The Arc of Religious Freedom in France

capt.photo_1247495450439-1-0.jpg The Indian presence at yesterday’s Bastille Day events in Paris commemorated the sacrifices of Indian soldiers who fought and died in World War I and symbolized the current economic, military and political ties between the two nations. But the images of Prime Minister Manmohan Singh as chief guest and the Indian troops who marched in the annual military parade, including a group pictured to the right led by a Sikh officer, also brought to mind the French law that continues to keep Sikhs out of public schools and prevents them from getting drivers licenses or serving in the military or public office.

Overlooked back in 2004 when France enacted the so-called French headscarf ban forbidding any conspicuous religious symbols in state schools or government offices, the tiny Sikh community of France has been fighting the law in and out of the courts since then (previous SM coverage). The French President encapsulated his government’s official and unnuanced position on Sikhs in France following last fall’s European Union/India Summit in Marseille. An annoyed Sarkozy, standing next to Prime Minister Singh at the time, took a reporter’s question about Sikhs wearing turbans in France.

Sarkozy, replied curtly, “Sir, we respect Sikhs. We respect their customs, their traditions. They are most welcome to France.” Visibly irritated, Sarkozy continued, “But sir, we have rules, rules concerning the neutrality of civil servants, rules concerning secularism, and these rules don’t apply only to Sikhs…

Sarkozy explained that the banning of turbans is not discrimination, that, “These rules apply to everybody, to everybody with no exception. There is no discrimination whatsoever.” (New Europe)

It seems unlikely that Sikhs in France will have much luck in their efforts given more recent developments that could broaden the reach of the 2004 ban. Last month Sarkozy spoke out to support a ban of the burqa, the full-body garment worn by an estimated 100,000 Muslim women born in France (Telegraph). In public comments he said “it is a question of freedom and of women’s dignity,” and that the burqa “is a sign of the subjugation, of the submission of women. I want to say solemnly that it will not be welcome on our territory.” (Reuters)

Kamran Pasha, a screenwriter and novelist who writes about Islam recently returned from a week in France and he offers another perspective on the proposed ban.

my own experience in that beautiful country (I lived in Paris for several months in 2007) leads me to believe that the controversy over the burqa is not really about women’s rights. It is about preserving a certain cultural heritage from the onslaught of foreign values and perspectives. The burqa controversy is really about attempting to save a beleaguered French identity from being replaced by a new and alien social tradition that is spreading through the power of demographics. But social engineering is a poor tool to curtail the realities of reproduction. At current birth rates, Muslims will become a numerically influential community inside France within this century. The same is true for many other nations in Europe. Efforts to stem the power of Muslim culture from reshaping European identity are as pointless as trying to hold back a river with one’s hands. (Lifting the Veil)

Given what seems to be another sort of Bastille Day tradition in recent years — riots and destruction in the nation’s suburban estates like those spurred this year by the death of a young Algerian man in police custody, and evidence of employment discrimination against ethnic minorities in France, I agree with Pasha that there is more at play than the stated and maybe more publicly palatable concerns for women’s rights. The desire to prevent changes to French identity and demographics seem the more likely motivations for the 2004 law and the proposed burqa ban.

But fixating on conspicuous religious symbols like the turban or burqa does not feel like an effective way to preserve French traditions and identity, especially when it keeps people out of state schools or other public institutions — just the kind of places where I imagine they have opportunities to study and participate in the culture and traditions that are part of a nation’s heritage.

205 thoughts on “The Arc of Religious Freedom in France

  1. intersting. but extending the new religious freedom act to schools should be unnecessary. i can’t believe no one has challenged the original law banning religious displays by teachers. i really doubt a conervative/libertarian court would uphold it. maybe justices who practice an extreme form of judicial restraint or those who believe in an expansive establishment clause, but i doubt they are the majority. plus the original law would have to be neurally applied (otherwise its slam dunk unconstitutional), which means christians would suffer a disparate impact, given they are the majority, so i don’t think that lends credence to the notion “Christian normative” interpretation of the free expression clause. sounds like o’relly’s “secular progressives” at work again, imposing their values on the rest of us.

    Manju: As Ikram point our above, the law has already been challenged and the Oregon Supreme Court upheld it. I am not sure why it was not appealed in Federal Court. The Court in Cooper held that “the aim of maintaining the religious neutrality of the public schools furthers a constitutional obligation beyond an ordinary policy preference of the legislature,” thus setting up a classic establishment v. free exercise conflict and eventually siding on the establishment side, which is not surprising considering the liberal composition of the Oregon Supreme Court at that time.

