Legal Secularism in France and Freedom of Religion in the United States: A Comparison and Iraq as a Cautionary Tale

Deshmukh, Fiona, Houston Journal of International Law

  I. INTRODUCTION
     A. FRANCE
     B. UNITED STATES

 II. LAICITE IN FRANCE
     A. HISTORICAL BACKGROUND
     B. MODERN LEGAL CONCEPTS

III. FREEDOM OF RELIGION IN THE UNITED STATES
     A. HISTORICAL BACKGROUND
     B. LEGAL CONCEPTS: FROM FIRST
        AMENDMENT TO PRESENT

 IV. CURRENT STATE OF THE LAW
     A. FRANCE: THE HEADSCARF LAW
     B. UNITED STATES: THE TEN
        COMMANDMENTS CASES

  V. ANALYSIS
     A. DIFFERENT GOALS
     B. COMPARISON: UNDERSTANDING THE LAWS
        AND POLICIES FROM OPPOSITE
        VIEWPOINTS

VI.  CONCLUSIONS: RESULTS AND GOALS

[There] is [a] model of the relationship between church and state--a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins 'France is [a] ... secular republic. Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America.

--Justice Scalia, dissenting in McCreary County v. ACLU of Kentucky (1)

I. INTRODUCTION

Some observers believe that our post-9/11 world is at a historical moment defined by a clash of civilizations--between those societies that are dominated by traditional, religious values and those that are considered to be more modern and secular. (2) Furthermore, given the United States' intervention in Iraq and the current debate over what form of government will ultimately emerge when the Iraqis attain full sovereignty, the role religion should or will play in their society and government (3) is an important question. (4) This problem of the relationship between religion and government is also central to democratic societies like France and the United States, and it is perhaps the fundamental question of our time. (5)

The answer to this question may lie in understanding the differences between the United States and France on the issue of freedom of religion (6) and juxtaposing these attitudes with the current situation in Iraq. To grossly oversimplify for introductory purposes, the French system strives to protect the state from religion, (7) whereas the American system works to protect religion from the state. (8) One could posit a spectrum of responses to this question of the proper relationship between religion and government: with regard to the role of religion in government, France would be on one end (the secularist ideal, i.e., no religion in government), Iraq on the other end, and the United States in the middle. With regard to the role of the free exercise of one's religious convictions, the United States would be the most free, Iraq the least free, and France somewhere in the middle. (9)

In both regards, Iraq would serve as a cautionary tale for what happens to religious freedom when these two component principles are not respected: when there is no government protected right to exercise one's religion, the result is discrimination and repression based on religion (persecution of certain groups, a hierarchy of citizens based on religious conviction, and sectarian violence), (10) which will ultimately cause a chilling effect on the fundamental freedom of religion. (11) Similarly, when the institutions of government are too embedded in religion, this results in favoring or endorsing one religion over another, again creating a hierarchy of citizens based on creed, restricting rights based on belief, and ultimately violating the neutrality of government and the equality of all citizens before the law. (12) Again, this results in a chilling effect on democracy and the exclusion or alienation of certain groups from the democratic political process. (13)

Thus, the United States' approach serves as a model for the free exercise of religion, (14) whereas the French approach serves as a model for the role of the separation of religion from government. (15) Taking the best of each system would form the ideal legal approach to the question of the relationship between government and religion. As this Comment will explore, this melding together is perhaps impossible given the interaction, and sometimes contradiction, between the two distinct axes of the freedom of religion ("free exercise" and "separation of church and state"). However, both France and the United States should look to Iraq as a dire warning of the consequences of compromising the ideals of free exercise and secularism, respectively.

This Comment will explore the differences between the French and American approaches to freedom of religion and will evoke the specter of Iraq to warn against extreme deviation from the ideals of democracy as embodied in French laicite and American free exercise. Because the American approach to free exercise provides the most freedom, this Comment will focus on the flawed French approach, as exemplified by the Headscarf Law, (16) a law which actually tends to restrict religious freedom. Likewise, because the French approach to establishment of religion provides the most neutral (17)--and therefore fair and democratic--approach to establishment, this Comment will focus on the flawed American approach in the two Ten Commandments cases.

A. FRANCE

In March 2004, against the backdrop of events such as the war in Iraq and terrorist attacks around the world, (18) the French Parliament passed a law banning the wearing of "ostentatious" religious symbols in public schools. (19) Although it did not specifically target the Muslim headscarf, (20) given the way the law was drafted, many commentators saw the elimination of the headscarf from public schools as the principal goal. (21) The law has become the subject of much debate within France itself and has received much international criticism. (22) Although the law generated a controversy, this Comment argues that it is both consistent with one strand of secularism already present in French law and society, (23) and that it also embodies the conflicting philosophies inherent in the notion of laicite.

