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Inter-American Perspectives on the Burqa (Ban)

Published online by Cambridge University Press:  10 December 2021

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Summary

Abstract

This chapter takes an inter-American perspective. Section 2 provides a contextualized account of (attempted) burqa -wearing interventions by federal and state governments, and, moreover, various courts in the U.S. While the author's analysis highlights a comprehensive survey of political and legal responses to full-face veils like the burqa, he also incorporates public perceptions and, in the course of examining these, draws a parallel to “the fate” of the hoodie. The constitutionality of burqa-wearing in the U.S., so it appears, is partially an open question, but the differentiation between religious, political, and personal reasons is a de jure premise. Relevant U.S. Supreme Court decisions cover a timespan from 1879 to 2018. Some jurists have concluded that the U.S. constitutional rights are on a par with those provided by the American Convention on Human Rights. However, evidence to the contrary is provided. Section 3 extends beyond the U.S. to explore the extent of the impact of regional perspectives about burqas in the Americas. States propel the criminalization that curtails Muslim females’ freedoms (of religion, expression, and privacy). Given their failure to protect their citizens and to fill the implied void, the Supreme Court is leftwith the responsibility to provide remedies. In order to attend to plaintiffs and defendants impartiality, it must protect victims of human rights violations in a manner that is as consistent as possible with the protection of national sovereignty. The author’ s assessment shows that the Court should utilize judicial tools and moral principles as measures of correction, thereby also enhancing the protection of human rights. One objective is to demonstrate the wider implications of perceptions on the balance of the two sets of protections.

Introduction

According to the U.S. Constitution, federal and state governments are expected to protect individuals’ rights against interference and to defend the republic's independence against foreign and domestic threats. As a result of the oath to “support and defend” the U.S. Constitution against all enemies under Article VI, there is a tension between these two sets of protections. Ostensibly, each nation – like each state in the U.S. – protects that particular individual as well as the public as it sees fit. Accordingly, European governments have banned or placed restrictions on wearing the burqa in public spaces.

Type
Chapter
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Law, Cultural Studies and the 'Burqa Ban' Trend
An Interdisciplinary Handbook
, pp. 301 - 328
Publisher: Intersentia
Print publication year: 2021

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