Defining Religious Freedom: It All Depends on Your Perspective

The idea of religious liberty means different things to different people.  That fact could not be clearer in comparing the laws of the United States and France on the subject.  Both countries profess to be democracies, and both have constitutions that developed from the Age of Enlightenment, when freedoms of all sorts, but most certainly of religion, were deemed sacrosanct.

Here in the United States, freedom of religion sits side by side with the establishment clause in the First Amendment to the Constitution.  That amendment says that no law can establish religion or restrict its exercise.  The seeming dichotomy of the two provisions has led to any number of court challenges to laws that either allow religious exercise or restrict it.  Those court cases have often wended their way up to the Supreme Court, and over the two-plus centuries of the nation’s existence, the Court has moved back and forth between the two provisions, sometimes restricting religious expressions because they come too close to suggesting an establishment of religion, and sometimes allowing religious expressions even when they seem to suggest the establishment of religion.

The precise language is what creates the conundrum.  It reads, simply and confusingly, as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  So, clearly, the founders neither wanted religion to be established by state action nor did they want state action to prohibit the exercise of religion.  Clear as mud, isn’t it?

Of course, most Americans have their own interpretation of the language in the First Amendment and those interpretations tend to fall in line with the specific beliefs of the individuals.  Thus, those who have specific religious beliefs tend to view the Amendment’s language as allowing them to express their beliefs in such ways as their faith directs.  Hence, they view prayer in schools and religious ornamentation in public places as protected, because the Amendment guarantees them the freedom to express their beliefs.

Those who do not have such views but instead hold to positions of “non-belief” view the Amendment’s language as prohibiting prayer in schools and religious ornamentation in public places because those actions would reflect an establishment of religion by the state.  And the Court, over the years, has tried to draw lines as to what is permissible with respect to religious expression and as to what cannot be allowed.  Similarly, it has attempted to define when religious expression must be allowed and when it can be restricted.

Law professors who teach this area of law attempt to become experts on the subject.  They often engage in debates with themselves on hypothetical cases that present the issues that might be the next Supreme Court decision on the matter.  For academics, the discussions and the scholarship that it promotes can be engaging intellectual “fun.”  For those with firm religious beliefs (and non-beliefs), the arguments are often intense and passionate.  In the end, each hypothetical that gets a hearing in the Supreme Court is resolved one way or the other, not infrequently by votes of 5 to 4 (suggesting how uncertain any of the jurisprudence on the Amendment’s provisions really is).

In any event, as Americans, we all tend to get behind whatever decisions the Court renders, albeit we sometimes grumble and even sound very angry about them.  And somehow, it all seems to work fairly well.  We know (at least I think most of us know) that God isn’t an American, but we still allow that He can bless America, both in the speeches of our presidents and, since 9/11, at the seventh inning stretch of a baseball game.  And we know (at least I think most of us know) that God didn’t direct the crafting of the Constitution, but we still include reference to Him in our pledge of allegiance to our nation.

Ah, but consider the way the French look at the subject.  There the idea of religious freedom has an entirely different definition, and it results in an entirely different approach to allowing religious expression.  The French recognition of freedom of religion is founded in the country’s constitution, which was drafted in 1789 as the Recognition of the Rights of Man and of the Citizen.  Like the U.S. Constitution, it guarantees freedom of religion, but since 1905, when the French government adopted the laïcité view of the provision, religious freedom has meant something considerably different from religious freedom in the U.S.

To be specific, in France, you cannot wear any ornamentation that identifies your religious beliefs.  The theory is that religious freedom means freedom from exposure to religion.  Thus freedom of religion has been interpreted to mean freedom from religion.  The impact of this interpretation thereby restricts Christians from wearing large ornamental crosses or from placing crucifix imagery in their shops or public establishments.  It also prohibits, as currently interpreted, Muslim women from wearing scarves or from covering their heads as orthodox Muslim practice requires.

This latest interpretation has created a severe problem for the Muslim population in France, as those women who have defied the law and continue to wear head coverings have been subject to overt discrimination in seeking employment or public services.  French authorities deny the prejudicial intent of the law.  They claim that the law is equally restrictive of all religious identification and that Muslims are only singled out because they refuse to accord their actions with the law.

Just this week, the U.S. Supremes (with only Justice Thomas dissenting) ruled against an employer (Abercrombie and Fitch) in an employment discrimination case wherein the plaintiff claimed she had been denied employment unconstitutionally for wearing a head scarf (a hijab), even though the applicant never indicated she needed to wear the item for religious reasons.

At its heart, the French law is anathema to American tradition.  Americans may have strong beliefs (or non-beliefs), but we tend to approach those differing views about religion with a “live and let live” attitude.  I tolerate your right to sing “God Bless America,” so long as you don’t require me to sing it, too.  But could laïcité ever work here?  As an agnostic, I will admit that I would prefer not have to hear “God Bless America” being sung at baseball games I attend.  On the other hand, I also would not want to live in a country that denied a Muslim friend the right to wear a scarf over her head.