress that others choose, or of any specific religious observance. We may judge other people's choices ridiculous, or revolting, or even hateful. I do think that one should try to understand first before coming to such a judgment, and I think that in most cases one should not give one's opinion about the way a person is dressed unless someone has asked for it.

Sadly, people who ask for my opinion are doing so not in the hope of benefiting from a 'feast of reason and flow of soul' but rather in the hope of making fun of my Madrasi accent. 

In general, we should approve of that which we consider tasteful and fitting and express ridicule or contempt for what we find hateful. Such 'marking services' lie at the foundation of human ethology. A guy who says 'nice suit!' is helping boost my confidence to a worthwhile end. A lady who says 'you look ridiculous in skinny jeans. Dress your age not your IQ you big fat turd' is doing me a similar favor and I happily kiss her coz she is my Mummy after all.  

But, of course, any religious ceremony that expresses hatred for another group

like the Nazi party? 

(a racist religion, say) is deeply objectionable, and one can certainly protest that, as usually happens when the Ku Klux Klan puts on a show somewhere these days.

In India restrictions were placed on certain religious ceremonies- e.g. cursing of the first 3 Caliphs- and, from time to time, the right to protest has been suspended in the public interest. Nussbaum is babbling nonsense.  

That white hooded garment is plausibly seen as a symbol of racism, and though it would be wrong, I think, to make it illegal, it is permissible to criticize it.

It is also permissible to praise it.  

Myself, I think that a burqa is not a symbol of hatred, and thus not something that it would be reasonable to find deeply hateful. It is more like the boys and their tzizit,

Jewish tassels- an observance which has rather a nice, Socialistic, meaning 

something I may feel out of tune with, but which it is probably nosy to denounce unless a friend has asked my opinion.

Nussbaum is a convert to Judaism. Why is she pretending anyone thinks she is a learned Rabbi?  

Still, if someone else wants to say that it is deeply objectionable, and that she does not respect it, that does not in any way disagree with the principles I am defending here.

In which case no 'principles'- as opposed to random thoughts- are being defended here. One purpose of tzitzit is to retain mindfulness of what is owed to others from the fruit of your own industry.  There may be some specific context where the thing is controversial but that context would be wholly internal to some orthodox Jewish sect which is not harming us goys in any way.  On the other hand, it is highly discriminatory that I have not been appointed Chief Rabbi even though I've completed two years of Pope School. Is it coz I iz bleck? 

What respect for persons requires is that people have equal space to exercise their conscientious commitments, not that others like or even respect what they do in that space.

No respect involves actually being respectful. This tends to have a mollifying or friendship creating effect. A robot or a computer program can allocate 'equal space'. It can't show any type of respect whatsoever. 

Furthermore, equal respect for persons is compatible with limiting religious freedom in the case of a "compelling state interest."

As is the reverse. Thus saying so is not 'informative'. Indeed, Nussbaum's entire oeuvre is non-informative.  

A government intervention that was right, in my view, was the judgment that Bob Jones University should lose its tax exemption for its ban on interracial dating.

This was arbitrary but the law can be arbitrary without ceasing to be the law. Bob Jones dropped the ban about a dozen years before Nussbaum wrote this. It could be argued that where the law bans a thing a superior correlated equilibrium can be reached. Previously, people who wanted to make the change were 'locked in' to an inferior equilibrium because of a perceived first-mover penalty. This is a negative externality argument and arises where there is 'wasteful competition'. Restrictions on 'virtue signalling' reduce allocative inefficiency and thus improve outcomes. Thus, to advertise piety a guy doesn't have to have a really long beard and a woman doesn't have to have an all enveloping burqa. No doubt, some fanatics get pushed out of public spaces but, on balance, that may be a desirable outcome. 

Here the Supreme Court agreed that the ban was part of that sect's religion, and thus that the loss of tax-exempt status was a "substantial burden" on the exercise of that religion, but they said that society has a compelling interest in not cooperating with racism. Never has the government taken similar steps against the many Roman Catholic universities that restrict their Presidencies to a priest, hence a male; but in my view they should all lose their tax exemptions for this reason.

