What is a burkini, you may be wondering? The short answer is that it is neither a burqa nor a bikini, but a contrivance something more akin to a full-body scuba diving wetsuit of the type popularized by Jacques Cousteau. Notwithstanding the unoriginality of this costume, apparently for some people, modesty is a not merely a foreign concept, but an object of outright animus. As an example of this, last week a contributor to The Hill by the name of Hala Arafa made some startling claims about religious liberty. Moreover, if we assume as Ms. Arafa does that female modesty is inherently wrong (which I am happy to dispute), it only strengthens the argument for why such expression is protected by the First Amendment in this country. Above all, the freedom of religion and the freedom of speech are the right to be wrong.
Another timely example of the First Amendment in action is possibly-soon-to-be former San Francisco 49er’s quarterback Colin Kaepernick who has made headlines by refusing the honor the national anthem. As a sports fan at the ballpark, I would be perfectly within my rights to sit, or joke around with friends, or go to the bathroom during the performance of “The Star Spangled Banner.” However, Kaepernick is an employee of the NFL and so is bound by a mind-numbing list of conditions in return for his $19 million salary. The NFL even tells him what clothes he may wear on and off the field. Should the NFL decide to sanction him, they would have every right to do so. His freedom of speech ends when he steps onto the field. Sports is a form of entertainment, and while the First Amendment protects virtually every sort of entertainment, it does not give the actor the right to go off script. That artistic license is at the discretion of the director, not the government. That said, if Kaepernick wishes to enjoy the excitement of NFL football as a private citizen, then he will be free to carry out his protest–even if it is wrong.
Or let us take another example of the “Go Topless Day” which was held this past weekend. Many jurisdictions allow this inversion of modesty, and under the jurisprudence of Miller v. California, they are free to do so. The First Amendment protects all manner of obscenity and poor taste. Whereas Ms. Arafa claims that the burkini is an implicit political statement about the oppression of women, “Go Topless Day” actually is an explicit political statement about sexual liberation. As Mark Twain wrote, “Naked people have little or no influence on society,” but even this misguided form of speech is protected. Indeed, the more wrong something is, the more likely it is protected by the First Amendment.
This is where Ms. Arafa really misses the point. She argues that the inherent religious and political expression of the burkini is “forcing” a particular type of Muslim beliefs on others and that it goes against “social norms.” Tell that to the Amish, or the Mennonites, or the Hassidic Jews, or the Rastafarians, or the Native American Medicine Men, or the Christian Scientists, or the Jehovah’s Witnesses, or to any other religious minority. Likewise, Colin Kaepernick’s right to protest does not “force” anyone else to disparage this country. A topless protest does little to challenge “social norms.” As Catholic Christians, we believe ours is the one true faith, but even if all these other groups are wrong, it is their right to be wrong that protects our right to practice our own faith. Nobody is forcing their beliefs on anyone. If freedom of religion extends only to the private and personal expression of belief, then it is no freedom at all.
As Pope Francis recently alluded, the history of Europe and the Middle East is a history of oppression and coercion, religious wars and genocides. In America, we have a higher ideal that the answer to errors, lies, and everything wrong and offensive is not an endless cycle of death and destruction, but more freedom. People with the “COEXIST” bumper stickers seem to miss the point that as the Christian faithful, we can tolerate and defend religious freedom while still passionately disagreeing with other faiths. Indeed, the more we disagree with some sect or group, the more strenuously we should champion their right to be wrong. Times being what they are, it will surely be our turn soon enough to exercise that right–at least in the eyes of the likes of Ms. Arafa.