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Marc Heinrich is a Columbia University freshman and CULR’s publisher. He can be reached at mwh2127@columbia.edu

Marc: Do you mind speaking a little bit about your career/life, how you became interested in this? How you came to here?

Dean Awn: My interest originally was because I have a Christian theology as well as a PhD in comparative religion with a specialty in Islam. I got into that because my family was Lebanese Christians, and I was interested in the history of religious minorities in the Middle East. Had to study for contextual reasons, found that much more interesting. My area of specialization is Islamic mysticism, and that has brought lots of interesting comparative overlays with Buddhism, Christianity, Judaism, etc. This is the best job on the market in the year I was looking which was in the late 1970s. And now I’ve been at Columbia now 35 yrs, teaching mostly Islamic religion and occasionally LitHum.

Marc: Do you like LitHum [Masterpieces of Western Literature]?

Awn: Oh yes, I taught it almost every year since I became a dean so I enjoy it a lot.

Marc: What is your perspective on the controversy regarding whether women have the right to wear headscarves…?

Awn: There are first two issues. The whole construction of what secularity and secularism mean is somewhat idiosyncratic of as you move from cultural area to cultural area. So in the French context, you will find that the French ideal carries over to the modern Turkish constitution. there is this notion, laïcité. That is the core notion. The argument is, at least in the school system, even though we realize that people come from a whole range of religious backgrounds, or no religious backgrounds, that symbolically everyone needs to be the same because that’s the way we create the cohesion of French society; not by celebrating difference but by celebrating the commonality. And so in school you can’t wear a cross, you can’t wear a yamaka, you can’t wear a headscarf. So that is one issue.

In the United States, now, what they will do with religious schools, however, as you’ll find frequently in Europe government supports with government funds education of religious schools in order to give up control of the equality of the curriculum and diversity of the curriculum. In this country, we construct singularity in a different way. It isn’t what you wear. You can wear bananas on your head, have eighteen piercings, dye your hair purple and green (you get an A in my class I’ll have a lot of respect for you) it isn’t what you look like. Nor do we see what you wear as symbolic of difference that threatens common ideas. We have no constructed myth of racial uniformity in this country. It is impossible for a country for a country of immigrants. So the ideals are, at least as we encounter them initially, abstract and then become embodied in the structures of the state, and in the way we live. But not in the way we look, not in what we believe religiously, if we believe anything. However, while we let people wear what they want. Will we ever put a dime into religious school? The answer is no. That’s where we draw the line.  So the French draw the line in the state school system. But we draw the line, in terms of supporting religious education.

Is one better than the other? I think in a sense to me its totally idiosyncratic. You may have serious arguments in both directions, but I don’t think one can automatically say one is better than the other.

The more interesting question is the burqa. Where is that is now outlawed in any public environment. First and foremost what you have to realize it is very difficult from the point of view of the study of religion to unravel what is religious and what is the hold over from the culture in which the religion is imbedded. So to be quite honest, most Muslims find the burqa bizarre. It is by no means standard practice in the Islamic world. They find it purely the result of or the consequence of various tribal cultural areas that overtime develop what they would consider a somewhat extreme attitude towards the control of female sexuality. There is no requirement that you can defend religiously, to completely cover the face and the body. The only thing you can find in the Qur’an is basically the idea of modesty for both men and for women. There are no details about what that means. Head covering were ubiquitous among Christians, among Jews, and then Muslim women. Roman catholic forget, its changed now, people don’t necessarily observe this since the 60s,but Roman catholic women always had to put something on their heads before they went to church. They never knew why. They just knew that you don’t go to church without putting a scarf or wearing a hat or something. It was a vestigial gesture to head coverings. You will find it in the orthodox Jewish community. Women wear scarves or women wear wigs, which are exactly for the same purpose as a headscarf in Islam.

Why? Women’s hair was seen in traditional society as highly erotic. That to show you’re hair was to show one of you’re most erotic body parts. Now today sexy hair maybe something we acknowledge but this isn’t something that makes you stop in your tracks. That isn’t how the erotic is now constructed. So covering the head that you could say has become culturally imbedded within Islamic and non-Islamic society. Now this complete burqa covering is really a minority position that comes out only in specific cultural environments in the Islamic world. So to call it somehow standard Islamic practice is completely wrong the majority of Muslims throughout the world find it somewhat strange.

But then we go back to is there logic in arguing you cannot cover you’re face? Can you make a security argument? Along those lines, you have a passport photo. We are not going to have a passport photo of your eyes because then there is now way to check whether or not its you. So there is a sense in which what you are attempting to manage is a cultural practice not religious practice even though the people themselves who do it will argue oh no this is part of Islam this is part of my Islam, which one has to respect. But I’m not sure the state doesn’t have the right to question whether or not individuals can be recognized at particular key points. Now you may want to say wear your burqa around town if you want, but you’re going to have to take passport photos, you’re going to have to show you’re face if you want to travel.

What’s also very interesting is under a bruqua you’re not sure whether it is a man or a woman. When someone is that completely covered in some big flowing thing as we’ve found so often when you’re trying to escape in certain parts and want to be incognitive as a male you can throw on a burqa and start running around.

So am I completely against it, this kind of intrusion? Do I think it is absolutely necessary? No. I think you can follow a more narrowly focus in insisting that in any time when security is of concern, you have to be willing to show you’re face. And if your not then you’re the one who has to make the choice. You don’t get a passport. You don’t travel. You don’t do this or that if you’re not in a position to be willing to conform to the security regulations but I think every country has the right to impose.

To me it’s a very interesting thing. To show you again, where we differ in a very profound way. Is not just in this issue of how you construct the secular, but also of how you deal with extreme hate. Actually, you may know that in France and in Germany and I think a number of other European countries, it is against the law to deny the holocaust.

Marc: Another question I was going to ask is, I don’t personally know a lot about and would be interesting: how is the separation of the church and state in France, how is that the same or different from that in the United States, as far as how the government looks towards religion?