Catholics provide the brains to the Christian Right in America. Nussbaum & Co proved utterly useless. Why? They couldn't or wouldn't keep up with developments in game theory and category theory and so forth. We can blame Sen for steering Nussbaum down the wrong path but he only got to do so because she was as stupid as shit.  

Why is the burqa different from the case of Bob Jones University?

Burqas are not tax-exempt. Also women are not universities though no doubt there are some of whom it could be said 'to have known her was to have gained a liberal education'.  

First, of course, government was not telling Bob Jones that they could not continue with their policy, it was just refusing to give them a huge financial reward in the form of tax relief, thus in effect cooperating with the policy. A second difference is that Bob Jones enforced a total ban on interracial dating, just as the major Catholic universities have imposed a total ban on female candidates for the job of President. Thus everyone who is part of the institution is coerced. The burqa, by contrast, is a personal choice,

How does Nussbaum know? It may be or it may not be. If it is, then it remains a personal choice even if there is a penalty. If it isn't, the ban is salutary and must be followed up by further legislation- e.g. making it an offense to intimidate non-hijab wearing women.  

so it's more like the case of some student at Bob Jones (or any other university) who decides to date only white females or males because of familial and parental pressure.

No. A University can make or mar a young person's life chances to a greater extent than the family by reason of the young person having left home and being capable of setting up an independent household.  

Sadly, most people in most places prefer to date only people from their own group. And many religions back them up. This may be morally short-sighted, but it does not seem like a case for government intervention.

Government's do intervene to prevent Religions from imposing marital and sexual choices on adherents.  Nussbaum is utterly ignorant.

Which brings me to my next point.

 

Argument 4: Coercion

A fourth argument holds that women wear the burqa only because they are coerced. This is a rather implausible argument to make across the board,

No. It is an entirely plausible argument as the recent history of Afghanistan shows.  

and it is typically made by people who have no idea what the circumstances of this or that individual woman are.

The problem is that nobody has any idea as to what their true circumstances really are. A girl may think she can walk down a particular street safely. Then she gets raped and discovers she was wrong. There is a theory of 'regret minimization' under Knightian Uncertainty which can enable us to improve mechanism design by bringing in well drafted, incentive compatible, laws. Nussbaum is ignorant of that theory. Instead she has a naive belief in objective 'capabilities' which are actually unknowable. But this means she can say 'a woman has the capability to do x freely' which is non-informative because that woman can never know, nor can anybody else, whether she actually has that capability or not. One may as well say 'everybody can turn into a unicorn'. The thing is meaningless.  

We should reply that of course all forms of violence and physical coercion in the home are illegal already, and laws against domestic violence and abuse should be enforced much more zealously than they are.

This is irrelevant. What matters is whether you get attacked on the street for wearing or not wearing hijab. I keep a paper bag over my head at all times for my own safety. If I did not do so, I may have been subjected to rape by lustful teenage beauty queens.  

Do the arguers really believe that domestic violence is a peculiarly Muslim problem? If they do, they are dead wrong.

But the arguers believe that burqas are a peculiarly Muslim problem. They are dead right. 

According to the United States Bureau of Justice Statistics, intimate partner violence made up 20% of all nonfatal violent crime experienced by women in 2001.

Whereas the percentage of non Muslim women wearing burqa was zero.  

The National Violence Against Women Survey reports that 52% of surveyed women said they were physically assaulted as a child by an adult caretaker and/or as an adult by any type of perpetrator. There is no evidence that Muslim families have a disproportionate amount of such violence. Indeed, given the strong association between domestic violence and the abuse of alcohol, it seems at least plausible that observant Muslim families will turn out to have less of it.

Furthermore, Muslims are less likely to die chocking on a ham sandwich. Sadly, this like every other point Nussbaum raises, is wholly irrelevant.  