B. UNITED STATES

In 2005, a year after the passage of the Headscarf Law in France, the U.S. Supreme Court upheld the display of a Ten Commandments monument outside the Texas State Capitol in Van Orden v. Perry. (24) During the same session, in McCreary County v. ACLU of Kentucky, (25) the Court struck down similar displays inside two Kentucky courthouses. (26) These holdings did not generate the public response, nor did they have the social import of the French Headscarf Law. (27) However, just as outsiders to the French system were quick to criticize the French Headscarf Law, looking at the result of Van Orden alone, an outsider unfamiliar with U.S. freedom of religion precedent would question whether or not the United States respects a strict separation of church and state. (28) Furthermore, taking Van Orden and McCreary County together, these contrasting decisions pose the question of whether or not the Supreme Court adopts a consistent approach to issues of separation of church and state. (29)

This Comment will argue that the two Ten Commandments cases, when examined side-by-side, illustrate the conflict inherent in the American idea of the freedom of religion: namely, that having two separate clauses (Establishment Clause and Free Exercise Clause) with slightly different goals can lead to a clash between them, and on close cases, the balancing can seem arbitrary.

Using the American cases and the French law as starting points, this Comment will be a comparison of the two versions of freedom of religion as they exist in the their respective countries and legal systems. The freedom of religion has two components that are clearly defined and named in the American system (30) but also exist, albeit less explicitly, in the French system. (31) A basic tension between these two components often arises, and how the two resolve this contradiction is culturally and historically influenced. Each system tends to favor one component over the other; specifically, the French system places the most value on the separation of church and state, (32) while the American system emphasizes the Free Exercise right. (33) The two U.S. cases dealing with religious displays in courthouses and the French Headscarf Law have been selected because they highlight and epitomize the differences between the two systems. Thus, this Comment explores how the two systems tend to resolve their internal contradictions between free exercise rights and the principle of secularism by favoring one component or the other.

Despite the many differences between the two systems, it is also necessary to keep in mind the greater similarities between the French and American attitudes towards the freedom of religion. (34) Put in a global context, and within a spectrum of possible approaches to the relationship between religion and government, these two versions of religious freedom are quite similar. (35) First, both overarching principles--the free exercise of one's religion and the separation of church and state--exist in both systems. (36) Second, both countries' laws support a high level of human rights. (37) However, due to cultural and historical policy considerations, the two countries implement these principles of religious freedom differently and produce different outcomes.

In Section II, this Comment will outline a brief history and evolution of France's philosophy of laicite, in addition to addressing important modern legal developments. Section III will present an overview of American freedom of religion history and law. Section IV will address the Headscarf Law and the Ten Commandments cases in detail. Section V will provide generalized comparisons of the two systems. Finally, Section VI will conclude with ongoing controversies over the issue of freedom of religion.

II. LAICITE INFRANCE

A. HISTORICAL BACKGROUND

"Laicite" is a French term whose meaning is difficult to translate but loosely means "freedom of religion." (38) It is most easily translated as "secularism," (39) or a separation of church and state, (40) but the term in English lacks many of the connotations and underlying historical meanings of the term in French. (41) The roots of laicite, or secularism, in France can be traced back to the French Revolution of 1789. (42) Prior to this event, the Catholic Church was heavily involved in state affairs. (43) In the time leading up to the Revolution, the clergy was viewed as complicit with the monarchy in causing social unrest. (44) One of the major reasons for the Revolution was a desire on the part of the masses to separate religion and government. Their purpose was to reduce the power of the Church, because they believed they had been denied many rights due to the union of powerful political and religious leaders. (45) Thus, one of the founding principles of the Republic was secularism, or protecting the state from religion. (46) This is supported by the inclusion of secularist principles in the country's founding documents, such as the Declaration of the Rights of Man and Citizen, (47) the Preamble to the 1946 Constitution, (48) and the 1958 Constitution. (49) Accompanying the secularist notion was a corollary right of freedom of religion. (50) This freedom of religion was not an absolute right, but could cede to other compelling state interests such as public order or health. (51) Thus, a balancing of values is an important facet of the French freedom of religion. In sum, the historical roots of laicite are strong and fundamental to the Republic's identity. (52)

