Freedom of Exercise v Separation of Church and State

A Comparative Analysis of France and the United States

This article was originally published in the Fall 2012 issue of the Columbia Undergraduate Law Review.

This paper examines the differences between U.S. and French law regarding freedom of religion, and the tensions present in each country between the right of the individual to practice his religion and the role of the state as a secular or religion-neutral entity. I will argue that while the United States tends to value the individual over the state, France tends to value the collective as the highest expression of freedom. This in turn leads to an emphasis on freedom of expression in the United States (protected not only by the free exercise clause but also by the free speech clause) and to an emphasis in France on the separation of church and state as well as the protection of a secular public space. I will make the case that the best explanation for these differing traditions can be found in the history and philosophical traditions unique to each country. In the United States, historical fears of the state becoming a tool of oppression led to a greater concern for the protection of individual liberties than for the creation of a nationally cohesive group. In France, however, the state has traditionally been seen as the only entity with the ability to forge a cohesive national identity through which true freedom could be found. The subordination of individual preferences regarding religion in order to achieve the common good has therefore been granted more importance in France than in the United States These differences, based on differing historical experiences and philosophical traditions, will be examined by using the French headscarf cases as a point of reference to explore both the French method of interpretation of the proper limits of freedom of religion and the opposing American conception of freedom of exercise and expression.

Ruth Woodard is a senior at the University of Virginia. She can be reached at ruth.e.woodard@gmail.com.


Upon my arrival in the United States, the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more did I perceive the great political consequences resulting from this state of things, to which I was unaccustomed. In France I had almost always seen the spirit of religion and the spirit of freedom pursuing courses diametrically opposed to each other; but in America I found that they were intimately united, and that they reigned in common over the same country.

—Alexis de Tocqueville, Democracy in America[i]

The United States and France have two of the longest histories in the world of operating under written constitutions: the United States ratified its present constitution in 1787, and France created its first constitution in 1791. Both countries created almost contemporaneously written guarantees of individual liberty and civil rights: both the Bill of Rights and the Declaration of the Rights of Man and the Citizen were written and adopted in 1789. And yet for all their similarities, France and the United States have chosen deep differences in their respective approaches to governance and the acceptable level of government activity in the lives of their citizens.  A comparative study of the two nations that takes into account the apparent commonalities of their histories and values will bring these points of divergence into focus.

I will argue that one such point of divergence is in the interpretation of the freedom of religion, a freedom that is enshrined in each of the documents respecting civil liberties above. A strong argument can be made that the differences between the French and American constitutional approaches to the issue of freedom of religion—both freedom of exercise and separation of church and state—reflect the societal, cultural, and political differences between the two countries, leading to different opinions about seemingly similar values concerning fundamental rights of citizens regarding religion. In order to understand the nuances of these varying approaches to state-individual relations, I will begin with an examination of how the nebulous concept of freedom of religion is understood in both France and the United States. I will then consider the historic and cultural basis for the differing interpretations of that concept in each state. Finally, I will use the example of the French headscarf cases as a point of departure between the American and French traditions of interpretation to demonstrate the opposing methods used by each country to determine the balance of individual versus collective rights in the realm of religion.

To begin a comparison of constitutional law regarding freedom and exercise of religion between France and the United States, it is important to define what exactly is meant by the rather broad and vague term freedom of religion, as well as the ways in which the two countries’ understandings of the term diverge in some respects and overlap in others. For both France and the United States, freedom of religion can be seen as encompassing two fundamental values often in conflict with one another: the freedom of the individual to exercise his religion freely, sometimes referred to as free exercise or freedom of conscience, and the general principle of state separation from religion, provided for by the establishment clause in the United States and the concept of laïcité in France. The latter of which encompasses both the principle that government in all its forms must be kept completely apart from religion and the expectation that government has a positive duty to protect a religion-free public zone.[ii] Both freedoms are inherent in a complete understanding of the concept of freedom of religion, and yet they often offer opposing normative judgments about exactly which restrictions on religion are and are not acceptable.

Particularly in American case law, this leads to seemingly arbitrary and contradictory rulings. Should the state, for example, impose a burden on a citizen’s right to practice his religion by refusing to grant him unemployment benefits because he was fired for refusing to work on his holy day, or should the state merely perform its duty to maintain the clear boundaries between it and religion, which prevent it from preferring one particular denomination over another or over no religion?[iii] Both the United States and France perform a balancing act between these two principles. Sometimes the scales tip towards the right of the individual to exercise his religion freely, and at other times they are weighted towards maintaining a more clearly demarcated line between the state and religion. However, the United States and France are each predisposed to tip the balance on one side of the scales more frequently than the other, and to tip in opposite directions.[iv] The Supreme Court of the United States more often errs on the side of the individual’s right to practice whichever religion he so chooses in the manner he sees fit, whereas the Conseil d’Etat of France more often embraces a strict separation of the government from entanglement with religion.