Suppose there were evidence that the burqa was strongly associated, statistically, with violence against women. Could government could legitimately ban it on those grounds?

If women wearing burqa were getting shot on the streets, sure. However the thing would be justiciable.

The United States Supreme Court has held that nude dancing may be banned on account of its contingent association with crime, including crimes against women, but it is not clear that this holding was correct.

It is the law. The ruling is correct till the Bench itself overturns it or further legislation is introduced.  

College fraternities are very strongly associated with violence against women,

though, strangely, their primary purpose is not to rape girls. The fact is frat boys want fat salaries and rapid promotion. Sex is merely recreational. Girls need to get over themselves.  

and some universities have made all or some fraternities move off campus as a result. But private institutions are entitled to make such regulations about what can occur on their premises; public universities are entitled to limit the types of activities that will get public money, particularly when they involve illegality (underage drinking). But a total governmental ban on the male drinking club (or on other places where men get drunk, such as soccer matches) would certainly be a bizarre restriction of associational liberty.

This stupid woman forgets the 18th Amendment. A Government can ban all alcohol in the same way it can ban buggery or drug use.  

One thing that we have long known to be strongly associated with coercion and violence against women is alcohol. The Amendment to the United States Constitution banning alcohol was motivated by exactly this concern. It was on dubious footing in terms of liberty: why should law-abiding people suffer for the crimes of abusers?

It was sound law. But it was counter-productive. The reason it was instituted was because women got the vote and the KKK pretended that only Catholics were bootleggers.  

But what was more obvious was that Prohibition was a total disaster politically and practically. It increased crime and it did not stop violence against women.

It reduced Government revenue. Prohibition ended because of the Great Depression.  

College and university administrators today generally deplore the fact that the drinking age is currently 21 rather than 18, because they believe that the higher age actually increases binge drinking and coercion of women. The reason is that at present alcohol consumption secret and illegal, rather than legal and therefore potentially regulable and supervisable by university officials.

In Nussbaum's tiny brain this is connected with the burqa because most Muslim women go to Ivy League Colleges right? Being constantly menaced by drunken Frat Boys, they naturally want to muffle themselves in commodious burqas. Indeed, the real reason for 9/11 is that drunken Frat Boy, George W Bush, was molesting Benazir Bhutto who put on burqa thus setting a trend. Come to think of it, Benazir was responsible for setting up the Taliban and roping in Osama. Nussbaum is a genius! She has uncovered the secret history of the War on Terror!

Moreover, even during Prohibition religions that required the sacramental use of alcohol got an exemption. Similarly, federal law today exempts religious use of alcohol from the drinking age. So the correct analogue would be a ban on the burqa that exempted those who wear it for religious reasons - which is to say virtually all users.

No. It would restrict the wearing of burqa only to specific religious places and activities. On the other hand, women on Hajj are not allowed to cover their face. Nussbaum's 'correct analogue' defeats her argument. She truly is as ignorant as shit.  

What is most important, however, is that anyone proposing to ban the burqa must consider it together with these other cases, weigh the evidence, and take the consequences for their own cherished hobbies.

This is not important at all. Otherwise, people who propose sensible things would have to indulge in some utterly useless 'weighing of the evidence' re. the social consequences of their hobby of philately.  

But what about children and adolescents? Surely they do not have much choice as long as they are living with their parents, so family pressure to wear religious dress is likely to be difficult to resist. This question opens up a huge topic, since there is nothing that is more common in the modern family than various forms of coercive pressure (to get into a top college, to date people of the "right" religion or ethnicity, to wear "appropriate" clothes, to choose a remunerative career, to take a shower, "and so each and so on to nolast term" as James Joyce once said).

Children and adolescents are required by law to attend a place of education which may have a mandatory school-uniform policy. In Karnataka, the Bench has found that Islam does not require wearing of burqa inside a single-sex School or College. This is perfectly reasonable. 

