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. …