Legal secularism in France and freedom of religion in the United States: a comparison and Iraq as a cautionary tale.

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.