what I find problematic about the anti-headscarf/niqab/burka meme is the way that it demonizes Muslim WOMEN

Thank you exangelena for that very clear and concise statement about this issue.

But note that the French ban is limited to public schools and bans ALL religious symbols, including crucifixes, ankhs, yarmulkes and headscarves.

No, it doesn’t – it only bans large crucifixes. It’s basically a way to exclude Muslims and responding to accusations of racism with “We’re not racists; we’re excluding Jews, too, as well as hypothetical ultra-Catholics who have to wear large crucifixes.”

Just because you believe something doesn’t make it so. The very reason that a headscarf ban would keep women inside is because the purpose of wearing the headscarf is to protect her from the male gaze. Clitorectomies simply aren’t comparable; you can’t tell if a woman has had a clitorectomy or not by her appearance in public, given that we appear in public clothed. While families may dislike the fact that their daughters can’t be circumcised, and while this may make them less marriable in some communities, it doesn’t logically follow that they’ll be trapped in the home, since the purpose of clitorectomies has nothing to do with the public. Coverings, on the other hand, are worn only in public and in the presence of non-family-member men. The entire point is to cover; these women feel that it is an offense to their belief system and their dignity to be seen without a covering. Therefore, it does logically follow that they wouldn’t go into public spaces if they weren’t allowed to cover themselves.

But that’s not the same thing AT ALL as banning burqas in public. There is NO legitimate state interest in banning particular items of religious garb from the public square. The “crime prevention” justification would have to be accompanied by some kind of finding that the covering of faces in, say, a public library or on a public street, without more, is strongly correlated with crime. Banks may be justified in refusing to serve customers wearing face coverings, but my sense is that they realize that a niqab is not the same thing as a ski mask and make some accommodations for those customers, such as having female tellers verify their identity.

All Smith does is say that when there’s a legitimate state interest in conflict with religious expression, religious expression may not always come out the winner. A Dutch-style burqa ban would not pass muster under the Smith analysis. It’s just too damn broad and serves no purpose. Neither, IMO, would a French-style ban on religious symbols in public schools. But note that the French ban is limited to public schools and bans ALL religious symbols, including crucifixes, ankhs, yarmulkes and headscarves.

You’re missing the state interest. Prisons, the military, criminal drug laws — all involve a particular state interest which is strong enough to override religion-based First Amendment issues. What’s the state interest in banning face coverings when someone’s just going about their day?

You’d have to make a case for there being a state interest, which I suspect would have to do with preventing crime. It would be ludicrious, but not any more ludicrous than the compelling state interest that supposedly would make the military crumble to bits if Jewish men were allowed to wear small peices of cloth pinned to their heads. Smith sets the bar very low and leaves religious minorities very vulnerable. And yet, as I said, I think the Dutch ban still wouldn’t fly under it.

First, what the hell did you do to your formatting?

Second, what countries are you discussing where clitoridectomies aren’t banned?

We’re talking about criminal law here, though, right? Under Smith, a state could enact a statute that made it illegal to cover your face, if they wanted to prevent crime or something. Burqas could be included, as long as they weren’t singled out. They couldn’t make a law making it illegal to wear a burqa, just because they thought burqas were divisive or oppressive or something.

The problem is, any such law that wasn’t narrowly drawn (such as New York’s anti-mask law, which bans masks, but only during public demonstrations, and is targeted at the Klan) would wind up discriminating against veiled women because, even though it would be facially-neutral, it would have a disparate impact. Because who else covers their faces on a day-to-day basis?

The law at issue in Employment Division was a facially-neutral narcotics law that the plaintiffs weren’t challenging as invalid or designed to discriminate — they were simply saying that because they were using a banned substance as part of a religious ceremony, they should have been granted an exemption from its enforcement.