BY CHRIS SZABLA
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“How is it that the ‘terrible’ French, passing ‘racist, sexist’ laws, are [also passing laws that are] working out better than [those in] the rest of Europe?” This provocative question was raised by Patrick Weil, who, in 2003 and 2004, participated in a commission under former French President Jacques Chirac to determine how France should respond to the harassment of Muslim girls who went without hijabs, also known as headscarves, in schools.
Weil, a historian and sociologist who is spending a semester as a visiting professor at Yale Law School, had traveled to Cambridge to defend his commission’s response – a total ban on religious symbols in French schools – before members of Harvard Law School’s Human Rights Program. Human rights groups have been critical of the law, which they say is an impediment on the absolute right to religious practice. But five years after the fateful ban, Weil said, studies and data collected from other European countries indicated that the law had made a positive impact.
Just how he measured the impact of the law, Weil did not say. He wanted to focus, instead, on defending it against critics who insisted that a law scrubbing schools of religious symbols was illiberal. At the heart of the debate is the French idea of laïcité, a form of secularism that mandates not only the separation of church and state, but state guarantees that any particular religion will not overrun the public sphere.
The roots of laïcité go back to the anti-Catholicism of the French Revolution, but its more modern manifestation was evident in a 1905 law that formally separated religion and the French state. The 1905 law had said nothing about religious practice in public settings, and Weil firmly defended the right to practice one’s religion “on the street”. But the school, he argued, was a different environment. Since the terrorist attacks of September 11th, 2001, French school officials had witnessed increasing pressure on Muslim girls to wear headscarves, although the majority did not. They considered going after the harassers themselves, but had a difficult time obtaining testimonies.
In 2004, the Stasi commission, appointed by Chirac to investigate a solution to the problem , recommended the ban on religious symbols. Weil, who was a member of the group, outlined three ways he thinks that the ban managed to be consistent with religious freedom. First, the law allowed students facing harassment for their choice to wear or not to wear religious symbols like headscarves could use the law as an excuse, rather than suffer for making a personal choice. Moreover, those who could not stomach abandoning religious symbols could always avail themselves of France’s government-subsidized religious schools. Finally, France coupled the law with a new flexibility on religious holidays – citizens would have the option of taking a range of days off, depending on their faith.
Gerald Neuman ’80, Harvard’s J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, criticized Weil’s characterization of laïcité – and the ban on religious symbols – as liberal. Liberalism, Neumann asserted, should be thought of as respect for the autonomy of individuals – which individuals should be able to act on themselves. Responsibility for their rights, such as the choice not to wear a headscarf, should not be taken over by the state. He asked how the state made choices to support one pressure or another on groups – in the case of Muslim women in France, toward or against assimilation, and why religious symbols were banned when the state could have taken on other practices that caused harassment.
Noting that it made more sense to ask government employees, such as teachers, to not wear religious symbols, in order that the government be perceived as neutral toward religion, Neuman said it made less sense to impose a ban on the receivers of a government service for the same reason. Finally, he wondered whether the French law painted too broad a stroke – were other religious groups, he asked, the “collateral damage” of a law intended to focus on a Muslim problem?
Weil, for his part, said that the state needed to protect individuals because forces other than the state – such as religion – could be equally oppressive. Still, he took Neumann’s point about other religious groups serving as collateral damage, and said that compromises had been found for some groups, like Sikhs, who were particularly attached to their religiously mandated garments.
But Weil’s specific solution appeared to boil down to the fact that laïcité was simply the French way of doing things. It demonstrated, he said, that France could not be reduced to the stereotypes of authors such as Joan Scott or Christopher Caldwell, who had asserted that the French were racist or that their liberalism would lead the country to be overrun by Islam, respectively. “Laïcité,” Weil argued, noting that French governments had come and gone, while the principle remained, “is [even] more important in France than the constitution”.