1. religion and spirituality

•••
•••
•••
Why Is There No Headscarf Affair
in the United States?
Daniel Gordon1
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 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.”
—“Guidelines on Religious Exercise and Religious Expression
in the Federal Workplace,” issued by President Bill Clinton,
14 August 19972
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: 10.3167/hrrh2008.340304
Volume 34, Issue 3, Winter 2008 © Berghahn Journals
ISSN 0315-7997 (Print), ISSN 1939-2419 (Online)
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 famil38
Historical Reflections • Winter 2008
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 counterGordon • Why No Headscarf Affair in the USA?
39
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 iso40
Historical Reflections • Winter 2008
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
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 Com42
Historical Reflections • Winter 2008
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
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
in the U.S. from a state right into an individual right. Secondly, the text
itself, 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
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
1997. “Executive departments and agencies shall permit personal religious
46
Historical Reflections • Winter 2008
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 Commission,
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
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
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. Wilkinson43 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 2000. 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
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 Ameri50
Historical Reflections • Winter 2008
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, 2001. 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
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
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 another 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
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 hear54
Historical Reflections • Winter 2008
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
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 1997. For the full text, see
http://clinton2.nara.gov/WH/New/html/19970819-3275.html. For news coverage of the guidelines, see “Religious Expression in the Workplace,” Christian
Century, 27 August 1997, www.findarticles.com/p/articles/mi_m1058/is_n24_
v114/ai_19762557.
3. 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 http://www.infoimagination.org/cgi-local/islamnm/suspended
.cgi. 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 03-598-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 03-598-S (? March 2004—day of month missing
in document), http://www.usdoj.gov/crt/religdisc/complaint-in-intervention2
.pdf; 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 03-598-S (6 May 2004), http://www.usdoj.gov/crt/edo/
documents/hearnokbrief.pdf.
7. Consent Order, Hearn v. Muskogee Public School District, CIV 03-598-S (19 May
2004), http://www.usdoj.gov/crt/religdisc/hearn_consent_decree_final.pdf.
8. “Muslim Student, Oklahoma District Settle Hijab Lawsuit,” Associated Press article posted on website of First Amendment Center on 20 May 2004, http://www
.fac.org/news.aspx?id=13379.
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, 20.
11. 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 Amend56
Historical Reflections • Winter 2008
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
ment’s guarantee of the free exercise of religion, the Supreme Court subsumed the
issue under the First Amendment’s guarantee of freedom of speech. This broadened the significance of the ruling and helped to establish a tradition of extending religious claims by presenting them as free speech claims. It is now a common
strategy among libertarian attorneys to argue, whenever possible, that both freedom of religion and freedom of speech are threatened when the state regulates
the symbolic behavior of religious persons. The state regulating a religious behavior must present a higher level of public necessity when its policy inhibits more
than one constitutional freedom. See David French, FIRE’s Guide to Religious Liberty on Campus, an online publication of the Foundation for Individual Rights in
Education, http://www.thefire.org/index.php/article/5061.html, 13–14.
French, 13–14.
“Tennessee School Alters Dress Code to Allow Muslim Headscarf,” 14 January
2005, http://www.cnn.com/2005/EDUCATION/01/14/head.scarf.ap. See also
“Muslim Headscarves Allowed in Tennessee School,” 13 January 2005, http://www
.usatoday.com/news/nation/2005-01-13-tenn-headscarves_x.htm?POE=clickrefer.
Werner Sombart, Why Is There No Socialism In The United States?, trans. Patricia M.
Hocking and C.T. Husbands (New York, 1976). For background on the origins of
Sombart’s research on the U.S. and the publishing history of his text, see Daniel
Bell, “The ‘Hegelian Secret’: Civil Society and American Exceptionalism,” in Is
America Different: A New Look at American Exceptionalism, ed. Byron E. Shafter (Oxford, 1991), 51–54.
Sombart, 16–17.
Ibid., 22–23.
See the excellent discussion of this theme by Husbands in his introduction to
Sombart, xx; and Sombart’s own discussion at pp. 55, 109–11.
Ibid., Section Two, 61–108.
Ibid., xli.
Ibid., xii.
Ibid., xi–xii. For another balanced appraisal, see Bell, “The ‘Hegelian Secret.’”
Eric Foner, “Why Is There No Socialism in the U.S.,” History Workshop Journal 17
(Spring 1984): 57–80; Sean Wilentz, “Against Exceptionalism: Class Consciousness and the American Labor Movement,” International Labor and Working-Class
History 26 (Fall 1984): 1–24.
Commission de réflexion sur l’application du principe de laïcité dans la République: rapport au Président (Stasi Commission Report of 11 December 2003),
http://lesrapports.ladocumentationfrancaise.fr/BRP/034000725/0000.pdf, also
available at http://www.fil-info-france.com/actualites-monde/rapport-stasicommission-laicite.htm. Unless otherwise noted, all translations from French
sources are by the author.
