In 1789, both the U.S. Bill of Rights and the French Declaration of the Rights of Man and Citizen guaranteed American and French citizens the freedom of religion. How has the concept of religious liberty been applied, protected, and interpreted in both countries over the past two centuries? French political scientist Denis Lacorne and law professor Mathilde Philip-Gay join American political scientist Jonathan Laurence and law professor Michael McConnell for a discussion exploring the similarities and differences. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
This program was presented in partnership with The Cultural Services of the French Embassy as part of a series on freedom of religion and speech in France and the United States.
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This episode was produced by Jackie McDermott, Tanaya Tauber, John Guerra, and Lana Ulrich. It was engineered by Greg Scheckler.
PARTICIPANTS
Denis Lacorne is a researcher at the Paris Institute of Political Science’s Center for International Studies in France. He is the author of several books, including The Limits of Tolerance: Enlightenment Values and Religious Fanaticism and Religion in America: A Political History. Lacorne has been a visiting professor at the University of California Irvine, Johns Hopkins University, New York University, and a visiting fellow at Stanford University, the University of California Berkeley, New York University, and Columbia University, among others.
Mathilde Philip-Gay is professor of public law and co-director of the Center for Constitutional Law at Jean Moulin University Lyon III in France, where she also co-directs the university’s diploma in "religion, religious freedom and secularism." She is the author of Droit de la laïcité (Secular Law), as well as approximately 20 articles or case law notes in legal journals.
Jonathan Laurence is professor of political science at Boston College and an affiliate of the Center for European Studies at Harvard University. He is a former fellow of the American Academy in Berlin, Wissenchaftszentrum Berlin, Transatlantic Academy at the German Marshall Fund, Fafo Institute/Norwegian Research Council, LUISS University-Rome, Sciences Po-Paris, and the Brookings Institution. Laurence is the author of several books, including Coping with Defeat: Sunni Islam, Roman Catholicism and the Modern State and The Emancipation of Europe's Muslims.
Michael McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. He is the author of new book is The President Who Would Not Be King: Executive Power Under the Constitution, Scalia's Constitution: Essays on Law and Education, and Religion and the Constitution. His upcoming book, Establishment of Religion: Neutrality, Accommodation, and Separation, will be published in 2021. McConnell has argued 15 cases in the U.S. Supreme Court and formerly served as a Circuit Judge on the U.S. Court of Appeals for the Tenth Circuit.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Thomas Jefferson, Virginia Statute for Religious Freedom (1777)
- Declaration of the Rights of Man and Citizen (1789)
- French Constitution of October 4, 1958
- Denis Lacorne, The Limits of Tolerance: Enlightenment Values and Religious Fanaticism
- Denis Lacorne, Religion in America: A Political History
- Mathilde Philip-Gay, Droit de la laïcité
- Jonathan Laurence, Coping with Defeat: Sunni Islam, Roman Catholicism, and the Modern State
- Jonathan Laurence, The Emancipation of Europe's Muslims: The State's Role in Minority Integration
- Ed. Michael McConnell and Angela Carmella, Christian Perspectives on Legal Thought
- Ed. McConnell et al, Religion and the Constitution, Fourth Edition
- Marci Hamilton and Michael McConnell, National Constitution Center: Interactive Constitution, "The Establishment Clause"
- Roger Cohen, The New York Times, "French National Assembly Backs Law to Combat Islamist Extremism"
- European Court of Human Rights
- Tandon v. Newsom (2021)
- National Constitution Center, We the People podcast, "President Biden's Executive Orders"
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)
- Adam Liptak, The New York Times, "An Extraordinary Winning Streak for Religion at the Supreme Court"
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. I'm Jackie McDermott, the show's producer. This week, we presented a program in partnership with the cultural services of the French Embassy. The panel discussed the American versus French constitutions, with a focus on freedom of religion in the two countries. Jeffrey Rosen was joined by French scholars professor Mathilde Philip-Gay and Denis Lacorne, and American scholars Jonathan Lawrence and Michael McConnell. Here's Jeff.
Jeff Rosen: [00:00:30] Ladies and gentlemen, welcome to the National Constitution Center and to today's convening of America's Town Hall. I am Jeffrey Rosen, the president of this wonderful institution. I'm so thrilled to actually be at the constitution center for the first time, since the quarantine and with the beautiful building surrounding me, we can recite together our mission statement to gird ourselves for the learning ahead.
The National Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the U.S. Constitution among the American people on a nonpartisan basis. I am thrilled that today's program is presented in partnership with the cultural services of the French Embassy, as part of a series on freedom of religion and speech in France and the United States. I'm so grateful to our wonderful partners at the Embassy for their collaboration and I'm much looking forward to a series of programs that will spread a huge amount of light about the similarities and differences between our great constitutions of freedom and liberté. I'm now really thrilled to introduce our panelists, a dream team of constitutional thinkers about religious freedom and French and American constitutionalism.
