Religious dress codes and the meaning of 'tolerance'

In September, comments by a range of politicians sparked a debate over whether Britain should adopt a French-style law that banned Muslim face coverings in public. Many people responded by arguing that this ran contrary to British traditions of tolerance. Here, Terri Murray offers a different take.

A British friend of mine recently expressed her opinion that France is "intolerant" on the question of religious dress codes. Under the French ban, no woman is permitted to leave her home hidden behind a full-face Islamic veil without risking a fine and anyone found forcing a woman to cover her face also risks a steep fine. Here in Britain, former Schools secretary Ed Balls has claimed it is “not British” to tell people what to wear in the street. I’m an immigrant to this country, but I think both my friend and Mr. Balls are confused about what tolerance means and how best to protect it in a modern secular state.

In a country ostensibly divided over "immigration" and multiculturalism, it is necessary to clarify the liberal values we ought to be defending without embracing simplistic right-wing responses to complex problems. Certainly we want to protect both freedom of religion (and the right of people to dress as they please) and the freedom of people not to be told how to dress by religious or other authorities. We cannot have double standards in which we bar our government from “telling people what to wear” while giving religious fundamentalists carte blanche to do so. The recent racist attack on a Muslim woman in Stockholm should be deplored every bit as much as Islamist attacks on Pim Fortuyn, Theo Van Gogh, Salman Rushdie, and most recently Nahla Mahmoud, who was threatened with death following an interview with Channel 4 about Sharia law.

Not all of the fears about Muslim veiling stem from misguided xenophobia or intolerance towards "immigration" or "otherness". That racism towards Muslim people should be deplored is uncontroversial. However, there is another kind of intolerance that we are not addressing effectively, and it impacts Muslims disproportionately, especially Muslim apostates, Muslim women, religious moderates and Muslim homosexuals. (Yes the latter do exist, perilously.) There are also legitimate concerns that our most basic secular values (and the human rights of many) are threatened by misguided "tolerance" for ways of life that radically diverge from the liberal political model. Britons continue to duck the social and political implications of Islamism by hiding behind accusations of “Islamophobia” every time the question arises. Muslim dress codes present a test case in how to approach the sensitive and often volatile question of where and when to place limits on religious liberty.

Liberal democracies distinguish legitimate state interference in the private sphere from that which over-steps the legitimate powers of the state by reference to the principle of harm. First formulated by the 19thcentury philosopher and politician John Stuart Mill, the so-called "harm principle" specifies: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” This principle remains as valid today as it was in 1859, when Mill penned the founding document of liberal political philosophy, On Liberty.

There is nothing wrong with an ideological community requiring that its willing adherents honour its beliefs. If some in good conscience cannot accept orthodox doctrines or practices then there is no reason why the community should not be permitted to exclude them. However, punishing individuals for dissent or apostasy, or pressuring them to conform to lifestyles, dress codes or behaviour to which they have not given their full consent, or preventing them reasonable access to alternatives, should be treated with suspicion and concern.

Intolerant ideologies, by definition, are not interested in communities of willing believers, or else they would be tolerant. The concept of "intolerance" means more than verbal objection to others’ views. Mill was certainly not opposed to the members of society using all manner of persuasion to express disagreement with another viewpoint. Literature, speech, satire, music and art are all legitimate ways to express disapproval of beliefs or practices that we find morally repugnant or intellectually bankrupt. All of these forms of expression are consistent with a tolerant society. By contrast, "intolerance" means rejection of the other’s fundamental right to self-expression and self-determination and unwillingness to withstand their dissent. Intolerant individuals or groups dictate how others must live. In many instances they deny to other members of their own communities the basic right to self-determination while demanding it for themselves vis-à-vis the liberal state.

The purpose of J.S. Mill’s famous 1859 essay was to establish “the nature and limits of the power which can be legitimately exercised by society over the individual.” But what are the limits to the power that can be exercised by society over individual women who wish to adhere to religious dress codes? How can their desire to conform to a religious dress code be balanced against the need to limit the power exercised by fundamentalist sub-cultures over women who wish not to? Even my British friend, who is a staunch supporter of Muslim women’s right to wear the veil and a fierce critic of the French state’s ban, admits without hesitation that there are plenty of Muslim women who, due to legal, quasi-legal, or illegal-but-hidden forms of familial and/or community pressure, wear the veil involuntarily. (For the purposes of this argument, I am not going to split hairs over whether the ban ought to apply to a full body-covering burka, a face-covering niqab, or a head-and-chest covering hijab. In my view, the same principles apply to all three.)

For many Muslim women religious dress is mandatory, not voluntary. The French, including many French Muslims and ex-Muslims, acknowledge this kind of religious intolerance and give it importance. If we concede that religious dress codes are sometimes involuntarily adopted by British citizens, then the state is justified in interfering with the practice, since the purpose of the interference is to prevent harm to others and to widen individual liberty where it is threatened.