Awn: I would say that the separation is much more, at least from an ideological point of view, radical. Except that you could argue since they support, to some degree, religious schools that they are involved in some aspect of education that has a religious faith to it. So from that point of view, there are none of these other than we still have with an established church. The French, well, statistically, in France the number of people who attend church, who identified themselves as religious is relatively small. So the government’s engagement in any serious way with religious institutions is not great.

De facto, in the United States, while clearly we preach the separation of church and state. The ability of religious institutions to interface with government in the framing of laws and policies etc. is I would argue far more entrenched than what you’d find in France. It is also very interesting that that if we were to look back on when did it become essential now for major politicians to talk about their religion. 

Marc: and you know “God bless…”

Awn: And yes you would not find that in France. That is nobody’s business. Here it is what’s interesting. The French are very serious about it. There are certain things you talk about in the press and you talk about publicly about an individual’s life, and there are certain things that are none of you’re business. Your private life, your sex life–I mean sure scandals hit–but the French are appalled at the degree to which we explore what is going on in everyone’s underwear especially people in prominent positions. That’s people with mistresses, people who have extramarital affairs, people who might be prominent but also homosexual. You just don’t talk about it. The French find the American press astonishingly inappropriate in dwelling so intensely on private issues that really no one’s business and don’t affect the quality of one’s performance in government or elsewhere.

So issue of public and private is far more valued in and imbedded in French society than in American society. It is not only publically secular in terms of not being, not offering to any great degree the ability of religious institution have an impact on both the running of the state and policy. There is also this issue of the moral status of an individual especially as it relates to one’s private life. This is not as much a central focus as it is in this country.

What really perplexes me is how when you have these very logical within the context of constructions of the secular and how religion interfaces or not with the public sphere and the government. And the whole issue with free speech. How do you determine whether one’s better than the other? It’s difficult to say.

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

Marygrace Patterson is an alum of Barnard College, class of 2012. She can be reached at marygrace.patterson@gmail.com.

Martha Graham’s Appalachian Spring premiered at the Library of Congress in 1944. According to the legislation of the time, the ballet itself was not copyrightable, despite its first performance at the institution of the national copyright registrar.^[1] Choreographic copyright has a long and complex history, which has shaped the audience’s experience of dance works in America, and has come to the forefront of artistic discussion in the past two decades. Following Martha Graham’s death in 1991, two major legal battles erupted, one related to the trademarking of Martha Graham’s name and technique, another related to the copyright ownership of her seventy dances.^[2] Appalachian Spring, among nine other remarkable works, was left in the public domain and a legal precedent was set that restricted the artistic ownership rights of choreographers. Set to a score by Aaron Copland and incorporating a set by Isamu Noguchi, Appalachian Spring painted a poignant portrait of the American frontier and set a high standard for the blossoming modern dance movement of the mid-1900s. Although this dance was once revered for its artistic genius, today it functions primarily as an illustration of copyright law as it relates to dance. The cause of this transformation from great American dance to exemplar of copyright issues is the subject of this essay. Not only does the case illuminate a topic increasingly vital to the live arts, but it also has ignited an important discussion surrounding the merits and pitfalls of choreographic copyright. If copyright has the potential to be used to protect and disseminate a dance, it also can be used to control and restrict public access to that dance. Copyright should be utilized to prevent ownership disputes and provide financial support to artists; it should not be relied upon to preserve ephemeral art. Young dancers, aging choreographers, and dance lovers alike must now consider the weight of the law and understand what they can do to preserve, promote, and protect American art.

The history of copyright begins with the Constitution, which outlined the basic goals of copyright protection as well as its practical limits. This essay will present the historical cornerstones of choreographic copyright law, as well as a central discussion of the Martha Graham case and its impact on choreographic copyright. While she was not the first artist to influence the field of dance law, her case prompts discussion of every major issue that arises with choreographic copyright. By better understanding the costs and benefits of relying on copyright law, artists may take steps toward revitalizing their creative community. Ultimately, I will address the contemporary American choreographer who may ask, “What should I do to protect myself and my work? What are the limitations to existing copyright protections? What are the benefits of those limitations? And, how can the artist most effectively utilize choreographic copyright?” Understanding Graham v Graham will assist in formulating answers to each of these questions.

The immense struggles of the Martha Graham Dance Company (MGDC) caused a sea change in the dance community’s awareness of legal issues. Although the two major cases, under the umbrella title of Martha Graham School and Dance Foundation, Inc. v Martha Graham Center of Contemporary Dance, Inc. (“Graham v Graham”), grew out of a unique set of circumstances, they relied upon the precedent set by many other artists. Both the trademark dispute (“Graham v Graham 1”) and the copyright dispute (“Graham v Graham 2”) hinged on the actions of a man named Ron Protas, to whom Martha Graham had willed all of her property when she died. Using the law to advance his control over Graham’s legacy and the MGDC, Protas manipulated his way to power while betraying Graham’s lifelong artistic aims. Ultimately, this dispute led to the near destruction of a major choreographic legacy, and ignited efforts to protect the dances of many other choreographers. For this reason, Graham v Graham remains the central example of the positive and negative effects of choreographic copyright.

It is important to acknowledge the choreographic copyright cases proceeding and following Graham v Graham. The prior cases provide the legal framework within which the Graham case was decided, while the cases that occurred after Graham v Graham underscore the immense shift within the dance community that occurred because of this decision. From a legal dispute involving the New Dance Group in 2007 that granted choreographers implied ownership to their dances, to the closing of Merce Cunningham’s school and company after his death, to Twyla Tharp’s preemptive digitizing of dances and release of her work into the public domain, Graham v Graham has spurred a revolution regarding the rights of dancers.

While choreographic copyright can be used to maintain artistic heritages, there are limits to its protections that are compounded by the ephemeral nature of dance. As Jesse Huot, Twyla Tharp’s son and business manager notes, “Our art does not deteriorate the same way [as other arts]. The paint doesn’t chip and it can be in many places at once.”^[3] It is this intangibility of dance works that makes choreographic copyright such a fraught and important issue. Qualitative deterioration, choreographic authenticity, artistic intent, and preservation are issues that abound in this discussion of the legal protection of dance.  These problems contribute to the argument that choreographic copyright, when misinterpreted, can act against the goals of both copyright and choreographers.

