- The Washington Times - Monday, February 23, 2004

On Feb. 10, 2004, the French National Assembly voted 494-39 to prohibit the wearing of Islamic head scarves in public schools. The prohibition is facially evenhanded among religions in forbidding “signs and dress that conspicuously show the religious affiliation of students.”

Its ostensible purpose is to protect a secular state. According to Prime Minister Jean-Pierre Raffarin in hailing the magnitude of the legislative triumph, “The Republic and secularism are strengthened.”

But the timing and arguments surrounding the legislation show an anti-Islamic motivation. Its secular state justification is patently bogus. And the prohibition on religious garb has already inflamed France’s climbing Muslim population and weakened national unity.

The bill was introduced after French Muslims had surged to 5 million and fears of Islamic terrorism had spiked in the wake of September 11, 2001. France’s prevailing separation of church and state, decreed in 1905 by the Third Republic, accommodates religion in public life. The eastern provinces of Alsace and Lorraine, for instance, which were German in 1905, maintain a Concordat relationship with Paris that enables clergy to receive government salaries.

Article 1 of the French Constitution enjoins both secularism and respect of all beliefs: “France is a Republic, indivisible, secular, democratic and social. It shall ensure the equality of citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.” In 1989, the French Constitutional Council declared illegal a blanket school ban on religious signs.

French governments have occasionally voiced squeamishness about religious symbols in public schools. In 1937, the education minister instructed head teachers to exclude religious signs from their establishments. A successor in 1994 maintained that “ostentatious” signs could be banned, but left the interpretation and administration of the opaque announcement to head teachers.

The French government’s contemporary epiphany about an immaculate school separation of church and state, however, was sparked by the spread of Islam, a recent religion on French territory.

In an address to the nation on Dec. 17, 2003, President Jacques Chirac unconvincingly asserted the urgency of excluding student symbols of religious affiliation to preserve the principle of secularism enshrined in the French Constitution. But the president was unable to cite even one incident where religious garb or signs had either sabotaged secular education, undermined obedience to secular laws, disturbed the school environment, or interfered with the rights of classmates to be secure or to be let alone. He argued that, “[Secularism] expresses our wish to live together in respect, dialogue and tolerance. Secularism guarantees freedom of conscience. It protects the freedom to believe or not to believe.”

Banning head scarves, Jewish skullcaps or large Christian crucifixes worn to celebrate a student’s religious creed, however, epitomizes intolerance, not mutual respect or dialogue over differences. The prohibition violates freedom of conscience and demands a conformity that wars with individual liberty.

U.S. Supreme Court Justice Robert Jackson eloquently warned of the dangers of coerced uniformity in the classroom in West Virginia State Board of Education vs. Barnette (1943): “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. … As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. … Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, [and] the Siberian exiles as a means to Russian unity. … Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.”

President Chirac maintained that, “It is the neutrality of the public sphere which enables the harmonious existence side by side of different religions.” But neutrality is undisturbed when the government neither supports nor opposes the wearing of religious garb or symbols by students. That is the understanding of religious neutrality enshrined in the United States Constitution. Excluding, expelling, or reprimanding a student for wearing an Islamic head scarf would violate the free exercise of religion and freedom of speech protected by the First Amendment as indicated in Tinker vs. Des Moines Independent Community School District (1969).

A student wearing a head scarf or other sign of religious affiliation does not impair the religious freedom of others. President Chirac did not argue that peer pressure would cause religious minorities in a classroom to feel either coerced or demeaned. He did assert that, “It cannot be tolerated that under the cover of religious freedom, the laws and principles of the republic are challenged.”

Head scarves, however, do not challenge the rule of law. The Holy Koran does not prescribe them as mandatory. Some Islamic women wear them; others do not. They are neither a code for jihad nor other incitement to terror or lawlessness. Indeed, if they were, President Chirac would have condemned head scarves everywhere, not confined the condemnation to public schools.

The only thing the French have to fear about head scarves is fear itself.

Bruce Fein is a constitutional lawyer and international consultant at Fein & Fein.

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