 

Historic Origins of French Interpretations of Religious Freedom 

The unique historical circumstances and philosophical traditions under which the founding documents that guarantee freedom of religion in the United States and France developed are responsible for the differences between how the guarantees are interpreted. Daniel Conkle, professor of law and adjunct professor of religion at Indiana University Bloomington, points to the broad political-philosophical traditions of each nation, noting that France has been more strongly influenced by the thought of Rousseau and therefore views the highest responsibility of the state as creating societal cohesion, as opposed to protecting the natural rights of the individual, as in the Lockean American tradition.[v] Conkle argues that the need to ensure that society is a cohesive unit necessarily leads the French to place much higher value and importance not merely on the division of church and state, but also on the positive and sometimes aggressive protection and promotion of a secular French state espousing secular French values. Furthermore, French values have always emphasized assimilation, and the creation of a socially cohesive state.[vi] Individual rights in the French tradition, then, are not merely individual—they serve the purpose of assuming the integration of every citizen into the national community.[vii] These traditions could be seen today in the relationship between the government and its citizen in France in the context of the welfare state, which places utilitarian benefits of the whole above the desires of the individual.

With this philosophical background in mind, the history of laïcité is brought into sharper focus. T.J. Gunn, senior fellow for religion and human rights at the Emory University School of Law, traces the development of laïcité to two major periods in French history: the first five years following the Revolution of 1789 and the period beginning in 1879 culminating in the Law of 1905.[viii]  Gunna argues that although freedom of religion was enshrined in the founding documents of the Revolution, notably the Declaration of the Rights of Man and the Citizen of 1789,[ix] in practice the picture was not so utopian, and indeed, the principle of free exercise embodied in Article Ten of that document was at the same time subordinated to the goal of a secular state.[x] The revolutionaries saw the Catholic Church and its clergy as having been complicit in the restriction of the rights of the people under the ancien régime. Thus, immediately following the Revolution, a series of laws were passed, in particular the Civil Constitution of the Clergy of July 12, 1790,[xi]  reorganizing the Church based on control and ownership by the French government and most importantly, requiring all clergy to take an oath of loyalty to the new France.[xii]  Finally, after the worst of the Terror was over in 1795, a new law on the separation of church and state was passed by the Constituent Assembly. This law guaranteed the freedom of worship; however, in what now seems to be a particularly portentous piece of foreshadowing, the law also forbade priests and other clergy from wearing their religious clothing in public.[xiii] The overall effect of this era in French history is significant for a full understanding of the French attitude towards religion today. By forcing a choice between religion and citizenship, the modern French state at its very naissance sent the signal to its people that “a person could not be genuinely Catholic and genuinely French.”[xiv] This particular method of framing the interaction between personal religion and collective belonging recurs in French thought and is highly present today as France struggles with an immigrant population which refuses to subsume its religious identity to secular French values.

The second period of French history with a direct bearing on the evolution of laïcité is, roughly, the two decades leading up to the Law of 1905. In this period, over twenty-four laws were passed promoting the concept of laïcité. During this time, education was secularized: in 1882, religious instruction was banned from public education, which was made mandatory for both girls and boys.[xv] These years of secularization culminated in the Law of 1905,[xvi] which formally separated church and state as well as provided renewed protection for the exercise of religion. Yet, as with the Declaration of Rights, the free exercise of one’s religion was assumed to be subordinate to the need for a secular state. Jean Jaurès, the founder of the French Socialist Party and an important supporter of the Law of 1905, described the reasoning behind its adoption and the function of the principle of laïcité in government and education in an address at the Collège de Castres in 1904. According to Jaurès, although “[democracy] respects and assures the complete and necessary freedom for all opinions, for all beliefs, and for all religious practices,” the exercise of religion and education must be kept wholly separate in order to prepare children for life in a secular society.[xvii] This view demonstrates not only the French attitude towards religion, namely that it “relates only to the individual conscience” but also the strong assumption that the public spheres as represented by “the social and legal order” are “essentially secular.”[xviii] These words demonstrate the French concept that the most important function of the state is to create a coherent society rather than to protect the right of the individual to live his life as he sees fit. Religion is something which is entirely personal and should not cross in any fashion into the public realm; the state is more interested in maintaining the secular nature of the public realm than it is with maintaining the rights of its citizens to worship in the private realm.[xix]