Background: The Constitution and Copyright Acts

The Honorable Judge Miriam Cedarbaum, who wrote the opinion on Graham v Graham, saw a singular document as the keystone to her judgment on these landmark cases: the Constitution of the United States of America.^[4] Article I, Section VIII, Clause VIII of the Constitution, also known as the Copyright Clause, reads that Congress has the duty “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries.”^[5] The Founders saw copyright, a limited monopoly over written ideas, as essential to this success. Preservation was never made a priority in the Copyright Clause; rather, promotion of creation through financial and legal support was the goal. This claim is supported by the specific language “securing for limited Times” utilized in the Copyright Clause, which emphatically puts a temporal cap on authorship rights. More simply, copyright intends for the public and the creator to benefit equally from individual contributions. Today’s choreographer, therefore, cannot use the Constitution, or any legal acts stemming from the Constitution, to keep his or her art from the public. The Copyright Clause can be used only as a source of pecuniary motivation for creation or protection of an artistic legacy, not for isolating choreography from dancers in order to attempt to eternally preserve the dance in its original form.

The founders did not have choreographers in mind when they drafted the Copyright Clause, however, evolution in the arts has given way to a common understanding that the creation of a dance implies artistic authorship.  Since the ratification of the Constitution, not only has there been progress in the realms of art and science, but also an evolution of the concepts of “author” and “inventor.” If the authorship of a dance contributes to “useful Art,” then choreographers are subject to the same standards of copyright protection as all other inventors. If the dance author, the choreographer, seeks the protection and economic gains of the Copyright Clause, he or she is also bound by the language and intent of the clause in its entirety. What many fail to appreciate is the limited nature of the legal protections afforded by the Clause, as well as the purpose of its very existence. Copyright protection, when it was created, was not infinite, and was intended to benefit society through the financial encouragement of creative contributions. According to the Copyright Clause, creation is as important as preservation; the latter should only act in coordination with the former so that future generations might benefit from historical contributions.

Emerging from the Copyright Clause is a chronological series of Copyright Acts, which provided terms of application of copyright that the Copyright Clause had theoretically instated. These Copyright Acts had a major impact on Judge Cedarbaum’s 2002 Graham v Graham 2 opinion, specifically in relation to copyright ownership issues. The first was drafted in 1790 and was the primary Congressional implementation of copyright law.^[6] The “encouragement of learning” was cited as the aim of the Copyright Act of 1790, emphasizing progress over preservation as the purpose of copyright.^[7] The Copyright Act of 1909, drafted under Theodore Roosevelt as a response to evolved methods of reproduction and duplication, remains the statutory landmark for copyrighted works created before 1976.^[8][9] It also stipulated that if no notice of copyright was affixed to a work and the work was not “published,” the 1909 Act did not extend copyright protection over the work, and it became part of the public domain.^[10] This act was the reason that ten of Martha Graham’s dances were left in the public domain following Graham v Graham 2, as will later be discussed.

The Copyright Act of 1976 adapted the Copyright Act of 1909, allowing copyright protection to attach to original works in a tangible medium of expression, or “fixed form,” regardless of publication or affixation of a copyright notice.^[11] The heightened importance of video in the 1970s coincided with the drafting of this Act and allowed dance to be translated into a tangible form for copyright and entertainment purposes. The 1976 Act also coined the term “fair use,” and in Section 102, extended the meaning of “works of authorship” to include “pantomime and choreographic works.”^[12] It is the Copyright Act of 1976 that remains the most important tool for dancers seeking copyright protection, and the sole reason many of Graham’s dances were protected, as they had been filmed and were therefore copyrightable.[13] Because of the Copyright Act of 1976, unpublished dances created after 1976 have legal ground and no longer immediately enter the public domain.^[14]

The final piece of legislation necessary to understand contemporary choreographic copyright is the Copyright Renewal Act of 1992. This act significantly altered the original intent of the Copyright Clause by extending the length of copyright protection to 100 years after the death of the author and allowing renewal of copyrights without reapplication of the copyright holder.^[15] This most recent legislation is also the most controversial to date. While prior acts had been passed in the interest of reflecting the evolution of technology and what constituted authorship, this act extended the idea of a limited monopoly to an extreme and, as a result, emphasized preservation over creation as the goal of copyright. Since the Copyright Act of 1976 had coined the term “fair use,” allowing copyrighted dances to be utilized for educational purposes, the Dance Heritage Coalition sought to protect the pre-Renewal Act ability to use past art to inspire present art and scholarship. The Copyright Renewal Act undermines the goals of the Copyright Clause and complicates a discussion of choreographic copyright, because of its limitation of scholarly endeavors and creative inspiration.

In sum, the Copyright Acts of 1790, 1909, and 1976, as well as the Copyright Renewal Act of 1992 created the basis for the Graham v Graham 2 decision. It took Martha Graham’s weak will in which she outlined the terms of her estate after her death and a power-hungry man to ignite the fight for Graham’s legacy. However, if the dancers, board members, audience members, and donors who had long supported Graham’s artistic vision had a clearer idea of how they could utilize copyright law to protect that vision, the struggle may have turned out quite differently.

Martha Graham

The case on which all issues of contemporary choreographic copyright rest is Graham v Graham, the two major legal disputes which followed Martha Graham’s death at the age of 96. When Martha Graham passed away in 1991, her school and dance company were thriving; the school’s classes were full, and the company performed and toured routinely. By the end of the decade, the school had shut down, the company had ceased performing, and the center was over one million dollars in debt. Today, the Martha Graham Center of Contemporary Dance (“the Center”), which oversees MGDC, and the Martha Graham School (“the School”) are, against all odds, gaining artistic and economic momentum once again. Despite the complex and lengthy history behind the Graham legal battles, this case is the best contemporary demonstration of the effects, positive and negative, of copyright protection. Disputes ranging from the trademarking of names and dance techniques, to the changing tides of copyright law, and the ownership rights of artists abound in this ten-year battle over the future of the Graham legacy.