Mathilde Philip-Gay is doctor of law and lecturer at the University Jean Moulin Lyon III in France, where she's co-director of the center for constitutional law. She's the author of many articles, including the book Droit de la laïcité (Secular Law), which we will be discussing today.
Denis Lacorne is senior fellow at the Centre d'etude et de researche internationale at Sciences Po. His recent book is the Limits of tolerance, enlightenment value, and religious fanaticism and Religion in America: political history, and it's such a great pleasure to see him today.
Jonathan Lawrence is professor of political science at Boston college, the author of many books, including, Coping with defeat: Sunni Islam, Roman Catholicism, and the modern state. And Michael McConnell is the Richard and Francis Mallory professor and director of the constitutional law center at Stanford law school and a senior fellow at Hoover, a former judge on the U.S. Court of appeals for the 10th circuit, America's leading scholar of Religious Liberty and the author most recently of a superb book we recently discussed on the We the People podcast, the President who would not be King: executive power under the Constitution, and his forthcoming book, Establishment of religio: neutrality, accommodation, and separation, of which will be published this year. Michael, I can't keep up with you and I cannot wait to read and learn from your next book.
Denis, I'm going to begin with you, if I may. The French assemble is debating a new law for strengthening Republican institutions that would among other things prohibit the wearing of the hijab by students under the age of 18. Tell us about this new law and what provisions it includes that are relevant to our discussion today.
Denis Lacorne : [00:03:42] Just maybe a quick reminder of there's already a law passed in 2004 that prohibits that the hijab in public schools. And then another law passed in 2010, which bans the niqab, wearing the niqab or the burqa in the public space. All public space. And in the continuation of all those, I would call restrictive laws, there's a new bill which has just passed the Senate and this is coming back to the national assembly, prohibits, would prohibit, if it's adopted, students from wearing the hijab in stadiums, in any athletic activities or gym classes and would prohibit wearing the burkini in swimming pools and also would prohibit special hours for women in swimming pools as distinct from men.
So that's the the provision. And of course the big question is, is that new possible prohibition compatible with French law and with French case law. I think it's open to question. It's quite possible that I thought of course ... the top constitutional court would object to those restrictions, after all university students in France can wear hijab. There's no prohibition on that. And there are many places where another provision, before I forget, is that the new law has drafted, would also prohibit private citizens, women who accompany students from public school to extra school, outdoor activities, like visiting a park or visiting a zoo, those women, even though they are not public employees would also be prohibited from wearing the hijab. So, that's the questions that are raised.
Jeff Rosen: [00:05:32] Fascinating. Thank you for setting that up so well. Michael, I think I'll ask you. If a similar law were adopted in the United States, forbidding high school students, for example, from wearing a hijab, would it be consistent with the first amendment, according to established case law and why or why not?
Michael McConnell: [00:05:50] It wouldn't be a hard case. It would be struck down immediately. It has two big problems. The first is a discrimination against a particular sect. If there were some kind of a neutral law that required every student's face to be exposed, maybe that would raise a free exercise problem, but not a sect discrimination problem, but specifically outlined something in the terms of its religious significance, it wouldn't last an hour. It's just completely contrary to our understanding of freedom of religion. Now, if there were some kind of a neutral rule about not having face exposed or whatever, then we would have a harder case. And it would depend at least in part on whether there are serious secular reasons for that. And my guess is that it wouldn't pass that, but at least it would be you know, I, there would at least be some arguments.
Jeff Rosen: [00:06:46] Fascinating. Mathilde, Denis said that it was an open question under French law, whether or not this bill would or would not be consistent with the French constitution. Tell us about the arguments on both sides, what the constitution says, and what the case law is that judges would consult in thinking this question through.
Mathilde Philip-Gay: [00:07:02] Maybe, I really agree with what's Denis just said, but I have two things to say. First, it's not only the hijab, but all the religious signs, which could be banned by the new law. It's not only hijab. It's not only Muslim signs. And secondly, this is the senate, just the French senate, who voted for the ban. And the senate is the second chamber. So, I think that the second chamber, l'assemblée nationale, won't vote the same no. The government has also announced that it is against it. That the second chamber would vote against the ban. So maybe there was a vote tonight, it's true, but I'm not sure that it will past at last. I think that the French second chamber won't vote the ban. It's against the constitution. It's against political view. The government's announced that it was against it.
Jeff Rosen: [00:08:16] And tell us why the government believes that it's against the constitution. What principles of the French constitution does it violate?
