Banning The Burkini In Italy Would Be Unconstitutional And Counterproductive

A Tunisian woman wearing a 'burkini', a full-body swimsuit designed for Muslim women, walks in the water with a child on Augu
A Tunisian woman wearing a 'burkini', a full-body swimsuit designed for Muslim women, walks in the water with a child on August 16, 2016 at Ghar El Melh beach near Bizerte, north-east of the capital Tunis. / AFP / FETHI BELAID (Photo credit should read FETHI BELAID/AFP/Getty Images)

Could Italian mayors follow in the footsteps of their French counterparts and issue decrees outlawing the burkini? In order to answer this question, we would need to discuss the meaning that the principle of secularism has in each of these two countries.

In France, the heir and guardian of the Enlightenment, the secularism of the republic is defended in the first article of the constitution. Secularism here is interpreted as the absolute neutrality of government institutions in the face of religious phenomena, which are considered to be potential factors for social divisions. The state must guarantee freedom of religion, without interference. Meanwhile, religion must remain a "private affair," devoid of any social or legal emphasis. In other words, secularism in France is based on the clear separation of church and state. Citizens may be Jews, Muslims and Christians in the confines of their own homes, but French republicans once they step out the front door.

As a result, students in French state schools (excluding universities) are not allowed to wear clothes or symbols that "conspicuously manifest religious affiliation," including the veil. Students may be suspended or expelled if they do so, under French law no. 228/200.

Similarly, "identity concealment by the covering of the face in public spaces" is prohibited in France, under law no. 1192/2010 -- effectively banning the burqa and niqab. The European Court of Human Rights upheld the ban on wearing full-face veils in public on two occasions.

In Italy, however, the secular state is understood in a positive and inclusive sense. The Italian constitution regards religious phenomena as articles for personal expression that can exist in private and in public.

Article 19 of the Italian constitution states: "Everyone has the right to freely profess their own religious faith in whatever form, individually or in association, to propagate it and to exercise it in private or public worship, provided that the rites are not contrary to good morals."

  We must ask ourselves if a similar burkini ban in Italy would be the best way to fight the oppression of women.

Secularism, therefore, does not imply the "indifference of public government in the face of religions", but rather "legislative neutrality and impartiality to all religions." Furthermore, the "government guarantees to protect and safeguard the freedom of religion, within a regime of confessional and cultural pluralism."

It is the Italian republic's responsibility to "guarantee the conditions that favor the expansion of the freedom and liberty of everyone and, within this sphere, the freedom and liberty of religion," which is considered to "represent an aspect of the dignity of the human being, recognized and declared inviolable according to Article 2."

Consequently, the constitution guarantees the right to profess one's personal religious beliefs in public; the right to conscientious objection on religious grounds; the right to practice in public institutions (such as hospitals, jails, or schools), the right to abstain from work in order to honor certain religious celebrations and festivals; and public financing for the construction of buildings dedicated to religious worship (civil constitutional amendments 195/1993; 346/2002).

If these are the rights guaranteed by the Italian constitution, it is quite clear that wearing the burkini cannot be outlawed or forbidden in Italy, both because it does not constitute a threat to public order, and because it is an element of the expression of religious practice.

First of all, wearing the burkini does not fall under the legal prohibition of "means designed to make the recognition of an individual in a public space or an area open to the public, difficult without any justified motivation." In any case, the exercise of religious freedom qualifies as a justifying motive.

  There could be far more serious and effective ways to tackle gender inequality in the Muslim world -- including safeguarding the right for young Muslim migrants, boys and girls, to get an education.

In fact, the Italian government states that the burqa -- which is even more concealing than a burkini -- "does not constitute a mask, but rather a traditional article of clothing for several populations, that continues to be used today for aspects of religious practice...therefore it would be misguided to discuss it under the laws that forbid wearing a mask in public spaces...its use is not generally intended to prevent recognition [which remains possible at the request of law enforcement], but rather constitutes the implementation of a tradition of certain populations and cultures."

Of course, no one here wants to hide the fact that, in addition to an expression of their own cultural and religious identity, the burkini may constitute a form of the intolerable subjugation of women.

But we must ask ourselves if a similar burkini ban in Italy would be the best way to fight the oppression of women. There could be far more serious and effective ways to tackle gender inequality in the Muslim world -- including safeguarding the right for young Muslim migrants, boys and girls, to get an education, and to become fully integrated in Italian society.

A bathing suit, as long as it is an expression of free choice, certainly won't threaten our society. Other crimes might hurt Italian society, such as female genital mutilation -- a practice that while motivated by cultural traditions, injures the dignity of human beings.

Building up new walls of division or social marginalization not only risks proving useless and futile, but even counterproductive, as the dramatic consequences of the failed model of immigration in France are unfortunately demonstrating today.

This post first appeared on HuffPost Italy. It has been translated into English and edited for clarity.