 

Historic Origins of American Interpretations of Freedom of Religion 

The American approach to the freedom of religion is also deeply rooted in cultural and historical traditions which, like its French counterpart, were developed in times of religious conflict. Though many who settled in the early American colonies were themselves fleeing religious persecution, they did not hesitate to set up their own laws embodying intolerance and persecution.[xx] Many colonies had established churches, which were supported by taxes levied on the entire population. Quakers and Catholics were fined, arrested, and even killed. Gradually, however, the colonies moved towards greater religious freedom, at least for Christians. Even so, this movement was less towards the positive freedom to worship as one chose and more towards freedom from harassment or persecution.[xxi]

By the time of the writing of the Constitution there was a general consensus that religious freedom needed to be protected by the state, but there was much disagreement on the best way to go about the task. Some, like Madison and Jefferson, argued for full separation of church and state—the high-wall theory—while others preferred a system in which government support for one particular religion or denomination over another was banned, but general support for all religions was allowed. This is called nonpreferentialism.[xxii] This debate between high-wall theory and nonpreferentialism has never fully been settled. The Constitution’s ban on “laws respecting an establishment of religion” has been interpreted by those sympathetic to government aid for religion as allowing nonpreferential support even today, and decisions by the Supreme Court would seem to support this. Even in Everson v Board of Education of Ewing Township (1947),[xxiii] the case in which Justice Hugo Black wrote the high-wall theory into constitutional law when holding the establishment clause applicable to the states, the government was allowed to pay for the costs of busing children to parochial schools.[xxiv]

Furthermore, in striking contrast to the sentiments of Jean Jaurès, the attitude in America towards the teaching of religion in schools—so long as it was Protestant—was overwhelmingly positive well into the 20th century. In 1890, Josiah Strong, an influential nativist, argued in his book Our Country, “Schools are ‘the principal digestive organ’ of the body politic, and their purpose is to absorb the ‘children of strange and dissimilar races’ and transform them all into ‘Americans.’”[xxv] Elaborating on this point, he argued that while teaching Protestant Christian values in public schools was necessary, the teaching of Catholic values was anathema to the purpose of creating Americans: “The object of the public school is to make good citizens. The object of the parochial school is to make good Catholics.”[xxvi] While Jaurès argued passionately against the teaching of religion in schools, and Strong argued passionately for doing so, I would argue that their view of the purpose of public education is remarkably similar: both saw public schools as the birthplace of citizens and as a great homogenizer necessary to create a unified and cohesive social state.[xxvii] The United States has since moved away from Strong’s views, embracing a relatively more pluralistic and immigrant-friendly national philosophy, but the French view is still quite similar to that which Jaurès outlined in 1904.[xxviii] As T.J. Gunn points out, “The ‘greatest function’ of the French school [i]s not academic training, but the teaching of patriotism.”[xxix] This distinction will be extremely significant when it comes to the task of understanding the difference between French and American conceptions of the freedom of religion.

 

The Role of the State in the French Headscarf Cases 

The most interesting and salient example of the differences in interpretation of the principle of freedom of religion between the United States and France is embodied in the French headscarf cases. The controversy revolves around the growing Muslim immigrant population in France, much of it from the Maghreb, the North African region composed of former French colonies. With this growing immigrant population, the first mass immigration France has ever experienced (in contrast to the experience of the United States with several waves of mass immigrants), the issue of accommodating new religious practices into French public spaces emerged.[xxx] In light of the French view of the purpose of the institution of public education (that is to reinforce the values of the French secular state) the desire of young Muslim girls to wear the traditional religious headscarf (foulard in French) in public schools has created division within France since the late 1980s.[xxxi]

The first legal incident concerning this controversy came in 1989. In September of that year, three Muslim girls were expelled from their public school for refusing to remove their headscarves. The expulsion made the national news and ignited a heated debate as to whether or not this action was justified. The Minister of Education, Lionel Jospin, subsequently asked the Conseil d’Etat to issue an advisory opinion, or avis, on the question of whether or not a student wearing religious clothing in a public school violated the principle of laïcité.[xxxii] The Conseil advised that wearing religious clothing did not, in fact, violate laïcité and reinstated the girls in their school. In their decision, the Conseil defined laïcité as requiring not only state neutrality towards religion (in this case represented by teachers and administrators) but also respect for the individual right of freedom of conscience for students.[xxxiii]