The French ban is stricter but there is nothing in French, or European, history which rules out much sterner measures- including forcible deportation or Chinese style 're-education'. Nussbaum lives in a fantasy world.  

So, where should government and law step in? Certainly it should step in where physical and/or sexual abuse is going on, which is very often.

Unless its operatives are even more evil rapists.  

Where religious mandates are concerned, intervention would be justified, similarly, where the behaviour either constitutes a gross risk to bodily health and safety (as with Jehovah's Witness children being forbidden to have a life-saving blood transfusion), or impairs some major functioning.

No. The matter is ideographic. Different jurisdictions will arrive at different decisions on essentially similar cases. Some obviously flawed interventions may be legal while salutary interventions are deemed illegal. This is why laws have to be revised from time to time.  

Thus, I think that female genital mutilation practiced on minors should be illegal if it is a form that impairs sexual pleasure or other bodily functions. Male circumcision seems to me all right, however, because there is no evidence that it interferes with adult sexual functioning; indeed it is now known to reduce susceptibility to HIV/AIDS. The Christian Science belief that children should not be taken to the doctor when ill has also been litigated successfully, and some forms of "alternative" medical treatment have led to abuse and neglect convictions.

All of this is irrelevant unless it can be shown that Islam requires the wearing of the burqa as a fundamental tenet of its faith. There is no evidence that this has ever been the case- though in a particular jurisdiction, this may have been the 'ijma' that the State chose to enshrine in law.  

In every case, what is really going on is my two-sided balancing test: is there a substantial burden on the parents' religious freedom? And, if so, does a compelling state interest justify the imposition of this burden? Now to the burqa.

The burqa (for minors) is not in the same class as genital mutilation, since it is not irreversible and does not engender health or impair other bodily functions - not nearly so much as high-heeled shoes.

This is not the case. Kids don't wear high-heeled shoes. However girls who don't get enough exposure to sunshine are at greater risk of Vitamin D related diseases.  

If it is imposed by physical or sexual violence, that violence ought to be legally punished.

No. Legal punishments should only be imposed if the Social Benefit outweighs the Social Cost.  

Otherwise, however, it seems to be in the same category as all sorts of requirements, pleasant and unpleasant, that parents impose on their children: getting top grades, practicing the violin, dating only people of the "right" religion, getting into a top college.

Does wearing the burqa improve life-chances in the same way that getting into a top college does? No. It is likely to reduce life-chances. Incidentally, women who wear burqa won't marry non Muslims because to do so is forbidden in Islam.  

Some practices of this type do appear to violate laws against child cruelty.

in the opinion of a cretin who thinks wearing hijab is similar to getting into a top college.

Societies are certainly entitled to insist that all female children have a decent education and employment opportunities that give them exit options from any home situation they may dislike. If people think that women only wear the burqa because of coercive pressure, let them create ample opportunities for them, and then see what they actually do.

If people think that rapists only rape because they lack sexual outlets, let them offer their arseholes for buggery to every drunken thug they meet. 

Women may wear burqa to wield coercive pressure over other women. They may also do so in order to commit theft or carry out a suicide bombing. We may not greatly care if Chinese officials are the target- as happened recently in Karachi- but we definitely don't want to be the victim of any such thing. 

Before we leave the topic of coercion, there is a reasonable point to be made in this connection. When Turkey banned the veil long ago, there was a good reason in that specific context: because women who went unveiled were being subjected to harassment and violence. The ban protected a space for the choice to be unveiled, and was legitimate so long as women did not have that choice.

This is very much the case in France. On the other hand some veiled teenagers too have to submit to gang-rape.  

The ban does not appear to be justified today, when women are able to circulate freely, unveiled.

Nussbaum says this because she has deep personal experience of living as a Muslim woman in a French banlieue.  

Nor would it be justified today in Europe, the United States or Australia, where women can dress more or less as they please; there is no reason for the burden to religious liberty that the ban involves.

