Why Is There No Headscarf Affair in the United States?

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1 Why Is There No Headscarf Affair in the United States? Daniel Gordon 1 Professor of history at the University of Massachusetts, Amherst and coeditor of Historical Reflections Abstract Using a comparative method, this article explores the reasons for the absence of a legal ban on Muslim headscarves in the United States. Study of France reveals a culture that values public space and citizenship. The United States places more value on the generic concept of religion as the unifying bond among individuals, even of different religious groupings. Cross-religious sympathy is a distinctive feature of American culture and reflected in legal briefs to the Supreme Court. The article suggests that legal concepts are not merely reflections of social institutions but are important social facts in themselves. Keywords comparison, exceptionalism, France, headscarf, law, Sombart, Stasi An employee must be permitted to wear religious garb, such as a crucifi x, a yarmulke, or a head scarf or hijab, if wearing such attire during the work day is part of the employee s religious practice or expression, so long as the wearing of such garb does not unduly interfere with the functioning of the workplace. Guidelines on Religious Exercise and Religious Expression in the Federal Workplace, issued by President Bill Clinton, 14 August Part 1: The Hearn Case, Or the Affair That Wasn t On September 11, 2003, two teachers at the Franklin Science Academy in Muskogee, Oklahoma, were discussing the terrorist attacks that had occurred exactly two years earlier, when they spotted a sixth grader, Nashala Hearn, wearing a Muslim headscarf. The school s dress code prohibited students from wearing hats, caps, bandanas, plastic caps, or hoods on jackets inside the building. 3 One of the teachers sent Nashala to the principal, who warned and later suspended the eleven-year-old when she continued to wear the scarf. The school attorney said, You treat religious items the same as you Historical Reflections doi: /hrrh Volume 34, Issue 3, Winter 2008 Berghahn Journals ISSN (Print), ISSN (Online)

2 would any other item, no better or worse. Our dress code prohibits headgear, period. 4 The situation sounds quite French, at first. However, the student prevailed in this controversy. Headscarf bans do not fit well into the American scheme of things, in part because they are easy to challenge on constitutional grounds, but also because the impulse to regulate religious symbols is not strong to begin with. A closer look at the Hearn case will help us refine the question: Why is there no headscarf affair in the United States? Even before observing the arguments that the students attorneys used against the ban, we can notice a difference with France. The reasoning used by the school to justify the ban has little in common with the ideology used in 2004 to ban the scarf in French public schools. There is no reference to secularism in the American school s justification for its actions. The school argued that the dress code was designed to discourage gang affiliations. The school also claimed that creating an exception to the code for the sole purpose of accommodating Nashala s religious beliefs would violate the Establishment Clause of the First Amendment to the U.S. Constitution. In other words, the state would appear to establish, or endorse, religion if it granted an exception to students who wore religious headgear. 5 The reasoning may sound akin to the French insistence that public schools have a duty to maintain a secular atmosphere, but the logic was entirely different. The school never contested a student s right to wear religious symbols or to express religious beliefs. If Nashala had expressed her faith by wearing a scarf around her shoulders instead of her head, the restriction would not have applied. The student was basically free to bring her religious identity into the place of learning. The school only claimed that it could not exempt her, for religious reasons, from a rule that non-religious persons had to follow. The distinction between the French concern to preserve state secularism and the American concern to avoid religious favoritism is significant. This distinction already shows that the U.S. is less concerned about eliminating religion from public institutions than is France. Even more significant is that the Muskogee school authorities did not defend their own legal viewpoint for long. The school was willing to articulate the Establishment Clause argument against its initial antagonist, the Rutherford Institute, a Christian civil liberties foundation that assisted the Hearns in filing their complaint in a federal court. When the U.S. Justice Department intervened by filing additional briefs against the school in the spring of 2004, 6 however, the school quickly caved in. Under a settlement agreement, the school agreed to change the dress code so as to include an accommodation, or exception, for religious headgear. The school also paid an undisclosed sum of monetary damages to the Hearn family. 7 Assistant Attorney General R. Alexander Acosta issued a public statement: This settlement reaffirms the principle that public schools cannot require students to check their faith at the schoolhouse door. 8 Those famil- 38 Historical Reflections Winter 2008

3 iar with landmark decisions in First Amendment law would have caught Acosta s allusion to the 1969 Tinker case, in which the Supreme Court affirmed: Students and teachers do not shed their constitutional rights to freedom of expression at the schoolhouse gates. 9 Acosta also cited the same passage from Tinker in his brief against the school. 10 There the Tinker reference was part of his argument that student speech is fully protected under the First Amendment unless a defendant can show that the symbolic behavior has caused a substantial disruption of school activities. 11 The Tinker case had involved junior-high and high-school students who wore black armbands to school to protest the Vietnam War. We may wonder whether making a political statement is identical to wearing religious clothing. The headscarf could perhaps be construed as a distinct kind of religious practice and not merely a form of speech. But following an American legal tradition established over fifty years before, 12 Acosta treated the headscarf as a mode of speech as well as an exercise of religion. He could then accuse the school of violating two constitutional rights, speech and religion, not just one. This bundling of the argument, as it is known, 13 was only one of numerous constitutional tactics that he used to attack the school s treatment of Nashala Hearn. Now the school faced a battery of constitutional difficulties posed not only by a religious foundation but by the federal government of the United States. The intervention of the Justice Department raised serious doubts about whether the school s Establishment Clause argument could trump other constitutional principles in a federal court. The school, with its commitment to avoiding special treatment for religious students, had no ally in the federal government and no reliable argument from the Constitution. No wonder the school gave up. Religious pluralism and the right to private religious expression, even in a public school, won. A court never even had to adjudicate the merits of the case. I tell the Nashala Hearn story because it illustrates the failure of the headscarf to become an affair a major legal controversy that divides the general public as it has in France. The case never reached trial, and I know of no other case concerning students wearing headscarves that has gone even as far as the Hearn incident. In other rare instances where schools tried to repress the scarf, the backlash was even more immediate. For example, in January 2005, when Emily Smith, at Chattanooga East Ridge High School, was reprimanded for her scarf, a local civil rights attorney reminded the school that religious expression is protected by the Constitution. The superintendent conceded the point right away: This particular item was a little different because it is a religious garment. 14 That these incidents never materialized into affairs suggests that there is no tendency to prohibit the scarf in American schools, and not even much debate about whether there should be such a ban. Of course, to say there is no controversy at all would go too far. Absolute claims about the lack of something in a society can always be overturned by a single counter- Gordon Why No Headscarf Affair in the USA? 39

