Sometimes we do not appreciate what we have until we see the troublesome effects of not having it. France has a “head scarf” ban that discriminates against Muslims and all others who wear religious symbols—an action that could not occur in the United States because we have the First Amendment.
While everyone is debating free speech, the second half of our First Amendment, it is the first part of the First Amendment that we have and the French do not.
Here is the wording: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” The first clause is commonly called the “Establishment Clause” and was written because the founders of America sought religious freedom and wanted to avoid European theocracies.
Some Americans complain that the Establishment Clause “has taken God out of the school.” But in 1963, the U.S. Supreme Court made it very clear that it is fully Constitutional to study the Bible (or other religion’s scriptures) as literature, history or comparative religion if presented as an object of study and not to proselytize. The French likewise have a constitutional requirement of separating state and religious activities similar to our Establishment Clause.
We often overlook the second clause of our First Amendment, called the “Free Exercise” clause. That is where we do not make the mistake that the French are making. We do not prohibit the free exercise of religion. As with all absolute statements, there are limits. We insist Amish children attend school to a certain age. We faced an earlier conflict between Mormon polygamy and civil marriage laws. We drew a line on underage marriage in the David Koresh Branch Dividians episode near Waco, Texas. Parents may not use religious reasons to allow a child to die from lack of medical treatment. And to have a driver’s license, you have to expose your face for the license photo.
But France has no Free Exercise clause. Faced with concerns rooted in increased immigration, their National Assembly amended their French Code of Education on March 15, 2004. The Law #2004-228 applied their law on separation of church and state to prohibit “the wearing of symbols or garb which show religious affiliation in public primary and secondary schools.”
This French “secularity law” did not ban specific symbols but aimed to remove all “signs and behavior...whose wearing immediately makes known a person’s religious faith.” This ban applied to government institutions and included public schools and universities. It therefore banned all Christian symbols including a nun’s habit, Muslim symbols and veils, Sikh turbans and Jewish symbols including the yarmulke (skullcap) worn by Jewish male students.
However, because of the variation in religious obligations and the number of people affected, this law is considered by many to target the wearing of Muslim veils and head scarves. This “khimar” is viewed as a required article of faith and is part of hijab or the code of modesty for Muslim schoolgirls. What they view as a personal homage to their god is seen in French law as touting a religious symbol.
This French “secularity law” passed with a vote of 276 to 20 and was in place the start of the 2004 school year. Since then, many have criticized the French ban, including a Roman Catholic Cardinal who warned “This clumsy law risks reopening...a religious war.” An insightful French Muslim student asked what the human rights difference was between the Taliban who forced women to wear hijab and the French who forced them to remove it.
In addition, many European countries have laws making it a crime to deny the Holocaust. This is seen as a preferential law defending Jewish concerns while the French ban mainly affects Muslims.
Our First Amendment prevents us from criminalizing Holocaust-denial. It also keeps us from continuous haggling over how small a piece of religious jewelry must be before it is not “of plainly excessive dimensions.”