Is the Swiss burka ban a tyranny of the majority?

Since 2009 the construction of new minarets in Switzerland has been banned. The picture shows one of the four existing minarets of Switzerland, in Wangen. 13 Photo

Swiss voters have banned the construction of new minarets, burkas and the ritual slaughter of animals for food, which some say amounts to the discrimination of religious minorities under Switzerland’s direct democracy.

#Dear Democracy

This text is part of #DearDemocracy, a platform on direct democracy issues, by swissinfo.ch.

Since July 2016, people in the southern Swiss canton of Ticino have not been allowed to wear clothing that covers their face in public. The measure came about through a 2013 cantonal vote calling for a ban on such clothing typically worn by Muslim women. A committee is now collecting signatures for a similar nationwide ban. 

Seven years earlier, voters decided to ban the construction of new minarets in Switzerland. And slaughtering animals for kosher and halal meat, which involves slitting the animal’s throat so that it bleeds dry without stunning it first, has been forbidden in Switzerland since 1893 following a national vote. Such decisions clearly affect members of certain minority religious groups, such as Muslims and Jews.

Other religions have faced similar situations in Switzerland. For many years, Catholics in traditional Protestant cantons – and vice versa – had to fight until their faith was recognised by a public vote. The Jesuit Order was totally banned in Switzerland in the 19^th century, a measure only lifted in 1973 after a national vote.

Adrian Vatter is Professor of Swiss politics at the University of Bern. zvg

All of which begs the question: does direct democracy lead to a majority of society tyrannising religious minorities? Adrian Vatter, a professor of political science at the University of Bern, recently published a book on the issue called “Vom Schächt-zum Minarettverbot”, or “From religious slaughter rituals to the minaret ban”.

Vatter believes religious minorities have a “hard time” in the Swiss direct democracy system, arguing they suffer more than other minorities like linguistic groups or disabled people who manage to make themselves heard relatively well during votes.

But at the true bottom of the pecking order, says Vatter, are immigrants. “Because 90% of Muslims in Switzerland are foreigners, the impact is cumulative.”

Perspective matters

Vatter and his team at the University of Bern have carried out research comparing Swiss parliamentary decisions with those made at the ballot box.

“National votes are generally much more disadvantageous for religious minorities,” said Vatter. “But not for all religions.”

He said there was a huge difference between whether society perceives the religious minority as socially integrated with similar cultural values, or if it is viewed as a foreign group.

“In the 19^th century, Jewish people were perceived as a foreign group. As a result, it was difficult for them to make themselves heard at the ballot box,” he said.

Today things are different for Jews, who are much more accepted within Swiss society. 

“Muslims, on the other hand, are viewed by the majority as a foreign group socially, who do not share western Christian values,” Vatter argues. As a result, he says, they have a hard time during votes.

Events in other countries can also influence Swiss votes. Vatter believes the minaret ban was eventually accepted because of actions in other parts of the world.

“The minaret vote wasn’t against individual Muslims but against Islam as a political movement,” he said.

The political scientist added that statistics play their part. If the number of believers increases, as is the case for Muslims in Switzerland, there is an impact at the ballot box. Small religious communities such as Old Catholics or Protestant Congregationalist churches are now perceived as less of a threat.

Representative or direct?

Religious minorities do not appear more protected in representative democracies, since countries like France and Belgium banned the burka and the burkini full-body swimwear mostly worn by Muslim women.

Vatter said this would need to be compared statistically to be certain, which has not yet been done. But he has his theories.

“In a representative democracy, decisions are made by the political elite such as parliamentarians and the government,” he says. “These are not a carbon-copy image of the population but are generally highly educated people.”

Parliamentary decisions granting rights to religious minorities are generally more liberal than those taken at the ballot box, Vatter concludes. But he still thinks that representative democracies do a good job of expressing the public’s positions overall. 

Colliding values

In Switzerland, disputes tend to arise when religious freedoms collide with other societal values or rights. Here are some examples:

• Circumcision: Female genital cutting is forbidden in Switzerland. Circumcision is allowed but is controversial. The Pro Children’s Rights Organisation in Switzerland is in favour of banning the circumcision of boys in cases when not recommended for medical reasons. It claims circumcision is a violation of physical integrity and of human rights law.
• Animal slaughter: The 1893 vote to ban the ritual slaughtering of animals for food was probably adopted for anti-Semitic reasons. Today the ban remains in place for animal welfare reasons. In Switzerland, animals can only be bled dry under anaesthetic. But many Jews and Muslims reject this way of slaughtering for religious reasons. They get around it by importing kosher and halal meat, a move seen as controversial.
• Sex education: Some Christian groups reject the theory of evolution and do not want their children to receive sex education lessons. However, most Swiss citizens believe that sex education classes are important to protect children from sexual abuse or future unwanted pregnancies.

Who decides in such cases? Should a majority decide in a popular vote, or do minorities need special protection and mechanisms to defend their interests, similar to the idea of federalism?

Vatter believes that neither the majority nor the minority should decide. It is difficult for the population and for a parliament to remain balanced and neutral about issues such as child protection, animal welfare or religious freedom.

He has a different solution: the judiciary.

“Ideally, a relevant court should weigh up the balance of interests based on fundamental rights anchored in the Constitution.”

From a democratic perspective, it is controversial to allow a handful of judges to take decisions that affect all of society. Such an idea is unlikely to gain ground in Switzerland.

Who should be the ones to decide when there are conflicts between religions and other values of society? The people, politicians or the courts? Share your views in the comments below.

Translated from German by Simon Bradley