    Btw, just because Christians have suffered a disparate impact under the original ban on teachers wearing religious garb does not make the law unconsitutional. I don’t believe (though I don’t know much about constitutional law beyond one class in 1L 🙂 that the disparate impact of a specific ban of religious garb on a particular religion would make the law unconstitutional. It would have to be challenged on the ‘free exercise’ grounds but the fact that it has a disparate impact on one religion is not really salient. I think you might be thinking about laws which specifically target a religious activity but are passed under the guise of being neutral when they are actually targetting a religious acitivity. The Oregon Law was a in your face ban on religious attire which set up a fight on the grounds of ‘free exercise’.

  2. I think the special privilege argument is more valid (you might be alluding to this argument as well) when an accomodation is denied to the non-religious but the same accomodation is accorded to the religious, thus privileging the religious sensibility over the non-religious sensibility.

    He did make the argument earlier, in the context of the ability to wear lightsabers to work.

    I am sympathetic to sj’s argument, although I unfortunately think it is impractical. The reality of operating in a society with a majority faith means that there are various ways in which that faith is privileged. For example, going to church/mosque. Our society is organized around the Sunday as holiday thing, which makes it much easier for Christians to go to church, than for Muslims to go to mosque on Friday. An ostensibly religion neutral policy which says that no special leave for religious worship will be accommodated still ends up privileging one faith over the other. Of course, as is now beginning to happen in the US, the pendulum can swing too far in the other direction too.

    That said, my comment about “rampant tents” was an allusion to an earlier comment about somebody fearing that they’d be made to wear tents, and Sarkozy’s expression of tender sympathies for the oppressed Muslim women. I don’t believe that the French government is acting in good faith, given that their laws carve out exceptions, which just happen to favor Christian practices such as wearing crosses, and that they have done little to act against various forms of tacit discrimination against ghettoized minority communities.

  3. ak, to be crude, the basic difference is that France believes in freedom from (non-Christian) religion, while the U.S. believes in freedom of religion.

    camille, while i agree with your statement on france, i do have to disagree re the US – the christian religion predominates in the freedom of religion realm, and many judicial opinions have alluded to the fact that christians, as the majority religion, must be given preference. it is also evident in the sense that the violation of separation of church and state consistently has a christian preference to it. and this is not just a view eld by the government – the fact that the majority (plurality now?) of americans are christian, or the fact that this country was initially “inhabited” by christians seems to come up often when i have conversations on freedom of religion.

  4. First off, the O’Connor articulation of Lemon has become increasingly tortured over the years, and thanks to ideological court leanings, has led to ridiculous notions of the court trying to divine secular/religious intent culminating with Breyer’s tap dance on the two cases on the same day


    It appeats tortured because we’re arguing around the edges. The fundamental issues, those that can be dealt with using straightforward logic–like an official government religion, religious tests for office, mandatory school prayer in public schools, forced oaths, etc–have been resolved. At the end of the day religious freedom in the USA is taken for granted. There’s not much left to be argued.

    But what is left, determining when seemingly non-coercive expressions of religion are actually covers for an establishment, demands hyper-nuance. granted, we can avoid this subjectivity by simply enforcing a strict seperation of church and state but that can produces absurd results, like church buses being banned from the public highways. To use real cases, government workers have been forbidden from saying the words “Merry Christmas” while at work, voluntary after-school bible studies have been banned while secular groups have been allowed to meet, and students (not teachers) have been prevented from making religious references in their school projects for fear af creating a religious atmosphere. clearly, a strict separation runs up against the fundamental american value of religious freedom. so its unworkable.

    But that leaves us with complex and seemingly tortured logic like blackmun’s (i think you meant him not breyer, if ur referring to Allegheny v. ACLU) tap dance which you reference. but i wouldn’t get stressed out about it, becuase the alternative is worse and these are tough cases, ie judgement calls. frankly, i thought blackman got it right. putting a creche in a courthouse is too much, because of the placement, while a menorah outside is ok. not pretty but better than the extremes.

  5. But till Summum, there was at least a fig leaf of an idea that the establishment clause didn’t allow the govt to thrust religious ideas down people’s throats. Summum threw all that out the window with its claim that govt speech allowed it to choose across religions. That’s a huge deal, and I’d bet that we will see its implications in the coming years.

    First off, Summums was a rare unanimous decision, so that should give you pause. The reason it was unanimous was because the establishment clause wasn’t taken into consideration, after all the summums wanted their religious monument displayed on govt land. it was a limited decision regarding govt speech, namely that when the govt decides to endorse an idea, like say drugs are bad, they are not required to provide a platform to those who think they’re good.

    You are correct that the first ammendment generally forces the govt to not endorse one religion over another, but simply wasn’t an issue in this case…tho I can see why you would think it was.

    This case is too narrow to lead to “minority religious beliefs being massively disadvantaged.” What will more likely lead to that is the expansive use of the establishment clause, as the case involving banning turbaned teachers demonstrates. this logic is the very same logic some french secularists are using to ban the hijab in school and the burka everywhere. god bless america.