So, Nussbaum's ignorance is total.  

Argument 5: Health risk

Finally, one frequently hears the argument that the burqa is per se unhealthy, because it is hot and uncomfortable. I have heard this argument often in Europe, particularly in Spain. This is perhaps the silliest of the arguments. Clothing that covers the body can be comfortable or uncomfortable, depending on the fabric. In India I typically wear a full salwaar kameez of cotton, because it is superbly comfortable, and full covering keeps dust off one's limbs and at least diminishes the risk of skin cancer.

So what? India is a mainly Hindu country. In Kashmir, a College topper got death threats for not wearing burqa. She has since conformed. 

It is surely far from clear that the amount of skin displayed in typical Spanish female dress would meet with a dermatologist's approval.

Them Spanish dames be totes slutty- right? Meow! 

But more pointedly, would the arguer really seek to ban all uncomfortable and possibly unhealthy female clothing?

Yes. Lesbians are totes cool.  

Wouldn't we have to begin with high heels, delicious as they are? But no, high heels are associated with majority norms (and are a major Spanish export), so they draw no ire.

Girls in high heels with jiggly breasts don't tend to be suicide bombers.   

In general, the state limits its regulatory interventions into clothing to making sure that clothing sold for children is flameproof and without harmful chemicals, and that other gross health risks are avoided.

Not if the State runs schools which have a uniform dress code.  

But on the whole women in particular area allowed and even encouraged to wear clothing that could plausibly be argued to create health risks, whether through tendon shortening or through exposure to the sun.

or having to work for a fucking living which, believe you me, is what has shortened my life and ruined my liver.

Nussbaum's stream of consciousness now gets decidedly kinky- 

Suppose parents required their daughters to wear a Victorian corset - which did a lot of bodily damage, compressing various organs. Adult women today could wear something just as restrictive with no impediment. If people made a fuss about teenage girls being forced to wear corsets, it is likely that a ban would at least be contemplated. If corsets were mandatory for some religion, however, they would have to show not just a rational basis for the ban but a compelling state interest: so they'd have to show that the risk to health was considerable.

Was Nussbaum drooling and touching herself as she wrote this? Am I? Do you really want to know the answer to such questions? 

The burqa is not even in the category of the corset. As many readers pointed out, it is sensible dress in a hot climate

like that of France? 

where skin easily becomes worn by sun and dust.

This is a big problem in Chicago- especially in winter. 

What does seem to pose a risk to health is wearing synthetic fabrics in a hot climate, but nobody is talking about that.

Because they are talking about you Nussbaum and your kinky fetish for Victorian whalebone corsets. Do you see yourself as Scarlett O'Hara in Gone with the Wind?  

The burqa and the limits of laicite

All five arguments are discriminatory. We don't even need to reach the delicate issue of religiously grounded accommodation to see that they are utterly unacceptable in a society committed to equal liberty. Equal respect for conscience requires us to reject them.

Sadly, no country is 'committed to equal liberty'. Nobody respects the conscience of a crazy serial killer. Thus we reject Nussbaum's argument that a burqa ban is discriminatory. It may be foolish. It may be counter-productive. But it isn't discriminatory unless that there is some other class of people who have shown a proclivity to senseless violence against us by reason of their religious faith who are not subject to similar measures. 

Let us now consider more closely the special case of France.

The law is ideographic in a manner in which the Social Sciences are not. All independent jurisdictions represent 'special cases'  

Unlike other European nations, France is consistent - up to a point. Given its history of anticlericalism

which existed in a more virulent form in other countries 

and the strong commitment to laicite,

again, this is not unique to France at all. On the other hand Cardinals had ruled France. None attained similar power elsewhere. (the Cardinal-Infante was never ordained)

In any case, the 1905 Act does not apply to Alsace and Moselle. It was only in 1946 that the word appeared in the Constitution. This  

religion is not to set its mark upon the public realm, and the public realm is permitted to disfavour religion by contrast to non-religion. This commitment leads to restrictions on a wide range of religious manifestations, all in the name of a total separation of church and state. But if one looks closely, the restrictions are unequal and discriminatory. The school dress code forbids the Muslim headscarf and the Jewish yarmulke, along with "large" Christian crosses.