Mathilde Philip-Gay: [00:08:21] Directly the constitution. Since maybe the French tradition is to ban religious signs, but some political signs, and commercial signs, from schools, public schools. But the will is to ban religious signs for young children, not for students or young children because in France, always says, always wants that parents must choose the religion for their children and not the school. So, the idea is to ban religious signs for the kids, but just for the young kids, not for the students, to project the right to their parents to choose their own religious belief or religious education. I don't know if I am really clear. So, that's why I think it's against French tradition. And it's again, French constitution, because a constitution do not accept the general and absolute banning and the general and absolute ban of liberties. So, I think it would be against constitution. It's against tradition and against constitution. The first article of French constitution.
Jeff Rosen: [00:09:54] Fascinating. You, you just said against tradition, which dating back to Condorcet gives parents the right to choose the religion of their parents and against the constitution, which doesn't allow this absolute banning of liberties. Very thoughtful. Jonathan, you've just heard your colleagues compare and contrast the American and French approaches to this bill for strengthening republican institutions, which turns out to be complicated for the reasons everyone said. How would you, based on what you've heard so far, compare and contrast the American and French constitutional approaches to the wearing, to the bans on the wearing of a hijab.
Jonathan Lawrence: [00:10:30] Well, I would say the most comparable practice in the United States context might be the banning of something like gang colors in county schools or certain school districts, which I believe those sorts of prohibitions were upheld because the clothing or the colors were seen as divisive in nature and indeed to be a matter of public order. And I suppose this gets down to the question of what is considered an issue of public order and where. In France, religion is most certainly considered a matter of public order, whereas perhaps in the United States, it is primarily an issue of public liberties. The United States and its founding mythology was indeed founded as a place for the freedom of religion to be different than simply the religion of state. In France, the Republic's founding myth is that it was founded to be free from religion. To be free from the Catholic church in particular, which at the time was a very reactionary and of course, anti-Republican force.
The other thing to keep in mind is simply the degree of state centralization in a system like the French versus the federal nature of the United States and the localized sort of level at which these sorts of policies might be held. But the reason why the headscarf has been so divisive in France has not necessarily been because more and more girls are wearing the headscarf or because more and more women are wearing the headscarf. It's also because it's become a cultural flashpoint around which political parties mobilize, so that the very presence and visibility of Muslims and of Islam in the public sphere has, in some cases, caused the far right national front, the national rally party, as it's now called, to rise. And so to preempt the rise of the far right there have been centrist parties in the French political system that have tried to show that they can be tough enough on where religion overflows into the public sphere, so that the electorate doesn't need to take the extreme sort of choice of voting for the far right. The problem is that the electorate often prefers the original to the copy.
Jeff Rosen: [00:12:48] Thank you so much for that. Thanks for calling our attention to that crucial language in the declaration of the rights of men from 1789, the French constitution, which says no one shall be disquieted on account of his opinions, including his religious views provided their manifestation does not disturb the public order established by law. And you talked about that distinction between freedom to religion and freedom from religion in the U.S. And French traditions. Denis, let's step back. You have written such important books about the philosophical and historical sources of the French conception of freedom of religion and the evolution of different ideas of toleration over time. Parse that language about public order established by law and tell us, what did the framers of the declaration of rights in mind have in mind? What conception of religious freedom, toleration and religious liberty where they trying to achieve?
Denis Lacorne : [00:13:45] Yeah. What's fascinating here is and it's the history of it is not terribly well known, not even in France. It's the Article 10 of the declaration of the rights of man and citizen. No one shall be threatened for their opinions, including religious opinions provided that their manifestations does not challenge a public order established by law. So, all religious opinions are allowed. That's part of the secular tradition, including by the way, manifestation, provided that they do not challenge public order. And what's interesting is is the second half of the sentence. The initial draft was no one should be threatened for their opinions, including religious opinions, period. And at the time in 1789, when there was debated in the national assembly, a very conservative Catholic lobby organized by Bishop Gobel an Alsatian from Strasbuorg, who was the Bishop of Lourde in Palestine... and the candidier thought that was not good enough. And they objected to the first draft and they insisted that the be added the phrase, provided that their manifestation does not challenge the public order.
Now, what does that mean? In the context of the time? At the time, there was tremendous fear of proselytizing. Tremendous fear that once all religions are legally existing, the Protestants would take advantage of the Catholics and proselytize in areas of France, regions of France where you had no Catholics. So, in order to prevent religious visibility demonstrations by Protestants, they added the phrase provided their manifestation doesn't challenge the public order, meaning essentially, the Catholic controlled public order. So that was the restrictive nature of that law. And, oddly enough, with the rise of secularism at the end of the 19th century and the 20th century, that law, that segment, was used against the the Catholic church and not against the Protestants. So it's kind of an irony in history. But that's a very important a document.
