France and Belgium Have Banned the Burqa. Should America Follow Suit?

Belgium just became the second European nation to ban the burqa and the niqab, the garments worn by some conservative Muslim women that entirely cover the body and face, with only a mesh screen or a slit for the eyes. With France's ban earlier this year and now Belgium's, the burqa is a hot issue in Europe. Depending on who you listen to, the burqa is either -- as President Obama said in Cairo two years ago -- an exercise of religious freedom or -- as French President Nicolas Sarkozy has said -- "a sign of debasement."

Meanwhile, there is little discussion about the burqa in the United States, despite its increasing appearance in many neighborhoods. I recently saw a couple of women wearing burqas in our local mall, walking dutifully behind their husbands. Another burqa-shrouded woman shopped in our local grocery last week.

When I see a woman in a burqa, my feelings are of revulsion. Not of the women themselves, of course, but of the culture and the men who require this of them. Not only do I want to set them free, I want to protect my own daughter from the sight of what appears to me as forced subservience.

But I know to be skeptical of my own cultural predispositions and assumptions, and I recognize that revulsion alone is rarely a proper basis for public policy. I also understand that our national commitment to free exercise of religion means we have a tradition of protecting religious expression and dress of many kinds, even if gender based. Hasidic Jews, the Amish, and Catholic religious orders require different rules of dress for men and women. Moreover, even setting aside religious pluralism, we have a national presumption in favor of individual choice. If a woman wants to encase herself in a black face-veil, who am I to object?

So the question becomes whether there are special reasons to weaken these presumptions in favor of pluralism and choice when it comes to burqas. I think there are.

Under current constitutional law, religious belief does not always trump public policy goals, especially if the goals are embodied in neutral statutes not motivated by animus. States can punish drug use, even if occurring in the context of a religious ceremony. Polygamy is outlawed even though some Mormon sects still believe it to be ordained by God (and even if a woman wants to be a second wife). In emergencies, courts can force Christian Scientists to provide medical care to their children. Digamar Jain monks in India do not wear clothes; if one walked down Main Street USA in his birthday suit, police could cite him for indecency.

Because the burqa covers the face, it is distinguishable from other forms of religious dress. A law could legitimately group the facial veil with other coverings of the face that raise administrative and security concerns. For this reason, if a law required students at a state university or riders on public transportation to reveal their faces, then it would likely be upheld as long as it were applied to anyone wearing a werewolf mask, a KKK hood, or burqa.

The harder question is one of free choice. While we usually give individuals' own choices the benefit of the doubt, there are exceptions when those choices impose harms on others. With the burqa, the choice to hide behind a veil may cause external harm in some circumstances. For example, a bank might reasonably insist that patrons not cover their faces because of the increased security risks. A school might reasonably insist that teachers show their faces while teaching, not only for pedagogical purposes but also to resist sending a message to young students that women are second-class citizens.

We might also be skeptical of choices that are the product of manipulation or coercion. With the burqa, the coercion might be explicit -- some husbands and fathers may be forcing some wives and daughters into wearing them. The coercion could also be implicit -- cultural norms may be so powerful that the women in question may have as much real choice to refuse to wear a burqa as I have a real choice to become hip-hop artist. Recognizing these cultural constraints and influences does not mean that the government should necessarily step in. But it does mean that we cannot be sanguine about doing nothing.

It's time to have an American conversation about the burqa. It will not be the same as a European conversation; it will take into account distinctive American ideals, some of which -- like liberty and equality -- inevitably conflict. We should not presuppose that the conversation will be simple or have only one possible outcome.