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Secular Freedom

"The religious atmosphere of the country was the first thing that struck me upon arrival in the United States. The longer I stayed in the country, the more conscious I became of the important political consequences resulting from this novel situation.

In France I had seen the spirits of religion and of freedom almost always marching in opposite directions. In America I found them intimately linked together in joint reign over the same land."

                        Alexis de Tocqueville Democracy in America, 1835


De Tocqueville’s comments, quoted above, were taken from a section of his book titled “Causes Tending to Maintain a Democratic Republic” and he most definitely felt that the Christian religion, across all the extant denominations, including Catholicism, was one of the main factors, which, by virtue of it instilling a certain uniformity of viewpoint and sense of community, allowed democracy to flourish in the early 1830’s United States. It’s safe to say that much of these difference between European, and particularly French attitudes toward religion and freedom and those found in the United States, persist until this day.

France insists it is a secular nation, one in which there is no state religion and no influence of religion upon state politics. Their term for this is laïcité. The French Constitution makes no mention of God or religion, although the Declaration of the Rights of Man and the Citizen, written in 1789 (the same year the U.S. Constitution came into effect) includes the statement, “No one may be disturbed for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law” (article X). The Declaration is considered to have the same legal weight as the Constitution.

The United States Constitution’s only mention of religion in its body in the statement forbidding any “religious test” as a prerequisite for public office. The First Amendment to the Constitution says,  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The difference in language between the French and American statements reflects a difference in orientation—the same one noted by de Tocqueville in 1835: An absolute prohibition against interference in the free exercise of religion within the United States and a qualified prohibition against interference in expression of religious opinions, so long as they “do not trouble the public order” in France. At the same time, the prohibition of the establishment of a state religion was also much firmer in the United States Constitution.

In 1789, the French Revolution made France a secular nation, breaking its historical allegiance to the Catholic Church. However, Napoleon re-established this tie and with the Concordant of 1801, allowed the Church to resume its dominance, or sub-dominance, given Napoleon’s personal power, in state affairs. In the last quarter of the 19th century, culminating in the 1905 Law on the Separation of Church and State, secular forces removed Church presence in hospitals and schools and abolished previously legally required public prayers and religious aspects of legal oaths as well as religious symbols in courtrooms. In 1905, the new law, reflecting this secular turn in attitude, included removal of all government funding for religious institutions and functions, reclamation of government property being used by the Church and repayment of all loans taken out by Church or its institutions, and asserted that "The Republic does not recognize, pay, or subsidize any religious sect.” The law also banned any religious symbols  "on public monuments or in any public place whatsoever,” except religious buildings and museums, thereby insuring complete separation of Church and State. At the same time, the law guaranteed "the free exercise of religion under the provisos enacted hereafter in the interest of public order.” Again, freedom of religious expression was guaranteed, so long as it did not interfere with the public order.

Against this historical background, we need to examine why the actions against expressions of the Muslim religion over the last several years, which seem egregious by American standards, are accepted by the French and other European nations. 

Only 5 European countries mention God in their constitutions and the constitution of the EU does not. Despite it’s long religious history, reverence for historico-religious sites, and tumultuous battles between Catholics and Protestants and Christians and Muslims, present day Europe, in general, with France being the poster-child country for this, is fiercely secular. Statements such as were made by Republican Vice Presidential candidate Mike Pence that “I'm a Christian, a conservative and a Republican in that order," are applauded in the United States and not considered out of the mainstream, but would be unusual in France. Marine le Pen, president of the National Front, a National Conservative Political Party in France, which has opposed immigration, has railed against the supposed “Islamization” of French institutions, and who many think is similar to Donald Trump, is strongly in favor of French secularism and complete adherence to the 1905 laws separating church and state. The conservative, nationalist movement in France is not a religious one, unlike that in the United States.

In France, the wearing of burquas (full body dress, which hides the face) is forbidden, as well as the wearing of headdresses in school. Praying on the street is also forbidden. The latest ban has been on wearing the “burkini,” a swimsuit that covers the body, fits loosely on the top and has a hood to cover the hair. It was invented in Australia to allow religious Muslim women to enjoy the beach. In an iconic picture, two Nice policemen, on the beach in front of the Promenade d’Anglais, where only a month and a half before a Muslim terrorist killed 82 people with his truck, stood over a woman in a burkini and demanded she remove it. The Council of State, the highest court in France, ruled the ban illegal (although the ruling is being appealed) and suspended such bans until the case is settled. Both President Hollande and former President Sarkozy are in favor of the ban.