4 example. Yet, no can have a relative, and still important, meaning in the context of comparative analysis. Part 2: The Meaning of No in Comparative Analysis A good source of reflections on the comparative implications of no is Werner Sombart s Why Is There No Socialism in the United States?. Originally published in German in 1906, the book has become well known among U.S. historians, especially through the 1976 translation, edited by C.T. Husbands, a British sociologist, and prefaced by Michael Harrington, a leading American socialist. 15 Sombart observed that capitalism was highly developed in the U.S. If the concentration of capital inevitably breeds a socialist reaction, then the U.S. should have experienced a great socialist surge in the nineteenth century. Sombart noted, however, that, compared to European socialism, American socialism was remarkably weak. He attempted to demonstrate socialism s relative lack of impact in two fundamental ways. First, he demonstrated statistically the small number of votes for socialist parties in national and state elections. 16 Secondly, he articulated a qualitative judgment about American workers. Sombart considered their outlook rosy, devoid of embitterment. He observed that most trade unions were not led by socialists and did not pursue structural changes in the economy as a whole. The unions pursued collective bargaining as a business matter. They sought the betterment of wage earners within the framework of capitalism. The trade unionists were generally eager to cooperate with bourgeois social reformers and with businessmen willing to compromise. This was in contrast, Sombart claimed, to European, and especially German, trade unionists, who cultivated oppositional consciousness and unremitting class conflict. 17 This no socialism, Sombart suggested, had to be explained by positive factors on the American scene. He emphasized several conditions that blocked the spread of socialism in the U.S. One was reverence for the Constitution and the sentiment of civic integration. 18 The feeling of political equality moderated the resentments that would otherwise be felt in response to economic inequalities. Another consideration was the fact that American workers were generally not intellectually opposed to the capitalist system. They accepted the principle of competition and had faith in the possibility of upward mobility. 19 Sombart offered other lines of analysis, but our interest is primarily in his method, not the content of his arguments. He recognized that socialism was not literally absent in the U.S. No socialism was a deliberate exaggeration that would have been false if his book had been about only the U.S., but the book s comparative typology permitted such an extreme statement. The difference between the U.S. and continental Europe was great enough, he believed, that socialism s relative lack of popularity in the U.S. could be iso- 40 Historical Reflections Winter 2008

5 lated as a distinct scholarly issue. At the same time, he clearly believed that identifying the reasons for socialism s comparative failure in the U.S. would shed light back on the European landscape. The translator s notes to the text reveal that Sombart frequently interjected the phrase bei uns (a German equivalent of the French chez nous : with us, or in our society ) to highlight contrasts between American society, on the one hand, and German or continental European society, on the other. 20 In sum, Sombart believed the differences between the U.S. and Europe were significant enough to be worth capturing in a stark generalization no socialism in the U.S. What is in question is not a zero amount of socialism in the U.S. but rather a degree of absence that translates into America s being a qualitatively different society: a type of society where socialism functions outside the usual boundaries of political argumentation. This was sophisticated reasoning. It is worth noting that the socialist Michael Harrington conceded that Sombart asked the right questions. 21 Harrington claimed that Sombart understated the importance of the social democratic movement in the U.S., but he admitted that the differences with Europe are still striking and deserve discussion. 22 Other scholars have reacted more critically. Marxist and progressive historians often link Sombart s work to that of Louis Hartz and Richard Hofstadter, two scholars who believed in American exceptionalism. Many historians, but especially those on the Left, take offence at the proposition that the U.S. is inherently more conservative and consensual than other modern societies. 23 Yet, Why Is There No Socialism in the United States? is still refreshing to read. Putting aside the ideological implications of claiming that the U.S. has no socialism, and the ideological implications of claiming the opposite, Sombart s method per se is a provocative model of thinking about cross-cultural differences. To identify forces that shape one region and are comparatively absent in another can be a vital intellectual endeavor. Through such comparison we can become acutely aware of the composition the ingredients, and even more, the missing ingredients of our own society. Why is there no headscarf controversy in the U.S.? I will propose a series, not exhaustive but hopefully suggestive, of comparative observations. Each one says something about the U.S., while also summarizing a condition in France. This simultaneity of understanding is one of the finest features of Sombart s work. It is in fact the whole point of comparison. What comparison loses in detail, what it relinquishes in terms of empirical completion, what it risks in terms of losing credibility within narrowly defined fields of academic specialization, it gains back many times over in its simultaneous illumination of different things. Much has been written about the French headscarf ban; a lot of it has been condescending and critical. But what have we learned about our own society in the process? And how can we refine our own attitude toward the public display of religious symbols, if we do not have a clear conception of how different regimes, including our own, approach the issue? Gordon Why No Headscarf Affair in the USA? 41