Ron Protas

The chief cause of Graham v Graham was a man named Ron Protas. When he befriended Graham in 1967, Protas was a freelance photographer and Columbia Law School dropout. With youthful charm, he soon became personally and professionally close to the seventy-three-year-old Graham, becoming her closest ally in matters pertaining to her company despite his lack of any previous dance training. He became an employee of the Center in 1972 prompting “resignations, requested by Graham, of longstanding members of the board.”^[16] Protas presumably used his close personal and professional relationship with Graham to influence her decisions about the board that had so long shown her and her art support. Some dancers including Stuart Hodes, who danced in Graham’s company from 1947-1958, would eventually use their artistic clout to overthrow Protas’s assumed authority. Unfortunately, they did not act soon enough.

Throughout the 1970s and 1980s Protas unabashedly manipulated the aging, arthritic, alcohol-dependent Graham into promoting his rise to power. Protas did everything for Graham, from running her personal errands to managing the Center’s finances. He also did the Center’s bookkeeping. Member of the Center’s board of directors, Judith Schlosser, testified during the first trial that the minutes were “usually edited by Mr. Protas,”^[17] making the record of these important meetings skewed in Protas’s favor. By the mid-1970s, Graham had appointed Protas executive director of the Center, as well as a member of both the Center and the School boards. In 1980, he became the co-associate artistic director of the Center, along with Linda Hodes, longtime Graham dancer and Stuart Hodes’ now ex-wife.  As Graham grew ill and became incapable of attending board meetings herself, Protas acted as her voice from 1987-1991.^[18] In the will Graham signed on January 19, 1989, Protas was named as her sole executor and legatee. The will read:

In connection with any rights or interests in any dance works, musical scores, scenery sets, my personal papers and the use of my name, which may pass to my said friend Ron Protas…I request, but do not enjoin that he consult with my friends, Linda Hodes, Diane Gray, Halston, Ted Michaelson, Alex Racoli and Lee Traub, regarding the use of such rights or interests.^[19]

Although the will gave Ron Protas all of Graham’s property, it did not make clear what she owned at the time of her death. James McGarry, the attorney who drew up her will, testified during the trial that a will like Graham’s took no more than an hour to draft. Graham either carelessly neglected to clarify to whom she left her dances or assumed that they were owned by the Martha Graham Center of Contemporary Dance, a corporation she had created in her name in 1956. Speculation over Graham’s intent, however, does not provide any substantial information about the legal protection of choreography.

After Graham’s death on April 1, 1991, Protas became the artistic director of the Center and the School. Shortly after Protas assumed his new position, his lawyer, Peter Stern, advised him to determine exactly what rights he had acquired from Graham’s will.^[20] In legal and financial matters, Protas was headstrong, leaving dancers and board members uneasy. However, nobody questioned the legitimacy of his claims and soon he successfully forced Linda Hodes out of her position of co-artistic director. Had the artistic personnel hired their own lawyer to investigate the legitimacy of Protas’s ownership rights the legal battle to come could have been either abbreviated or avoided. However, instead of pushing back against Protas’s managerial claims, everybody submitted to his demands, believing that they had no legal ground upon which to protest.

Protas’s authority was not limited to management, however. As evidenced by extensive testimony of many witnesses during the trials, company members had long despised Protas’s unwillingness to pay them on time, and felt that his desire for power and money was tarnishing Graham’s artistic vision. While Graham’s dances had always been subject to choreographic evolution, and further evolution is expected after the death of a choreographer, many dancers felt that Protas’s artistic direction fostered destructive changes to Graham’s choreography and artistic intention. The people who had long studied Graham’s technique, and had worked personally with Graham on the dances, found their artistic voices stifled by a man who wanted to establish his authority over all aspects of Graham’s legacy. Reasons such as these made Protas’s position of power a threat to Graham’s artistic heritage and made the Center and Graham dancers start to question what legal action could be taken to fight back. A man whom Graham’s dancers and closest friends despised, who had no previous training in dance and who saw economic, and not artistic, value in Graham’s work, portended the destruction of Graham’s legacy. In the minds of the board and company members, Protas had no right to be there, but to their dismay, he seemed to have every legal right to be there. The Center’s acceptance of Protas’s advances, as well as Graham’s neglectful last will, point to the need for a deeper understanding of the law among dancers and choreographers.

The Trademark Dispute

Among the common ways to protect choreographic legacies are trademarks and trusts. These efforts, as demonstrated by the management of Balanchine’s choreographic legacy, illustrate the benefits that choreographers can gain by utilizing the law. However, since the law does not discriminate against those who might work against the artistic missions of choreographers, Ron Protas was successful in using these entities to restrict the power of those who questioned his actions and motives, and to extend control over the Graham choreographic canon.

George Balanchine’s New York City Ballet is one of the most financially stable dance companies in the United States. His ballets are performed at consistently high standards, and his name retains its credibility nearly thirty years after his death. Protas closely observed the trademarking of the Balanchine Technique by the Balanchine Trust. Barbara Horgan, Balanchine’s longtime personal assistant, in collaboration with the lawyer, Hank Leibowitz, established the Balanchine Trust in 1987, following Balanchine’s death. The Balanchine Trust was formed by those to whom Balanchine had willed his copyrighted dances and it successfully trademarked the Balanchine technique. The Trust licenses Balanchine ballets, designates répétiteurs to stage them, upholds strict standards of performance, and collects royalties from those who perform the ballets.[21]

In 1993, Ciro Gamboni, a partner of Cahill, Gordon and Reindel LLP met with Ron Protas to discuss trademarking the name “Martha Graham,” and the “Martha Graham technique.” Protas held that the Center would receive 40 percent of the proceeds from the trademarking of Graham’s name and technique.^[22] In his application to the United States Patent and Trademark Office for the registrations of these titles, Protas used the support of an oral license from Martha Graham.^[23] After initial hesitation due to Protas’s flimsy evidence, the Patent and Trademark Office granted federal registration for MARTHA GRAHAM TECHNIQUE in August 1995, in the interest of “educational services; namely providing instruction through classes and workshops in the field of contemporary dance.”^[24] In October of that year, Protas obtained the federal registration for the use of the name MARTHA GRAHAM in the same interest as the trademark of the technique as well as “entertainment services; namely, organizing and producing performances of contemporary dance.”^[25] Normally, these trademarks would be utilized in the interest of promoting and protecting a quality-assured legacy, as Balanchine’s had been. Instead, Protas used them in coming years to force the Center to submit to his artistic and managerial power, threatening to revoke their use of Martha Graham’s name and technique if they did not.

