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...a priori approach. More precisely whenever the law of the State has entered into conflict with the law of a religious community, courts and legislators have refused to weigh the various interests at stake. This choice may unfortunately lead to domination by the mainstream religion. More symbolically, it means that society does not wish to "listen" to what the religionists have to say, that society is not willing to "see" the faith requirements of each one of its citizens but only of the majority of them. The prior legal system dealing with religious liberty issues appeared more respectful of religious freedom in various respects. A "law endowed with sight" is the guarantee that neither the State nor the religionists will be disfavored by the judges. It is the guarantee that no solutions shall be taken prior to the examination of the factual circumstances of the case. There are infinite ways to live one's religious faith and consequently it would be a mistake to refuse to acknowledge all the possible nuances developed by the consciences of individuals. This reflection on the evolution of freedom of religion constitutes in essence an epistemological analysis. The French and American legal systems have today substantially different features, especially as to the role played by judges and statutes in the administration of justice. These differences between the two systems help us to put in perspective their evolutions with regard to religious freedom. More precisely the two systems seem to have adopted crossed dynamics. The French system adopted a statute in 2004 that deprived the judge of the right to proceed to a factual examination in each case. On the opposite side the American system abandoned its legal tradition since the Smith case (1990), clearly establishing that the Court would no longer balance the interests of religious groups against the interests of the society. The future evolution of each legal system will, in any case, have to take into account the cultural dimensions of the law.
KEYWORDS: French Law, American Law, Religious Freedom, Secularism
Si je dis "lune", ce mot a passe par Verlaine, si je dis "moon", ce mot a passe par Shakespeare. Chacun de ces mots est une tradition. (1)
1. Foreword
Because of the very different architecture between the French legal system, based on civil law, and the American legal system, based on common law; and because of the very different function freedom of religion takes on in both systems, religious freedom cannot be defined in the same way in France and in the United States.
Indeed, in France, freedom of religion is composed of two main attributes. The right to choose and express one's faith, which is commonly denominated as freedom of conscience, is the first attribute. Consequently, any discrimination against somebody's religion is prohibited. Freedom of conscience was ignored in the Antiquity; it finds its source in the Judeo-Christian tradition. The second attribute corresponds to the right to put to practice one's religious commandments, in other words, to respect the practical requirements of one's faith. As a consequence, the state shall not interfere in any way with the doctrines taught, the organization of ceremonies and holy days, and the internal functioning of religious communities. This aspect of religious freedom is generally referred to as liberty of cult.
Several statutes define the legal regime of freedom of religion in France. Freedom of conscience is protected by the article 10 of the 'Declaration des Droits de l'Homme et du citoyen', the Human Rights Declaration, enacted in 1789. Then comes the 1905 statute, which focuses on two aspects: the free exercise of cults, limited by the necessities of the public order, and the religious neutrality of the state, which shall not officially recognize any religion. Half a century later, the 1958 Constitution claims in its first article that no citizen shall be discriminated against because of his religion, and as a corollary, that the state shall respect every religion. And finally on March 2004 was enacted a statute, whose aim is to restrict the possibility for pupils to wear religious distinctive apparel in public schools.
On the other side of the Atlantic Ocean, religious freedom is defined by the First Amendment to the American Constitution. Here again, freedom of religion is built on two pillars. The first one is the Establishment Clause, which prevents government from appointing one religion as the official religion of the United States, and consequently from financially supporting religious associations. The second pillar upholding freedom of religion is the Free Exercise clause, which ensures to American citizens the possibility to live their religious faith peacefully, that is to say to apply their religious law.
At first sight, one could believe that fundamentally, freedom of religion is composed of the same basic elements here and there: the neutrality of the state toward religions, on the one hand, and the right of citizens to practice their religion, on the other hand. However, such an understanding of religious freedom would not reflect its true meaning within the two legal systems at study. And this is so for two reasons.
According to Marcel Mauss, a rule of law must be apprehended as a manifestation of a 'fait social total', a total social fact (2), that is to say that through a rule of law, cultural aspects of a society are expressed. Thus, gay marriages are allowed in Holland but not in France. A jurist must bear in mind that a legal norm always incorporates various extra-legal elements such as history or sociology, which substantiate the claim of the black letter of the law, in other words, cultural elements, whose tension produces legal rules (3). Consequently, it would be incorrect to conclude that because the black letter of the law says that the state must remain neutral toward religions in France as in the United States, the two legal regimes as to religious freedom are similar.
