On the eve of Eid-Al-Adha, Kenya’s highest court today ruled that schools can’t prohibit girl students from wearing Muslim attire, including the hajib.

Kenya now stands in marked contrast to Europe led by France and Belgium which have banned religious attire in public areas. The U.S. sides with Kenya. So who is right?

The Kenyan decision overturns lower court rulings that held for the past year that wearing Muslim attire in public areas including schools is provocative. This is the French view. So obedient Kenyan schools over the last year must now change course.

The Kenyan high court ruling did not condone dressing however you want. The court accepted as constitutional school regulations requiring uniforms but instructed schools to design regulations that accommodated “religious expression” into those uniforms.

“Students do not abandon their constitutional rights when they enter the school gate, and regain them when they leave,” the three high court judges explained.

The French legislature banned Muslim face attire in April, 2011. Several months later Belgium did the same. A number of European cities with more restricted jurisdictions also followed suit, and the various laws were ultimately all upheld in the European Court of Human Rights.

Law in the U.S. is a mixed bag, because much of it remains state law. Mostly public schools must allow all types of religious dress expression including the hajib. But private schools, and especially religious schools, can forbid that wear.

Recently, the American Olympic team embraced a regulation forbidding women Olympians playing basketball from wearing the hajib, although these decisions were presumably made for “safety reasons.”

Kenya’s position is much more tenuous than France’s. Regardless of how you feel about dress as influencing behavior, French law is clear. Religion and the State are never to be combined. Nuns, priests nor Buddhist monks can wear their garb in French public areas. The hajib and other face coverings have been determined in France to be specifically religious.

So the issue in France is that religious expression in public is wrong, and banned. In contrast in Kenya – and in the United States – religious expression is constitutionally protected, arguably encouraged.

I love this debate, because I think it’s tearing “religion” apart, and I believe that “religion” in our contemporary sense ought to be torn apart. I think that France and Belgium are correct, and that Kenya and much of the U.S. is wrong.

The reason I don’t believe the U.S./Kenyan position can stand over time is because it’s impossible to define religion. So “religious freedom” or religious tolerance, advocacy, or whatever can’t be effected if religion can’t be defined.

I can blithely reference “religion” in this blog in an incredibly subjective and presumptive fashion, but you can’t do that in law. Is concealed-carry a religion?

When French law legalized the burkini while still banning the hajib I saw intellectual brilliance. You can argue with them, but they have clearly defined what attire is provocatively ideological and what attire is personal modesty.

Politicians have to split these hairs all the time, from the speed limits on highways to what is a banned substance. If you don’t like how they split it, vote in someone else.

You can’t do that with religion. Can the U.S. define Catholicism as religion but Scientology as not?

The specific issues of the habij and more recently, the burkini, are now so politicized in Europe and Kenya that their legal regulation will now certainly seriously influence social behavior, but how?

French politicians believe it will stabilize their society while French intellectuals as a whole believe it will massively destabilize society. Interestingly, the advocacy sides are reversed in Kenya.

The possible absolute opposite outcomes from an identical action cogitated by well-thinking people is exactly what we need, because with time one or other of the outcomes will occur. And, inshallah, we can learn then what to do for the future.

But if we can’t define religion, we can’t score its outcomes, and it remains levitated beyond intellectual scrutiny.

Is there any analogy to what’s happening in American politics?