In reaching this decision, the Conseil took into account the Preamble of the Constitution of 1946, which provided for “the provision of free, public, and secular education at all levels” and Article Two of the Constitution of 1958, which states that “France shall be a…secular…Republic,” and that “it shall ensure the equality of all citizens before the law, without distinction of origin, race or religion.”[xxxiv] The Conseil took this last phrase, along with Article Ten of the Declaration of the Rights of Man and the Citizen—“No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established law and order”—to mean that students had the right to manifest their religion, including wearing religious clothing or symbols in school, so long as the wearing of such symbols did not create a disruption or have a proselytizing effect.

For a considerable amount of time following this, the issue of Islamic headscarves in public schools seemed to be dying out. Then, in 2003, the controversy was reignited when the Prime Minister, Jean-Pierre Raffarin, told a French radio station in an interview that in his opinion, headscarves should be “absolutely” prohibited in the setting of public schools.[xxxv] The topic was soon seized upon by the media and quickly became one of the most talked-about subjects in the country. Following this heated discussion, President Jacques Chirac created a commission to analyze the practice of laïcité in the Republic. The commission, popularly known as the Stasi Commission after the surname of its chairman, made several recommendations, including the banning of headscarves in public schools. The Commission justified its recommendation on the basis that young Muslim girls were often pressured into wearing the foulard by their male relatives, and that allowing headscarves in public schools only served to reinforce the idea that those who did not wear the foulard were somehow inferior. Arguing further, the Commission declared that permitting the wearing of headscarves in public schools violated the “space of neutrality” essential to development and learning.[xxxvi] Legally, the Stasi Commission justified a ban on headscarves under the well-established “public order” (l’ordre publique) doctrine, analogous to the American state “police powers,” which holds that individual rights may only be restrained if necessary to maintain the public security, tranquility, or health.[xxxvii] However, as T.J. Gunn has pointed out, the Commission did not rely on any empirical data nor did it conduct systematic surveys of those who chose to wear the foulard and those who did not in order to ascertain their exact motivations.[xxxviii] In short, the Commission, as many other European courts and legislative bodies have done, failed to seriously consider the possibility that Muslim girls might actually want to wear the foulard. In doing so, they viewed the headscarf not as an expression of religion, but as a political symbol and a “reminder of subjection of women or even of Islam fundamentalism.”[xxxix] As per the recommendations of the Commission, a law banning conspicuous religious clothing in public schools was adopted March 15, 2004.[xl]

There is one further aspect of the French system that differs from the American and that must be considered: the obligation of the French state to adhere to the European laws and treaties that it has signed and pledged to obey as a member of the European Union. This is an area in which the United States has little experience, but which is of vital importance for EU member nations and for France in particular, acting as it has as the driving force behind much of the project of European integration during the past sixty years. Most importantly, France must abide by any decisions made regarding its laws which citizens or interest groups have challenged in the European Court of Human Rights (ECtHR) as a violation of the Convention of Human Rights. Article Nine of the Convention reads:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.[xli]

Allowing the involvement of the ECtHR raises the possibility of recourse for those Muslim girls wishing to wear their headscarves in public school, but this is not as promising as it might seem. In June 2004, the ECtHR ruled in Leyla Sahin v Turkey, a case arising out of a ban on the wearing of headscarves on university campuses in Turkey, that the ban was necessary for fostering secularism.[xlii] In its decision, the ECtHR noted that it had held in previous decisions that “in a democratic society the State [is] entitled to place restrictions on the wearing of the Islamic headscarf if it [is] incompatible with the purported aim of protecting the rights and freedoms of others, public order and public safety.” Further, the ECtHR added that the headscarf, due to the fact that it was such a “powerful external symbol” could have “some kind of proselytizing effect,” much as the Stasi Commission did.[xliii]

More recently, in 2008, the ECtHR ruled in Dogru v France, a case regarding a French girl expelled from her public school in 1999 (before the enactment of the Headscarf Law in 2004) for refusing to remove her headscarf during physical education classes. In its decision, the ECtHR noted the importance of secularism to the founding of the French state and the deep roots of laïcité. Citing its earlier decision in Leyla Shan, the ECtHR ruled that France had not violated Article Nine, writing, “The conclusion reached by the national authorities that the wearing of a veil…was incompatible with sports classes for reasons of health or safety is not unreasonable.”[xliv] This case demonstrates that the ECtHR is reluctant to interfere with the decisions of member states unless the violation is particularly clear and egregious, and that it also gives a healthy amount of latitude to the interpretation of what exactly constitutes a threat to “public order.” In light of these decisions, it is highly unlikely that the French law will fall—at least through the channel of the ECtHR. Barring a sudden transformation of public opinion, the headscarf law is here to stay.