Second, a comparative legal analysis must remain focused on the definition and exploration of the differences separating the two laws, which compose the object of the present study. This choice is the only one that will enable the study to put in perspective the legal systems in a meaningful way, and correlatively to propose an authentic understanding of what constitutes the essence of the choices operated by the two legal systems. A reflection about the extent to which the French conception of religious freedom is similar to the American one would necessarily obliterate on its way the profound identity of the two legal systems (4).
However, the choice of otherness shall not prevent our analysis from acknowledging a common enterprise in the evolution of both legal systems. Indeed, common dynamics can be found in the choices operated by the French and the American system, though these dynamics are aimed at being fulfilled through different means, and in fact produce substantially different results. Hence, a common juridical goal will still give birth to different legal regimes.
More precisely, it appears that both legal systems abandoned a multicultural system, willing to put in balance the interests of the various religious groups, on the one hand, and the interests of the society, on the other. This abandonment is accompanied by the adoption of a monoculture-based system, refusing the competition between the laws enacted by the state and the laws produced by communities and their collective narratives. From a law endowed with sight, willing to see and accept the nuances of the specificities of religious groups, we moved on to a blind law, which deliberately decided to close its eyes so as to 'swallow' all other conflicting laws.
The American legal system chose this direction in 1990, when the Supreme Court handed down the much criticized Smith decision, which refused to the plaintiff, a Native American, unemployment benefits because of his use of peyote, a traditional though illegal drug. As to the American legal system, our survey shall explore various fields, such as religious freedom conflicting with the allocation of unemployment benefits or with the compulsory education of children. The French legal system opted for a 'blind law' very recently, when it decided to put an end to the competence of the judge to decide on a case-by-case basis whether a religious apparel worn in public schools is acceptable or not. Rather, an inflexible statute prohibited any ostensible religious apparel in public schools. As to the French legal system, our survey shall solely focus on religious freedom in the context of public schools.
Such an evolution of religious freedom does not go without an important bundle of questions in either one of the two legal systems. Indeed, the function of the French judge in the administration of justice may be altered because of the enactment of the 2004 statute. Did the latter deprive the judge of his possibility to act as a social regulator, thus reminding him of his basic and essential function: applying statutes? In other words, did the legislator steal from the judge his power to decide whether Islamic scarves were acceptable in public schools?
The process of evolution of the French system shall be apprehended through both a legal and an extra-legal analysis. Sociological aspects of the evolution will thus not be excluded from the scope of our survey. In this perspective, it appears relevant to determine whether the media truly influenced the process of evolution at study. More importantly, is the notion of 'ostensible sign' a symbolic notion or a legal one? Put in its broadest context, the question of symbolism shall lead us to determine the extent to which the 'Stasi Report' and its legal transcription played a highly symbolic role, so as to satisfy the French public opinion.
In the American legal context, an interdisciplinary approach shall help us to better understand the meaning of the judicial discourse. We shall, for instance, use philosophical analysis to deal with the problem of multiculturalism. Indeed, although a democratic society is supposed to treat its members equally, it is not sure that such a society can recognize the cultural specificities of each group within it, so that the minority groups can flourish by affirming their own identity. And if that is possible, is there a limit to this recognition? Will such recognition prevent the society from becoming a community of citizens, sharing the same values and the same law?
An interdisciplinary legal survey shall also lead us to the field of Economics. The connection between Law and Economics has become a classic pattern in the American academic environment; and economic analysis of legal choices undeniably influences many decisions of courts. Consequently, we shall try to propose an economic reading of problems generated by religious freedom. More precisely, we shall attempt to determine the costs and benefits of the acceptance by the society of religious groups' specificities.
Finally, the duel between the law of the religious minority and the law of the state shall be a main object of our survey. The evolution of both legal orders makes us believe that the underlying dynamics of the choices operated by the two countries is one of competition and destruction. Indeed, the law of the majority had to 'kill' the law of the minority if it wanted to maintain its authority. Thus, we shall begin by analyzing the 'older law', which was endowed with sight, and was willing to draw a balance between the interests of the minorities and the interests of the society (2), and then we will move on to the 'recent law', which has purposefully become blind, and consequently decided to eliminate competing laws produced by communities so as to survive (3).
2. A law endowed with sight, willing to draw a balance between the interests of communities and the interests of the society
When two intangible principles of law come into conflict, when two juridical and philosophical pillars of a Republic enter the arena to fight against each other, the most reasonable way for a court to put an end to this battle and bring peace back into the public sphere is to weigh the respective interests of each principle, to strike a careful balance between protecting the freedom of religion of citizens and maintaining religious neutrality in the public sphere. The state must not interfere with the practice of religious groups, but conversely, religious groups must not interfere with the organization of public activities such as education. There is a mutual promise between the state and religious communities to exercise each one's respective competence, and its competence only.