6 Part 3: No Public Space in America The phrase public space (espace public) occurs many times in the Stasi Commission report of 11 December 2003 the report that recommended the current headscarf ban in French public schools. In fact, the concept of public space is a core part of the justification for the ban. The term is often used in capsule descriptions of why good French citizens ought to refrain from expressing their religious views in certain places. For example, the Stasi report declares: The citizen must respect the public space that everyone may share. To be willing to modify in public the expression of one s specific religious orientation, to place limits on the affirmation of one s identity, makes it possible for one to engage everyone else in the public space. 24 Another important text uses public space frequently. This is the contemporaneous report by Jean-Louis Debré, President of the National Assembly, on the question of whether students should be allowed to wear religious symbols in schools. The report stresses the danger of religious symbolism: Wearing a religious sign foregrounds the affirmation of a particular identity; this divides more than it unites. The individual desires to be admitted into the public space as the representative of his own identity and not as a citizen shorn of every distinction. And here is a more positive statement of the same philosophy: First of all, wearing the veil signifies that the law of God is superior to the law of men, but in our society, the law, in the public space, has an eminently secular character. 25 Public space is not a strictly legal concept. It does not appear in the Constitution of the Fifth Republic, and references to public space in the two reports do not ground the term in other legal sources. However, public space is a concept that French people often use to establish some of the implications of living under a democratic republic. It captures the fundamental moral idea, articulated initially with vigor by Rousseau, that the social contract cannot endure when people flaunt a group affiliation other than their affiliation with the nation as a whole. 26 In this context, equality is not merely a right, it is also a precondition for the existence of the republic which is to say that equality contains the duty to display one s commitment to the state. Public space expresses this philosophy in which right and duty are interlocked. The idea of public space, then, is not an unconscious tradition; it is not merely an aesthetic reflex or a social prejudice. It cannot be reduced to a bias against women or Islam. 27 It is a selfconscious, theoretically acute, feature of French political culture. That the concept of public space is part of the general political vocabulary and not merely part of the technical interpretation of law or a disguise for prejudice among conservatives, is evident from the widespread occurrence of the term in spontaneous political discussion. The term occurs often, not only in the text of the Debré report, but also in the oral interviews that Debré s committee had with numerous civic leaders and academic experts. 28 It must also be stressed that the concept of public space is used by people on different parts of the political spectrum. Although the Stasi Com- 42 Historical Reflections Winter 2008

7 mission was organized by President Chirac, a conservative politician, it contained persons on the Left. And, although Debré is a Gaullist, there is nothing uniquely conservative about the logic of his report. Consider the following statement by Anne Vigerie (a member of the Circle for the Study of Feminist Reforms) and Anne Zelensky (President of the League for the Rights of Women) writing in Le Monde on 30 May 2003, about the relationship between feminism and secularism: Wearing the veil is not only a sign of religious affiliation. It symbolizes the place of women in Islam This place is in the shadow in deference and submisssion to men. Today we know that women under domination are themselves the most fervent supporters of the system of subordination. Secularism is based on a neutral public space, free of every religious belief, a space where citizens develop under conditions of equal treatment and share rights, common duties, and a common good which elevate them above discriminatory differences. One can try to defend the display of religious belief in the name of freedom of expression but only on the condition that it does not become the insidious tool of fundamentalist propaganda that divides women into two groups: the obedient ones and the sluts. When social, psychological, or physical violence is directed against women who do not wear the veil, the right to wear it ends In our post-colonial society, afflicted by an awkward sense of guilt, the fear of being accused of racism for rejecting the other leads to an irrational sacralization of social differences. The last sentence is particularly interesting because it shows that these feminists have little sympathy for multiculturalism. They are saying that French people who believe in equality should not let guilt about past colonialism interfere with their capacity to judge Islam critically. The authors conclude their article by calling for a ban on the scarf not only in all schools but also in businesses and government buildings. 29 Their conception of public space is thus more draconian than that delineated in the two governmental reports mentioned above. It would be worthwhile to research in greater depth the French conception of public space, beginning with the concept of space per se for this single word is also omnipresent in French political and academic discourse. From a comparative viewpoint, however, our chief observation must be that a discourse of public space is plainly lacking in American politics. The phrase itself is not entirely unknown, and there are a variety of ways in which Americans do think about their public life. But if one re-reads the statement above by Vigerie and Zelensky, and if one asks whether American feminists would characterize public space in this particular manner whether any group of Americans would the answer seems to be a clear no. 30 Why is there no equivalent in the U.S. of the French sense of public space? One answer can be found by observing that Americans tend to speak more often of the government or the state than of public space. Our image of government is more functional and less moral. It has more to do Gordon Why No Headscarf Affair in the USA? 43

8 with how an institution is financed and administered than with the scripting of behavior that is necessary among citizens. The state is an external entity, not our own theater of citizenship. This is not to deny that there are qualitative differences between public and private institutions in the U.S. The differences, however, that we tend to emphasize in our legal and political discourse have the effect, paradoxical from the French point of view, of making public institutions even more libertarian than private ones! The First Amendment states that Congress shall make no law abridging the free exercise of religion. The notion that freedom means limiting the state s control over religion rather than repressing one s religious passions and crossing over into a citizen identity is thus present already in the American Founding. However, we must be careful not to exaggerate the extent of American individualism at the time of the Founding. The First Amendment was not in fact designed to protect individual religious freedom from all forms of governmental control. The fear of most of the Founders was specifically of federal interference, not governmental interference in general. As the editors of a constitutional law casebook that is widely used in American law schools today observe: Born in the shadow of a Revolutionary War waged by local governments against an imperial center, the original Bill [of Rights] affirmed various rights against the central government, but none against the states And the rights that the original Bill did affirm sounded more in localism than libertarianism Congress could not establish a national church, but neither could it disestablish state churches. (Several of the states had officially established churches in the 1780s, and many other nonestablishment states favored Protestant Christianity in some way or other.) Thus, as originally understood, the First Amendment was less anti-establishment than it was pro-states rights; religious policy would be decided locally, not nationally, in the American equivalent of the European Peace of Augsburg (1555) and Treaty of Westphalia (1648). 31 Even while recognizing these limits on early American libertarianism, we can discern that the American vision of religious freedom precluded a public space, in the sense of a forum that carried with it the obligation to give up regional and religious attachments. While the French were experiencing the Terror, particularism became the order of the day in the U.S. Admittedly, it was more a matter of state particularism than of individualism, but this began to change after the Civil War. The Fourteenth Amendment (1868) declared that No state shall abridge the privileges and immunities of American citizens. At this point, as the casebook editors observe, a distinctly modern view of the First Amendment started to emerge, a view celebrating individual rights and preventing states from abridging fundamental freedoms. 32 I have cited the constitutional law casebook for two reasons. First, it offers a clear and insightful analysis of the transformation of religious freedom 44 Historical Reflections Winter 2008