 

Freedom of Exercise in U.S. Case Law

The headscarf law strikes many Americans as a complete invasion of personal liberty, and it would certainly never pass constitutional muster in the United States.  However, many of the Supreme Court’s decisions regarding the freedom of religion, notably those regarding displays of the Ten Commandments, would seem just as absurd to the French. In order to understand the fundamental differences between the French and American approach to freedom of religion and to fully discuss the American Ten Commandments cases, we must first examine U.S. constitutional principles and methods of interpretation in this area. Nevertheless, it is also important to note that while various traditions of interpretation can be identified, the application of each depends on the composition of the Supreme Court and the facts of the case before it.

A brief review of the broad methods of interpretation of the constitutional protection of the freedom of religion, as a basis for the examination of cases, is therefore useful in order to ascertain how the balance between individual freedom and state interests has been perceived in different ways. This holds particularly true for cases such as the Ten Commandments, which present similar facts yet receive differing judgments. Generally, there are three competing theories of interpretation of the First Amendment’s protection of individual religious freedom and prohibition of state religion: strict separation, strict neutrality, and accommodation. Strict separation, the guiding principle behind Everson v Board of Education of Ewing Township (1947), requires state neutrality amongst all religions and a secular purpose for legislation, but permits indirect benefits for religion. Strict neutrality, the interpretation most similar to French laïcité, requires not only a secular purpose but also secular effects—no indirect aid for or burden on religion is permitted. This approach was used in Abington School District v Schempp (1963), which banned prayer in public schools. Finally, accommodation, while also requiring secular purpose, is more flexible than strict separation and permits aid for all religions without discrimination. While for a time under the Warren Court strict neutrality seemed to be gaining the upper hand, under the Burger and Rehnquist Courts more accommodation of religion has been permitted.[xlv]

Although a nuanced understanding of the competing interpretations of the freedom of religion is important, for comparative purposes, it is necessary to synthesize the American approach into a general principle. David Conkle does so successfully when he explains the U.S. approach to religious freedom as “benevolent neutrality” that “generally demands that the government not favor religion over irreligion, but, as an apparent exception, it permits some governmental expression that seems to violate this principle.”[xlvi] As an example of the demand on the government to be neutral between religion and no-religion, Conkle cites Santa Fe Independent School District v Doe (2000), a case in which the Court held that school-sponsored prayers before football games, even when given by a student, were impermissible because they would not be purely private expression but rather would have the weight of the school board behind them.[xlvii]

This prohibition against government sponsorship of religion is the guiding principle behind two seemingly contradictory cases involving displays of the Ten Commandments, Van Orden v Perry (2005) and McCreary v ACLU of Kentucky (2005). In Van Orden, the Rehnquist Court held that a display of the Ten Commandments erected by a civic organization on the grounds of the Texas State Capital did not violate the Establishment Clause. In contrast, a display of the Ten Commandments located within the courthouse in McCreary was held to be unconstitutional because the purpose of the government was clearly non-secular and because unlike in Van Orden, where the monuments had stood for forty years without challenge, the display in McCreary lacked the historical nature necessary for an exception to the ban on government expression of religion.  Therefore, a different result was achieved in McCreary than in Van Orden, two cases with essentially the same facts, decided on the same day.

To many, this result seems arbitrary—a case of the Court twisting its interpretation to get the result it wants (note that Rehnquist doesn’t uphold the precedent set by Stone[xlviii] and barely mentions the Lemon test in Van Orden while Souter relies heavily on both Stone and the Lemon test in McCreary).[xlix] Yet for the purposes of comparing the American and French approaches to the freedom of religion, these two cases stand out as an example of just how much more willing the United States is to accommodate religious expression, even when it comes from the government, much less an individual in a governmental setting. These cases indicate just how differently Americans and French view their public spaces. The French are primarily concerned with not burdening the general public with what they see as oppressive expressions of religion, while Americans allocate much more leeway to the expression of religion in public places so as not to burden the individual’s, or even state actor’s, religious freedom.