In 1998 Protas and his lawyer created the Martha Graham Trust (the Trust) and named Protas as its sole trustee and beneficiary. Created “to serve as a repository to hold and license all of the Martha Graham intellectual property that Protas claimed to have inherited,” the Trust cast further doubt on Protas’s “good” intentions.[26] The formation of Protas’s trust prompted the boards of the Center and the School to seek ways to replace Protas as artistic director. They also began negotiations with Protas for a license agreement to use the Graham trademarks. Protas claimed as a court witness, “The Martha Graham Trust was my response to requests and pressure from the Center to create some sort of process so that when I died the ballets would go to a foundation and they would have a licensing agreement from the trust, which was a not-for-profit entity.”^[27] In effect, however, the Center was relying on permission from Protas to perform Martha Graham’s works. Thus, the dancers and the board members had to further submit to Protas’s authority at the risk of not being allowed to perform the dances at all. These negotiations still failed to stimulate an investigation into the validity of the Graham trademarks, even though Protas had used faulty evidence of his exclusive ownership rights in his trademark and copyright applications.

On July 15, 1999, the Center and the School, and the Martha Graham Trust signed a written license agreement, in an effort to limit Protas’s control and obtain permission to continue to perform Graham’s ballets, and use her name and technique. It stated that “The Trust as licensor shall be the sole judge of whether any particular product or service bearing or offered under any Martha Graham Mark is within the scope of the license granted hereunder.”^[28] In other words, Protas would grant the Center permission to use Martha Graham’s name and technique, but would be the only person to determine if their use was admissible according to his artistic perspective. The agreement also provided Protas with an annual salary of $55 thousand in the first year, growing eventually to $76 thousand in the tenth year, as well as many benefits to be provided to an “artistic consultant” whom the Trust—Protas—would appoint.^[29] The enormously high salary declared in the license agreement made clear that Protas was more concerned with obtaining a steadily-growing salary than with the continued performances of MGDC and the financial stability of the School. However, because the validity of the trademarks of Martha Graham’s will had yet to be challenged, Protas was successful in retaining his power.

While the trademark license agreement did not stipulate that Protas step down as artistic director, the motive of consent of the Center and the School was to obtain permission from Protas to allow this to occur. Protas’s resignation as artistic director was in the interest of the Boards and the financial well-being of the School and the Center. This was not only because Graham’s artistic vision was threatened by Protas’s control of her works, but also because there were several potential donors who proposed large donations contingent upon Protas’s removal.^[30] On an even more practical level, in 2000, the dancers of the Martha Graham Dance Company boycotted performances of Graham’s work and encouraged dancers throughout the world to do the same, in an effort to wrest control of the Martha Graham Dance Center from Ron Protas. Finally, the Center’s board took a stand against Protas, in recognition of the immediate financial and artistic risk that he created. Dismissing Protas’s proposal to remain artistic director, on March 23, 2000 the Board approved a motion to remove him.^[31] The dancers and board members had finally begun to take control of Graham’s legacy.

However, many argued that this effort was too little, too late.^[32] Shortly after Protas’s removal, the Center’s Board voted to suspend operations because of financial problems, including the Center’s inability to pay its rent and meet payroll. Protas promptly terminated the license agreement with the Trust on May 26, 2000, since the School and the Center were required to have “continuing operations” in order for it to remain effective.^[33] The termination of this agreement was meant to restrict to Center’s use of Graham’s name and technique as a consequence for diminishing Protas’s involvement. The legal agreement that had once granted the Center permission to use Graham’s ballets was now being used against the Center to restrict its use of the ballets.^[34] Although the Center was finally challenging Protas’s usurpation of Graham’s legacy, the focus of this legacy had already shifted from her artistic genius to a petty battle over ownership rights.

Protas responded to the Center’s resistance by founding the Martha Graham School and Dance Foundation, a not-for-profit corporation organized under Delaware law.^[35] No longer the company’s artistic director, Protas sought to exert his sole authority over the rights to Martha Graham’s name and technique by creating this foundation. Judge Cedarbaum contested the legality of Protas’s motion, declaring:

If by registering Martha Graham’s name in connection with educational services, Protas sought the ability to preclude the Center and the School from using Martha Graham’s name, he was seeking to undermine the arrangements of Martha Graham with respect to the use of her name.^[36]

Despite Protas’s efforts to maintain exclusive control over Martha Graham’s legacy, the School and Center received enough funding upon Protas’s removal to acquire a long-term lease to their former premises as well as a grant to renovate of the Center and School premises. Had the Center been more legally savvy, however, they would have thought sooner about the validity of Protas’s trademarking of Graham’s name and technique, and the extent of Protas’s ownership rights. On January 16, 2001 the School reopened, but the legal battles for the Martha Graham Dance Company had only just begun.^[37]

Upon the re-opening of the School in 2001, the Center received a cease and desist order forbidding use of the trademarks “Martha Graham” and “Martha Graham Technique.” This final straw prompted Marvin Preston, the company’s executive director, to question the scope of Protas’s ownership, an action that should have been taken immediately after Graham’s death. Preston believed that Protas did not own as much as he claimed to. Beyond questions of ownership, however, lie questions of the intent of trademark. On the first day of the Graham v Graham 1 trial, Cynthia Parker Kaback, who had been hired by Protas in 1973 as the company’s manager, was questioned on her previous experiences related to the Martha Graham technique. She stated,

Occasionally there would be unauthorized people that would be advertising that they were teaching Graham technique. And everyone would be very concerned because we wanted to protect the integrity and reputation of that name.^[38]

This desire to protect Graham’s technique is a far cry from Protas’s denying Graham dancers of the right to perform her dances. As Stuart Hodes noted, the purpose of attempting to trademark the technique and training students to be accredited to teach that technique was “to attract good students, train capable teachers, and generate tuition,” not to deny others the right of practicing the Graham technique.^[39] As it turns out, Protas’s mere intentions could be used against him in a court of law. Since his actions were proven not to be in the interest of the legacy he had supposedly inherited, none of them were legal. As the Center gained footing in their legal fight against Protas, it became clear how flawed its initial acceptance of Protas’s authority had been, and in its underestimation of what the law could do to destroy as well as support them.

