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[1] Qur’an 24: 30-31, 24: 60, 33: 59
and 33: 53; Abdullah Yusuf Ali The Qur’an Text, Translation and Commentary
(2001) p904-905.
[1] Christina Baker ‘French
Headscarves and the U.S Constitution: Parents, Children and Free Exercise of
Religion’ (2008) 13 Cardozo Journal of Law and Gender 341, 359.
[1] Mukul Saxena ‘The French
Headscarf Law and the Right to Manifest Religious Belief’ (2007) 84 University
of Detroit Mercy Law Review 765, 779-780; Susan Tiefenbrun ‘The Semiotics of
Women’s Human Rights in Iran’ (2008) 23 Connecticut Journal of International
Law 1, 25; Jeremy Gunn ‘Religious Freedom and Laicite: A Comparison of the
United States and France’ (2004) Brigham Young University Law Review 419, 471;
Robert Kahn ‘The Headscarf as Threat: A Comparison of German and US Legal
Discourses’ (2007) 40 Vanderbilt Journal of Transnational Law 417, 438.
[1] T Jeremy Gunn ‘Religious Freedom
and Laicite: A Comparison of the United States and France’ (2004) Brigham Young
University Law Review 419, 471-472
[1] Aliah Abdo ‘The Legal Status of
Hijab in the United States: A Look at the Sociopolitical Influences on the
Legal Right to Wear the Muslim Headscarf’ (2008) 5 Hastings Race and Poverty
Law Journal 441, 441, 449; Mark Levine ‘The Modern Crusade: An Investigation of
the International Conflict Between Church and State’ (2009) 40 California
Western International Law Journal 33, 41. Susan Tiefenbrun, ‘The Semiotics of Women’s
Human Rights in Iran’ (2008) 23 Connecticut Journal of International Law 1, 19.
[1] Susan Tiefenbrun ‘The Semiotics of Women’s Human
Rights in Iran’ (2008) 23 Connecticut Journal of International Law 1, 22-23;
Stefanie Walterick ‘The Prohibition of Muslim Headscarves from French Public
Schools and Controversies Surrounding the Hijab in the Western World’ (2006) 20
Temple International and Comparative Law Journal 251, 255.
[1] Elisabeth Badinter, Interview
with L Joffin The Nouvel Observateur (1989) p7-11; Nilufer Gole ‘The Voluntary
Adoption of Islamic Stigma Symbols’ (2003) 70 Social Research 809, 817-818.
[1] Adrien Wong and Monica Smith
‘Critical Race Feminism Lifts the Veil?: Muslim Women, France and the Headscarf
Ban’ (2006) 39 University of California Davis Law Review 743, 761-763. Others
note that in other cultures such as the Berber-speaking Tuareg of West Africam
men veil, and masks are common in other cultures, which has not attracted the
same controversy as that of a woman veiling: John Borneman ‘Veiling and Women’s
Intelligibility’ (2009) 30 Cardozo Law Review 2745, 2748-2749.
[1] [2006] UKHL 15, [94], quoting
Yasmin Alibhai-Brown that ‘what critics of Islam fail to understand is that
when they see a young woman in a hijab she may have chosen the garment as a
mark of her defiant political identity and also as a way of regaining control
over her body’.
[1] Nusrat Choudhury ‘From the Stasi
Commission to the European Court of Human Rights: L’Affaire du Foulard and the
Challenge of Protecting the Rights of Muslim Girls’ (2007) 16 Columbia Journal
of Gender and Law 199, 218.
[1] R (Williamson) v Secretary of State for Education and
Employment [2005] 2 AC 246, [22-23](Lord Nicholls); Employment Division,
Department of Human Resources of Oregon et al v Smith et al 494 US 872, 887
(1990); Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1, 27 (para 52);
Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 S.C.R 256, (para
35);; Manoussakis v Greece (1997) 23 European Human Rights Reports 387, 45; cf
early cases, where the Court appeared judgmental of the religious views of others
whose opinions the judges presumably did not share: Krygger v Williams (1912)
15 CLR 366, 370-372; Mormon Church v United States (1889) 136 US 1, 49.
[1] Mohja Kahf, From Her Royal Body
the Robe Was Removed: The Blessing of the Veil and the Trauma of Forced
Unveilings in the Middle East, in The Veil: Women Writers On Its History, Lore,
And Politics 27 (Jennifer Heath ed., 2008); Pamela K. Taylor, I Just Want to Be
Me: Issues in Identity for One American Muslim Woman, in The Veil: Women
Writers On Its History, Lore And Politics, 27 (Jennifer Heath ed., 2008), at
120
[1] Headgear in Muslim Lands: Beyond
the Burqa, The Economist, May 13, 2010, at 67, available at
http://www.economist.com/node/16113081; Karima Bennoune, Secularism and Human
Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s
Equality Under International Law, 45 Colum. J. Transnat’l L. 367, 390 (2006).