The First Amendment’s free speech clause, which includes protection of not only political speech but also religious expression, is a factor that further explains the differing approaches to freedom of religious expression. Even in cases that seem factually similar, comparing U.S. and French decisions on the freedom of exercise is complicated by the addition in the American case of an overlapping tradition protecting freedom of expression. With this in mind, the most analogous case in American law to the French headscarf case is that of Tinker v Des Moines Independent Community School District (1969). In this case, two students, John and Mary Beth Tinker were suspended from their public schools for wearing black armbands in protest of the Vietnam War. In defending the right of the Tinkers to express their political beliefs, the Court made its famous assertion that neither “students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[l] In language that foreshadowed the French Conseil d’Etat’s avis regarding wearing Islamic headscarves in public schools, the Court ruled that student expression could only be restricted if it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”[li]

Under this analysis, it is not enough for the expression to be controversial—as some might see the wearing of a foulard in a French public school that extols the virtues of laïcité. Rather, the speech must also constitute a real disruption; it must “intrude upon the work of the schools or the rights of other students.”[lii] In order to understand why French law shifted away from this commonality of allowing student expression that is not fundamentally disruptive to other students or the learning process, we must look at the differences between the public school setting in France and in the United States. Public schools in France, with their highly national and standardized curriculum, are treated less as places of learning and more as places to form French citizens, and French citizens are by definition secular citizens.[liii] Coupled with the French fear (as opposed to the American embrace) of pluralism, anything that might be seen as impairing the goal of fostering unity and common French values in public schools must be outlawed.[liv] In this sense, the French public school setting may actually be more analogous to an American military setting—a position that might strike some as extreme, and yet one which the French rhetoric surrounding public schools frequently justifies.[lv]

If one accepts this analogy, the U.S. case of Goldman v Weinberger (1986) mirrors the decision of the National Assembly to ban headscarves in public schools. In Goldman, the petitioner, an ordained rabbi and Orthodox Jew who served as a clinical psychologist for the Air Force, was reprimanded for wearing his yarmulke in violation of Air Force regulations which stipulated that headgear could not be worn indoors with the exception of armed security police.[lvi] He sued, citing his First Amendment right to religious expression and argued that respecting that right required the Air Force to make an exception for religious clothing as long as wearing such clothing did not present a “clear danger of undermining discipline and esprit de corps.” Chief Justice Rehnquist writing for the court rejected this claim and held that the Air Force did not have to justify its decisions regarding which measures were in fact necessary to “foster instinctive obedience, unity, commitment, and esprit de corps.” Just as the French National Assembly made a distinction between “ostentatious” religious clothing, so too did Rehnquist note that the Air Force could use its discretion when allowing or disallowing “visible religious headgear.”[lvii] Thus, if one takes the mission of French schools to be this same sort of fostering of unity and a sense of common citizenship which inherently ignores race, ethnicity, and religion, Goldman importantly aids Americans in appreciating   the deep antipathy the French feel towards allowing headscarves in public schools.

 

Conclusion 

This paper has explored the various points of departure between the American and French approaches to freedom of religion based on an examination of the state-individual interaction in each country. The U.S. tradition of valuing the individual over the state versus the French tradition of valuing the collective will as the highest expression of freedom leads to an emphasis in the United States on freedom of expression (protected not only by the free exercise but also by the free speech clause) and an emphasis in France on the separation of church and state and the protection of a secular public space. As noted by Frederick Gedicks, the differences in the construction of religious liberty in these two nations stems from differing conceptions of the “proper role of the state in securing religious freedom and other human rights.” In the United States, the state has historically been seen as an instrument, which, while necessary for the protection of public order and safety, could easily be turned against its own people as an instrument of tyranny. Fears of this order placed more weight on the protection of individual liberties than on the creation of a nationally cohesive group. In France, however, the state has been seen as the only force capable of shaping the cooperative unit needed for true freedom to be realized. The subordination of individual preferences in order to gain the common good has therefore been granted more importance in France than in the United States.

