Abstract
In March of 2004, the French government approved a regulation which forbids “the wearing of signs or clothes conspicuously denoting a religious affiliation” in public schools. A number of commentators have taken the French government to task for failing to respect the religious rights and identity claims of citizens – particularly French Muslims – in pursuit of a policy of nationalism and assimilation. It is this assessment of the French approach, broadly captured in the notion of laïcité and of a republic ‘one and indivisible,’ that I wish to address. I argue that the French principle of laïcité and the recent school clothing legislation can be defended plausibly in relation to deep-seated French attitudes towards individual freedom, education, and national identity. I explicate specifically French conceptions of church-state relations, citizenship, autonomy, and equality, their relationship to the profound fear of factionalism rooted in French history, and the role of education from the French republican perspective. Finally, I offer a brief comparison of U.S. law on religious freedom and state neutrality with the French approach and raise some questions as to the presumed superiority of the former.
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Notes
- 1.
The commission Stasi, named for its leader, Bernard Stasi, was created in 2003 by Prime Minister Shirac to prepare a white paper on the question of religious garb in public schools. Accessible at www.fil-info-france.com/actualites-monde/rapport-stasi-commission-laicite.htm
- 2.
Loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics (“Law #2004-228 of March 15, 2004 concerning, as an application of the principle of the separation of church and state, the wearing of symbols or garb which show religious affiliation in public primary and secondary schools”); Journal Officiel de la Republique Francaise (Official Gazette of France) March 17, 2004, 5190.
While there are ample sources for the history and legal details of the ‘ban,’ I recommend, as a starting place, Jeremy Gunn’s “Religious Freedom and Laïcité: A Comparison of the United States and France.” Brigham Young University Law Review (2004): 419–506.
- 3.
Ibid. See also, Elizabeth Zoller, “Laïcité in the United States, or The Separation of Church and State in a Pluralist Society.” Indiana Journal of Global Legal Studies, Vol. 13 (2006): 561–594 and Frederick Mark Gedicks, “Religious Exemptions, Formal Neutrality, and Laïcité.” Indiana Journal of Global Legal Studies, Vol. 13 (2006): 473–492.
- 4.
See, e.g. Joan Wallach Scott, The Politics of the Veil (Princeton: Princeton University Press, 2007).
- 5.
Scott provides a very interesting history of French relations with North African peoples, both colonial and recent, and an analysis of what she describes as French racism towards ‘Muslims.’I would not deny this aspect of French history or its relevance to the ‘affair of the scarf,’ but I believe there are deeper philosophical commitments that explain the French ban on conspicuous religious and political garb in public schools.
- 6.
Undoubtedly, there are competing ‘American’ conceptions.
- 7.
Jean Baubérot, “Secularism and French Religious Liberty: A Sociological and Historical View.” Brigham University Law Review (2003): 451–464.
- 8.
Loi du 9 décembre 1905, Loi concernant la séparation des Eglises et de l’Etat. version consolidée au 29 juillet 2005V.
- 9.
Jean Baubérot, “The Secular Principle.” Accessible at http://ambafrance-us.org/IMG/html/secularism.html.
- 10.
Claude Nicolet, La République en France, (Paris: Seuil, 1992), 65–66; quoted in J. Baubérot, n. 9.
- 11.
Ibid.
- 12.
Ibid.
- 13.
Bill on the principle of laïcité in State schools. Speech by M. Jean-Pierre Raffarin to the National Assembly. (Paris. 3 February 2004); www.ambafrance-au.org/spip.php?article481.
- 14.
In the sixteenth century, France was torn by the ‘Wars of Religion’ between Catholics and Huguenots. In 1789, the Revolution aimed to overthrow not only the monarchy but also the dominance of the Roman Catholic Church and its clergy. The ugly memory of anti-semitism during the Second World War still stings many in France, and continued anti-semitic activity is a source of public concern.
- 15.
Gedicks, 476.
- 16.
Raffarin, Speech to the National Assembly, 2004.
- 17.
Ibid.
- 18.
Scott argues that the ban is directed at Muslim students and evinces French antipathy to Muslims, specifically.
- 19.
Michael Shurkin, “France and Anti-Semitism,” (Zeek, November 03), http://www.zeek.net/politics_0311.shtml.
- 20.
David A. Bell, “The Unbearable Lightness of Being French: Law, Republicanism and National Identity at the: End of the Old Regime,” The American Historical Review, Vol. 106, No. 4 (Oct., 2001): 1216.
- 21.
Quoted in Bell, 1217.
- 22.
Quoted in Bell, 1221.
- 23.
Ibid, 1221.
- 24.
Jean-Jacques Rousseau, The Social Contract or, Principles of Political Right, trans. and ed., Charles Sherover (New York: Harper & Row: 1984), 4.
- 25.
This statement, the first line from the Constitution of 1793, is repeated in the modern Constitution and appears on the national seal.
- 26.
Veronique Dimier, “Unity in Diversity: Contending Conceptions of the French Nation and Republic,” West European Politics, Vol. 27, No. 5 (2004): 837.
- 27.
Sue Wright, “Jacobins, Regionalists, and the Council of Europe’s Charter for Regional and Minority Languages,” Journal of Multilingual and Multicultural Development, Vol. 21, No. 25 (2000): 418.
- 28.
Gibson Ferguson, Language Planning and Education (Edinburgh: Edinburgh University Press: 2006), 74.
- 29.
Colin Jones, The Great Nation: France from Louis XV to Napoleon. (New York: Columbia University Press, 2002), 558.
- 30.
