The Spanish Supreme Court has ruled that a municipal ordinance banning the wearing of Islamic burqas in public spaces is unconstitutional.
In its 56-page ruling, made public on February 28, the Madrid-based Supreme Court (Tribunal Supremo) said the Catalan city of Lérida exceeded its authority when, in December 2010, it imposed a burqa ban.
The court said the ban on burqas, a traditional Islamic costume that covers women from head to toe, "constitutes a limitation to the fundamental right to the exercise of the freedom of religion, which is guaranteed by the Spanish Constitution." The court said that the limitation of a fundamental right can only be achieved through laws at the national level, not through local ordinances.
The decision, which the court said addressed a "profoundly political problem," represents a significant victory for Muslims in Spain. Although it is unclear how many women actually wear the burqa there, the ruling denotes a step forward in the continuing efforts to establish Islam as a mainstream religious and political system in Spain.
In recent years, more than a dozen municipalities in Spain have enacted burqa bans and other legal measures to push back against the ongoing Islamization of Spanish society. The rise of Islam has been especially notable in the Spanish autonomous region of Catalonia, home to the largest concentration of radical Islamists in Europe, and which has emerged as ground-zero for Salafi-Jihadism on the continent.
Catalonia has 7.5 million inhabitants, including an estimated 450,000 Muslims, who account for 6% of the total Catalan population. In some Catalan towns and cities, however, the Muslim population now exceeds 40% of the population. In the case of Lérida (spelled Lleida in Catalan), 30,000 Muslims now make up more than 20% of the city's population.
The demographic transformation of Lérida has been accompanied by all manner of Islam-related controversies, including forced marriages, genital mutilation of girls, the takeover of public streets and plazas for Muslim prayers, as well as the deployment of Muslim "morals police" who seek to enforce Islamic Sharia law on city streets.
In July 2011, two Islamic groups based in Lérida asked city officials to regulate the presence of dogs in public spaces so they do not "offend Muslims." As dogs are "unclean" animals in Islamic theology, Muslims demanded that the animals be banned from all forms of public transportation, including all city buses, as well as from all areas frequented by Muslim immigrants.
Two months later, dozens of dogs were poisoned in Lérida's working class neighborhoods of Cappont and La Bordeta, districts heavily populated by Muslim immigrants and where many dogs have been killed in recent years.
Residents taking their dogs for walks have also been harassed by Muslim immigrants opposed to seeing the animals in public. In response to the "lack of sufficient police to protect the neighborhood," 50 local residents have established alternating six-person citizen patrols to escort people walking their dogs.
In an effort to repel the Islamization of Lérida, city officials voted in October 2010 to ban the burqa in all public spaces. Women found violating the ban after December 2010, were subject to fines of up to €600 ($750).
In July 2011, the Supreme Court of Catalonia rejected a lawsuit from the Watani Association for Freedom and Justice, a local Muslim group, which had argued that the ban constitutes religious discrimination. The regional court said the burqa ban was designed to maintain "public order."
Watani appealed that decision to the Spanish Supreme Court, which met on February 6, 2013 to consider the matter. In siding with the Muslim appellants, the high court ruled on two separate aspects to the burqa ban.
First, the court said the City of Lérida "exceeded its authority" in attempting to regulate the burqa through a municipal ordinance. The court said the burqa ban infringes on the constitutionally protected right to the freedom of religion, and thus it is a constitutional matter that can only be addressed through the Organic Law, the fundamental law of the State.
Second, the court ruled on whether or not the burqa poses a threat to public order and infringes on the equality of women. The court said it was not persuaded by Lérida city officials that "the use of the burqa disturbs the public peace, security and public order." It added, "The argument that the burqa disturbs our Western culture lacks a convincing demonstration." Even if there is "cultural friction, a municipality is not the proper entity to address the problem."
The judges also rejected the argument that the municipal ordinance "is necessary to protect the equality of women." On the contrary, the court said, a burqa ban could produce the "perverse effect of preventing the integration of [Muslim] women in public spaces" because it would result in the "confinement of [Muslim] women in their homes."
The court said that "regardless of how great the burqa clashes with our cultural conceptions," it cannot be determined whether the act of using the burqa "is a voluntary act or not." The judges said the burqa ban cannot be justified on the mere supposition that "women wearing the burqa in our public spaces do so against their own will, due to an external compulsion that runs counter to the equality of women."
In reaching its conclusion, the Spanish high court said it examined comparative law as well as jurisprudence stemming from the European Court of Human Rights. It concluded that there is "no legal consensus" on the burqa issue, nor is there a "safe and reliable" jurisprudential pattern. The court noted that only two other European countries have banned the burqa: Belgium and France. In addition, more than a dozen towns and cities in Spain imposed burqa bans.
The court said its ruling would not "prejudge" the possibility that the Spanish government could someday seek to amend the Organic Law and implement a burqa ban at the national level.
The court pointed to a motion approved by the Spanish Senate in June 2010, which urged the Spanish government to "use all options under our legal system and to proceed with rules to prohibit the public use of the burqa and the niqab to ensure equality, freedom and security." The Senate language also called on Spain to outlaw "any usage, custom or discriminatory practice that limits the freedom of women."
Until now, however, no efforts have been made to seek a nationwide burqa ban. All eyes in Spain are focused on the economic and social crisis plaguing the country, and considering the extreme polarization of Spanish politics, a burqa ban seems unlikely anytime soon.
Even if a burqa ban were to be approved by the Spanish Parliament, it would still need to be vetted by the Supreme Court to determine its compatibility with the Spanish Constitution and the European Convention on Human Rights.
The Council of Europe, the European institution dealing with human rights issues, recently warned national governments against imposing a complete ban, saying that it would constitute an "ill-advised invasion of individual privacy."
The Union of Islamic Communities of Spain (UCIDE) celebrated the Supreme Court decision, saying that it "recognizes the exercise of religious freedom."
The president of the UCIDE, Riay Tatary, said the burqa ban "scares people" and encourages a "hostile posture" toward Muslim women. "We disagreed with the ordinance because bans always create a backlash," he said.
The mayor of Lérida, Àngel Ros, a Socialist, said that although he does not agree with the Supreme Court decision, he will abide by it. Ros said he regretted the deletion of a municipal ordinance that "ensured equality between men and women and non-discrimination."
Ros said: "Obviously, we must abide by a decision by the Supreme Court, but we do not agree with it, because at base the ordinance was meant to ensure equality and prevent the discrimination of women who are forced to wear the burqa against their own will." He said he would call on the Catalan Parliament and the Spanish Congress to legislate a burqa ban.
Soeren Kern is a Senior Fellow at the New York-based Gatestone Institute. He is also Senior Fellow for European Politics at the Madrid-based Grupo de Estudios Estratégicos / Strategic Studies Group. Follow him on Facebook.