Then, there are other interesting sources that we may allude to. For instance, historically there's Jefferson's bill establishing religious freedom in Virginia that was drafted in 1777. And that passed as a law in 1786, precisely at a time when Jefferson becomes an ambassador to France, and that's a fundamental law that excited the French a great deal before the French Revolution. 1786, three years before the French revolution, the French discuss Jefferson's bill establishing religious freedom with which to be very short, in fact, these establish the Anglican church in Virginia and prohibits any kind of payments to subsidize clerics or to subsidize our religious schools. So, that was a first form, if you wish, of the separation of church and state applied to Virginia. And the French wre very excited about it, published the translation of that bill immediately in 1786,. So we discussed, in a way, secularism three years before the French Revolution. And in many ways the Americans were ahead of the French on the question of laïcité.
Fascinating.
Jeff Rosen: [00:17:29] Michael, a large question to you. As Denis just said, both the French and American constitution makers are influenced by the natural rights tradition of the Enlightenment. Both read Jefferson on religious freedom and yet their constitutional guarantees are very different. Are you able to compare and contrast the original understanding of the American and French provisions regarding religious freedom?
Michael McConnell: [00:17:56] Oh, so that's a very big question, but I'll make a couple of brief contrasts. One is that the French provisions focus on opinion, and I gather from what Denis just said, that almost passed as a free proposition. The American provision refers to the free exercise of religion, which goes well beyond opinion. It's even, I think, well beyond manifestation to actually, according to the Virginia declaration of rights, it's the manner of of doing your duty to God. So, this is a much broader conception, much more active, having to do with you know, putting your religion into practice.
This idea that proselytization is a problem is completely foreign to the American experience. Jefferson's bill, for example, I'm surprised if it was so influential that the people didn't quote it against this conservative Catholic position because Jefferson specifically, his bill specifically guarantees the right of people shall be free to profess and by arguments to maintain their opinions on all matters of religion. And that means, you know, proselytization is perfectly fine. And then finally, a political point. You mentioned the natural rights tradition of the Enlightenment, which certainly was an important part of the American campaign against established religion and for free exercise of religion, but it was supplemented and indeed, in terms of actual popular opinion, overwhelmed, by the Protestant tradition, which taught which came to the same conclusions, but from theological grounds rather than natural rights grounds.
And it had to do with the supreme importance of people being able to perform their duties to God. And in Virginia and elsewhere, it was the most evangelical, most intensely religious elements of American society who were the leading political advocates of disestablishment.
Jeff Rosen: [00:20:12] Well, fascinating, wonderful encapsulation of, as you say, a very large question and that distinction between the natural rights and the Protestant tradition is extremely important. Mathilde, you have written a book about laïcité, and tell us what its essential qualities are and how it is relevant in French constitutionalism today.
Mathilde Philip-Gay: [00:20:34] Legally if you take a look of the principle of French laïcité, you can see that American secularism and French laïcité quite close. The most common definition French laïcité was given, in fact, the council of state, the French Consul d'Etat. And it said that there are three principles. First, the state neutrality. It's like in U.S., apparently, state neutrality. But in France, this is, it means strict neutrality of pubclic servants, neutrality of public schools. So, it's very special. The second principle is in fact, and Denis shows it, the freedom of thinking and the freedom of belief. It's the second principle. But there is a third principle, very important. This is equality and pluralism. And for this principle, the most important judge is not French, it is European.
There is the European court of human rights, which is the most important court to pay, to respect to this freedom of thinking. And for the court, the court says that it's part of the democracy to let everyone believe or not believe in different, agnostic, as want. But plurality is very important. So this is the definition of laïcité. But laïcité is not only in France a legal principle. It's also a philosophical and political principle. And if you take the definition, the political definition of laïcité, you will have some writers who think that French laïcité is at the reason in the public sphere, and if you take some other writers, you will find that laïcité is ... multi-culturalism.
So, there is a legal definition, which is very different from the political definition and the political definition, find it in the text that has been adopted tonight. This is a very political definition of laïcité, which is who wants to ban, to bleach prayers from the university, public science from the university and the public sphere. But the political conception of the political principle is not the legal principle. So if you take the example of the burkini, you remember when this burkini was banned for a lot of miles on French beaches, there was a lot of ban of burkini. This is a political ban. But the French consider states decided for all the ban, that it was forbidden by the constitution. So in fact, the ban was not legal.
We really have to make the difference between the legal laïcité, the French laïcité, which is not so different--I assume what I say--but is not so different from the American secularism and the political one, which is, can be very hard, very difficult on the religion.
Jeff Rosen: [00:24:14] Fascinating.
So helpful that you gave us these three principles of laïcité, which was embraced in this 2004 report, as you mentioned. First, neutrality of the state with regard to religion or belief; second, religious freedom, respecting public order; and third, pluralism, which directs the state not to overlook any religion, even if it doesn't recognize it. So, Jonathan, I'm going to ask you the tough question that's Mathilde just raised. Do you agree or disagree that when it comes to the legal or constitutional definition, that there's not a great difference between French laïcité and American, I don't know what you want to call it--separationism-- that's a contested term, or do you think that there is a greater difference between the two constitutional traditions than she suggests?