Wright, n. 19.
- 31.
Margaret Adsett in French and Canadian Approaches to Diversity as Reflections of Different Conceptions of Liberty, Equality, and Community. (Department of Canadian Heritage: 2002), http://www.culturescope.ca/file_download.php/canfran_e.pdf?URL_ID=3472&filename=10812742681canfran_e.pdf&filetype=application%2Fpdf&filesize=140591&name=canfran_e.pdf&location=user-S/.
- 32.
Scott, 80.
- 33.
Ibid.
- 34.
Rousseau, 4; emphasis added. The tension between universal values of equality, liberty, and rationality, on the one hand, and the allegiance to a more concrete national identity which can be discerned in the law and cultural history of France, on the other, also are consistent with difficulties attendant on Rousseau’s desire to create a community that is more than a group of persons united by abstract reason entirely by appeal to such reason. See N. J. H. Dent, Rousseau: An Introduction to his Psychological, Political and Social Theory (Oxford: Basil Blackwell, 1988) and Katrin Froese, “Beyond Liberalism: The Moral Community of Rousseau’s Social Contract,” Canadian Journal of Political Science, Vol. 34, No. 33 (2001).
- 35.
Nicolet. Jacques Chirac’s televised speech on the Stasi Commission specifically addressed the historic French struggle to achieve the full liberty and equality of all citizens and cited laïcité as a pillar of France’s achievements in these respects. Accessible at translate.google.com/translate?hl=en&sl=fr&u=http://www.fil-info-france.com/actualites-monde/discours-chirac-loi-laicite.htm&sa=X&oi=translate&resnum=1&ct=result&prev=/search%3Fq%3Dlaicite,%2BChirac%26hl%3Den%26lr%3D%26as_qdr%3Dall.
- 36.
Adsett explicitly links the differences she discusses to French liberalism’s Rousseauian heritage.
- 37.
Froese, 579.
- 38.
Raffarin, Speech to the National Assembly, 2004.
- 39.
Ibid.
- 40.
Theodore Zeldin, A History of French Passions (New York: Oxford University Press, 1993), 17. Also see Baubérot, “Secularism and French Religious Liberty.”
- 41.
I am indebted, for translations of the Commission report, to Jeremy Gunn, “Religious Freedom and Laïcité”.
- 42.
Ibid.
- 43.
Raffarin, Speech to the National Assembly, 2004.
- 44.
The bill was passed by a majority of 484 to 16 and was supported by parties from the center-right to the far left.
- 45.
See Scott; See also John Bowen, “Why the French Don’t Like Headscarves: Islam, the State, and Public Space,” (Princeton: Princeton University Press, 2006).
- 46.
Maurice Barbier, “Towards a Definition of French Secularism”.
- 47.
Raffarin, Speech to the National Assembly, 2004.
- 48.
Ibid.
- 49.
See, e.g. Dominique Schnapper, La relation à l’Autre: Au coeur de la pensée sociologique (Editions Gallimard, 1998).
- 50.
Scott, 82.
- 51.
Joseph McMillan, “The Arms of the USA – Blazon and Symbolism” (The American Heraldry Society), americanheraldry.org/pages/index.php?n=Official.National.
- 52.
U.S. courts have shown an increasing tendency to cut away substantive positive criteria for ‘religion.’ In Torasco v. Watkins, 367 U.S. 488, 495 (1961), the Supreme Court rejected the claim that a belief in a ‘Supreme Being’ is a necessary feature of ‘religion.’ Also see, U.S. v. Seeger, 380 U.S. 163 (1965). In Welsh v. U.S., 398 U.S. 333 (1970), the Court treated “deeply and sincerely [held] beliefs that are purely ethical or moral in source” as equivalent to religious belief.
- 53.
See Jeremy Gunn, “French Secularism As Utopia And Myth.” Houston Law Review, Vol. 42 (2005–2006): 81–102.
- 54.
Wisconsin v. Yoder, 406 U.S. 205 (1972). My point, here, is not to quarrel with the exception granted to the Amish. Rather, I have in mind Justice Burger’s odd ruminations on the ‘self-sufficiency’ of Amish people, their pleasantness, and their need to keep their communities supplied with young members, as relevant to the determination of the suit.
- 55.
For an amusing overview of this area of law, see Stephen Young, “The Establishment “Claus”: A Selective Guide to the Supreme Court’s Christmas Cases” (LLRX: Law and technology resources for legal professionals, January 2003). Accessible at www.llrx.com/features/christmas.htm.
- 56.
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418 (2006).
- 57.
Where issues of religion intersect parental rights and the well-being of children, we encounter particularly daunting questions, as we have seen in cases of parents whose religious convictions were judged – by the majority population at least – to endanger their children. See, e.g. Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Sup. 1985).
- 58.
Katherine Ross, “Children And Religious Expression In School: A Comparative Treatment Of The Veil And Other Religious Symbols In Western Democracies,” GWU Law School, Public Law Research Paper No. 408; Islamic Law and Law of the Muslim World Paper No. 08-31 (2008): 9. Available at SSRN: http://ssrn.com/abstract=1136366.
- 59.
Whether the courts have been reluctant or unable to arrive at a clear definition of ‘religion’ is an open question.
- 60.
Lynch v. Donnelly, 465 U.S. 668 (1984).
- 61.
Van Orden v. Perry, 545 U.S. 677 (2005).
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Sistare, C.T. (2010). “Conspicuous” Religious Symbols and Laïcité . In: Golash, D. (eds) Freedom of Expression in a Diverse World. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8999-1_10
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