Copyright and Ownership Dispute

Just as Protas had attempted to restrict the use of the Graham technique by trademarking Martha Graham’s name and technique and creating the Martha Graham Trust and Foundation, he attempted to restrict the Center’s use of works that had been created for the Center. “What property did Martha Graham, the great dancer, choreographer, and teacher own at the time of her death in 1991? That is the central question in the second phase of this lawsuit,” opens Judge Cedarbaum’s opinion of the 2002 Graham case.^[40] Having settled problems of trademarking, Protas then sued for ownership rights over the dances performed by MGDC after his departure as artistic director. In July of 2000, Protas began to apply for copyright protection for the seventy dances Graham had produced in her lifetime. Assuming that Graham owned her own dances at the time of her death, Protas argued that he had exclusive rights over their ownership and performance.^[41] So ensued the second, more pivotal case related to the legal protection of dances.

Protas would not have been able to copyright Graham’s dances had it not been for the precedent set by Hanya Holm in 1952, when she secured the first American choreographic copyright for her dances in Kiss Me Kate (1947). Wanting the same rights to protection as were available to writers and musicians, Holm had a microfilm of her choreography for Kiss Me Kate written in Labannotation and sent it along with the appropriate copyright application to the Copyright Office in Washington.^[42] It was eventually registered as a dramatic-musical composition. Critic John Martin excitedly explained in the New York Times on March 30, 1952:

The importance of this development is manifold. For one thing, of course, it gives official recognition to the dance creator as such, which is at least a small step toward the dignity to which he is entitled. For another thing, it provides tangible evidence of the practicability of dance notation….For a third thing, it lays the ground for that happy day in time to come when there will be an available literature of dance compositions…for future generations to study and consult.^[43]

It is clear from this article that the copyrighting of Hanya Holm’s dance was significant on two fronts: one, dance should be legally on par with other arts such as music or writing and two, this equality stemmed from the ability to provide tangible evidence of the dance through notation. Labanotation, a notation system published by Rudolf Laban in 1928 in Kinetographie Laban, was the key to presenting the Copyright Office with a material version of the work to be copyrighted.

There are a number of limitations to the grandeur of success often attributed to Hanya Holm’s copyright application, and to the notation systems utilized by choreographers in effort to eternally preserve their works. First, the dance had to be considered a dramatic-musical composition in order for it to be copyrightable. In the 1950s, choreographic copyright as a legally enforceable idea did not exist, so Holm had to protect her dance by making her dance a piece of, rather than on par with, dramas. Second, the dance could be copyrighted because it was published as part of Kiss Me Kate. Under the Copyright Act of 1908, if a work was already published, all it required was the affixing of a copyright notice for it to attain protection.^[44] The legal ground this case gained was minimal, in that the Holm’s copyright did not demand a new precedent be set since it applied under the Copyright Act of 1908. Lastly, what John Martin’s article ignores in its celebration of the potential for dance scholarship, are the limits to the reading of Labanotation. As a written language, it is complicated for even the best-educated specialists. This case of the 1950s, in sum, begged for an evolved perception of what constituted a fixed medium of dance. The Copyright Act of 1976 would legalize the use of video in copyright applications, but the complicated relationship between preservation and copyright would not be resolved. The precedent set by Hanya Holm in terms of publishing, preserving, and copyrighting remained at the crux of many issues surrounding Martha Graham’s legacy.

Martha Graham’s dances are predominantly maintained in fixed mediums by video, but they cannot avoid the same issues of artistic authenticity as systems of written notation, such as Labannotation. As any experienced dancer can attest, video and notated forms of dances can only be used as a prerequisite for copyright application and a guide to understanding the kinesthetic basics of a dance work; it cannot be used as an exclusive manner of preservation. What is lost in the copyrightable versions of dances is the intention behind each movement and the various decisions the dancer is allowed to make regarding the choreography each time it is performed. Only a dancer who has embodied the choreography, or a person who was privy to the choreographer’s creation of a work, have the ability to flesh out the structural bones of a video or a notated score. So although, according to the Copyright Act of 1976, these fixed forms of dances made choreographic copyright legitimate, one cannot have unreasonable expectations regarding the ability of the copyrighted form of a dance to ensure its preservation. In terms of preservation, memory and personal experience match the value of the copyrightable fixed medium of a dance. What makes a dance copyrightable does not necessarily guarantee the preservation of a dance in its ideal form.

While there is much to be drawn from this case about the moral and artistic aspects of copyright law, the decision hinged on legal stipulations of the Copyright Act of 1976 and the incorporation of the Center in 1948. Although factually tedious, it is important to understand the decision in its entirety in order to discuss what may be drawn from it. Martha Graham had produced seventy dances that were fixed in a tangible means of expression. Thirty-four of the seventy dances were created after 1956, when Graham was technically employed by the Martha Graham Center of Contemporary Dance Inc. and the Martha Graham School for Contemporary Dance Inc. Prior to 1956, Martha Graham had been the sole proprietor of her own school since 1930. The Center and the School had been incorporated in 1948 and 1956 respectively, under the New York Membership Corporation Law (now the Not-for-Profit Corporation Law). Graham sat as artistic director and was a board member for the Center and the School until her death. She consented to the incorporation of the Center and the use of her name in the corporate title to avoid being subject to ordinary tax income. She also was given a salary by the Center and the School after 1956 for the dances she created, and was named artistic director by the School, effectively making her an employee.^[45] In short, she transferred her name and her artistic rights to a corporation because along with those rights came pecuniary obligation. As Judge Cedarbaum states, “Concerned with the “foster[ing] of the creative impulse and its needs,” Graham recognized that “[she] could never have done what [she did] if [she] had not had such a place.”^[46] By splitting up her property into different legal entities, Graham was only acting in the interest of her art and her financial stability, a model for any contemporary choreographer. However, because these divisions of Martha Graham’s name and property caused practical complications in terms of ownership rights Graham should have clarified the terms of ownership in her will and in the contracts that were drawn with the Center for her choreography. It is this shortcoming that must be noted and taken into account when choreographers decide to incorporate their company and copyright their dances.