9 in the U.S. from a state right into an individual right. Secondly, the text it self, being part of the training of many future lawyers, suggests that what the American legal elite today learns about the general history of religious freedom contains no public space that is, no French-style emphasis on religion as a threat to citizenship. A different but complementary method of analyzing public space could focus on how conceptions of freedom in any society are inevitably tied to conceptions of evil. The flip side of any specific freedom ideal is a paranoia regarding something that threatens the order of liberty. Freedom often implies freedom from something in particular. The historian and comparative legal scholar, James Q. Whitman, has applied this mode of analysis productively in comparing conceptions of privacy in America and continental Europe. He observes, with a wealth of examples drawn from both law and popular culture, that Americans tend to fear government more than anything else. Hence, privacy frequently means freedom from state intrusion protection against arbitrary police searches, protection against state interference in sexual and reproductive decisions, and so forth. In Europe (and his discussion focuses largely on France), the greatest fear is of the powers in civil society: business and the media. Hence, privacy includes the right to prevent one s photograph from being in a newspaper, the right to protect one s reputation against published slanders, and the right to prohibit businesses from collecting financial data about oneself. 33 Whitman s analysis dovetails with the analysis of the First Amendment that I have offered. When freedom means protection from the state, it is difficult, if not impossible, to idealize public space as an area where individual differences are sublimated into a unity that is preserved with the state s assistance. None of this is purely theoretical, either. The result of American legal thinking is that an individual s First Amendment rights are more powerful in state-financed institutions (both federal and local) than in private ones. Precisely because the state symbolizes not the potential for unity but the potential for despotism, any state regulation of religion comes under strict scrutiny. Thus, a public school that tells a child that he or she cannot pray during recess, or cannot be excused from class for religious reasons, or cannot wear a religious symbol, is in greater danger of being sued than a private school. Of course, the principle that the state cannot police private behavior, like every general maxim, contains internal ambiguities; in practice, religious liberty must sometimes be balanced against other interests. Some repression of religion always takes place. We have all heard of religious groups that wish to erect images of Jesus on public property, and parents who seek to implement official prayer time in schools. Those in favor of such practices claim that they are merely engaging in the free exercise of religion guaranteed by the First Amendment. Their opponents claim that such practices violate that other half of religious freedom as defined in the First Amendment the prohibition on government s establishing religion. Gordon Why No Headscarf Affair in the USA? 45

10 I do not wish to summarize how judges struggle to define the boundary between the Free Exercise Clause and the Establishment Clause of the First Amendment. There are many able synopses of this jurisprudence. 34 For comparative purposes, what is noteworthy is that, while the line is fuzzy (official school prayer time is unconstitutional but the usage of classroom space for religious purposes after school hours is constitutional), the overall commitment to draining religious expression from public schools and other governmental institutions is, comparatively speaking, weak in the U.S. The point becomes particularly clear if we note that even civil servants in the U.S. enjoy a wide field of religious expression. Imagine a French person who said the following: Okay, I understand that you Americans have no public space that requires students to limit their religious expression. But let us at least recognize that all governmental employees represent the ideal of neutrality and must refrain from expressing a religious viewpoint when they are working. Even this limited conception of public space one that attaches secularism to the public servants, not those served has no purchase in the U.S. today. Public school teachers are generally permitted to wear religious symbols under the theory that students are normally mature enough to tell the difference between the teacher as an individual who happens to be religious and the teacher as a representative of the government. The state of Pennsylvania is unusual in having a garb law that prohibits teachers from wearing religious clothing; moreover, this law has been targeted by some legislators for repeal. 35 The scope of the law has already been limited by at least one federal judge who has not hesitated to cast doubt on its constitutionality. At about the same time that the Stasi Commission was deliberating, a judge ruled that Brenda Nichol, a part time instructional assistant at a public elementary school in Pennsylvania, did not count as a teacher under the garb law. The instructor wore a cross on a necklace and refused to tuck it under her clothing. The judge decided the case on the basis of the plaintiff s narrow claim that she was not technically a teacher for purposes of the law. However, in his dicta, or non-binding analysis, the judge lashed out against the garb statute. Since jewelry containing secular messages was not prohibited, he argued, it was discriminatory to prohibit religious symbols in particular. He also noted that there was no evidence that religious symbols were causing disruptions in school. He suggested that it was unlikely that the garb statute would survive constitutional scrutiny. 36 What is fascinating here, at least from a French perspective, is that the public employee is treated not as a civil servant with special duties but as a private person facing discrimination from an employer, which happens to be the state. Clearly, there is no public space that envelops the bodies of all those who act within a state organization. Even state employees carry a personal religious identity and personal religious rights with them on the job. A remarkable expression of the endurance of the personal in the public sphere is the set of guidelines for federal agencies that President Clinton issued in Executive departments and agencies shall permit personal religious 46 Historical Reflections Winter 2008