For JS Mill, merely being exposed to viewpoints that one finds distasteful, misguided or even repugnant is not a serious form of harm. In fact, he insisted that all viewpoints, no matter how offensive, should be given a fair hearing, since none of us is infallible and this "testing" of ideas in a free marketplace is precisely what allows us to feel confident about the ideas that withstand this tussle with alternative opinions. Far from harming us, this clash of our own views with other ideas helps us to grow and to become more aware of the relative strengths and weaknesses of our own beliefs.

On the other hand, there are forms of real harm that do not help us to grow. What Mill had in mind were forms of intellectual, moral and physical coercion that prevent us from developing our individuality, and stunt our ability to think for ourselves. He interpreted ‘harm’ as that which thwarts our “permanent interests as progressive beings”. Not being permitted to consider alternatives to the way of life of our community, or of the majority in society, was for him as dangerous as living under an authoritarian state.

While the state ban on public religious veiling denies those Muslims who do choose to adopt it one means of symbolic religious expression in public spaces, this particular form of religious freedom of expression in turn conflicts with the freedom of expression of other Muslims not to adopt religious dress. There is nothing controversial about limiting the freedom of expression of individuals to those behaviours that do not deny it to others. The same would be true of any other form of "expression". So for example, while you can listen to music of your choice, you cannot listen to it at a volume that makes it difficult for others to enjoy their own. The freedom of one group cannot be so intrusive that it encroaches upon the freedom of others. The recent trend to ban merely unpleasant self-regarding behaviours like drinking in the Tube or smoking in outdoor spaces, while "tolerating" quite harmful other-regarding practices like mandatory religious dress codes, suggests an erosion of liberal principles in modern Britain.

It need not be this way, but for the present time, veiling is not only a symbol of individual expression, like a t-shirt or a tattoo. Its primary theological significance often makes it exactly the opposite. It denies individual women self-expression or sexual autonomy and instead defines them chiefly in terms of their biological difference to men, as a generic group. This only reinforces a form of sexual apartheid that contributes to denying many other rights to women and girls, such as riding bicycles or playing sports. The veil may symbolise many things, but it is without doubt a sign of religious conformity and obedience, since stigma and/or punishment often accompany its rejection. If interfering with the practice of veiling will prevent harm to a sub-set of Muslim women for whom it is not a choice, then this justifies state interference in the practice.

The same principle applies to analogous cases such as whether religious liberty ought to extend to allowing a particular religion to sacrifice virgins. Courts in liberal states have traditionally ruled against religious practitioners where their religious freedom is instrumental to harming others or denying others equal freedom under the law. The greater compelling public interest in protecting some individual(s) from harm is the only justification for making exceptions to the general rule of religious freedom.

Mill’s 19th-century England presented a different set of religious issues to those of multicultural Britain today, but Mill considered three cases contemporaneous to his writing that offer a prism through which we can discern how he might have responded to the question of a state ban on Muslim veiling. First, he considers whether a ban on eating pork would be acceptable in a Muslim minority country like his own. He concludes that the ban on pork-eating would be unacceptable since many would want to resist the ban because they do not accept Muslim disgust as legitimate grounds for preventing other people from eating pork. Next Mill looked at the Christian Puritans’ ban on various forms of recreation, such as music and dance. Mill remarked that the moral and religious sentiments of Puritans were inadequate grounds to restrict other peoples’ leisure activities. Finally, he considered the Mormon minority in the United States, who practiced (male only) polygamy and were persecuted for it. Mill’s response was that interference in the Mormon way of life would not be justified only in the event that the practice is undertaken with the full consent of all participants. He also stipulated that it should be permitted only if people living in Mormon communities were free to leave.

Mill’s responses to these cases illustrate that mere offence is nota good reason for society’s laws to constrain what people do. The Mormon example can be extended to any case in which a host society seeks to change the practices of a minority religion when those practices are not enforced on people against their will. If we accept that religious dress codes are sometimes forced on people against their will, then the state is justified in interfering with the practice, as it would be in cases where the practice of male polygamy did not have the full consent of those impacted by it.

The Anglo-Austrian political scientist and philosopher Karl Popper (1902 – 1994) recognised the danger in censoring intolerant attitudes. He thought it preferable to counter them with rational argument and balance them by public opinion. In Britain today there is a conspicuous absence of intelligent debate about intolerant aspects of Islamism, apparently because non-Muslims view discussing the more controversial religious aspects of Islam as simply off limits.

In The Open Society and its Enemies (1945), Popper argued that society has a right to suppress intolerant attitudes if their spokespersons refuse to engage in rational argument and refuse their followers the right to hear alternative views. He concluded that the extension of unlimited tolerance to the intolerant would lead to the disappearance of tolerance altogether, and ultimately lead to the defeat of the tolerant society.

No one should be made, by legal or political force, to conform to ideological values that are not his or her own, so Ed Balls may be right is saying that it isn’t “British” to tell people what to wear (or not to wear) in the street, but that goes for religious authorities as well as for governments.