[1] Olivier Guitta, Why France is
Right About the Burqa, Globalpost, Feb. 26, 2010,
http://www.globalpost.com/dispatch/worldview/100225/france-burqa-banhuman-rights
(quoting Fadela Amara, the French Secretary of State for Urban Policies, who
said “the burqa confiscates a woman’s existence . . . I favor banning this
coffin for women’s basic liberties.”); Maj. David J. Western, Islamic Purse
Strings: The Key to the Amelioration of Women’s Legal Rights in the Middle
East, 61 A.F. L. Rev. 79, 140-41 (2008) (addressing the social problems created
by forcing women to wear a hijab in Saudi Arabia).
[1] Faegheh Shirazi, The Veil Unveiled:
The Hijab In Modern Culture 20 (2001).
[1] Ibid.
[1] Asra Q. Nomani, Hijab Chic,
Slate, Oct. 27, 2005, http://www.slate.com/id/ 2128906/ (describing a Nordstrom
fashion show in Virginia that was directed to conservative Muslim women);
Shaimaa Khalil, Muslim Designers Mix the Hijab with Latest Fashions, BBC, May
14, 2010, http://www.bbc.co.uk/news/10105062; A Tribute to Arabian Beauty,
Silvikrin (2009), available at http://adsoftheworld.com/media/
print/silvikrin_veil (shampoo advertisement depicting a woman whose hair covers
her face as a veil would; the advertisement was meant for Saudi Arabian
audiences, but it was created by a British company).
[1] See Abdulaziz Sachedina, Islam And The Challenge Of
Human Rights 159 (2009) (stating that young Muslim women “have embraced the
headscarf as a protest against marginalized sources of native cultural
institutions and consumerist homogenization of culture and lifestyle
represented by Western ideas and values”).
[1] Marnia Lazreg, Questioning The
Veil: Open Letters To Muslim Women 54-55 (2009).
[1] Ibid.
[1] Ibid.
[1] St. Joseph of Cupertino is the
patron saint of test-takers. The author presumes that St. Joseph pendants are
quite popular with Catholic students on test days.
[1] See Jennifer Stanfield, Faith
Healing and Religious Treatment Exemptions to Child-Endangerment Laws: Should
Parents be Allowed to Refuse Necessary Medical Treatment for Their Children
Based On Their Religious Beliefs, 22 Hamline J. Pub. L. & Pol’y 45, 85
(2000) (discussing parental rights to deny their children healthcare based on
religious beliefs); Janna C. Merrick, Spiritual Healing, Sick Kids and the Law:
Inequities in the American Healthcare System, 29 Am. J. L. & Med. 269, 297
(2003) (arguing that U.S. courts cannot permit parents to deny their children
medical care based on religious beliefs).
[1] See Bennoune, supra note 9, at 406-07 (suggesting
school girls may need state protection from “coercive family members” who force
their children to wear hijabs); Carolyn Evans, The ‘Islamic Scarf’ in the
European Court of Human Rights, 7 Melb. J. Int’l L. 52, 65 (2006) (arguing that
“most religious obligations are ‘imposed’. . . and the Court does not normally
refer to the obligations in such negative terms.”).[1]Ashok
Bagriya, “Can an essential religious practice also be a choice for followers:
HC to decide in Hijab case”, News9Live,
24 Feb 2022.
[1] Conseil d’Etat, 27/11/1989.
[1] Jean Rivero ‘Laicite Scolaire et
Signes d’Apparentenance Religieuse (1990) 6 Revue Francaise de Droit
Administratif 1, 6; Elisa Beller ‘The Headscarf Affair: The Conseil d’Etat on
the Role of Religion and Culture in French Society’ (2004) 39 Texas International
Law Journal 581, 611.
[1] Stasi Commission Report,
4.2.2.1; cf Dina Alsowayel ‘Commentary: The Elephant in the Room: A Commentary
on Steven Guy’s Analysis of the French Headscarf Ban’ (2006) 42 Houston Law
Review 103, speaking of the French ban, ‘A young French Muslim girl who was
previously shrouded in the hijab removes it to go to school. By removing her
cover, she is suddenly more receptive to other ideas regarding matters of faith
and can now freely choose among them. This reasoning indicates a woeful lack of
understanding about the hijab and Islam’ (107).