Jonathan Lawrence: [00:25:00] Well, I think the problem isn't necessarily with the American concept of freedom or with the French concept of laïcité, but rather in their application. So each of these countries has a major original sin. The problem with American freedom was never its conceptualization. The problem was that there was slavery. There was a problem with its realization. American religious pluralism, by contrast, is now a very equally applied principle. If you want to look at one example, the suspension of alternate parking rules in major cities, you have everybody's religion in there as being recognized. The French original sin, in this context, may well be colonialism in the majority Muslim world. Because the great concept of laïcité as it was elaborated over the course of the 19th and earliest 20th century was simply not applied to the many tens of millions of subjects who were Muslim living under French rule. And that was for strategic reasons having to do with fears of Ottoman influence and fears of British influence over their French Muslims.
But the effect of this is that it seems like France is encountering Islam for the first time in the 1980s, which is absolutely false. That is a full century of encounters before that, it just chose to treat it as an object of Realpolitik. The question now has become one of immigrant integration, but even more importantly, the perception of immigrant integration. And the security issues that are very real, and that are very related to the reality of a very politicized religion in some parts of the world, and even in some parts of France, and the links of that to violence are real. However, there's a grand simplification that takes place. And you could say that as partly the product of the exigencies of democratic politics, unfortunately. That politicians are responsive to fears and in some cases they even help generate those fears for their own electoral advantage.
Jeff Rosen: [00:27:11] Thank you. Very helpful distinction between the principles themselves in their application, rooted in different historical and contemporary experience. And well-worth picking up on many of those points. Thanks to those who are adding questions and thanks to John Meader for giving us the texts of the Georgia, Connecticut and New Hampshire revolutionary era state constitutions, which do have public order exceptions. New Hampshire, you can free freely exercise provided you do not disturb the public peace or disturb others in their religious worship. And you can find those texts on the national constitution center's Interactive Constitution and compare and contrast.
Let's go back to a contemporary issue. Denis, the U.S. Supreme court has been ruling in favor of religious liberty, in particular exemptions from laws regarding COVID for non-religious businesses that don't include churches and other places of religious worship. So just last week, the Court by a divided vote held that a state could not ban gatherings of 30 people that affected religious institutions because 30 people weren't prohibited from gathering in non-religious businesses. Have there been in France, any religiously based challenges to COVID quarantine orders? And how have they been--and how would French courts deal with requests by religious institutions for exemptions from generally applicable laws?
Denis Lacorne : [00:28:42] There has been complaints from religious authorities. In the first phase, the first hard COVID lockdown last year in March, April, until June, complaints about the fact that churches were treated like a regular business and that was shocking for religious authority. So they complained about it. Did they go to court? I'm not sure. I don't think so, but that should be checked. And then later today, we have a third lockdown and the public authorities have a milder, softened their position. And now you can attend a religious service, but you have to respect a limited number of people depending on the size of the church or the cathedral. So, you have to keep space and a limited number of people for that. For a funeral as well. For a wedding. You cannot have a big crowd without precaution, wear the mask and respecting social distance.
So, but we know that particularly among traditional Catholics the traditional Catholics have not respected those recommendations by the government and have been fine recently for not doing the kind of precautions that scientists and the government were asking them to do. Or they're just been pictures, which you've seen in the media in the past couple of weeks, of traditional Catholics massing in a small church, chanting and not taking any kind of precaution. And I believe there were fined, not heavily, but the priests had to pay a significant fine for not respecting government instructions. But to my knowledge, nothing came out in the court court system.
Jeff Rosen: [00:30:33] Michael, you, more
than any other scholar have helped to influence the modern Supreme Court's conception of religious liberty. Describe for our audience the reasoning of the justices who have held that COVID restrictions that don't treat religious institutions the same as similarly situated secular institutions violate the constitution. And again, compare and contrast, could priests in the U.S. be fined for not restricting COVID restrictions and does the different STEM from constitutional differences or from, as you were suggesting before the show, a different attitude toward experts and authority?
Michael McConnell: [00:31:12] Well, I think that the key point of reasoning in the Supreme Court's recent decisions is that the government cannot, when it decides which activities are essential and can be allowed even under COVID, that it can't put religion down at the bottom of the list. That if other things like casinos and big box stores and things of this sort are allowed to operate with many people, that the churches may think that they are not quote essential unquote, and the first amendment answers the question of essentiality of the public health questions are of course, to be determined by the government and the public health, you know, authorities. But if it's okay for casinos and big box stores to have lots of people, then the public health authorities have spoken. And the only question is why churches should be treated any differently than this.