Rapport de la mission d’information sur la question du port des signes religieux
á l’école (National Assembly ad hoc report, 12 December 2003), http://www.
assemblee-nationale.fr/12/rapports/r1275-t1.asp [hereafter Debré Report]. This
report is much longer than the Stasi report and has some distinctive features.
Above all, it develops the theme of French uniqueness (arguing that secularism is a special and valued feature of French democracy) much more than the
Stasi report does. Hence, the former report contains long sections comparing the
French system of education to other systems.
Gordon • Why No Headscarf Affair in the USA?
57
26. Jean-Jacques Rousseau, The Social Contract, ed. Lester G. Crocker (New York,
1967), 21 (Bk. I, Ch. 7): “Indeed, every individual may, as a man, have a particular will contrary to, or divergent from, the general will which he has a citizen
… The progress of such injustice would bring about the ruin of the body politic.”
See also the chapter on “civil religion,” 136–47 (Bk. IV, Ch. 8).
27. Pierre Bourdieu has written: “The apparent question, whether or not to accept the wearing of the so-called Islamic veil in schools, hides the latent question, whether or not to accept in France immigrants of North African origin.”
Pierre Bourdieu, “One Problem Can Be Hidden By Another: The Question of
the ‘Islamic’ Scarf,” Political Interventions, Social Science and Poltical Action (London,
2008), 253. I take issue with this statement, which reflects the approach of many
commentators on the French ban. To avoid an expanded methodological discussion, I will simply point out that the existence of a more severe headscarf ban
in Turkey, a predominantly Muslim country, is enough to suggest that headscarf
bans cannot be reduced to the exertion of prejudice by a majority over a racial or
religious minority. It should also be pointed out that a large proportion, 42%, of
French Muslims supported the ban. See the polling date provided by the French
organization, CSA at http://www.csa-fr.com/dataset/data2004/ventilation/ventil
20040121b_2.htm. The poll in question was conducted in January 2004. I regret
that I composed this article before reading John Bowen, Why the French Don’t Like
Headscarves: Islam, The State, and Public Space (Princeton, 2006). This author has
some good reflections on “public space,” but like Bourdieu, he could do more to
elucidate it as a philosophical concept in French political culture
28. The reference for these interviews is the same as in note 25. But observe that
the online text is divided into two files, called volumes, with the interviews in
volume 2.
29. Anne Vigerie and Anne Zelensky, “Laïcardes puisque féministes,” first pub. in
Le Monde, 30 May 2003, available at http://eleuthera.free.fr/html/238.htm [emphasis added].
30. Conversely, it is doubtful that any French person would make a statement like
the one Melissa Rogers, a Wake Forest University professor, made to the U.S.
Senate’s Committee on the Judiciary: “The Constitution wisely recognizes that
people cannot be expected to limit their religious expression to their homes or
place of worship—faith informs many Americans’ daily lives and decision-making
on public as well as private matters. Indeed, our national dialogue would be impoverished … if religion were to be excluded from the public square.” Testimony
of 8 June 2004 to U.S. Senate Judiciary Committee, http://judiciary.senate.gov/
testimony.cfm?id=1218&wit_id=3526.
31. Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials (New
York, 2000), 402–3. The use of italics and parentheses is part of the original.
32. Ibid., 403.
33. James Q. Whitman, “The Two Western Cultures of Privacy: Dignity Versus Liberty,” Yale Law Journal 113 (April 2004): 1151–21.
34. Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (Chapel Hill, 1994); Michael W. McConnell et al., Religion and the Constitution (New
York, 2006).
35. Holly M. Bastian, “Religious Garb Statutes and Title VII: An Uneasy Coexistence,”
Georgetown Law Journal 80 (October 1991): 211–32. The Pennsylvania garb statute dates to 1895 and was reenacted with minor changes in 1949. See United
58
Historical Reflections • Winter 2008
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
States v. Board of Education, 911 F.2d 882 (3rd Circuit 1990), 885, 890. In February 2005, the Pennsylvania Senate referred the law to the Education Committee
for a report on whether it should be repealed. See Commonwealth of Pennsylvania Legislative Journal, no. 8 (7 February 2005). But as of January 1, 2008, the
Committee has yet to issue a report.
Nichol v. ARIN Intermediate Unit 28, 268 F. Supp. 2d 536 (2003). See pages 545
and 555 for the specific sections quoted. The Pennsylvania Supreme Court did
uphold the garb law’s constitutionality, but in a case now nearly a century old.
Commonwealth v. Herr, 78 A. 68 (Pa. 1910).
“Guidelines on Religious Exercise,” see note 2.
Debré Report, see note 25.
I received a thoughtful communication on this point from Elisa Wiygul when
she edited the text for inclusion in the present forum. She suggested that the
tendency of Americans to band together across religious boundaries is not necessarily intuitive. “One might well expect religious people to band together more
in France, where the state is hostile to public manifestations of religion, than
in the United Sates, where the state is much less likely to interfere. But maybe,
among other reasons, the idea of religious institutions trying to rival the state for
power has such a bad name in France that religious Christians wouldn’t think of
allying with other religious people in the same way?”