But this is a totally unequal burden, because the first two items of clothing are religiously obligatory for observant members of those religions, and the third is not: Christians are under no religious obligation to wear any cross, much less a "large" one. So there is discrimination inherent in the French system.

In which case Nussbaum's arguments have no purchase. The French have never adhered to whatever creed she herself espouses. The fact is, France puts an unequal burden on guys doing stuff the French don't like. That includes invading the country and changing the official language to Tamil. Anyway, that was the impression I formed when I went to John Milton's street and relieved myself on the pavement to protest the shameless way in which he plagiarized my work in his 'Paradise Lost'.  

Would French secularism be acceptable if practiced in an even-handed way?

No. If we are not French and aint living on French territory we should not accept any such suppository though the thing may well happen if you get drunk and end up in the sort of place where that type of deviant behavior is rampant.  

Come to think of it, Nussbaum may be more sinned against than sinning. No wonder she has these fantasies about being laced into a whalebone corset in the ante bellum South. 

According to United States constitutional law, government may not favour religion over non-religion, or non-religion over religion.

That is an interpretation. But it isn't true.  

I must say that I prefer this balanced policy to French laicite; I think it is fairer to religious people. Separation is not total, even in France: thus, a fire in a burning church would still be put out by the public fire department; churches still get the use of the public water supply and the public sewer system. Still, the amount and type of separation that the French system mandates, while understandable historically, looks unfair in the light of the principles I have defended.

This is foolish. Anti-Clericalism and Monarchism and Pujadisme and all sorts of other crazy or cretinou shite was big in France. So what? 

Let's now consider the language of the law banning the burqa.

Why bother? It is obvious that the thing was drafted with a view to constraints imposed by Brussels.  

It prohibits "wearing attire designed to hide the face" (porter une tenue detinee a dissimuler son visage) - and then there is a long list of exceptions:


"The prohibition described in Article 1 does not apply if the attire is prescribed or authorized by legislative or regulatory dispensation, if it is justified for reasons of health or professional motives, or if it is adopted in the context of athletic practices, festivals, or artistic or traditional performances."

One's first reaction to this capacious list is that they have tried to include every possible occasion for covering the face - except the burqa.

Which is what European Law permits. So what? The fact is, if La Pen came to power and forcible repatriation occurred, the relevant statute would contain an even longer list of exceptions.  

Clearly, though, you don't purchase principled consistency

Which was not on the French shopping list at all- any more than getting a blowjob from Santa was. 

simply by listing as an exception to the principle everything except the one thing you really dislike.

But, if this is what it takes for the EU Court to give the nod then this is the way you do things. Two years after Nussbaum wrote this shite, the European Court clarified that the ban was ' proportionate to the aim pursued, namely the preservation of the conditions of 'living together' " of all French citizens.

Basically, the Court opened the door to a more direct approach. However, France has its own shibboleths and taboos. The trouble is those can change in a heartbeat. France is on its Fifth Republic. It also had Two Empires and two Monarchies in between. 

The French have a reply to make, however. For they do not exempt any religious occasion or motive for covering the face. In the case of the school dress code, they did: and those "small" crosses showed favouritism to the Christian majority. (Similarly, bans on Muslim headscarves in other countries that exempt nuns in full habit are inconsistent and a form of majority favouritism.)

No they aren't. Nuns are clearly dedicated to nothing but Religion. That is their profession, their raison d'etre. It would be 'inconsistent' and would violate 'horizontal equity' if nuns were treated the same as housewives. However, a restriction placed on nuns of one sect but not nuns of another may be considered unfair. Sadly, Courts are unlikely to agree that Mother Theresa's nuns should not be allowed to minister to the sick just because Vampira the Super-dyke's Nuns of perpetual torment are not allowed to use their vast strap-ons on my tender rectum when I'm feeling poorly.  

