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Hastings International and Comparative Law Review

Abstract

In the past decade, numerous nations have responded to the perceived threat of the Islamic face-veil (niqab) by taking steps to implement laws restricting the right to cover the face in public. France and Belgium have passed general bans. Italy, the Netherlands, Norway, Spain, and several states of Australia have introduced similar measures. Syria, Egypt and Sweden have all passed laws banning face-veils in public schools. Many other nations and more local governments have considered anti-veil legislation or upheld the denial of basic services to citizens who cover their faces.

This Note begins with a historical approach to the practice of covering the face in public, demonstrating that face-veiling and masking of various kinds were common practices in European and Muslim societies since antiquity, and these practices are not anathema to a free society. It reviews the development of United States anti-mask laws, generally enacted to combat the Ku Klux Klan, as a close analogue to the more recent veil bans. Lastly, it reviews the history, construction and rationale of modern laws and initiatives that restrict the wearing of Islamic nuqub or face-veils.

Although recent niqab bans have emerged in the context of a broader campaign against Muslim expression, they represent new legislative strategies that raise distinct issues of fundamental rights. Rather than defending face-veils in relation to freedom of religion or minority rights, this Note advocates defending the right to cover the face as a right of expression and privacy. Adopting the frameworks of the Universal Declaration of Human Rights, the European Declaration of Human Rights and the United States Constitution, it rejects claims that state interests in uncovering the face are compelling or necessary to democracy.

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