Now, I do think culturally, there's also a difference between Europeans in general and perhaps particularly French, I'm not sure, and Americans are skeptical of the sort of bureaucratic expert people at the top were not always convinced that they are as objective as as they may claim to be. And I think this played out in a big way in litigations, especially say, New York, where the churches and synagogues were able to show that when they were open over the summer, there had not been a single outbreak of COVID, being shut down. They wanted to know, well, what's the expert opinio? What really is the science behind saying that we're a problem when there hasn't been any problem. And, you know, the court doesn't really overturn the public health expertise, but I think the skepticism about this may have caused the court to be more aggressive in its demand for an equality of treatment than it might otherwise have done.
Jeff Rosen: [00:33:29] Mathilde, in her dissenting opinion, in the recent case on April 9th from California, just as Elena Kagan said, California limits religious gathering in homes to three households, if the state also limits all secular gatherings in homes to three household. It has complied with the first amendment and the state has done exactly that. The law does not require that the state equally treat apples and watermelons. So, she essentially said it was okay for the state to ban in-home religious gatherings, as well as it also banned in home non-religious gatherings. How would a French court deal with a similar ban on religious gatherings in the home? And is there more discretion in the French constitution to have COVID lockdowns that don't make exemptions or exceptions for religious institutions?
Mathilde Philip-Gay: [00:34:19] We have quite, and maybe I will answer to Michael and then and answering to you too, because in France we had the same debate, you know, and the churches have closed last March. On May 18th, the French council of state considered that religious freedom is fundamental and that the churches must remain open while respecting precautions. And theaters have tried to reach a similar decision. So, they ask the council of state to be open, but the council of state said that cultural is not a fundamental freedom, it's a fundamental right. There is a right of culture. There is not freedom of culture. So the theaters must remain closed. So, if you if we think about this decision, you can see that in France, religion, freedom of religion, is both the others' liberties and the rights of culture.
I don't know if I am clear or not, but the churches can reopen, must reopen, for the French council of state because the freedom of religion is very important, but the theater can remain closed. So, it's interesting to see that for French judges, religious freedom is above the others. So I'm sorry. I will stop.
No, that's
Jeff Rosen: [00:36:01] a very important distinction between the rights of theaters, which are below those of churches and the theaters can remain shut, sooner than the churches. But Jonathan,may the state prohibit churches from opening, as long as it prohibits similarly situated non-religious gatherings in France? My sense is that the law of religious exemptions is more robust in America than in France. And of course, there are many other well-known examples, including most famously we have in the Q and a box a question from one of our friends about how France would deal with the question of the baker, who didn't want to bake the cake, how would France deal with the case of the Baker who didn't believe in marriage equality and refuse to make a case for a same-sex couple? That's a question from our friend, Bonnie Zedick. Can you compare and contrast the French and American approach to religious exemptions more generally?
Jonathan Lawrence: [00:36:58] Yes. Well, I would say that I read some complaints from French bishops about the restrictions, criticizing them as on unduly harsh and reminding them in a sort of institutional memory kind of way of the anti-clericalism of the third Republic, that the last time they faced such state repression was back in the late 19th century. But of course, since then, there's been a grand settlement between the state and Catholicism. Including the rupture of 1905 and the rupture of laïcité, but also they made up, right. They reestablished relations between France and the Vatican, once it was established as a nation state. And since then have been building in exceptions to French laïcité for the vast majority of French citizens who are, of course, of Catholic origin.
So, one of the first ways this happened was the chartering of parochial schools, confessional schools, with support from the French state for their costs. That is why laïcité in some ways has come to be seen as catholaïcité because it has a Catholic inflection that, even though it's true, for example, Muslim girls, who wanted to wear a headscarf could simply opt not to go to public school, but unlike Catholic girls or Jewish boys, or what have you, there, aren't very many Muslim schools for them to go to. Whereas, thanks to the settlement that France has made with other religious communities, you do have ample institutions that are available. But all, both countries have limits to religious freedom. Especially when it concerns public health. In the United States you're allowed to be a member of Scientology. But I have read of court cases in Florida where if dehydration occurs in the course of certain treatments, then the state may intervene and take custody to make sure that the person is properly hydrated. In France, you may be a Jehovah's witness. But if you refuse to use the opportunity of a blood transfusion to save the life of your child, the state may temporarily take custody of your child.
Now, of course, the extreme way that this can go is that the modern state also claims custody of your children, of course, between the ages of six and 16, that's called universal public education. What France is doing, which is new, with this law on separatism is to make that floor, that age, a little bit lower, saying that the state essentially wants your children to be exposed to the common project of the Republic of the nation earlier in order to prevent other influences from creeping in.
Now, of course, you know, a lot of this is simply in the eye of the beholder and how much you evaluate the danger of staving encroachment versus the danger of, say, religious totalitarianism. And, you know, you could make an elaborate argument for for either case.
