Difficult to implement

Submitted by NorthernCross (United States), Aug 2, 2007 at 10:52

This article was published in JPost, so I suspect it was meant for an Israeli audience. If so, then Israelis should do whatever makes them feel comfortable.

But if this was meant for Americans as well, then I don't think a government-enforced ban is feasible. A law that specifically bans the niqab and the burqa from the public sphere would run afoul of the First Amendment. First, it violates the Freedom of Speech Clause it discriminates against the public expression of a particular viewpoint, and a political viewpoint at that because of Islam's political nature.

Second, it violates the Free Excercise Clause because it discriminates against an Islamic practice, or more precisely, the practice of a particular interpretation of Islam. The fact that only a minority of Muslims think it's a requirement in their religion does not change things from a legal standpoint.

Admittedly, the First Amendment is not absolute, and in fact, the government can act in contravention of our First Amendment rights in under certain extreme circumstances. But generally, there has to be some kind of imminent threat. And while it's an open question as to whether the niqab and the burqa constitute threats whenever donned, any threat that they pose is 99% of the time not imminent.

The only way I can see this working is if there's a public sphere ban on all articles of clothing that hides a person's identity. But that means no gorrilla suits races in the park and no trick or treating in ghost costumes on Halloween.

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