There has been a lot of dialogue recently about the prospect of banning, to varying degrees, various articles of Islamic dress, including full faced coverings like the burqa and the niqab, and the more open faced coverings like the hijab and the al-amira.
Firstly, let's clarify things right up front by saying that the full-face covers (burqa, niqab) seem to be cultural strictures, rather than Islamic. What does that mean? The website Quran-Islam.org tells us that the Islamic holy book doesn't specifically mention the burqa or tell women to wear such extremely confining clothes. Instead, it instructs men and women to “...dress and behave modestly in society (24:31).”
It appears to come down to specific interpretation by particular societies. Thus the clarification becomes a cultural one, in that these dress codes appear to be sanctioned by patriarchal societies, ostensibly to keep its female members, for lack of a better word, suppressed.
Before we proliferate the stereotype that it’s just “those xenophobic Americans” who have a problem with the face-covering dress of the burqa, or even the less-restrictive hijab, let's look at examples of countries that have already to some degree prohibited these forms of dress:
France, Belgium, the Netherlands, Iran*, Tunisia*, Turkey*, Syria*, Morocco*, Chad* (* denotes a Muslim country)
Ironically, “xenophobic” America is not on that list. Granted, the idea of banning any type of clothing in the United States is scary, as this particular freedom is constitutionally protected under the interpretation of the first amendment, which reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (https://www.law.cornell.edu/constit...).
Our Constitution is a brilliantly conceived and eloquently worded document. It is written specifically enough to give us the basis for our laws, but also broadly enough to be malleable through the years and the changing culture of the United States. The language used in the first ten amendments, collectively known as the Bill of Rights, seems to go out of its way to use nebulous words and phrases like, “the right of the people,” “person,” and “the accused.” It’s not until the eleventh amendment (state’s rights) and beyond that we see more specific phraseology used, such as the word “citizen” instead of “people.”
Our founding fathers, being a part of an immigrant society themselves, foresaw the waves of immigrants to come, and wanted a document that would at its heart protect citizens and prospective citizens, then and in the future. Thus the Bill of Rights, outlining what they perceived to be the fundamental rights for all of the people of the United States, encompasses not just citizens, but all people.
Meaning, technically speaking, anyone in the United States is protected by these rights.
However, the specifics of interpretation are a different story. Most states have laws on the books that specifically interpret the rights granted in the Bill of Rights, and banning to one degree or another the wearing of masks and/or hoods and/or anything that obscures a person's identity is an interpretation that is generally given across all fifty states. These different interpretations ultimately make their way to the Supreme Court, who takes the original context of an amendment and then verify that the interpretations stay within a wide framework of the spirit or intent of the prescribed right.
For instance, North Carolina has a statewide ban on anyone wearing facemasks in public property (North Caroline General Statutes, Chapter 14: Criminal Law, Article 4A, section 14-12.14). New York law states that, “…it is illegal to congregate in public… wearing a mask or any face covering which disguises your identity” (New York Penal Law 240.35(4).
Precedence exists, corroborating that there are no-- nor were there meant to be-- absolutes with regard to the interpretation of our Constitution.
To broaden the point, another right protected by our first amendment is the right to free speech. Analogous to the aforementioned clothing interpretation that, as mentioned, has limits, our freedom of speech has limits as well. While we do have free speech, you are still not allowed to say certain things in certain places. For example: Obscenities, fighting words, defamation (includes libel, slander), child pornography, perjury, blackmail, incitement to imminent lawless action, true threats, solicitations to commit crimes, treason, and plagiarism (firstamendmentcenter.org).
And while the amendment protects our speech and our expression, it does not protect the specifics of interpretation. Meaning, law enforcement may consign and subsequently enforce limitations on those rights in the name of maintaining law and order. Protestors may (legally) protest between certain hours, at certain places, sometimes even needing a permit to gather. The interpretation is not intended as a stricture on rights; rather, it is meant to insure other people’s rights are not infringed upon with, for example, lawless behavior.
Further, as mentioned above, you cannot incite people to riot and loot in an emergency situation, as this falls under the exception of “incitement to imminent lawless action.” In North Carolina, you cannot enter a bank wearing anything that obscures your identity. In New York, you are not permitted to attend a protest wearing a mask, being “…illegal to congregate in public… wearing a mask or any face covering which disguises your identity.”
Finally, we come to the question itself: is it constitutional for specific articles of clothing such as the burqa, the niqab, the hijab, or the al-amira to be banned in the United States? The relevant part of the first amendment tells us that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” From this you could construe that the wearing of said head coverings is a direct expression of an “exercise” of a specific religious faction.
Except in this case it’s not. As stated directly in the Quran, men and women are instructed to, “...dress and behave modestly in society (ibid).” Which means that the wearing of specific articles of clothing such as the burqa, the niqab, the hijab, or the al-amira are cultural strictures, not Islamic. Thus, they are not constitutionally protected.