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

(13.) The Sunnis' situation in Iraq provides a good example of this chilling effect. See Michael R. Gordon & Jeff Zeleny, Latest Plan Sets a Series of Goals for Iraq Leaders, N.Y. TIMES, Jan. 8, 2007, at A1 (describing the U.S. administration's plan to draw more Sunnis into the political process in Iraq despite the Sunnis' initial boycott of the process for sectarian and political reasons). The idea is that if the Sunnis do not participate, it will undermine the neutrality of the process. See id.

(14.) This is the individual rights issue. McCreary County, 545 U.S. at 881-83 (O'Connor, J., concurring).

(15.) This is the separation of church and state issue. See Walterick, supra note 7, at 252.

(16.) Law No. 2004-22 of Mar. 15, 2004, Journal Officiel de la Republique Francaise [J.O.] [Official Gazette of France], Mar. 17, 2004, p. 5190, available at http://www.legifrance.gouv.fr/WAspaddUnTexteDeJorf?numjo=MENX0400001L [hereinafter Headscarf Law].

(17.) See Michel Troper, French Secularism, or Laicite, 21 CARDOZO L. REV. 1267, 1267 (2000) (explaining French secularism).

(18.) The war in Iraq began on March 20, 2003. David E. Sanger & John F. Burns, President Warns of Difficulty--Airstrikes on Baghdad, N.Y. TIMES, Mar. 20, 2003, at A1. A terrorist attack on a Madrid train occurred on March 11, 2004, in Spain. Elaine Sciolino, 10 Bombs Shatter Trains in Madrid, Killing 192, N.Y. TIMES, Mar. 12, 2004, at A1.

(19.) Headscarf Law, supra note 16.

The text reads:

In public elementary schools, junior high schools, and high

schools, students are prohibited from wearing signs or attire

through which they exhibit conspicuously a religious affiliation.

Note that internal regulations require disciplinary procedures to

be preceded by a dialogue with the student.

Walterick, supra note 7, at 258-59.

(20) Walterick, supra note 7, at 251. Note that the most popular religion in France is Catholicism, making up approximately 85% of the population. U.S. Department of State, Background Notes: France, Aug. 2007, http://www.state.gov/r/pa/ei/bgn/ 3842.htm (last visited Nov. 19, 2007). About 10% of the population is Muslim. Id.

(21.) See Walterick, supra note 7, at 251, 260-61 (stating that the Headscarf Law is seen as more restrictive of the headscarf, as opposed to other religious symbols like crosses, but similarly affects the wearing of other religious garb such as Sikh turbans and Jewish yarmulkes).

(22.) See, e.g., U.S. COMM'N ON INT'L RELIGIOUS FREEDOM, 52-53 (2004), available at http://www.uscirf.gov/countries/publications/currentreport/2004annualRpt.pdf ("The proposed French law would violate the rights to freedom of religion and expression...."); HUMAN RIGHTS WATCH, FRANCE: HEADSCARF BAN VIOLATES RELIGIOUS FREEDOM BY DISPROPORTIONATELY AFFECTING MUSLIM GIRLS, PROPOSED LAW IS DISCRIMINATORY (2004), available at http://hrw.org/english/docs/2004/ 02/26/france7666.htm; see also Jessica Fourneret, France: Banning Legal Pluralism by Passing A Law, 29 HASTINGS INT'L & COMP. L. REV. 233, 233-37 (2006) (critiquing the French Headscarf Law as impeding freedom of religion).

(23.) See Steven G. Gey, Free Will, Religious Liberty, and a Partial Defense of the French Approach to Religious Expression in Public Schools, 42 HOUS. L. REV. 1, 11-13 (2005) (arguing that the Headscarf Law was not anti-Muslim, but conformed to notions of secularism already present in French law).

(24.) See Van Orden v. Perry, 545 U.S. 677, 677 (2005) (upholding the Ten Commandments monument at the Texas State Capitol because it had historical, as well as religious, meaning for the state).

(25.) 545 U.S. 844 (2005).

(26.) See id. at 873-74, 881 (striking down the Ten Commandments monument because the government purpose was to advance religion).

(27.) The low response to the cases generated in the press characterized the split decisions as a mixed message. See, e.g., Ralph Blumenthal, Split Rulings On Displays Draw Praise and Dismay, N.Y. TIMES, June 28, 2005, at A17 (describing the different reactions to the Supreme Court decision).