From the point of view of our principle of equal liberty, the whole policy of laicite is mistaken,

In which case it isn't really a principle of equal liberty at all. It says that free people can't come up a doctrine of their own to which we take exception.  

since it privileges non-religion over religion

this lady is privileging her own argument over the argument that she has shit for brains 

and constricts the liberty of religious expression without any compelling government interest (apart from laicite itself).

The French government has a compelling interest in suppressing indigenous Islamists.  

But we are not asking that question at this point; we are simply asking about fairness among the religions.

But your manner of asking reeks of privilege, entitlement, and American exceptionalism.  

Does the application of the ban to all religions mean that the ban, unlike the school dress code, is truly neutral?

Yes. Why? Islam does not actually require burqa. Nor does any other religion. But they could do so. Thus the ban was neutral in the same way that Prohibition was neutral between religions which permitted alcohol and those which didn't.  

Well of course, although the word burqa does not occur in the legislation, we understand perfectly well that this is what it is all about. And the fact that they are so generous with other cultural and professional exemptions shows that they are not terribly worried about the practice as such - only when it is a religious manifestation. But still, isn't that a consistent and, up to a point, neutral application of the polity of laicite?

Yes, in the opinion of the only people who matter- viz French peeps wot eat snails while gassing on about laicite.  

The difficulty we have here is that no other religion has a custom of precisely that sort.

Nor does Islam. The fact is non-Muslims wore burqa or observed purdah where the thing was customary by reason of Islamic rule. It can happen in Europe that if non-burqa wearers are getting beaten and raped, then prudence would dictate smaller sects making the thing mandatory.  

So what the law has done is to single out something that is of central importance to one religion

how the fuck could a Scarlett O'Hara convert to Judaism know what was of central importance to Islam? True, Sen had been her boyfriend and his people had fled East Bengal, but Sen wasn't Muslim. Wearing salwar kameez in Hindu India does not make you an authority on Islam. 

The plain fact is that women had become Prime Ministers of Islamic Republics. Did Benazir wear burqa? Did Khaleda Zia? Did Sheikh Hasina? No. It follows that burqa or hijab is not of 'central importance' to Islam. Why did this stupid lady not understand this?  

and to apply a very heavy burden to it, without similarly burdening the central and cherished practices of other religions.

Like what? Trying to stigmatise adultery and buggery and sex with baboons? 

Essentially, Nussbaum is saying the law must never respond to a particular exigency of a limited type because....urm.... her tiny little brain doesn't understand that 'uncorrelated asymmetries' dictate 'bourgeois' solutions.  

Indeed, it seems clear that one would not be fined for making the sign of the cross over oneself in a public place,

or any similar Muslim or Hindu or Buddhist signing  

for singing a religious hymn as one walked down the street,

unless it were equally prohibited to sing a bhajan or naat or whatever 

or for wearing any type of religious apparel other than the burqa:

but the burqa is not 'religious apparel'. It is what women wear in some places because that is customary. 

It is not the case that a woman wearing burqa is claiming any special sacerdotal office or status.  

cassocks,

If I wear a cassock, it is 'fancy dress'. Only when a Christian Monk, in obedience to his ecclesiastical superiors, humbles himself in such attire is any religious or soteriological purpose served. 

nuns' habits,

Nuns are wedded to Christ- who has power and willingness to be our personal Lord God and Saviour. That is why we show respect to them even if we are evil or mad.  

Hasidic dress,

These handsome and decent dudes are deliberately making themselves look less attractive to our women. We like them more in consequence. They are not beating or knifing or suicide bombing us.  

the saffron garb of the Hindu priest

OMG! This cretin who says she 'wears shalwar kameez' in India has never seen a Hindu priest! My ancestors were such priests. We ourselves employed priests. They wore what we wore- white. Saffron is expensive. Anybody can and does wear saffron. There is no such requirement for Brahmin priests or monks. 

