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

Justice Breyer, in his concurrence, admitted Van Orden was a borderline case and stated that all religious symbols do not have to be "purge[d] from the public sphere." (152) He saw the Ten Commandments as having a secular moral message about standards of social conduct as well as having a religious meaning. (153) For him, the fact that forty years had passed without a challenge was more important than any legal test the Court might apply. (154) Like Rehnquist, Breyer stressed public schools as a different context due to concerns over the impressionable nature of youth. (155)

In dissent, Justice Stevens, joined by Justice Ginsburg, found that on its face, the monument had no connection to any event in Texas history and was not a work of art, but held only a religious message. (156) Furthermore, given the monument's presence on the State Capitol grounds, the state was officially endorsing the message. (157) He saw this to be in violation of Jefferson's "wall of separation" between church and state. (158)

Justice Stevens found that the Establishment Clause requires a strong presumption against the display of religious symbols on public property. (159) This was due to the fundamental impetus behind the Establishment Clause of avoiding "divisiveness and exclusion in the religious sphere," offending nonmembers and the nonreligious, and preserving neutrality among faiths and towards nonbelievers. (160) He did not support a strict interpretation of the Clause to such an end where an acknowledgement of a religious history could never be made, but in this case, Stevens found that acknowledging history, recognizing religion, and passivity were lacking here. (161) Furthermore, Stevens saw this not only as a religious message, (162) but also as a sectarian message. (163) Because the Ten Commandments are worded and ordered in a specific way, this monument endorses certain religions but not others. (164)

Justice O'Connor's dissent (165) simply refers to her concurrence in McCreary County, striking down the display. (166) For her, the two cases present the same issue, and she decided them same way. (167)

Finally, Justice Souter, in his dissent, claimed that neutrality was not respected due to certain physical characteristics of the monument. (168) "I am the LORD" is clearly the first statement, and "LORD" is in all capital letters. (169) Additionally, he found the Ten Commandments to be presumptively religious. (170)

2. MCCREARY COUNTY

McCreary County, decided during the same Court term, had very similar facts to Van Orden, the major difference being that the Ten Commandments monuments were located in courthouses in McCreary County. (171) In this case, the ACLU sued two counties, Pulaski and McCreary, for their Ten Commandments displays in Kentucky courthouses. (172) The original displays included "large, gold-framed copies of an abridged text of the King James version of the Ten Commandments, including a citation to the Book of Exodus" in highly visible areas of the courthouses, hallways that citizens used in order to complete basic civic tasks such as renewing driver's licenses, registering automobiles, paying local taxes, and registering to vote. (173) In Pulaski County, the display was unveiled during a ceremony presided over by a Judge and his pastor, and the Judge gave an inaugural speech with religious overtones, (174) In McCreary County, the county legislative body ordered the display to be placed in a high traffic area of the courthouse. (175) After the ACLU filed a Section 1983 action to enjoin the courthouses from maintaining the displays due to their violation of the Establishment Clause, the displays were modified. (176)

The District Court used the Lemon test to judge the display and found that it lacked a secular purpose. (177) The court did not view the display as commemorating the religious history of the county, but saw it as having only religious purposes. (178) The display was not to educate the public, but simply to post the Ten Commandments. (179) The District Court rendered a preliminary injunction mandating removal of the displays, and the counties appealed the injunction and hired a new defense team. (180) Upon the new attorneys' recommendations, the displays were modified a second time. (181) The third display included the Ten Commandments and nine other documents of a legal and historical nature. (182)

The Sixth Circuit affirmed the District Court, using Stone (183) as precedent that the Ten Commandments are presumptively religious unless integrated into a display so as to carry a secular message. (184)

A Supreme Court majority also found the Stone case controlling and struck down the display. (185) The Court's main lines of reasoning evoke many Establishment Clause themes. The Court discusses the Lemon "purpose" test (186) in the context of other goals of the Establishment Clause, such as neutrality. (187) The government purpose is to be analyzed by an objective observer who will refer to the plain meaning of the display or perform a commonsense analysis. (188) A court can accept the stated government purpose, but this cannot be a sham. (189) In the case at hand, given the original displays, their inaugural ceremonies, and subsequent modifications based on counsel's advice, the original intent behind the display was deemed religious. (190)

As in Stone, the Ten Commandments display in McCreary County was presumptively seen as having a religious purpose. (191) However, such displays will not necessarily result in unconstitutionality each time; a court must look to the context and history in each individual case. (192) In Stone, the display had no other context, so it was struck down; likewise, in Pulaski County, there was a pastor at the unveiling, which gave it a clear religious purpose: morality with religious sanction. (193) However, the majority took pains to note that a sacred text can be integrated into a display of U.S. history and withstand constitutional analysis. (194)

In O'Connor's concurrence, which has undertones that mimic the French point of view, religion must be an individual matter in order to avoid the consequences of mixing government and religion. (195) For her, this is the goal of religious liberty in a pluralistic society. (196) Even if Americans are a religious people and attend church more than people in other developed nations, there must be a separation of religion and government. (197) For her, the main themes of the freedom of religion are: no religious incursions by the state, no coercion, no preference or promotion of one religion over another, and no threatening or impeding of religious worship. (198) The display in McCreary County was deemed religious to the reasonable observer, and thus not allowed. (199)

3. Comparing Van Orden and McCreary County

Some contradictions arise when examining the two cases side-by-side. While both interpret the Establishment Clause in the context of Ten Commandments monuments located in public buildings, McCreary County analogizes to Stone, (200) while Van Orden does not. Likewise, McCreary County uses the Lemon test and Van Orden simply refuses to apply it, with only a casual mention that it is not relevant. (201) The reasoning in Van Orden, a borderline contentious case, is meant to sidestep precedent and avoid overruling the restrictive Lemon test. (202) However, given the divergent outcomes on such similar cases decided the very same day, this seems arbitrary.

V. ANALYSIS

A. DIFFERENT GOALS

Broadly speaking, both the French and American legal systems have the same goals: the freedom of religion, with its two subparts, freedom of religious expression and the separation of church and state. (203) Yet, when stated more narrowly and less abstractly, the policies and goals are different: the American system looks to protect religion from the state, and the French system looks to protect the state from religion. (204) The American system strives to find a compromise between the two clauses of the First Amendment freedom of religion, often favoring the free exercise component, whereas in the French system, the Establishment Clause concept is supreme. (205) As a result, the approaches employed by the two legal systems are different.

French notions of secularism strive to create a religion-free civic zone. (206) The system embodies the idea that the danger of perceiving religious signs as proselytizing is high. (207) Even a seemingly benign or nonproselytizing display would not pass muster. Religious signs are not acceptable as a mark of a religious history or past. (208)

Additionally, the French system is more focused on the institutional aspect of the law and values the separation of church and state over any free exercise rights. (209) Also, the French system adheres more to general philosophical notions of secularism rather than a fact specific analysis of each case. (210) Because in the French context there is more concern with the separation of church and state, religion in the public sphere is always treated with skepticism or a presumption of proselytism. (211)

Part of the problem in analyzing the Headscarf Law is due to the fact that French law, unlike the American law, is not so cleanly divided between the two subcomponents of the freedom of religion--free exercise and the Establishment Clause. (212) This lack of clarity creates an inner tension in the concept of laicite and is the source of the debate over the law. (213) While some find that there is a clear supremacy of the principle of separation of church and state, others see that both exist in the founding documents and that both must be balanced, as in the Conseil d'Etat's decision. (214)