Jeff Rosen: [00:39:57] Very interesting and a good important contrast between the French effort to protect students from the influence of religion at an early age and the American emphasis, which in recent years has been more on religious neutrality, when it comes to schools and treating religious and non-religious schools on equal terms. Denis, you've written such important books. I have them here, L'Invention de la République américaine; La crise de l'identité américaine. When you think of the evolution of the American approach to religious liberty, we've talked about the founding, but I want to talk about today. Many observers have noted-Adam Liptak had a piece in the New York times just last week--that religious liberty is winning at the U.S. Supreme Court more frequently than at any time in its history.
So, compare and contrast the American and French approaches to religious liberty today. And as an observer of the American scene, is religious liberty becoming more protected than it was a generation ago? And how does that compare with the evolution of France?
Denis Lacorne : [00:40:59] Well, I would say in France, if you take a long historical perspective, laïcité's secularism initially was a kind of robust or even aggressive fighting secularism, fighting against Catholic schools, fighting against teaching congregations. That's the way it started in the beginning of the 20th century. It was not a you know, neutral laïcité. And then you have the opposite trend, the opposite type of laïcité, which I would call a kind of open and accommodating laïcité, which for instance, as Jonathan just said was willing to finance the Catholic parochial schools, even though we had this strong principle of separation of church and state.
And the problem today is that we have, it often happens before important elections, particularly presidential elections. There's always a trend to toughen the laïcité, to make it more anti-religious before an important presidential election in order to show that potential candidates are not going to be or rather will have a good image, vis-a-vis the extreme right, which remains most influential in France. But separation of church and state means, is not, as was just said, not as strict as it seems. And when you have a return to a robust laïcité, which is very much what happens with the law that we've been discussing, the law for strengthening Republican principle.
What's interesting, and it's a new phenomenon in France toda, it's a law that has been criticized, not just by lawyers, but also by religious groups. There was a petition signed by Catholic Bishop, Protestant reverends, and Orthodox priests against the law, saying that it was in fact, a threat to free speech and a threat to the free exercise of religion and a kind of regression to the older time, when you had a concordat, when you had at the time of Napoleon, a concordat signed between the state and the heads of different churches regulating religion. And so this kind of protest is rare in France. You don't see it too often. As you have, in fact, now are kind of coalition of Catholic, Protestant, and Orthodox priests who are in fact appealing for a restoration of a more peaceful, open laïcité, and they are concerned about the kind of toughening that we see with the impending law on strengthening of Republican principle.
And what what's at stake for those organizations, not that much, actually, because there's no real threat against Catholic churches or Protestant temples, but what's at stake is those organization have philanthropic organization, which they do. And those philanthropic organizations with under law, would be harder to manage. They would be, they would have to commit themselves for instance, to accepting republican principle and secular values, which they haven't done before. So it would make it a little more complicated. It would be more complicated to get subsidies, to build or repair a school or a bus, so on and so forth. So you have, you know, separation of church and state, but also an ongoing conflict between church and state. And that's an interesting development.
Jeff Rosen: [00:44:40] Indeed. And thank you for emphasizing that conflict, which has led to precisely the edge cases that you described. Michael, I'm eager for your response to Adam Liptak's article. His statistics said that there was a 35% increase in the rate of rulings in favor of religion in orally argued cases, culminating in an 81% success rate in the Court. Liptak quoted scholars saying that this had a partisan valence, that not a single judge appointed by Democrats sided with religion, while 66% of judges appointed by Republicans did. And he quoted professor Elena Kagan of accusing the Court's conservatives of weaponizing the first amendment to use free expression to intervene an economic and regulatory policy. I believe that you have a different take on these recent decisions, how would you account for them and why do you think they're correct?
Michael McConnell: [00:45:36] Well, I'm very skeptical of counting cases this way, because the only way, you know, you have to compare this to the background culture and what's going on and one of the things that's happened in the United States with our increasing ideological polarization is that that has spilled over also into questions of religion. That was, you know, there was a time when it was the liberal, progressive justices on the Supreme Court who were the great defenders of of religious freedom.
But in more recent times, the left has become heavily secularized. The numbers on this, I don't, I can't, you know, quote the actual numbers, but the polling data, you know, indicate that people who are self-identified as progressive are now much less likely to be religious and often contrary to religion than they were in the past. And this has the effect that there are now laws in progressive, you know, passed in cities and in progressive places that are, you know, that prohibit religious practice that would never have been passed 20 years ago. And I think that is bringing an entirely different set of cases to the Court.