11 expression by Federal employees to the greatest extent possible. An employee may keep a Bible or Koran on her private desk and read it during breaks. An employee must be permitted to wear religious garb, such as a crucifix, a yarmulke, or a head scarf or hijab, if wearing such attire during the work day is part of the employee s religious practice or expression, so long as the wearing of such garb does not unduly interfere with the functioning of the workplace. The guidelines even state that federal employees may proselytize to each other in the workplace, as long as the confronted person does not explicitly request the activity to stop. 37 Of course, these federal guidelines do not apply to schools. In the Nashala Hearn incident, Assistant Attorney General Acosta could not use these guidelines to defend the student s right to wear the headscarf, but he did use arguments that were similar to those used by the federal judge in the Nichol case. Acosta claimed that, the burden was on the school to show that Nashala s scarf was creating a material disruption of school activities. The school had demonstrated no such disturbance. Acosta also argued that since the school sometimes permitted students to violate the ban on headgear (such as in Halloween parties and in school theatrical productions), it constituted religious discrimination to single out Nashala s headscarf for punishment. Acosta also had the advantage that Nashala was merely a student, not a civil servant. The school s argument that permitting Nashala to wear the scarf would violate the Establishment Clause recall that this was the school s only affirmative constitutional defense was extremely weak in a nation where even government employees may wear the scarf. In France, the situation is diametrically different. While American law tends to classify teachers as if they were private persons with complete religious rights, French law treats the students as if they were civil servants with special duties toward the state. The distinction between being a student and being a civil servant was passed over in silence by the Stasi Commission. That group never seriously considered the possibility that the principle of secularism, which has long prohibited clerics from teaching in public schools, might not fit very well when applied to students. In contrast to the Stasi Commis sion, the Debré report confronted the apparent dichotomy between student and civil servant. While conceding that the civil status of students is not exactly the same as teachers because students are not employed by the state, Debré stated that students are not merely private persons; they are not merely consumers of an educational service for their own personal benefit. The school must not become a supermarket of knowledge. 38 Students are citizens of the educational community. They too have an obligation to be religiously neutral. Part 4: No Religion in France A second comparative perception that helps to explain why there is no headscarf ban in the U.S. concerns the status of religion in the two countries. Gordon Why No Headscarf Affair in the USA? 47

12 Here I do not have in mind the empirical extent of religion. It is well known that more Americans than French people believe in God, go to church, and so forth. But that difference is not the issue here. The degree to which people practice a particular religion cannot provide a matrix for explaining the presence or absence of a legal ban on religious symbols. Since the U.S. today is more fervently Christian than France, and since the U.S. and not France is currently at war in an Islamic nation Iraq it would be logical to expect more hostility toward the headscarf in the U.S. than in France. When I speak of religion in this context, I am not thinking of the amount of religious faith or church attendance. I am thinking instead of the qualitative structure of religion as a concept. More precisely, I wish to highlight the presence in the U.S. of a generic conception of religion that floats above, or complements, the particular religion that an individual practices. The basic issue is whether people of one faith see themselves as similar to people of another faith by virtue of their common participation in religion. 39 In the U.S., this mutual recognition through the category of religion is comparatively widespread. Consider the fact that the first party to jump in to defend Nashala Hearn, a Muslim, was the Rutherford Institute. John Whitehead, the founder of this group, describes himself as a Christian and 60s rebel. The author of True Christianity (1989), he established Rutherford in order to advance the real Christian message and to influence American culture by encouraging Christians to play a more active role in the courts. However, the organization also defines its mission in terms of an all-inclusive religious freedom: to provide legal services in the defense of religious and civil liberties. Its website features key cases in which it has defended the rights of religious individuals in the workplace. These cases include challenging the U.S. military policy that required female personnel in Saudi Arabia to wear veils. (This case was never litigated because the U.S. Senate voted 93 0 to reverse the policy.) The Institute also leads a campaign to prohibit federal prosecutors from selecting or dismissing jurors on the basis of religion. 40 Thus, although the religious inspiration for the Institute s existence is Christian, its policy discourse is generically in favor of religion. Is there such an organization in France an organization whose primary purpose is to challenge the state s authority to regulate any religious expression? I know of no such French organization. I admit I have not researched the issue thoroughly, but, keeping in mind Sombart s comparative method and the meaning of no as discussed above, the failure of any such religious foundations to be conspicuous in French society is enough to suggest that there are no such groups. Another index of the convergence of people from diverse religious backgrounds toward a non-denominational conception of religion is the practice of writing amicus curiae (friend of the court) briefs to the U.S. Supreme Court. Outside parties whose rights and interests would be affected by an impending Supreme Court decision are permitted to file arguments in the 48 Historical Reflections Winter 2008

13 case. For example, in Oregon v. Smith, a 1990 case where the issue was whether the ceremonial use of an illegal drug, peyote, by Native Americans ought to be treated differently from a normal violation of the law, 41 amicus briefs came in not only from several Indian churches but also from the American Jewish Congress. The AJC did not defend peyote by suggesting that Jews also use narcotics for religious purposes. Instead, it repeatedly spoke generically of the importance of defending the free exercise of religion and especially the practices of minority faiths. 42 Thus, although the Jewish associations had the option of differentiating Jewish from Native American religious practices and remaining indifferent to the case, they chose instead to inflate the concept of religion to the point where Jews and Natives became interchangeable. In Cutter v. Wilkinson 43 a group called The Coalition for the Free Exercise of Religion filed an amicus brief. The coalition included dozens of organizations embracing a variety of faiths: Buddhist, Hindu, Christian, Jewish, Muslim, Native American, and Sikh. However, the plaintiffs in this case belonged to none of these religions. The plaintiffs were inmates in Ohio who described themselves as adherents of nonmainstream religions: Wicca, Satanism, Asatru, and Church of Jesus Christ Christian. 44 Wicca is a witchcraft religion, invented in the twentieth century but supposedly rooted in the practices of pre-christian paganism. Satanism is a variety of cults, all tending to emphasize worldly success and revenge. Asatru is based on Scandinavian polytheism. The Church of Jesus Christ Christian is a white supremacist group affiliated with the Ku Klux Klan. At issue in this 2005 case was the constitutionality of Section III of the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law passed in Section III established that in state-run prisons and mental hospitals, the government cannot impose a substantial burden on the religious exercise of a person residing in or confined to an institution, unless the burden furthers a compelling governmental interest, and does so by the least restrictive means. 45 In other words, the law required institutions to cater to the religious needs of inmates, unless the prisoners demands were so extreme that they significantly interfered with the functioning of the organization. The plaintiffs claimed that they were denied religious literature and opportunities for group worship. They also claimed that prison officials prohibited them from adhering to the dress requirements of their religions, and that the institutions failed to provide chaplains trained in their faiths. The challenged institutions responded by arguing that RLUIPA itself was unconstitutional because it violated the Establishment Clause that is, it extended too many services to religious inmates that inmates with secular hobbies or philosophies did not receive. Before the case reached the Supreme Court, the Sixth Circuit Court of Appeals did in fact hold that Section III unconstitutionally advanced religion by giving greater protection to religious rights than to other rights. The Sixth Circuit also suggested that, by giving religious Gordon Why No Headscarf Affair in the USA? 49