To further complicate matters, nineteen of the thirty four post-1956 ballets fell under the copyright legislation of the Copyright Act of 1909, while the remaining fifteen post-1956 ballets were covered by the Copyright Act of 1976. As Julie C. Van Camp emphasizes in her essay “Martha Graham’s Legal Legacy,” there are two sets of date restrictions that are vital to understanding the Graham case. One set of dates are the pre- and post- 1956 ballets, relating to Graham’s ownership of the ballets. The other set of dates are the pre-1976, post-1956 ballets, relating to contemporary copyright legislation.^[47] As the decision recognizes, these two factors complicated the ruling, but emphasized the importance of regarding just how significantly corporations and copyright can affect the future of a dance.

Protas argued in the 2002 case that he, as legatee and trustee of the Martha Graham Trust (which he had created), was entitled to all of the seventy dances created during Martha Graham’s lifetime. Protas assumed that Graham owned her dances at the time of her death, and as sole executor, that they should be granted to him, not the Center. In 1974, however, Edmund Pease, treasurer and a member of the Center’s board of directors, had performed a thorough study of the Center and Graham’s assets in order to determine exactly what belonged to whom. He revealed in his report that the “Center’s assets included the dances, sets, costumes, and included that these items be carried on the Center’s balance sheet as assets at nominal value.” Furthermore, Jeanette Roosevelt, a board member of the Center and founder of the Barnard College Dance Department,^[48] testified that Graham “gave” her works to the Center, stating, “whenever dances were created, they would become works that the board was responsible for.”^[49] Martha Graham herself approved this report, and Francis Mason, Chairman of the Center’s board of directors at that time, testified to the board’s approval of the report.^[50] Therefore, had the Graham dancers and board members questioned Protas’s authority as soon as Martha Graham died and sought out Pease’s report to support their claims, they would have had credible grounds on which to debunk Protas’s allegations of authority.

From Protas’s copyright application to his shifty disposition during his court testimony, there was doubt about his credibility. Because of his “evasive and inconsistent testimony and…demeanor,” Judge Cedarbaum did not consider him a credible witness.[51] The inconsistencies in his testimony, his application for trademarks, and his applications for copyright strengthened the legal argument against him.^[52] As a director, Protas was judged not to have acted in the interest of the Center, his primary obligation. Judge Cedarbaum ruled that “By representing to the defendants that he “owned everything,” Protas violated his duty of good faith and profited improperly at defendants’ expense” and that as “a longstanding fiduciary of the Center,” he “enriched [himself] unjustly by grasping” what did not belong to him.”^[53] Protas simultaneously threatened Graham’s legacy and gave the Center legal grounding in its case against him.[54]

Judge Cedarbaum ruled in 2002 that the post-1956, post-1976 ballets were neither Martha Graham’s nor Ron Protas’s. They were the property of the Center and thus considered “works for hire,”^[55] produced by Martha Graham for a corporation.^[56] Categorizing Graham’s dances as “works for hire,” meant that Martha Graham did not own her own artistic creations at the time of her death. Instead they were owned by the corporation she had created in her name in 1956 and which had paid her a salary to create works. In effect, in order to restore the Center’s hopes for survival, Judge Cedarbaum was left to rule against Protas as well as against the inherent ownership rights of choreographers. Sixteen Graham dances were published before 1956, and ten of those were published before January 1, 1964. The Copyright Act of 1909 governs those ten works, and in the absence of any copyright renewal applications those ten works, including Appalachian Spring, were released into the public domain.^[57] In an appeal to this already drawn out trial, nine dances that had been proven not to be owned by Protas or the Center, were determined to belong to the Center. While the legal lines remained blurry, the Center was shown to have the potential to prove the ownership of nine of Graham’s cherished dances, and fell short in even realizing they had this capability.

The Martha Graham Center of Contemporary Dance was not able to assert full ownership rights over all of Graham’s dances. Ten iconic dances were released to the public domain, which meant that they could be staged and performed by anyone. Even those dances that are legally protected, however, are subject to inevitable evolution. Problems regarding authenticity include: who has the right to adapt a dance, whose version of the dance is notated and performed after the death of the choreographer, and what the intention behind a given movement is supposed to be. Copyright cannot answer these questions; it cannot make a dance authentic. In fact, Graham scholar Victoria Geduld argues that authenticity in dance does not exist.^[58] It is important, then, that artists do not exaggerate the ability of copyright to preserve a dance in a given form. Rather, they must take their own initiative to make sure their dances are passed down through generations of dancers who have embodied the dance in its proper form. At the same time there must be room for evolution and error, in hopes that great performances will stand above the rest.

The Graham v Graham 2 decision changed the contemporary dance field, and heralded a new sense of vitality in the legal protection of dances. Although the dances were judged not to belong to Protas, they were also judged not to belong to their creator. While no dance is guaranteed a successful future, Protas threatened such an important legacy and such a vast body of work that it made the dance community takes note of the necessity to utilize the law in its favor. As Holm and Fuller’s cases emphasize, however, there are shortcomings to choreographic copyright protections, especially in regards to preservation. Authenticity, quality, and intent might only to be ensured by the people who devoted themselves to a specific choreographer’s craft. So with the close of the second phase of the Graham trial, the securing of artistic rights beckoned choreographers.

Aftereffects of the Graham Trials

As Norton Owen, member of the board of the Dance Heritage Coalition and director of the Jacob’s Pillow Archives, points out, Martha Graham can only be considered an example of American choreographic copyright if two variables are taken into consideration. Ron Protas is the first; Martha Graham’s flimsy last will is the second.^[59] It took over fifty years, a celebrated choreographer, a power-hungry heir, and two court cases to instill in the dance community a sense of urgency about how the law can influence dance. If it were not for a combination of these factors, the Martha Graham Dance Company would not have raised the issues of ownership right protection and choreographic preservation for an entire generation of senior American choreographers.