(28.) See Eric Leser, La Cour Supreme americaine est divisee sur la separation de l'Eglise et de l'Etat (U.S. Supreme Court Divided on Separation of Church and State), LE MONDE, June 29, 2005, http://www.lemonde.fr/cgi-bin/ACHATS/acheter.cgi?offre= ARCHIVES&type_item=ART_ARCH_30J&object_id=907451 (calling the double verdict "ambiguous"). Certainly, to the lay observer, when a courthouse has the Ten Commandments posted, "separation" of church and state is not present in its commonsense definition.

(29.) See Jeffrey Toobin, Breyer's Big Idea; The Justice's Vision for a Progressive Revival on the Supreme Court, NEW YORKER, Oct. 31, 2005, at 36, 39 (arguing that the major distinction between the two cases was Justice Breyer's vote). Furthermore, Breyer distinguished the two cases mainly on the fact that the Texas monument had been in existence and unchallenged for 40 years, whereas the Kentucky monuments were recent and controversial from their inception, a seemingly tenuous distinction. Id.

(30.) The two components are the Free Exercise Clause and the Establishment Clause. See U.S. CONST. amend. I.

(31.) See Troper, supra note 17, at 1277.

(32.) See Gey, supra note 23, at 2-3.

(33.) See discussion supra note 3; Gey, supra note 23, at 2-4 (explaining the American right to the free exercise of religion). This generalization is by no means infallible. A clear exception arises in the U.S. public school context, where the Supreme Court's reasoning parallels the French reasoning, stressing the need to separate church and state in order to avoid undue influence on malleable and vulnerable young minds in a captive audience. See Stone v. Graham, 449 U.S. 39, 42 (1980) (explaining that religious symbols in a school setting could induce children to follow their teachings).

(34.) See T. Jeremy Gunn, Religious Freedom and Laicite: A Comparison of the United States and France, 2004 BYU L. REV. 419, 452 (2004) [hereinafter Freedom] (explaining the American right to the free exercise of religion).

(35.) Compare the French and American approaches with the Saudi Arabian approach. See SAUDI ARABIA CONST. art. 7, available at http://www.oefre.unibe.ch] law/icl/sa00000_.html (declaring Islam as the official state religion in the Constitution).

(36.) See Gey, supra note 23, at 62-63.

(37.) See Freedom, supra note 34, at 425.

(38.) The difficulty in translating the term mirrors the basic legal problem: is laicite merely "secularism" in the narrow sense of law mandating the separation of church and state, or is it "freedom of religion" in the broader sense, encompassing secularism as well as freedom to exercise one's religion?

(39.) BERYL T. ATKINS ET AL., FRENCH-ENGLISH ENGLISH-FRENCH DICTIONARY 397 (2d ed. 1987).

(40.) Kamari Maxine Clark, Internationalizing the Statecraft: Genocide, Religious Revivalism, and the Cultural Politics of International Criminal law, 28 LOY. L.A. INT'L & COMP. L. REV. 279, 321 (2006). "Secularism" is also indifference to, or rejection or exclusion of, religions and religious considerations. Id.

(41.) See T. Jeremy Gunn, French Secularism as Utopia and Myth, 42 HOUS. L. REV. 81, 82 (2005) [hereinafter Utopia] (describing laicite as having "historical, anticlerical, and sometimes antireligious connotations"); Elisa T. Beller, The Headscarf Affair." The Conseil d'Etat on the Role of Religion and Culture in French Society, 39 TEX. INT'L L.J. 581, 608 (2004) (noting that the translation of "laicite" by the word "secularism" is inadequate). But see Freedom, supra note 34, at 420-22 (defining laicite as "religious freedom").

(42.) Freedom, supra note 34, at 432-43 (discussing the historical basis of French secularism); Walterick, supra note 7, at 252-53.

(43.) See Freedom, supra note 34, at 432-43 (discussing the Catholic Church's involvement in the French state).

(44.) See id. (discussing the clergy's and monarchy's joint participation in causing social unrest).

(45.) See Beller, supra note 41, at 589 (discussing the Catholic Church's privileged status during the old regime).

(46.) See Freedom, supra note 34, at 421-22 (noting the popular belief that laicite was a founding principle of the Republic). But see Freedom, supra note 34, at 422, 432-52 (debunking the myth of laicite as a founding principle of the Republic). Although often proudly cited as a founding principle by French politicians, Gunn contends that laicite emerged tenuously during two periods of violent history. Id. at 433, 439. Furthermore, he argues that this rhetoric of tolerance is often used to mask division and oppression. Id. at 422. Similarly, the freedom of religion has emerged slowly in the United States, accompanied by much violence and oppression, especially towards non-Protestant denominations. Id. at 442-52.

(47.) See DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN art. 10 (1789), available at http://www.hrcr.org/docs/frenchdec.html ("No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.").