Religious Freedom and Laicite: A Comparison of the United States and France

I. INTRODUCTION The word laicite is used in France to summarize prevailing beliefs regarding the proper relationship between religion and the French state.2 A term that plays a similar role in the United States, albeit with a very different meaning, is "religious freedom." These two concepts, at first glance, would seem to suggest profoundly different attitudes regarding the proper relationship between religion and the state. Whereas laicite might imply suspicion (or perhaps even hostility) toward religion, religious freedom suggests that the state wishes to embrace religion fully, possibly to the exclusion of agnosticism and atheism. Public opinion surveys would seem to support such a contrast between a relatively unreligious France and a very religious United States.3 Despite the significant differences in the meanings of laicite and religious freedom, the two terms are often described in effusive language as founding principles of the republics, as unifying principles that bring citizens together, and as exemplifications of the admirable characteristics that make the nations role models for the rest of the world. In both countries, the doctrines are described as being fully consistent with the constitutional norms of equality, neutrality, and tolerance. But despite the popular beliefs that laicite and religious freedom are founding principles that unite the citizens of their respective countries, they actually operate in ways that are more akin to founding myths. If we probe their historical backgrounds, it becomes clear that neither doctrine originated as a unifying or founding principle. Rather, each emerged during periods of confrontation, of intolerance, and often of violence against those who held dissenting beliefs. Moreover, in current controversies involving religion and the state, where the doctrines are cited for the ostensible purpose of resolving conflicts, they continue to be applied in ways that divide citizens on the basis of their beliefs and that belittle those whose beliefs do not conform to popular preferences. Thus, the doctrines of laicite and religious freedom are frequently employed not in the idealized way that the myths might imagine, but in the confrontational and polemical ways in which they originally developed. Two contemporary controversies involving religious expression in public schools illustrate how the doctrines of laicite and religious freedom are applied in both their mythic and confrontational manners. In March 2004, France adopted a new law prohibiting children in public schools from wearing clothing and insignia that "conspicuously manifest a religious affiliation."4 The law, which was designed to prohibit students from wearing Islamic headscarves, Jewish skullcaps, and large crosses, was sponsored by the ruling conservative party, the Union for a Popular Movement (UMP), and was endorsed by the opposing Socialist Party.5 The law was approved by an overwhelming vote of 494 to 36 in the National Assembly, and by a comparably disproportionate vote of 276 to 20 in the Senate, and was strongly supported by popular opinion throughout France.6 Two years earlier, on the opposite side of the Atlantic, a divided panel of the United States Court of Appeals for the Ninth Circuit ruled in Newdow v. U.S. Congress ("Newdow I'), that the words "under God" in the American Pledge of Allegiance (the "Pledge") violated the Establishment Clause of the Constitution.7 The decision provoked an immediate public outer)'.8 On June 26, 2003, within hours of the release of the Newdow I opinion, the Senate voted ninety-nine to zero to reaffirm the language of the Pledge.9 The following day, the House of Representatives adopted a similar resolution reaffirming the Pledge by a vote of 416 to 3.10 Immediately after voting, one hundred members of Congress gathered to have their photographs taken on the front steps of the Capitol building while they held their hands over their hearts and recited the Pledge. …