2.1 The French approach
Before the 2004 statute was enacted, the cornerstone of the French legal system as to the administration of religious freedom in the context of public schools was the judge. He was the leader of the orchestra of religious freedom, indicating to the musicians how to play their respective scores. This competence gave him the possibility of finding a balance between freedom of religion and the principle of secularism, and to position himself as a social regulator on a symbolic scale.
2.1.1 The tension between a formalistic and a flexible law
According to Professor Genevieve Koubi (5), the question of religious freedom is too often presented as a source of antagonism with the secularism principle. Yet there should be no incompatibility between the two, to the extent that the secularism principle guarantees religious freedom. This is precisely how the French judge conceived the relation between these two rival brothers: secularism and religious freedom should function as a duet, in a constructive way, and not as competitors.
2.1.1.1 The intangibility of religious freedom
Religious freedom is known as the first form of freedom of speech and conscience in history. For a long time, it appeared as a threat toward the dominant religion, and then toward the secular doctrines, which have consequently restricted and repressed it. However, by now, at least in France, it has stopped being perceived as something dangerous, and is accepted by the main religions and by the secular authorities.
As recalled earlier, freedom of religion is protected in several legal texts, arising either from the internal body of legal rules, or the international one. Indeed, religious freedom penetrates the French legal sphere 'from the inside' through the Human Rights Declaration of 1789 in its article 106, the Preamble to the Constitution of 1946 (7), or the Constitution enacted in 1958 (8) in its article 2. Freedom of religion is also protected 'from the outside' through the Rome Convention of 1950 (9), and several other international conventions. (10)
What is the place of religious freedom in the pyramid of norms? To answer this question, one must consider separately the two attributes of freedom of religion. Freedom of conscience has a conventional value since it is incorporated in major international conventions (see infra). But it also has a constitutional value through the article 10 of the 1789 Human Rights Declaration. The Constitutional Court has, however, preferred to acknowledge religious freedom as a 'principe fondamental reconnu par les lois de la Republique', a fundamental principle recognized by the law of the Republic (11). However, this nuance does not make a significant difference: freedom of conscience is constitutionally protected. The second attribute of freedom of religion, liberty of cult, has an unquestionable constitutional value, since it is expressly protected by article 10 of the 1789 Human Rights Declaration.
Thus, religious freedom is affirmed and reaffirmed in a wide range of authoritative and prestigious legal texts, from the Constitution to European and international conventions. This privileged position in the legal landscape is certainly the consequence of the very tumultuous relations between the State and the Church in France. Indeed, the recent separation of the two (as a result of the law enacted in 1905 (12)), gave birth to intense conflicts between partisans of secularity and religious officials (13). From another perspective, this strong repetition of the will to protect religious freedom can also represent the safest juridical shield against any kind of assault against it. That is the reason why French administrative judges could not but follow the 'guideline' drawn by the legislator in the past: affirm and defend religious freedom.
Let us now examine how legal actors--judges and individuals--apprehend freedom of religion. As to the Islamic scarf question, the 'Conseil d'Etat', the French Administrative Supreme Court, gave a first opinion in 1989, at the request of the Secretary of Education of the time Lionel Jospin. This request intervened after several female students of a high school decided to wear a veil or a scarf, so as to express their adherence to the Islamic community. The question was simple: are religious apparel worn in public schools and the principle of secularity incompatible? In other words, is religious freedom strong enough to justify that pupils wear religious distinctive signs inside the public sphere? The Administrative Supreme Court seized this opportunity to hand down guidelines as to the relation between religious freedom and secularity. Thus, Secularity shall not justify the prohibition of any religious expression. Public schools are secular, not because they forbid the expression of various faiths, but on the opposite, because they tolerate them (14). This reversal of the balance of power between the two principles is a first token of the attachment of judges to religious freedom. Concretely, the Supreme Court decided to delegate to the principals of the schools the competence to decide, according to the circumstances of the situation, whether it was justified for the student to wear a scarf.
A few years later, in 1992, Mr. Kherouaa and his daughters came to the Supreme Court for basically the same reasons as in the preceding case in 1989. The main legal problem was that the high school internal regulation prohibited in a general way any distinctive religious apparel. As a result of this regulation, three female students were prevented from wearing an Islamic scarf inside the school, even though the circumstances of the case showed that there was no threat toward the religious freedom of other students or professors, or toward the good progress of education, induced by the wearing of this veil. And it is precisely because of the lack of such circumstances that the Supreme Court welcomed the claim of the plaintiffs.