[1] The Report has been trenchantly
criticised: see Nusrat Choudhury ‘From the Stasi Commission to the European
Court of Human Rights: L’Affaire du Foulard and the Challenge of Protecting the
Rights of Muslim Girls’ (2007) 16 Columbia Journal of Gender and Law 199;
Dominique Custos ‘Secularism in French Public Schools: Back to War? The French
Statute of March 15, 2004’ (2006) 54 American Journal of Comparative Law 337; T
Jeremy Gunn ‘Religious Freedom and Laicite: A Comparison of the United States
and France’ (2004) Brigham Young University Law Review 419, 468-473; Mukul
Saxena ‘The French Headscarf Law and the Right to Manifest Religious Belief’
(2007) 84 University of Detroit Mercy Law Review 765.
[1] The French Government moved to
extend the ban in 2010 beyond the educational context.
[1] Dominique Custos ‘Secularism in
French Public Schools: Back to War? The French Statute of March 15, 2004’
(2006) 54 American Journal of Comparative Law 337, 373.
[1] Stefanie Walterick ‘The Prohibition of Muslim
Headscarves From French Public Schools and Controversies Surrounding the Hijab
in the Western World’ (2006) 20 Temple International and Comparative Law
Journal 251, 252.
[1] (2001) European Court of Human
Rights 1.
[1] The findings have been
criticised: see for example Ingvill Thorson Plesner ‘Legal Limitations to
Freedom of Religion or Belief in School Education’ (2005) 19 Emory
International Law Review 557, 572-573: ‘it is hardly a sign of tolerance to not
accept symbols that are carried by women of a particular religious tradition’.
[1] Refah Partisi (The Welfare
Party) v Turkey App Nos 41340/98, 41343/98 and 41344/98, 37 European Human
Rights Report 1 (2003); Kathryn Boustead ‘The French Headscarf Law Before the
European Court of Human Rights’ (2007) 16 Journal of Transnational Law and
Policy 167.
[1] The notion that Turkey is
secular is contestable: Benjamin Bleiberg ‘Unveiling the Real Issue: Evaluating
the European Court of Human Rights’ Decision to Enforce the Turkish Headscarf
Ban in Sahin v Turkey’ (2006) 91 Cornell Law Review 129, 153.
[1] The ban was subsequently lifted
in 2008: Frances Raday ‘Traditionalist Religious and Cultural Challengers –
International and Constitutional Human Rights Responses’ (2008) 41 Israel Law
Review 596, 613.
[1] Ibid.
[1] Ibid.
[1] Nusrat Choudhury ‘From the Stasi
Commission to the European Court of Human Rights: L’Affaire Du Foulard and the
Challenge of Protecting the Rights of Muslim Girls’ (2007) 16 Columbia Journal
of Gender and Law 199; Jennifer Westerfield ‘Behind the Veil: An American Legal
Perspective on the European Headscarf Debate’ (2006) 54 American Journal of
Comparative Law 637; Natan Lerner ‘How Wide the Margin of Appreciation? The
Turkish Headscarf Case, the Strasbourg Court, and Secularist Tolerance’ (2005)
13 Willamette Journal of International Law and Dispute Resolution 65; Cindy
Skach (2006) 100 American Journal of International Law 186; Jennifer
Westerfield ‘Behind the Veil: An American Legal Perspective on the European
Headscarf Debate’ (2006) 54 American Journal of Comparative Law 637.
[1] Benjamin Bleiberg ‘Unveiling the
Real Issue: Evaluating the European Court of Human Rights’ Decision to Enforce
the Turkish Headscarf Ban in Sahin v Turkey’ (2006) 91 Cornell Law Review 129,
162.
[1] Ibid.
[1] [2006] UKHL 15.
[1] This was largely on the basis
that the complainant could choose to attend other schools which would accept
her wearing the jilbab to school; the court concluded that the complainant had
‘sought a confrontation’ on the matter, and that Article 9 ‘does not require
that one should be allowed to manifest one’s religion at any time and place of
one’s own choosing. Common civility also has a place in the religious life’
(Lord Hoffmann, [50]); to like effect Lord Bingham [25] and Lord Scott [87-89].
[1] See also R and Headteachers of Y
School and the Governors of Y School [2006] EWHC 298.
[1] [2008] EWHC 1865 (Admin).
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