These cultural and historical differences are at the root of the differences in legal and constitutional interpretation of the amorphous concept of freedom of religion in France and America. For two nations that were born in the same era and which appear to the rest of the world to have very similar value systems and ideals, these root differences illustrate how such disparate results can be achieved in the realm of religious freedom. Whether or not one of these two systems is normatively better than the other is a difficult claim to adjudicate. Certainly, the American approach does a better job of defending individual liberty and allowing citizens to feel that their rights are taken seriously by the state. Nevertheless, the French system, with its clear choice to err on the side of secularism avoids just the kind of arbitrary decisions that cause such anger and confusion in the United States. The French establishment, dealing as it is with the fallout from the nation’s first wave of mass-migration, may do well to appreciate laws such as the headscarf law. At the same time, the law is supported by only 42 percent of French Muslims, and so it may serve only to undermine the goals of the state in the realm of education.  By pushing those Muslims already predisposed to feel distrustful of the state away from public schools and into private religious schools, the French state itself is placing them out of the reach of the French values they wish to inculcate. Furthermore, decisions s­uch as these only act to additionally alienate the segment of young Muslims, the vast majority of whom are French citizens by birth, yet who feel disenfranchised by the government and rejected as immigrants by larger French society. To these Muslims, the stance of the current French government may very much mirror that of the Revolutionary government who forced Catholic priests to make a choice between their faith and their citizenship—and that is a choice that could turn out very badly for France.

 


[i] Tocqueville, Alexis de, Democracy in America, (A. S. Barnes & Co. 1851),  337.

[ii] O’Brien, David M. “Freedom From and of Religion” In Constitutional Law and Politics: Civil Rights and Civil Liberties 2 by David O’Brien. (W.W. Norton & Co.,2008), 709-710

[iii]Sherbert v Verner 374 U.S. 398, 400-401 (Supreme Court, 1963)

[iv] Deshmukh, Fiona. “Legal Secularism in France and Freedom of Religion in the United States: A Comparison and Iraq as a Cautionary Tale.” 30 Houston Journal of International Law (2007) 118. Online at http://search.ebscohost.com/login.aspx?direct=true&db=lgh&AN=31437267&site=ehost-live (visited April 11, 2012).

[v] Conkle, Daniel O. “Religious Expression and Symbolism in the American Constitutional Tradition: Governmental Neutrality, But Not Indifference.” 13 Indiana Journal of Global Legal Studies (2006) 441. Online at   http://search.ebscohost.com/login.aspx?direct=true&db=lgh&AN=22956616&site=ehost-live (visited April 14, 2012).

[vi] Deshmukh, “Legal Secularism,” 122-123.

[vii] Rogoff, Martin A. French Constitutional Law: Cases and Materials. (Carolina Academic Press, 2007) 279.

[viii] Gunn, T. Jeremy. “Religious Freedom and Laïcité: A Comparison of the United States and France.” 2 Brigham Young University Law Review (2004) 432. Online at  http://www.law2.byu.edu/lawreview4/archives/2004/5GUN-FIN2.pdf (visited April 10, 2012)

[ix] Rogoff, French Constitutional Law, 504.

[x] Deshmukh, “Legal Secularism,” 121.

[xi] Rogoff, French Constitutional Law, 338.

[xii] Gunn, “Religious Freedom and Laïcité,” 435-438.

[xiii] id at  438

[xiv] id at 439

[xv] Rogoff, French Constitutional Law, 337.

[xvi] id at 340

[xvii] id at  339

[xviii] id at 339

[xix] Conkle, “Religious Expression,” 442.

[xx] O’Brien, “Freedom From and Of Religion,” 710.

[xxi] Gunn, “Religious Freedom and Laïcité,” 442.

[xxii] O’Brien, “Freedom From and Of Religion,” 712-713.

[xxiii] Everson v Board of Education of Ewing Township 330 U.S. 504, 520 (Supreme Court, 1947)

[xxiv] O’Brien, “Freedom From and Of Religion,” 714-715.

[xxv] id at  449 footnote 129

[xxvi] id at449 footnote 129

[xxvii] Deshmukh, “Legal Secularism,” 123.

[xxviii] Gedicks, Frederick Mark. “Religious Exemptions, Formal Neutrality, and Laïcité.” 13 Indiana Journal of Global Legal Studies (2006) 484. Online at  http://search.ebscohost.com/login.aspx?direct=true&db=lgh&AN=22956619&site=ehost-liveks(visited April 10, 2012).

[xxix] Gunn, “Religious Freedom and Laïcité,” 453.

[xxx] Levine, Robert A. “Assimilating Immigrants: Why America Can and France Cannot.”  (RAND Corporation 2004). 13-14. Online at http://www.rand.org/pubs/occasional_papers/OP132. (visited April 15, 2012).

[xxxi] Deshmukh, “Legal Secularism,” 123.

[xxxii] Gunn, “Religious Freedom and Laïcité,” 453.