One of the primary concerns and criticisms of Judge Cedarbaum’s decision was that, while it acted in support of the future of MGDC, it limited the rights of choreographers by asserting that Graham did not own her own dances at the time of her death. If Ron Protas had not been involved, a different precedent might have been set. However, it was the changing of the precedent in Judge Cedarbaum’s opinion that made choreographers scramble to understand the law and take measures to protect themselves. With this improved legal awareness, it did not take long for the issue of the rights of choreographers to be addressed. Katherine Forrest, litigator of Cravath, Swaine, and Moore LLP, who had represented the Martha Graham Center for Contemporary Dance in Graham v Graham, made it her mission to repair the precedent set by the Graham decision while not attempting to overturn Judge Cedarbaum’s ruling, which had been tailored to the specific issues of MGDC.^[60]

The case that provided the legal platform for this revision was one involving the New Dance Group (NDG), a New York City dance organization founded by students of Hanya Holm in 1932. Choreographers including Sophie Maslow, Anna Sokolow, and Jane Dudley, who all danced for Martha Graham, made socially engaged works for the group during its formative years.^[61] In 2007, Rick Schussel, the executive director of the NDG, used Judge Cedarbaum’s decision in Graham v Graham 2 to mount his campaign for a seventy-fifth anniversary gala celebration of the NDG that would include performances of Harmonica Breakdown (1938) and Time is Money (1934) by Jane Dudley, and Folksay (1942) by Sophie Maslow. He argued that since independent choreographers had made these dances for NDG, the dances were “works for hire” and owned by the corporation. Abigail Blatt, Sophie Maslow’s daughter and a lawyer at Paul Weiss LLC, and Thomas D. Hurwitz, Jane Dudley’s son, sought the rights to protect their mothers’ legacies by ensuring that they could decide when and where their mothers’ dances could be performed. The issues raised in Graham v Graham 2 were once again at the forefront of the discussion surrounding this 2007 case. As Daniel J. Wakin’s September 4, 2007 article about the NDG case in the New York Times notes, “The movement of limbs and bodies is notoriously tricky to represent after the fact.” What was at stake was not only “limbs and bodies,” however, but an artistic legacy as important as Graham’s, and not yet tarnished by a man like Ron Protas.^[62]

The plaintiffs argued that the anniversary celebration performances had the potential to cause “irreparable devaluation of the work and serious and irreparable damage to the artistic reputations of Ms. Dudley, Ms. Maslow, and Ms. Anthony.”^[63] So, hiring Katherine Forrest, they wrote a cease-and-desist letter to Rick Schussel.^[64] His lawyer, John R. Sachs Jr., asserted that since “[t]hese choreographers were closely associated with the company as employees or board members and were doing the choreography under the auspices of the New Dance Group,” NDG owned the dances.^[65] However, since the choreographers were never paid for their work with the New Dance Group, their dances had been willed to their children, and those children had their only interest in holding their mothers’ works to high standards, the works were deemed not to be “works for hire.” Performances of the works by Jane Dudley and Sophie Maslow were canceled days before the anniversary gala. Although this case drew less public attention, required less time, and involved a much less artistically significant repertory than Graham v Graham 2, it effectively reversed the Graham precedent by granting choreographers implied ownership rights to their work. ^[66]

Judge Cedarbaum judged Graham v Graham appropriately, then, effectively resolving the struggles of MGDC, as well as invigorating artists and lawyers to set a new case law precedent that rules in favor of artistic ownership rights. While it was less than inspirational to hear that Martha Graham did not own her dances, the decision was the catalyst for the creation of precedent in favor of the rights of artists. The arts community must be thankful to Graham v Graham for prompting this discussion, and to the New Dance Group case for creating an artistically beneficial legal precedent.

Choreographic Copyright Today

Graham v Graham 2 caused a sea change in the attitude of choreographers toward copyright protection. In the decade since the decision was written, there have been many instances of the case’s direct effect on the desire of choreographers using the law to protect their legacies.[67] For choreographers to protect their ownership rights, very few steps must be taken. The process of applying for a copyright is simple: have the dance notated by the Dance Notation Bureau or video record the dance, and then send in a copyright application along with the fixed form of the dance to the Copyright Office in Washington D.C. The process of ensuring that the choreographer maintains his/her ownership rights to a dance that is created for dancers of a not-for-profit corporation is equally straightforward: write a contract that stipulates the terms of use of the dance, as well as the ownership rights to the dance. Finally, to ensure that an heir does not threaten an artistic legacy and to provide support in preservation efforts, create a trust comprised of dancers, lawyers, donors, and advisors who will all act to protect the choreographer’s artistic vision and work. Although the quality of performance of a dance cannot be guaranteed, there is no sound reason not to take the appropriate steps to prevent avoidable choreographic catastrophes. The future is impossible to predict, but personal and legal motions made to ensure its success can help shape it. Although “our art does not chip,” we must help it live on through the bodies and memories of those who appreciate it. Using copyright to restrict dances, or discontinuing performance of them for fear of deterioration are actions neither necessary, nor beneficial to choreographers and dance audiences.

With the precedent set by the NDG case, which granted choreographers the same inherent rights as all other artists, dancers can now act to ensure that their artistic voices can be heard for generations to come. As Judge Cedarbaum asked, “Does not everyone want to become immortal?” There are legal provisions that assist in the immortalization of this generation of choreographic legacies; Graham v Graham heralded an understanding and application of these provisions to choreography. Copyright law and choreography share a common goal: creation. Copyright law exists to encourage creative works, and choreographers exist to create new dances. As long as these two fields maintain this mutual mission, they can and should work in tandem to promote productive contributions to society. It is now the responsibility of artists to know the law and use it in their favor, if they expect to benefit from its protections. Otherwise, not only will the strife of the MGDC have been in vain, but the legal ground generations of choreographers have gained will be torn from beneath our dancing feet.

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

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 20^th 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.