Slander, Blasphemy & Censorship

Georgia Legislator Introduces, Quickly Withdraws Islamic Veil Ban

A quick death for an attempt to reform a bad law with a defensible purpose.

BY CounterJihad · @CounterjihadUS | November 18, 2016

Georgia legislator Jason Spencer filed one of the first proposed bill for the upcoming session of the legislature next year:  a bill that he says would have banned wearing burqas or other face-hiding veils on your driver’s license, or while driving a car.  The proposed law modified an existing Georgia anti-masking statute that has been upheld by the state supreme court.  However, within a day of proposing this modification to the existing law, Spencer has said he will simply not be pursuing it.

He explains that, while he thinks the law served a valid purpose, the reaction was too explosive.  Indeed, it was so explosive that the Council on American – Islamic Relations (CAIR) didn’t even have time to file a protest or schedule a meeting before public reaction against the proposal caused him to pull it.  CAIR is still hoping to meet with him to “thank” him for pulling the proposal.

Here is Spencer’s statement:

After further consideration, I have decided to not pursue HB 3 in the upcoming 2017 legislative session due to the visceral reaction it has created.

“While this bill does not contain language that specifically targets any group, I am mindful of the perception that it has created. My objective was to address radical elements that could pose a threat to public safety. However, further consideration dictates that other solutions will need to be considered.  In conclusion, anti-masking statutes have been upheld as constitutional (State v Miller, 1990), and HB 3 would withstand legal scrutiny, but not political scrutiny.”

There are some tricky legal and constitutional issues that are being ignored by the media coverage so far, which has elected instead to treat the law as mere bigotry against Muslims.  The law that Spencer is amending was upheld by the court, as he says, but that does not mean that the court got it right.  The law is probably unconstitutional on two grounds:

  1. It violates the Federal 1st Amendment, which the state court did not consider as it does not have the authority to rule on Federal questions.
  2. It specifically applies only to men, which is a violation of the equal protection clause of the 14th Amendment.

The reason the law was upheld in spite of these features is that everyone knew it was intended to target the Ku Klux Klan.  This was, the state supreme court said, a legitimate interest of the state that was absolutely necessary for good governance.  In doing this, the court elected to rely on the legislative history of the law and not merely its text.  Interpreted as written, the law does not limit itself to the Klan or similar organizations.  It bars masks for all men in public places, but no women; and for far more purposes than for Klan rallies or the conducting of terroristic acts.

Spencer is pointing to a similar legitimate security interest of the state’s, that of providing state-issued identification that can actually identify.  Similarly, operating a vehicle on a public road without being identifiable raises a number of hazards that the state has a legitimate interest in addressing, such as identifying violators in hit-and-run accidents (to say nothing of actual terrorists, or criminals in drive-by-shootings).  It does not matter whether a man or a woman is the masked person.  The state has, in these cases, a legitimate interest.

Ultimately the Georgia statute should be redrafted entirely so that it narrowly targets the actual behavior that the state has a legitimate interest in regulating.  The ban is both too wide, in not narrowly targeting those who are engaged in bad actions like the Klan’s, and too narrow, in that it bars only men from a given behavior.

These issues, as should be apparent from the discussion above, are not religious issues.  This ban originated with a concern abut the Klan, but the concern applies also to other terrorist groups, street gangs, or anyone who might use a mask to further criminal behavior.  The state’s interest has nothing to do with suppressing religion, and everything to do with furthering the rule of law.

In this, Spencer’s proposal failed because it inadequately learned the lessons from the American Freedom Law Center (AFLC).  Faced with concerns about the effects of sharia law, some states tried to pass laws that banned courts from ruling according to sharia.  These laws were overturned as unconstitutional because they targeted a specific religion.  The AFLC pointed out that the right approach was simply to assert that only American law, created under the aegis of the Constitution, was properly considered by American courts.  Otherwise, the American people lost the ability to be self-governing, as laws they had not ratified according to the supreme law of the land would be imposed upon them.  While this happens to include sharia, the basic point is not aimed at Islam or sharia at all.  It is about what it means to be a free, self-governing people.

Spencer got it half right.  He constructed a law that did not target Islam or Muslims by name, but he did not frame it in terms of protecting the American tradition of self-government and protected liberty.  The right answer is to redraw the whole law so that it is correctly limited according to Constitutional principles.  There is a defensible government interest here, but the law does not correctly capture it.  No one should wear a mask on a government ID, or while operating a vehicle on public streets, for security reasons that have nothing specifically to do with Islam.


UN Resolution 16/18

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