[xxxiii] Avis du Conseil d’État No. 346893 (Nov 27, 1989), reprinted and translated in Rogoff, French Constitutional Law, 342-344. Online at http://www.conseil-etat.fr/media/document//avis/346893.pdf. (visited April 15, 2012).

[xxxiv] Rogoff, French Constitutional Law, 342.

[xxxv] Gunn, “Religious Freedom and Laïcité,” 459.

[xxxvi] Uitz, Renata. Freedom of Religion in European Constitutional and International Case Law. ( Council of Europe Publishing 2007), 127.

[xxxvii] Gunn, “Religious Freedom and Laïcité,” 467.

[xxxviii] id at  468-473

[xxxix] Uitz, Freedom of Religion, 129.

[xl] Loi no. 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de  tenues manifestant une appartenance religieuse dans les écoles , collèges et lycées.

[xli] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) Art 9.

[xlii] Uitz, Freedom of Religion, 127.

[xliii] Leyla Sahin v Turkey, (App no 44774/98) ECHR 2005

[xliv] Dogru v France, (App no 27058/05) ECHR 2008

[xlv] O’Brien, “Freedom From and Of Religion,” 718.

[xlvi] Conkle, “Religious Expression and Symbolism,” 419.

[xlvii] id at 425

[xlviii] Stone v Graham 449 U.S. 39, 42-43 (Supreme Court, 1980) banning the display of the Ten Commandments in public classrooms and finding that such displays represent a fundamentally religious message.

[xlix] Deshmukh, “Legal Secularism,” 144.

[l] Tinker v Des Moines Independent Community School District, 393 U.S. 503, 506 (Supreme Court, 1969)

[li] id

[lii] id

[liii] Gunn, “Religious Freedom and Laïcité,” 453.

[liv] Conkle, “Religious Expression and Symbolism,” 484, 491.

[lv] Deshmukh, “Legal Secularism,” 150-151.

[lvi] Goldman v Weinberger 475 U.S. 503, 509 (Supreme Court, 1986)

[lvii] id

 

Works Cited

Conkle, Daniel. O. “Religious Expression and Symbolism in the American Constitutional Tradition: Governmental Neutrality, But Not Indifference.” 13 Indiana Journal of Global Legal Studies 417, 443 (2006). Online at  http://search.ebscohost.com/login.aspx?direct=true&db=lgh&AN=22956616&site=ehost-live (visited April 10, 2012).

Deshmukh, Fiona. “Legal Secularism in France and Freedom of Religion in the United States: A Comparison and Iraq as a Cautionary Tale.” 30 Houston Journal of International Law 111, 155 (2007). Online at http://search.ebscohost.com/login.aspx?direct=true&db=lgh&AN=31437267&site=ehost-live (visited April 10, 2012).

 

Gedicks, Frederick Mark. “Religious Exemptions, Formal Neutrality, and Laïcité.” 13 Indiana Journal of Global Legal Studies 473, 492 (2006). Online at  http://search.ebscohost.com/login.aspx?direct=true&db=lgh&AN=22956619&site=ehost-live (visited April 10, 2012).

 

Gunn, T. Jeremy. “Religious Freedom and Laïcité: A Comparison of the United States and France.” 2 Brigham Young University Law Review 419, 506 (2004) Online at  http://www.law2.byu.edu/lawreview4/archives/2004/5GUN-FIN2.pdf (visited April 10, 2012).

 

LeClerc, Aline. “Je suis Français à 100 % mais dans leurs yeux je reste un immigré.” Le Monde. February 16, 2012. Online at   http://lacourneuve.blog.lemonde.fr/2012/02/16/je-suis-francais-a-100-mais-dans-leurs-yeux-je-reste-un-immigre/ (visited April 22, 2012).

 

Levine, Robert A. “Assimilating Immigrants: Why America Can and France Cannot.” Santa Monica, CA: RAND Corporation, 2004. Onlne at  http://www.rand.org/pubs/occasional_papers/OP132. (visited April 15, 2012).

 

O’Brien, David M. “Freedom From and of Religion” In Constitutional Law and Politics: Civil Rights and Civil Liberties 2 by David O’Brien, 709,869.  (W.W. Norton & Co. 2008).

 

Rogoff, Martin A. French Constitutional Law: Cases and Materials.  (Carolina Academic Press,2007).

 

Tocqueville, Alexis de. Democracy in America. (A. S. Barnes & Co. 1851).

 

Uitz, Renata. Freedom of Religion in European Constitutional and International Case Law. (Council of Europe Publishing 2007).