And it is also true then, and I don't think Liptak is wrong, to say that, you know, it is more the conservative justices who are now defending religious liberty on the Court. But, he overlooks how widespread even some of the most important religious freedom cases in the Supreme Court have been either unanimous or seven to two, recently. The, you know, unanimous decision that religious organizations are able to hire and fire ministers and even religious teachers, without regard even to discrimination laws. Unanimous decisions in favor of protecting the rights of Muslim prisoners to wear beards and similar practices as that. Unanimous decision requiring a government action be overturned unless that impedes the practice of religion in the absence of the compelling governmental interest. So, let's not overlook the fact that there is still a large reservoir, especially within the law, of support for freedom of religion across the board. And it's not all a left-right thing.
Jeff Rosen: [00:48:05] Thank you for reminding us of those unanimous and seven to two decisions. And the fact that the partisan valences are complicated. Mathilde and Jonathan, too, I think these will be the final interventions, just because we always end up time, but we have so many good questions. I'm just going to read a bunch of them and Mathilde pick one or so that you'd like to respond to. Mark Weinstein says many European countries banned kosher slaughter, and some localities are banning circumcision of babies with such bans survive in France? And what would happen if such bans in other countries were upheld by the European court? And Elizabeth Bailey says, how has France dealt with the teaching of Islam in schools? Has it has banned any Christian symbolism in schools? Either of those questions would be great to hear your thoughts on.
Mathilde Philip-Gay: [00:48:48] In France, there is a general ban of signs in school, but maybe I speak against as a jurist, maybe when you speak about French laïcité, we must not forget that French laïcité still accepts diversity, and it's not a uniform system. That means that there are parts of the French territory where the law is not exactly the same that's in the other parts of the territory. For example, in Alsace-Moselle, for historical reasons, I don't actually know it, there are three religions, Catholic, Protestant, and Jewish, which can exercise the public service of religion. And in the school, they never have been secular. One hour of religious instruction is dispensed every week in elemntary school and there are some Catholic signs or Jewish signs in the school. You can have religious signs at school.
So, we must always say that laïcité is also a diversity system, not a uniform system, part of the territory named Maillot, it's a French department, a part of the French territory where 80% of the population is Muslim. And in this part of the territory, you are also finding public authorities, which can pay some Muslim judges to help the judges to mediate before going to court and they are paid by the French public authorities. So, all that I can say is that we must be careful when we speak about French laïcité law, because there is a diversity, not a uniform system. But to return to the debate before, I must say that there is in addition to penalization movement, there's also help through the law and political authorities try to finance ... and French law prohibits discrimination, but they accept also religious companies.
So, we must really be careful because there is a lot of different cases and if you compare, you have to take care of the part of the territory, where is the case you want to explore. I don't know if I am clear.
Jeff Rosen: [00:51:32] Very clear. And thank you for reminding us, we have the same thing, of course, in America with the federal system and the results of the case may depend on the state or the departement in which you're bringing the case. Jonathan, I leave you with a very difficult assignment, which is to sum up this completely fascinating discussion, basically in a minute or two at the most, because we are at time and I will let you do that in whatever way you think best. What final thoughts would you like to leave our friends with about similarities and differences between French and American approaches to religious liberty?
Well, I did wantJonathan Lawrence: [00:52:02] to take up just the last couple of questions, which I thought were also quite good about the issues of circumcision and animal slaughter because it is regulatory of certain threats, but also certain realities of religious freedom in Europe. Both halal slaughter and Islamic circumcision have been targeted in fact, by bills and proposals in many European countries. And they have been defeated largely because the slaughter, animal slaughter and circumcision rituals are virtually identical to the Jewish Kashrut and and Britney law.
So, the irony is that the desire to protect Jewish religious freedoms in Europe, which of course nearly lost its entire Jewish population during an actual genocide, just a couple of generations ago, winds up protecting the religious rights and freedoms of successive generations, including some other population that no one expected would be in Europe today, which i the tens of millions of North African and Arab origin citizens. Just on the point of Islam in schools, I think that it is coming in slowly but surely as again, part of the constructive measures that come along with a lot of the repressive acts, such as banning headscarves, the same proposal that ban headscarves also made sure to include more information about Islamic history and more information about French Islamic history in particular.
Jeff Rosen: [00:53:31] Thank you so much, Denis Lacorne, Michael McConnell, Mathilde Philip-Gay and Jonathan Lawrence for a wonderful discussion. So rich, so informative about the similarities and differences between our great constitutional traditions. I really want to thank my colleague and friend Vincent Michelot, the attacheeé for higher education at the French Embassy who conceived of this joint program between the embassy and the national constitution center. And we are much looking forward to our next program, which we'll compare and contrast freedom of the press and expression in the U.S. and France. And thanks to all of you for joining, have a wonderful day. Merci! À bientôt. Bye everyone.
Jackie McDermott: [00:54:14] This episode was produced by me, Jackie McDermott, along with John Guerra and Lana Ulrich. It was engineered by David Stotz. Please rate, review, and subscribe to the show on Apple podcasts or follow us on Spotify and join us back here next week. On behalf of the National Constitution Center, I'm Jackie McDermott.