14 prisoners special rights, the state might encourage prisoners to become religious. This was a role that, under the Establishment Clause, the state could not play. 46 The Supreme Court reversed the judgment. The Court unanimously found that Section III did not exceed the limits of permissible government accommodation of religious practices. We will skip over the legal nuances in the Court s judgment. The key point is that a coalition of mainstream religious groups took a strong interest in a case involving cults that, from a traditional religious viewpoint, are considered weird, even evil. For the Coalition for the Free Exercise of Religion, it was not about whether these particular sects ought to be promoted in American society. It was about furthering a regime of accommodation for all religions in state institutions. The Coalition s brief announced: They [the various religious associations in the Coalition] speak with one voice in the conviction that accommodating religious exercise by removing government-imposed substantial burdens on religious exercise is an essential element of a democratic society. 47 A basic strategy in the Coalition s argument was to prove that Section III was consistent with the general spirit of the democratic legal system in Ohio. The brief emphasized that Ohio already granted special accommodations to religious persons in a variety of circumstances in which non-religious persons did not receive special exemptions. These included: exemptions for religious objectors to service in the Ohio militia exemptions for church-held lands from property taxes exemptions for clergy from the requirement to obtain a license before giving drug-dependency counseling exemptions for minors drinking alcohol for religious purposes exemptions for religious parents who, because they believe in faith healing, do not wish their children to undergo required health tests (hearing, lead-poisoning, tuberculosis, immunization requirements) exemptions for religious parents from charges of child neglect when the parents failed to provide medical care to the child exemptions for cloistered clergy (monks, nuns, etc.) from jury service exemptions for bible colleges from attaining certification from state boards of regents exemptions for religious groups from animal slaughter laws. 48 The coalition thus argued that Section III was consistent with the already established practice of granting legal exemptions to religious persons. There were several other briefs from religious groups, all supporting the inmates, but amicus briefs are not the only reflection of the American tendency to uphold a non-denominational notion of religious identity. Consider the fact that the Clinton guidelines on religious freedom in the federal workplace, discussed above, were originally drafted by leaders of the Ameri- 50 Historical Reflections Winter 2008

15 can Jewish Congress working with leaders of the Christian Legal Society s Center for Law and Religious Freedom. 49 This kind of cooperation suggests that members of one religion tend to believe that their freedom is maximized when the freedom of people belonging to other religions is maximized too. When it comes to religious freedom, there is no sense of a zero sum game. Alternatively, one could say that the level of suspicion among the religions is relatively low; that is, there is not much fear that the exercise of religion by one group will be primarily directed against the existence of another religious group. A high level of trust toward other religions seems to be widespread, though obviously not universal, among religious persons in the U.S. This cross-identification is often at work in the minds of ordinary persons, not just those of religious leaders. When an American observes a policy that adversely affects a particular religion, he or she is likely to reflect on how the policy could eventually impact other religions, including his or her own. As a result and this is crucial the American mindset tends not to entertain a clear-cut distinction between the religious self and the religious other. There are, to be sure, many exceptions. Biases and suspicions against Muslims have been prevalent since September 11, Cross-religious perceptions between Muslims and Jews in the U.S. are probably not as benign in general as cross-religious perceptions between Jews and Christians in the U.S. However, the phenomenon of cross-religious solidarity is still widespread. I believe that many American readers will recognize something familiar in the discourse of a woman named Marian if not their own attitude, then at least an attitude that they have observed in others. In response to a BBC article covering the headscarf controversy in France, Marian, an American, wrote: I think it s everybody s right to choose to wear or not to wear a scarf. If women are forced not to wear scarves, it is as bad as if they are forced to wear them. I come from an Orthodox Christian family and I never saw my grandmother without a scarf on her head. And I can tell you that nobody forced her to wear it. Wearing scarves is not only an Islamic tradition, it s a Christian one too. In contrast, a French reader named Patrick wrote: It is all about freedom and equality. France is a secular country where religion is limited to the private sphere. The headscarf is discrimination against women and non-muslims and a blatant violation of the Déclaration des Droits de l Homme et du Citoyen; it is a symbol of oppression and a denial of freedom of thought. One is first of all a French citizen and not a Muslim, as some of the Islamists want to twist the debate. The headscarf is to be banned from public places, plain and simple. 50 Marian s response is remarkable (from a French point of view) because she treats the headscarf not as a symbol of uniquely Islamic beliefs but as a sign Gordon Why No Headscarf Affair in the USA? 51