Another possible explanation of the roots of secularism can be found by looking at French society itself. French society is monocultural compared to the United States: (53) it stresses assimilation, integration, and shared values. (54) There is an ideal of citizenship that is inscribed in official documents and reinforced by politicians across the political spectrum. (55) Furthermore, the role of government in the lives of citizens is that of the welfare state, which is based on utilitarian notions. (56)

As a result, individual rights are seen as less important than those of society as a whole. (57)

Religion is also considered a personal choice and thus a private affair. (58) As a result, one person's right to exercise his or her faith in certain public contexts is seen as infringing on, and inferior to, the rights of others to exist in a neutral, nonproselytizing sphere. (59) Extending this logic, it is easy to see how prohibiting religious dress in public fits into a broad utilitarian philosophy that values society over the individual, assimilation to "neutral" dress standards, and the public forum over private interests.

Finally, the public school system is considered a pillar of French society and the laboratory of democracy where republican values are instilled. (60) Education thus plays a central role in this concept of the citizen since it shapes children into the republican ideal where utilitarianism trumps individualism. (61) Also, an 1882 law made primary school mandatory, meaning that this republican experience would apply to all. (62)

B. MODERN LEGAL CONCEPTS

The modern basis for secularism in France presents a continuation, or reaffirmation, of the historical concept of laicite born around the time of the Revolution. (63) Major modern legal documents, such as the 1905 Law on Separation of Churches and State, (64) the Preamble to the 1946 Constitution, (65) and the Constitution of the Fifth Republic (66) all emphasize this philosophy as essential to the French Republic. Thus, at the beginning of the twentieth century, the principle of laicite was reiterated and readopted.

III. FREEDOM OF RELIGION IN THE UNITED STATES

A. HISTORICAL BACKGROUND

In the United States, on the other hand, the philosophical impetus behind secularism has always been to protect religion from the state. (67) Giving people the right to worship free from government interference is the fundamental notion of American secularism. (68) Although religious freedoms are guaranteed by the founding documents of the United States, the desire for the separation of church and state was not as central to the birth of the American nation as it was to that of the French Republic. (69)

American society may also be more tolerant and accepting of differences. At least in official discourse, American society is meant to be multicultural and diverse: the U.S. government outwardly supports the values of diversity and autonomy. (70) Furthermore, the government exists to support an individualistic society where citizens make choices with free will and the government intervenes as little as possible to give each person maximum autonomy over his or her own life. (71) The freedom to worship as one sees fit with as few encumbrances as possible fits squarely in this tradition. Finally, religion is not necessarily a private affair; religion can be brought into the public sphere. (72) To disallow public expressions of religion would be to burden the individual in favor of society at large.

B. LEGAL CONCEPTS: FROM FIRST AMENDMENT TO PRESENT

The First Amendment of the U.S. Constitution guarantees the freedom of religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." (73) This freedom has two components--the separation of church and state (the Establishment Clause) and the freedom to worship (the Free Exercise Clause). (74)

1. The Establishment Clause

The Establishment Clause is broadly worded: "Congress shall make no law respecting an establishment of religion....", but has been interpreted over time to have a specific meaning. (75) The basic tenets of the Establishment Clause are derived from Everson v. Board of Education and Lemon v. Kurtzman. (76) Everson lays out a laundry list of actions that are prohibited by the Establishment Clause. (77) Specifically, there can be no: 1) official state church, 2) government coercion to be religious, 3) punishment for one's beliefs, 4) state preference among religions, and 5) government participation in religion. (78) In addition, Lemon sets out a three part test of what must be done in order for a law to satisfy the Establishment Clause. (79) The law can have no: 1) sole religious purpose; 2) primary religious effect; or 3) government entanglement in religious affairs. (80)

As with the French headscarf legislation, much Establishment Clause case law has been hammered out in the setting of public schools. (81) This is the area where there are many similarities to French law and also where scrutiny is the highest. (82) One line of cases deals with religious instruction as an extracurricular activity. (83) Widmar v. Vincent established one of the bedrock principles of the Establishment Clause law: facilities must be equally open to religious and nonreligious groups. (84) This notion was codified in the Equal Access Act, which stated that religious groups must be treated like other extracurricular groups. (85) This means that because the focus is on equal access, …

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Publication information: Article title: Legal Secularism in France and Freedom of Religion in the United States: A Comparison and Iraq as a Cautionary Tale. Contributors: Deshmukh, Fiona - Author. Journal title: Houston Journal of International Law. Volume: 30. Issue: 1 Publication date: Fall 2007. Page number: 111+. © 2009 Houston Journal of International Law. COPYRIGHT 2007 Gale Group.

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