By Patrick Beauchamp
This summer French beach towns from the Atlantic coast to the Mediterranean have banned the wearing of “burkinis” on their beaches. A burkini is a swimsuit that covers the whole body except for the feet, hands, and face. They are worn primarily by some Muslim women in order to swim while observing religious rules that promote modesty as well as faith. This piece of swimwear is called a burkini because it mixes the words “burqa,” which is a form of Islamic clothing that covers the arms, legs, and hair, and bikini. Aheda Zanetti, the Lebanese-born Australian citizen who invented the burkini, created the swimwear “after realizing that Muslim women in Australia were being left out of the country’s fabled beach lifestyle.”
The language used in most ordinances bans swimwear that “overtly manifests adherence to a religion at a time when France and places of worship are the target of terrorist attacks.” In addition to enacting these ordinances on national security grounds, supporters of the bans justify them on the basis of laicité, or secularism. They say that the swimwear is not “respectful of good morals and secularism.” Laicité “has been a defining feature of French political life since the Revolution . . . [but,] [c]ritics say the principle is increasingly used to justify measures that single out Muslims, rather than keeping government out of religion and vice versa.”
Recent French legislative history shows a pattern of these types of bans. In 2004, the country passed a law that bans the wearing of “conspicuous religious symbols” in government workplaces. In addition to headscarves and face coverings, this law also prohibited the wearing of yarmulkes, turbans, and Christian items. In time, “the wearing of signs or garbs by which pupils express “conspicuously a religious membership” became forbidden in primary and secondary schools. By 2010, all kinds of clothing that hide the face were banned in public places. These laws have even been upheld by the European Court of Human Rights.
The burkini ban, however, is one of the first of these religious clothing bans that has been overturned. On Friday August 26th, France’s highest administrative court, the Council of State overturned the burkini ban in the town of Villeneuve-Loubet. This is despite the implementation and enforcement of these bans in 30 other French cities. The court found that such bans “violated civil liberties, including freedom of movement and religious freedom.” It reasoned that these types of bans which restrict religious liberty “must be justified by proven risks to public order” and these bans failed to meet that criteria. Though this is a step in the right direction and a win for religious liberty in France, the decision does not necessarily apply to all other cities that have these bans in place; nonetheless, it puts them on notice that their bans may also be challenged and overturned. The Human Rights League praised the decision stating that the bans were “contrary to the freedom of religion, which is a fundamental freedom.” The town’s mayor, however, disapproved of the decision saying, “Apparently, the terrorist attacks in Nice were not sufficiently traumatic” to justify the ban.
Clearly, this debate is not over. The Council of State’s recent decision does not apply to every town’s ban and neither side is backing down. From an American point of view, this issue is very simple. The First Amendment guarantees an individual’s freedom of religion and her freedom to express that religion in the manner of her choosing whether in a public place or at work. France’s principle of laicité, and the country’s heightened willingness to suspend certain religious freedoms, mean that this will be a hard fought battle for those who wish to conform to their religious beliefs in all parts of their daily
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 Nice Becomes Latest French City to Impose Burkini Ban, The Guardian, 19 August, 2016. https://www.theguardian.com/world/2016/aug/19/nice-becomes-latest-french-city-to-impose-burkini-ban.
 What Is A Burkini and Why Are People Talking About It?, BBC, 25 August 2016. http://www.bbc.co.uk/newsround/37182988.
 Kim Hjelmgaard, 5 Things to Know about French Burkini Bans, USA Today, 25 August 2016, http://www.usatoday.com/story/news/world/2016/08/25/europe-burkini-controversy-france/89325642/.
 Supra note 1, Nice Becomes Latest French City to Impose Burkini Ban.
 Aurelien Breeden & Lilia Blaise, Court Overturns ‘Burkini’ Ban in French Town, The New York Times, 26 August 2016, http://www.nytimes.com/2016/08/27/world/europe/france-burkini-ban.html?_r=0.
 Alissa J. Rubin, French ‘Burkini’ Bans Provoke Backlash as Armed Police Confront Beachgoers, The New York Times, 24 August 2016, http://www.nytimes.com/2016/08/25/world/europe/france-burkini.html.
 Supra note 7, Breeden.
 Jay Akbar, French Ban on Muslim Headscarves Is Upheld by Human Rights Court After Woman Sacked for Refusing to Remove Hers Loses Appeal, Daily Mail, 26 November 2015, http://www.dailymail.co.uk/news/article-3335020/French-ban-Muslim-headscarves-upheld-human-rights-court-woman-sacked-refusing-remove-loses-appeal.html.
 Legislating for Equality: A Multinational Collection of Non-Discrimation Norms, Eds. Talia Naamat, Nina Osin, and Dina Porat, quoting, Law 2004-228 of 15 March 2004.
 Supra note 10, Akbar.
 Supra note 7, Breeden.
 U.S. Const. amend. I; See Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028 (2015).