In the United States it would not be possible to restrict religious expression in the way it has been restricted in France (and France is not alone: in Austria a teacher sued a Muslim father for refusing to shake her hand, which would have violated his religion’s prohibition against cross-sex touching, and in Switzerland, Muslim students, despite their protest, are required to shake teacher’s hand, regardless of the gender of the teacher or student). In fact, in America, it is almost the opposite. Our Religious Freedom Restoration Act (RFRA) allows laws that apply to everyone, such as prohibiting the ingestion of hallucinogenic drugs, or requiring businesses to provide contraceptives as part of employer-provided healthcare, to be set aside if they violate the religious tenets of an individual, group, or family owned business.

In France (and some other European countries), allowing public religious behavior that sets one group apart from everyone else is seen as disruptive to the national order and a blow against secularism. It has also been claimed, by the authorities who have supported such things as the ban on burkinis and headdresses and of forcing students and parents to touch teachers, that many of the Muslim religious observances restrict the rights of women (banning the burkini was said to be done to “protect” Muslim women from the demeaning practice of making them cover their bodies in public – whether they agreed with the practice or not). Most importantly such public displays of religion undermine assimilation, the process of immigrant groups adopting the cultural practices of the majority population. Assimilation is seen as necessary for maintaining national identity. In America, the concept of assimilation has been broadened to include multiculturalism, the preservation of cultural practices by immigrant groups, with this seen as a way of enriching the overall culture. This was also the thought in some European countries in recent decades, but with the massive influx of immigrants, who speak different languages, dress and worship differently, and have cultural values that often conflict with the secularism, individual freedom, gender equality and prohibitions against discrimination on the basis of sexual orientation, that characterizes modern Europe, multiculturalism is seen, in the words of German Chancellor, Angela Merkel as a “sham.”

As an American, the French laws prohibiting religiously motivated behavior by Muslims appall me and, at least in the case of the burkini ban, I am pleased to see that the French court agrees with me. But I am American, not French. I was raised on stories of religious discrimination against Jews, against Mormons, against Quakers, against Catholics. I was taught to admire figures such as Roger Williams, who founded Rhode Island as a haven for persons who didn’t follow the dominant Puritan religion in Massachusetts, and Anne Hutchinson, the dissident puritan woman who now has a statue, which refers to her as  "courageous exponent of civil liberty and religious toleration" in front of the Massachusetts Statehouse, and Joseph Smith, murdered by a mob for espousing Mormon religious beliefs. Of course, French and European lore has similar figures, even more of them.

I take freedom of religion for granted. I become incensed when Donald Trump wants to ban Muslims from entering the country, when Ted Cruz says that only Christians should be allowed in for the time being, when Newt Gingrich wants to institute a test to determine whether Muslims already living in the U.S. believe in Sharia and if they do, to deport them. Such suggestions seem un-American. And a long history of court decisions indicates that they are un-American.

But I can step back and wonder why protection of the expression of religious beliefs has such a sacred place in American law and in our culture. A historian would be able to answer that question better than I, and particularly, might be able to say what sets America apart from Europe in this regard, since the histories seem to me, a novice with regard to history, to contain many similarities. Clearly, the American veneration of religion as an integral part of our democratic tradition goes back to the time of de Tocqueville, who remarked upon the difference between the United States and France. Reading the Federalist Papers and reading about the reaction to them, it’s clear that the minimal inclusion of religion in the constitution engendered a great deal of criticism in the late 1780’s, when the critics, many from rural America, felt that without making the country’s Christian background  an official one, there would be no common ground for holding the republic together. The critics lost, but they at least earned a strong first amendment forbidding the government from abridging their right of anyone to follow his religion as he pleased.

I’m an atheist and to me it seems that elevating religious considerations above secular ones, as in the RFRA, makes little sense. At the same time, I recognize that the fact that I do not hold any religious views as sacred doesn’t have anything to do with the fact that many other Americans do, and that for some, such as Mike Pence, those are the most important values they have. But Governor Pence, himself, went too far when he attempted to pass an Indiana version of the RFRA that would allow merchants to refuse service to customers whose sexual orientation or other characteristics violated the merchant’s religious belief. To me, that is religious freedom gone rampant. It is no longer freedom; it is tyranny of religious beliefs over other considerations. Pence modified his law, but his actions demonstrate the danger of elevating religion above all else in making public policy decisions.

Secular versus religious values represents a difficult arena in which to try to make public laws that are fair to everyone. That’s because people have different values, and sometimes these values are in conflict. Both Europe and the United States are dealing with this issue now. It will take careful, thoughtful consideration from all, because the answers will be determined as much by history, culture, tradition and current value systems as by logic or reason.



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