- all of these remain unburdened. So it is neutral in one sense, but not at all neutral in another.

in the opinion of a cretin who has never been neutral. She, like Amartya Sen, has always bad mouthed Hindus.  

At this point, defenders of the ban will typically allude to one of the other arguments, saying that the burqa, unlike these other forms of clothing, is a security risk, an impediment to normal relations among citizens, and so on.

No. Defenders of the ban will say 'Nussbaum, your brain is full of shit. You are stupid. You are ignorant. Fuck off.' 

The fact is that the EU court clarified that 'proportionality' meant France could do pretty much what it liked to ensure that its Muslims adhered to European, not Arab, not Muslim, norms and values.  

But the fact that the government does not credit these rationales is clear from the fact that they permit so many exceptions to the ban.

The thing may have been precautionary. But once the EU judgment came out the Law was clarified. Nussbaum was wrong. She and her ilk were useless cunts. A better argument could have been made. It wasn't because nobody really cared very much about this storm in cup of tisane.  

Even a public masquerade, at which hundreds of people cover their faces, received explicit defence in the statute.

Thus forestalling a possible objection. There's plenty of this type of shit in every contract we sign. 

So it's clear that the government does not think that security provides a compelling interest in favour of the restriction: it's trumped routinely by very weak and even frivolous interests.

Why is Nussbaum being so shy? Why not say that France wants to use garlic eating snails to sodomize Muslims and turn them into good little baguettes which will be used by Narendra Modi to beat Amartya Sen to death?  

So I conclude that the French ban is not truly neutral,

it is neutral in every reasonable or legal sense. It is Nussbaum whose hysteria has never been neutral.  

any more than the school dress code.

not to mention the Highway Code.  

Besides the obvious objection that French secularism does not allow sufficiently ample freedom for religious observance, we may add the objection of bias.

This is mad. France, over the course of my lifetime and that of the Fifth Republic has produced great Religious preceptors in different religions. There is absolutely no reason to conclude that 'ample freedom' does not obtain for every type of religious observance or innovation. 

Nussbaum is a bigoted cunt.  Her biases are obvious. They are also wholly mischievous because she is as stupid as shit.

***

Philosophical principles shape constitutional traditions and the shape of political cultures.

only in the sense that hypocrisy and overblown rhetoric do so.  

I have tried to articulate some important principles behind traditions of religious liberty and equality in both the United States and Europe.

You have failed. America killed or enslaved darkies. It was 'accommodationist' only to Whites who would get with that program.  

Today, a climate of fear and suspicion, directed primarily against Muslims, threatens to derail these admirable commitments.

Muslims dispelled that climate. Why? They are and always have been decent, hard working, God fearing people who understand what is required to live up to the hadith- hubb al watan min al iman- love of country is part of the Faith. Oikeiosis of any sort is perfectly Islamic. God created uncorrelated asymmetries but, under guidance of Prophets and Spiritual preceptors, we can always improve on 'bourgeois strategies'. 

Suspicion of 'Muslims' declined. Trump trumpeted in vain against London's election of a Muslim Mayor. Meanwhile, in Ireland, a Gay man of Maharashtrian descent became Taoiseach. The world had changed, no thanks to empty or imbecilic virtue-signallers like Nussbaum. 

But if we articulate them clearly

Nussbaum's 'clear articulation' shows she wasted her time in the Academy. She didn't learn about or even try to understand Law & Econ or category theory or mechanism design or anything else.  She may have had sex with one or two celebrity academics. But, a celebrity academic in a shite subject is still only the equivalent of a fucking hobo who once did Math. 

and see the reasons for them, this may help us oppose these ominous developments.

Fuck did Martha oppose? Trump became President. Her tummy churned and churned and her anal sphincter burned and burned as she shat herself uncontrollably in a hotel room in Tokyo.