16 with an exact equivalent in Christianity. The Frenchman perceives Islam as a threat to citizenship; the American perceives Muslims and Christians as denizens of a common spirituality. Marian is not a Muslim but she finds a common ground with Islam. Since her grandmother wore a scarf, she treats an Islamic tradition as interchangeable with her own heritage. 51 A threat to Islamic practice becomes an insult to her family. She has forged a mental bond with Muslims without even referring to the notion of American citizenship. She does not say, We have different religions but we re still Americans. Religion itself is the common ground where she recognizes a Muslim as a compatriot. The inclusive religious space that she envisions is a substitute for our missing public space. Marian seems unaware that a civil society could have difficulty accommodating more than one religion. In contrast, Patrick appears to presume that a religion will tend to alienate its adherents from others. This can be rectified, he thinks, only by affirming the priority of national citizenship. One is first of all a French citizen and not a Muslim. To dramatize the supposed opposition between Islam and the rest of society, he refers to the Islamists, a term for fundamentalists who wish to implement Islamic law. For him, the headscarf symbolizes the specific and harmful ambitions of Islam and has nothing to do with his own culture. In the U.S., we tend to minimize the potential for inter-religious conflict. In Norman Rockwell s 1943 illustration, Freedom to Worship (my last example of the generic conception of religion in the U.S), we see the faces of numerous people of different religions; each person is steeped in prayer. Each face has a mesmerized expression every individual is thinking about God, and no one looks at the others in the painting. Even though the faces are touching each other in the painting, the persons are not in the same physical space. The space portrayed is unreal. Rockwell, often seen as an illustrator of everyday life, is constructing an abstraction in this case. His imaginary juxtaposition has no social referent: people from many different religions do not in fact meet in one place to pray. By merging symbols of all the faiths so closely together in one illustration, Rockwell suggests that coexistence is easy and he simultaneously removes any possibility of jostling and conflict among the religions. He presents an aggregate of interior faiths that never confront each other competitively. In this way, everything about religion that potentially destabilizes society is taken out of the painting. 52 From a French point of view this benign image of religion is questionable. Religion has been a source of political rivalry, even civil war, throughout much of French history. The Declaration of the Rights of Man and of the Citizen, Article 10, states that religious opinions are free, provided their expression does not trouble the public order established by law. The public order limitation remains a significant feature of French law; it was evoked by the Stasi Commission. Similarly, Article 9 of the European Convention on Human Rights says that the right to manifest one s religion may be regulated in the interests of public safety, for the protection of public order, health or 52 Historical Reflections Winter 2008

17 morals, or for the protection of the rights and freedoms of others. 53 In sum, when we search for a French or European analogue to the American concept of generic religiosity, the most we can find is that religion assumes a generic form only when it is formulated as a potential threat to public order. Part 5: No Public Meaning in the U.S. If we look again at the reactions of Patrick and Marian, we can observe an - other difference between them. Marian uses a first-person narrative: I think I come from my grandmother She relates the headscarf to her own memories. She then turns that private meaning outward to make a public claim that wearing a scarf in schools should be permissible. Patrick, in contrast, never refers to himself or his family; he seems to consider his personal background and memories entirely irrelevant to the issue. He relies on timeless abstractions and authoritative definitions: France is a secular country The headscarf is discrimination While Marian relies on local and subjective images, Patrick aspires to announce a universal truth. Broadly speaking, the role of judges in the U.S. and France parallels the differences between Marian and Patrick. In American law, there is a strong tendency for judges to use personal narrative to explain what a legal issue is about. The judge explains who the parties are; they are given names and become objects of sympathy or scorn. The aspirations, deeds, and misdeeds of these characters often become vivid in the judicial decision. A purely legal reason for this approach is that the American system does not permit what Europeans sometimes call abstract judicial review and what Americans usually call advisory opinions consideration of a constitutional issue without regard to a particular dispute among real people. Article III of the U.S. Constitution states that federal courts deal with cases, not disembodied questions. In the adversarial system, there are always specific parties, and their conflict gives rise to the court s jurisdiction. Hence, there is always a story that goes along with a theoretical constitutional problem. There may well be additional cultural reasons for the melodramatic character of American judicial decisions. But here I am concerned only to highlight the phenomenon itself, not all of its causes. There is little comparative analysis of the rhetoric of judicial decision-making. However, two French scholars have recently opened up the subject. They refer to the mise en recit du droit the drafting of law in a narrative form in the U.S. They suggest that the American judge is a storyteller. In contrast, the judge in the civil law tradition is a logician. For the French, judicial opinions are syllogisms. Premises are affirmed and conclusions are drawn. The court announces with one impartial voice a single neutral truth. There are no dissenting and concurring opinions no individual voices, only the unanimous decision of the court, because the truth is one. The law is objective and univocal, not subjective and polyphonic. 54 Gordon Why No Headscarf Affair in the USA? 53

18 The implications of this difference, when it comes to litigation over religious symbols, are enormous. In America, the bearer of a religious symbol always gets to explain what it means, from his or her own point of view. In France, the government dominates the arena of symbolic interpretation. In the Nichol case discussed above, the federal judge received testimony from the Pennsylvania teacher concerning the meaning that she gave to her necklace. He included this testimony in his judicial opinion: Ms. Nichol testified, inter alia, that her mother gave her the cross as a gift after her mother s stroke in 1996, and she began wearing the cross to school shortly after that Ms. Nichol also stated the following reason she wore her cross and refused to take it off upon request: I believe in Jesus Christ as my Lord and Savior. And I believe that this would be denying him in a sense of tucking this cross in because I am not ashamed of my Lord and Savior Jesus. I will do nothing to deny my faith and belief in him. 55 Once the meaningfulness of a symbol for the individual is fully established in a sympathetic manner, the state that wishes to regulate the symbol has a heavy burden to prove that the harm of the symbol outweighs the personal satisfaction the individual gets from it. Clearly, a state wishing to regulate symbols would be at a great advantage in a legal system in which the individual s subjective construction of the symbol gets little recognition. That is not the American system, however. In our legal system, the subjective and positive meaning of a symbol as defined by the actor is typically taken into account by the court. The subjective meaning of the symbol comes first; the objective harm that the government imputes to the symbol must be demonstrated afterward. This approach is not a timeless feature of American law, but it goes back at least to the classic case of West Virginia v. Barnette. This 1943 decision involved Jehovah s Witnesses and their right to have their children refrain from saluting the American flag in public schools. Writing the majority opinion, Robert Jackson observed that the flag had an entirely different meaning within the Witnesses theology than it had for the state of West Virginia. For the Witnesses, the flag is a false idol, a symbol of nationhood competing against God for allegiance. According to Jackson, the state cannot impose its patriotic interpretation on the flag. Moreover, he suggested that this is true of all symbols: A person gets from a symbol the meaning he puts into it, and what is one man s comfort and inspiration is another s jest and scorn. 56 The Supreme Court thus required the state of West Virginia to exempt the Witnesses from the flag salute. The remarkable thing here is that the Witnesses gained the right not merely to interpret their own religious symbols but to interpret a national symbol, and this during a time of war! Again, we can see how the cultural underpinnings of American law provide a strong foundation for the headscarf. If a religious person s perspective on national symbols receives a hear- 54 Historical Reflections Winter 2008

