TWO POSTS ON RELIGIOUS FREEDOM

On Chirac's pre-Christmas speech proposing to ban outward signs of religious faith in french classrooms, see Kerim at Keywords, here, and Scott Martens at Fistful of Euros, here. Kerim notes rightly that historically constitutional rights to religious freedom have served to protect religion in the U.S.; an aggressive public secularism has been less firmly rooted in American constitutional principles than it has been in France, beginning with some of the radical strains of the French Revolution and continuing after 1905 (something I learned from Alfred Grosser; see the reference in the post below). Nonetheless, I think that this difference, while real, can be overstated, for two reasons.

First, one can overstate the extent to which U.S. constitutional principles have in fact protected religion as such rather than majority religions (and protestant christianity in particular). Consider, for example, the Blaine Amendments (recently more interesting because of the red-hot religious scholarship case of Locke v. Davey, see here) and the history of suppression of mormons (see here). Protection of "religion" has often meant protection of protestantism and active suppression of other religions, for a variety of reasons including the presumed incompatibility of some religions with the virtues of American republicanism.

But secondly, one can overstate the extent to which public secularism is not a part of American constitutional approaches to religion. I still think that the post-WWII and pre-Rehnquist Court approaches to first amendment religious freedoms have some virtues. A thumb on the scale in favor of separation might be a sensible approach under conditions of religious pluralism, when combined with a consciousness of the history of oppression of minority religions. As Martens shows, however, the current French approach to public secularism can be read as a thinly veiled attack on muslims, or, at the very least, the potentially oppressive expression of French cultural anxieties concerning immigrant populations.

So it's a tough call. On the one hand, I don't think that the kind of shock expressed by Professor Bainbridge at the continued history of the Blaine amendments is particularly helpful, since the relevant question, to my mind, is the extent to which members of minority religions are being oppressed. Members of large, politically strong religions can take care of themselves; in fact, that's one of the reasons why we're getting cases such as Locke v. Davey. On the other hand, the use of public power to exclude religions will likely be used disproportionately against minority religions, which is bad.

At any rate, read both posts. Martens is particularly interesting on Belgium, and he gives one more reason to think that Canadians have navigated religious freedoms in a sensible fashion -- they accomodated Sikhs in the RCMP by creating an RCMP turban. Cool. Good work, folks.