How should Orthodox Jews react to the ban on the pubic wearing of the burka (a full-length garment with only tiny, mesh-covered slits for the eyes) recently passed by the French parliament and currently under consideration in other European countries? Answer: with profound ambivalence.
Women who wear the burka – or, in some cases, their husbands or fathers, who demand that they do so – view the burka as a religious obligation.
Orthodox Jews have always favored an approach which places a high burden upon the state to justify legal burdens on the performance of religious obligations. When the U.S. Supreme Court's began to interpret the Free Exercise Clause of the U.S. Constitution, to give great deference to state statutes, as long as those statutes are neutral on their face, Orthodox groups lobbied hard for the Freedom of Religion Restoration Act. The RFRA required the demonstration of a compelling state interest before imposing a serious burden on religious observance.
Orthodox concerns are well founded. Some European countries already ban shechitah, and there are recurring threats to do so on a European-wide basis. Of even greater concern are possible restrictions on brit milah (religious circumcision).
The burka ban could be justified in some cases even under the compelling state interest test – e.g., with respect to airport security. (There are cases of male terrorists who have escaped detection by wearing a burka.) But the case for fines for merely appearing in public in a burka is harder to make.
Some defenders of the burka ban maintain that the burka is not required by Islamic law and is a recent innovation, with little support in traditional Islamic practice. A number of Moslem countries ban the burka, and the vast majority of Moslem women around the world do not wear it.
While these claims are true, no Orthodox Jew would be comfortable with the secular judicial system conducting halachic inquiries and making its own determination as to what is required by halacha and what is merely a chumra b'alma (a religious stringency). Would we want, for instance, a secular court to determine whether metzizah b'peh can be performed through a suction tube?
Others argue that religious liberty claims have less force in the case of the burkas because the decision whether to wear a burka is often not made by the woman wearing it, but imposed upon her by her male relatives as an instrument of social control to prevent her from integrating into her host society.
Again, that is true. But similar arguments could be raised against traditional Jewish practice. Anti-circumcision activists, for instance, invariably describe brit milah as an act of parental compulsion, lacking any informed consent on the part of the infant. In Israel, some children from chareidi homes have sued their parents and the state for failing to provide them with a sufficient secular education to integrate into the broader society or earn a living. In short, some of the arguments adduced in support of the burka ban could come back to bite us.
SO WHAT IS THE POSITIVE about the burka ban? The ban signals a determination by a significant number of Europeans to save their countries from the worst ravages of a mindless multi-culturalism and to prevent a Moslem takeover. Those Europeans insist that there is such a thing as national culture, and that citizenship and even residency can be properly conditioned on a willingness to participate in that culture. (The conundrum for Europe, of course, is that low European birthrates necessitate the import of cheap labor, most of it Moslem.)
The recent Swiss referendum against the building of minarets reflected a similar assertion of national culture. In Moslem countries, no structure of another religion is allowed to be higher than the minaret. (In some Moslem countries, like Saudi Arabia, no other religion can be practiced at all.) In banning the minaret -- which is not a requirement for Muslim prayer -- the Swiss are rightly treating the building of tall minarets as, in part, a Moslem political statement, and saying, "We do not have to show a tolerance for Islam that Islam does not reciprocate with respect to our majority faith."
Until now, Europeans have watched passively as Moslem minorities have grown, with many major European cities nearing majority Moslem populations. Members of the first generation of Moslem immigrants were often eager to assimilate into their host cultures. But their children and more recent immigrants increasingly reject integration. Many urban Moslem neighborhoods have become no-go zones for police and firefighters. Sharia, Islamic law, applies in these areas and honor killings often go unpunished.
Not only have Moslem populations created their own autonomous areas, they have sought official recognition for Sharia law and Islamic banking practices and produced an endless stream of demands for "sensitivity" from their hosts – e.g., no public display of piggy banks.
Muslims have resorted to political violence against those who showed insufficient deference to their sensitivities – e.g., the assassination of Dutch filmmaker Theo Van Gogh, the attempted murder of the author of the Danish cartoons, and the fatwa against author Salman Rushdie. Many young Muslims travel frequently to their countries of origin where they become radicalized and trained in terrorist tactics.
In response, the European political class has often proven pusillanimous, treating Islamophobia as a greater danger than the radicalization and refusal to assimilate of Moslem populations. One result of that cowardice has been to embolden Moslems and make Europe an ever more dangerous place for Jews. Amsterdam police have begun dressing as Jews in order to catch Moslems who prey on identifiable Jews. The Belgian newspaper Der Standaard reports that large numbers of Jews are fleeing Antwerp for America, Britain or Israel. Jacques Wenger, director of the Jewish community center in Antwerp, who is making aliyah, predicts that in fifty years the only Jews left in Antwerp will be the ultra-Orthodox.
While right-wing parties in Europe have traditionally been bastions of xenophobia and anti-Semitism, today many of the politicians most dedicated to combating the Moslem takeover of Europe, like Geert Wilders in the Netherlands, are the most supportive of Israel, which they see as at the forefront of their struggle.
All of which leaves us deeply conflicted by the burka ban, just as we began.