19 ing in our legal system, then surely a religious person s views on his or her own religious symbols will receive even more deference. At a philosophical level, it is particularly interesting that the Supreme Court is so comfortable with the privatization of meaning. In contrast, European law is based much more on the supposition that symbols have an objective public meaning than does American law. Those who have read the Stasi Commission report will have noticed that, even though the commissioners interviewed numerous Muslim women who gave diverse accounts of what the headscarf means for them, this personal testimony is never quoted in the final report. Jonathan Laurence and Justin Vaisse have written: Private interviews by the Stasi Comission produced accounts of 1,000 headscarf wearers in the Paris suburb of Seine-Saint-Denis alone. However, [t]he Stasi Commission declined to evaluate specific reasons why individual French girls wore the headscarf. 57 No Islamic theological beliefs are mentioned at any point in the report. The report does impose a public meaning on the scarf, however. For the public school community as a whole, wearing the veil is too often a source of conflicts, divisions, and even attacks. The visible character of a religious sign is perceived by many as contrary to the mission of the school, which must be a space of neutrality. 58 This authoritative declaration of the scarf s objective, or community-wide meaning, is not simply an expression of anti-muslim prejudice. Two of the commissioners were Muslims. Many were sociologists and historians who are well trained to recognize and portray the diversity of a symbolic practice. The cause of this authoritarianism is not merely racial prejudice but a tradition governing how legal problems concerning symbols are formulated in France. The legal tradition discourages authority figures from dwelling on the plural and subjective meanings of a sign. The meaning of the symbol must be unitary in order for the truth of the judgment to be whole. The French system encourages state officials to fix a symbol s meaning within the social landscape so that the social order can then be regulated according to an irrefutable logic. 59 It should be noted that there are no dissenting opinions in French court cases. The legislative concept of general will similarly implies a theoretical unity of belief among those making the law. Thus, when French jurists or legislators declare a social symbol to have one and only one meaning, they are projecting the structure of their political culture into civil society. The political logic, in other words, will not easily permit social practices to represent more diversity than the state itself is permitted to express. At the same time, one can hypothesize that the typical American faces more pressure to interpret the world in his or her own way, precisely because there is no authoritative exegesis from the state. The absence of public space in the U.S. corresponds to the absence of public meaning. With this lack, not only the legal right to bear symbols in public but also the existential need for these symbols intensifies. I cannot say whether we are better off than the French because we have privatized the quest for truth. But it Gordon Why No Headscarf Affair in the USA? 55

20 is clear that, since our law declares the fixing of meanings to be a personal matter, we have no solid grounds for discriminating against those who find truth in religious symbols. Perhaps this is the deepest reason for the absence of a headscarf ban in the United States. Notes 1. The author wishes to thank Elisa Wiygul, the guest editor of this special issue, for making valuable corrections and suggestions. 2. Guidelines on Religious Exercise and Religious Expression in the Federal Workplace, issued by President Bill Clinton, 14 August For the full text, see For news coverage of the guidelines, see Religious Expression in the Workplace, Christian Century, 27 August 1997, v114/ai_ Complaint for Declaratory and Injunctive Relief and Nominal Damages, Hearn v. Muskogee Public School District, U.S. District Court for the Eastern District of Oklahoma, Civil Action No. C3-598-W (23 October 2003). See p. 15, where the entire dress code is included as Exhibit A. 4. School Says Muslim Girl Can Return With Scarf, CNN.com, 11 October 2003; the article has been removed from this site but is still posted on the website of the Islamic Center of New Mexico, which has several other news articles on the Hearn case. See As the headline suggests and the article describes, Nashala was permitted to return to school until the legal controversy was resolved. She had been punished with eight days of suspension prior to this arrangement. 5. For the school s legal defense of its policy, see Defendant s Answer, Hearn v. Muskogee Public School District, CIV W (24 November 2003), esp. p. 11. My thanks to the Rutherford Institute for sending me this text. 6. Complaint-In-Intervention, Hearn and United States of America v. Muskogee Public School District, No. CIV S (? March 2004 day of month missing in document), and United States Memorandum of Law In Support of Its Cross-Motion For Summary Judgment, Hearn and United States of America v. Muskogee Public School District, CIV S (6 May 2004), documents/hearnokbrief.pdf. 7. Consent Order, Hearn v. Muskogee Public School District, CIV S (19 May 2004), 8. Muslim Student, Oklahoma District Settle Hijab Lawsuit, Associated Press article posted on website of First Amendment Center on 20 May 2004, 9. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), p. 506 for the quotation. 10. United States Memorandum of Law, Ibid. 12. See West Virginia v. Barnette, 319 U.S. 624 (1943). The case concerned the right of children whose parents were Jehovah s Witnesses to refrain from saluting the flag. Although the Witnesses presented their claim in terms of the First Amend- 56 Historical Reflections Winter 2008

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