The necessity to adopt a case-by-case approach in order to determine whether a student is legitimate in wearing an Islamic scarf is the direct consequence of the religious freedom that students enjoy. A general ban of religious distinctive apparel would probably not be the optimal environment for freedom of religion to flourish. The Court elevates the latter from an individual perspective to a collective one. Indeed, from the decision emerges a concept of 'religious belonging': the problem of liberty of cult is included in the frame of religious communities, as if the Court decided to apprehend the notion of liberty of cult through the spectrum of groups rather than of individuals.
A 1994 regulation, enacted by the Education Minister Francois Bayrou, tried to make it easier for principals of public schools to refuse Islamic scarves inside their institutions. It did so by prohibiting ostentatious signs in public schools, and suggested that more discrete signs would be more appropriate. However, the rationale of the Kherouaa case has been widely adopted by French administrative courts, and it became the general standard according to which courts would resolve this kind of issue. The symbolic nature of this rationale will appear very significant later on in our survey.
One of the main problems arising from the Kherouaa case was the articulation between religious freedom and secularity. The Supreme Court tried to reconcile the two through a balance aiming at satisfying all the interests at stake. This delicate task was substantially made possible through the flexibility of the secularism principle.
2.1.1.2 The flexibility of the secularism principle
A variety of terms are commonly used to refer to secularity: "cornerstone", "pillar of the Republic", "fundamental value of the French state", and so on. But what does secularity exactly mean? Etymologically, the term 'laicite' (secularity) derives from the Greek word "laos", which designated in the Middle Ages those who did not belong to the clergy, as opposed to "clericos", which referred to the possessors of religious power. The secularity notion is today poorly defined by the 'Petit Robert' (a French dictionary) as the separation between the civil sphere and the religious sphere. The separation between the State and the Church is indeed one aspect of secularity, but many others are necessary to embrace the entirety of the concept.
Two pillars supporting secularity can be identified: freedom of conscience, which we earlier defined, and the religious neutrality of the state, which implies that the latter shall neither prohibit nor privilege any religious option and shall guarantee the free exercise of everyone's religion through its neutrality. As a consequence, the state shall not interfere with religious organizations, which in turn must not intrude into the public sphere. According to Jean Rivero (15), secularity corresponds to "a voluntary limitation by the State of its field of competence in the metaphysical domain, which it abandons to the free exploration of minds".
Historically, secularity has been 'launched' at the Era of Enlightenment through the influence of various philosophers such as Bayle (16) or Voltaire (17), and materialized in the Human Rights Declaration of 1789. The Empire pursued the development of the notion, through the Concordat of 1801, which reestablished the link between the State and the Church, but while doing so, diminished the symbolic status of Catholicism in France. And it is by the 1880's that the current principles of secularity and neutrality in education emerged. Indeed, an 1882 statute substituted the "civic and moral education" to the "religious and moral education". This evolution was substantially imposed by the 'serene' conception of neutrality the politician Jules Ferry proposed. In brief, Ferry believed that the conscience of the child was a domain the teacher ought not to have access to (18). The final and major step the Third Republic achieved for the development of secularity is the statute enacted in 1905, which definitively established the religious neutrality of the State through its separation from the Church.
To understand the juridical value of secularity, one needs to consider again the attributes constituting the principle separately. Freedom of conscience certainly has a conventional and a constitutional value, as explained earlier. And the separation between State and Church can also be considered as constitutionally protected since the obligation on behalf of the State not to discriminate against any religion is included in the European Human Rights Convention. From a less technical perspective, secularity is considered to be the cement of Human Rights, including religious freedom.
The question of secularity inside public schools is not recent. To this effect, it appears interesting to note that in 1949, Jean Rivero was already dealing with this problem (19). However, the Islamic scarf controversy has given a second breath to the notion of secularity. Islam is indeed the one religion which is perceived by the French society as a potential source of danger to secularity. The same interrogation is in everyone's mind: does the Islamic scarf reintroduce in public schools symbols that belong to the private sphere, and consequently, is the scarf the sign of the beginning of a second colonization of the public sphere by religions in general, and by Islam in particular?
Confronted to this renewed question of secularity in the field of education, the Supreme Administrative Court indicated in its 1989 opinion that secularity had to be comprehended as a flexible notion. Indeed, one of its main observations was that the problem of the Islamic scarf had to be examined on a case-by case basis, and that no general and definitive standard could be an appropriate way to solve such issues. This method is induced, firstly from the affirmation by the Court of the neutrality of the State within public education and of the students' freedom of conscience, and secondly, by the enumeration of all the possible limits to the two principles, such as the respect of pluralism or the good progress of education.
