When national security trumps religious freedom

The fallout from the recent spate of suicide bombings in Sri Lanka highlights the tension between religious freedom as a fundamental human right and national-security concerns. The country’s ban on face coverings — which admittedly impinges on religious liberty — can be justified in light of its struggle to preserve the basic safety of its citizens. 

On Easter Sunday, the South Asian island nation experienced the bloodiest incident since its civil war ended 10 years ago. In a coordinated attack, three churches and three luxury hotels suffered devastating blasts from suicide bombings. Later that day, three more suicide bombings occurred in different areas of Colombo, the nation’s capital.

The nine suicide bombers killed more than 250 people and wounded at least 500. Most of those killed were Sri Lankan, along with about 40 foreign nationals. An intelligence memo warning of a possible attack had circulated 10 days earlier, raising questions about whether preventative measures could have been taken.

Hours after the attacks, Sri Lankan authorities ascertained that militants affiliated with National Tawheed Jamath, a little-known local Islamist group, had selected and surveilled the targets. The suicide bombers, one of whom was a woman, were all Sri Lankan. Speculation quickly arose, however, that the Islamic State had played a role, and two days later, the Islamic State claimed responsibility.

Not a burqa ban

In light of the violence and the latest intelligence reports, President Maithripala Sirisena issued an emergency ban on any face coverings or anything that “hinders the identification of individuals in a way that threatens national security,” with the primary criterion for identification being “the ability to see the face of an individual clearly.”

Sri Lanka’s constitution gives Buddhism the “foremost place” among all other religions and places it under the state’s protection. Of the nation’s 21 million people, most regard themselves as Buddhist (70.2%). Hindus are the second largest religious group (12%), followed by Muslims (9.7%) and Christians (7.4%).

Buddhism the “foremost place” among all other religions and places it under the state’s protection.

Though widely reported as a “burqa ban,” the ban on face coverings does not specifically mention the burqa, the niqab, the hijab, or any other piece of religious clothing; but those items, which are worn by some Muslim women, are clearly covered under the ban’s broad scope, and some maintain that the ban targets them directly. A burqa is an outer garment that covers the entire body and face, a niqab is a veil that covers the face except for the eyes, and a hijab covers the hair.

Though the Sri Lankan constitution gives Buddhism a privileged status, it recognizes the fundamental right of every person “to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of [one’s] choice.”

Muslim activists in Sri Lanka and beyond claim that the ban on face coverings violates their religious freedom. But others argue that the ban is needed for national security, adding that the practice of wearing face coverings in public is a relatively recent practice for Muslim women in Sri Lanka that only dates back to the 1990s.

The All Ceylon Jamiyyathul Ulama, Sri Lanka’s top body of Islamic scholars, even advised Muslim women not to hinder “the security forces in their efforts to maintain national security by wearing the face cover,” but added that it opposed any legal measure banning burqas, niqab, or hijabs.

The news network Al Jazeera spoke to a number of people in Sri Lanka, including Muslim women, about the ban. Some women who were interviewed said that while they understood the current circumstances, the ban has still “violated Muslim women’s right to practice their religion freely.”

Burdens and balance

The critics have a point. Without question, the ban burdens the fundamental right of Muslim women to exercise their religion freely in the public square. But that burden must be weighed alongside other public-policy concerns, including national security.

Though I work for a nonprofit law firm and think tank dedicated solely to advancing religious freedom for all people, and though I believe that religious freedom is rightly regarded as the “first freedom,” I do not think that religious freedom should win in every case or controversy. (Most obviously, religious freedom can never justify human sacrifice, even if the religious adherents are utterly sincere.)

Should religious freedom win here? I think not. Sri Lanka’s compelling governmental interest in preserving its national security and preventing the further loss of life outweighs the burden on religious freedom. I reach this conclusion based on principles drawn from the United States Supreme Court’s interpretation of the First Amendment, the Religious Freedom Restoration Act (RFRA), and Fourth Amendment jurisprudence. Though that law obviously does not apply abroad, it provides a useful analytical framework.

Whether analyzed under the lesser Smith standard (neutral laws of general applicability do not violate the Free Exercise Clause) or the stricter Sherbert standard codified in RFRA (the governmental interest must be compelling), the Sri Lankan law passes constitutional muster. The ban applies indiscriminately to all face coverings, does not “target” religion, and is in furtherance of a highly compelling governmental interest — identifying and stopping potential terrorists in a public setting.

The Fourth Amendment analysis is even easier. On balance, American courts have affirmed similar identification protocols in national security settings, for example checkpoints, airports, ports of entry, Real ID Act. And, as a point of emphasis, the ban is the product of exigency and is (seemingly) time-limited; as of now, nothing indicates that it is intended to be a permanent measure.

Do I believe that Sri Lanka made the right decision? Yes. Am I uncomfortable with this added burden on religious freedom? Certainly. As an adherent to the school of philosophy known as “new natural law,” I believe that religion is a “basic good,” meaning that it is valuable for its own sake and essential for human flourishing. Let us not forget that denying the free exercise of a sincerely held religious belief treads on that basic good and thus affects all people of faith. Let us tread lightly whenever and wherever we can. (Acton)

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