Because of this legal architecture--a principle and its limitations--we must conclude that the Supreme Court has thus offered a method to the administrative courts. Below the method laid a philosophy; a scarf cannot be a threat in itself, since it can be used and worn in many ways. It is only in a certain context that the scarf will prove dangerous for other constitutionally protected values. A general prohibition of the Islamic scarf would only prove, according to the Avocat General Martinez (20), the incapacity of public education to integrate efficiently the Islamic community and to prevent the rest of the society from perceiving it as a threat towards the values of the Republic.
The flexible interpretation of secularity has been confirmed through a case which took place in the educational arena, but which departed from the question of the Islamic scarf. The Koen case came to the Supreme Administrative Court in 1995. The plaintiffs, who were Orthodox Jews, were in the middle of a conflict between their religious law, which required them not to work on Sabbath, and the law of the State, which enjoined them from missing school every Saturday, thus prohibiting a regular absenteeism in public schools. The plaintiff chose his religious law and consequently refused to sign the internal regulation of the high school. As a result, he was not allowed to enrol in the school. His appeal before the Supreme Court was denied.
The Court adopted a flexible approach, to the extent that it first recalled the foundational principles of secularity, freedom of conscience and the religious neutrality of the state, and then evoked the limits applicable to secularity, such as the good progress of education, which implies regular attendance at classes. Such a necessity can occasionally not be fulfilled, for instance for an important religious ceremony that occurs punctually. However, a regular violation of the necessity to regularly attend classes would mean a permanent violation of the internal regulation of the high school. As such, it would seriously prevent public education from achieving its results: the good progress of education. And indeed, it was on Saturday that preparations to the final examinations occurred in the school. If the Court had welcomed the claim of M. Koen, it would probably not have given him the best chances to meet success on his way to examinations.
Thus, the Supreme Court chose again the path of conciliation between conflicting interests: freedom of religion, secularism, and the needs inherent to public education. It did not choose to disregard any one of the three interests, for instance by saying to the students that no exception to the obligation to attend classes regularly shall be accepted, even for celebrations such as Yom Kippur or Aid-El-Kebir. And clearly, such a punctual absenteeism would not constitute a threat to the good progress of education. Hence, the Court, by choosing the path of mediation, managed to satisfy in an optimal way the needs of the various interests at stake. And at the same time, it consolidated its line of previous decisions, thus impregnating with substance and coherence its speech.
The choice of mediation was not an easy one to make for the judge. Flexibility, in the sense of a case-by-case approach, is not exactly in the traditional line of the French legal tradition, which remains faithful to a dynamics of intangible rules. This choice has given to the judge the position of a social regulator.
2.1.2 The judge as a social regulator
Following an ancient philosophical and judicial tradition (21), the French judge became a mediator and abandoned for a while the violence inherent to his power, so as to reconcile conflicting and highly controversial interests. By doing so, he incontestably breached the contract that linked him to the French legal culture; he departed from the role the French legal tradition wished him to embrace.
2.1.2.1 The privileged position of the judge
Why would the judge be better equipped than the legislator to deal with issues related to freedom of religion and secularity? Why is it that he will inevitably be more able than an abstract statute to find the best compromise between several competing claims? First of all, it is a matter of goals to be obtained in the field of religious freedom. If the legal machinery decides that its priority is to maintain social peace, it will necessarily try to reach a 'compromise', a consensual solution in each case. If, on the opposite, it believes that what matters the most is the strong affirmation of a principle of the Republic, it will inevitably be led to impose a solution that does not necessarily stick to the needs of the society but that incarnates a symbol, that may be important to people, but on a symbolic scale.
This is the main difference between the two options. A judge will answer practical, concrete needs of the parties involved, whereas a statute will answer the symbolic needs of the society. There is thus a difference as to the addressee of the legal action: the judge deals with the parties, whereas the statute deals with society in general; and as to the field of action: the judge evolves in a practical sphere, whereas the law evolves in a symbolic sphere.
Only the judge has the sufficient visibility to reach a compromise. Only he is close enough to the facts of each case to penetrate the psychology of the parties, and manage to make both parties feel that they are understood, whatever the decision is. The Koen case is a good example of this state of facts. Even if the plaintiff's claim was not accepted by the judge, the latter made a step toward him to show him that he did not mean to deny the legitimacy of his claim, but rather that he understood the meaning of it, and he did his best to represent this interest in court.
When the judge comes to deal with hard cases, in Ronald Dworkin's sense, such an attitude is the only way to preserve social peace. A counterargument would be to say that it is precisely when the judge has to deal with highly symbolic questions that he...
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