See the Rutherford Institute’s website, http://www.rutherford.org, sections entitled “About Us,” “History of the Rutherford Institute,” and “Key Cases.”
Oregon v. Smith, 494 U.S. 872 (1990).
Brief Amicus Curiae of the American Jewish Congress, 1988 U.S. Briefs 1213
(1989), 1, 27, 35, 40. I concede that the outcome of Oregon v. Smith goes against
the grain of my emphasis on America’s religious liberalism: the Supreme Court
ruled that a state does not have to give an accommodation to religions using
illicit drugs. However, though a state is not constitutionally required to exempt
religions from its drug laws, it is constitutionally permitted to do so. Many states
have passed Religious Freedom Restoration Acts that do in fact require the government to grant such exemptions not only for drugs but for many other religious purposes. For fuller discussion of how Oregon v. Smith has not reversed the
trend toward religious accommodations, see Marci Hamilton, God vs. the Gavel:
Religion and the Rule of Law (Cambridge, 2005). In reaction to the Smith decision,
the U.S. Congress passed its own Religious Freedom Restoration Act, which the
Supreme Court struck down as it applied to the states. City of Boerne v. Flores,
521 U.S. 507 (1997). However, the federal RFRA still applies to the federal government, so that the government may not substantially burden a religious observance via a generally applicable law, unless the government has a compelling
interest in enforcement. See Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418 (2006).
Cutter v. Wilkinson, 544 U.S. 709 (2005).
Ibid., 712.
Ibid.
Ibid., 713, 717–18.
Brief Amicus Curiae of the Coalition for the Free Exercise of Religion, 2003 U.S.
Briefs 9877, 1.
Ibid., Appendix B, 33–36.
Gordon • Why No Headscarf Affair in the USA?
59
49. “Religious Expression in the Workplace,” Christian Century (page 2 of the 3-page
online article cited in note 2).
50. Reactions to article by Clare Murphy, “Headscarves: Contentious Cloths,” BBC
News Online, 24 September 2003, http://news.bbc.co.uk/1/hi/world/europe/
3135600.stm. On 11 December 2003, this site was updated. The main article
on the French headscarf debate remains but the September responses from
readers were removed. A copy of the deleted part of the BBC website is in my
possession.
51. Marian also could have noted that headscarves are becoming more popular in
the U.S. among women of various Christian denominations so that businesses
now cater to the need for Christian headscarves. See the website of the company, “She Maketh Herself Coverings,” http://www.headcoverings.com.
52. See this website of the Norman Rockwell Museum for the illustration: http://
store.nrm.org/browse.cfm/4,1214.htm.
53. Clare Ovey and Robin White, Jacobs and White, The European Convention on Human
Rights (Oxford, 2006), 300. See the whole of Chapter 12, 300-316, for a fuller
discussion of the European Court of Human Rights’ restrictive approach to religious freedom. Malcolm D. Evans, Religious Liberty and International Law in Europe
(Cambridge, 1997), also vividly illustrates the comparative narrowness of religious freedom in the European system. Evans also shows that the conception of
religious liberty was restrictive at the time the European Convention on Human
Rights was drafted in 1950. Finally, his narrative suggests that a French jurist,
Pierre-Henri Teitgen, played a large role in shaping Article 9. One can tentatively
conclude that a French tradition of subordinating religious freedom to “public
order” played a significant role in shaping current European law as a whole. See
ibid., 264-72, 281–333.
54. Antoine Garapon and Ioannis Papadopoulous, Juger en Amérique et en France
(Paris, 2003), 48, 199–201, 205.
55. Nichol v. ARIN Intermediate Unit 28, 544.
56. West Virginia v. Barnette, 319 U.S. 624 (1943), quotation from p. 633.
57. Jonathan Lawrence and Justin Vaisse, Integrating Islam: Political and Religious
Challenges in Contemporary France (Washington, D.C., 2006), 165, 169.
58. Stasi Commission Report, see note 24.
59. Prior to President Chirac’s decision to appoint the Stasi Commission and to sponsor legislation on the issue, the Conseil d’Etat played the leading role in interpreting the right to wear headscarf in public schools. Scholarly writing on the
Conseil often emphasizes its receptiveness to the scarf and its sensitivity to its
diverse meanings. It is true that the Conseil was more pluralistic than the Stasi
or Debré reports, so my interpretation of the French tendency to ignore local,
subjective meaning could be qualified to take this into account. However, it is
also important to observe that the Conseil’s jurisprudence on religious symbols
was never as pluralistic as recent American constitutional law. The Conseil reserved for the state the power to impute a harmful meaning to the scarf, even
when divisive intentions and physical harms were not demonstrable. For a careful legal analysis of the Conseil’s approach to the headscarf, see Elisa T. Beller,
“The Headscarf Affair: The Conseil d’Etat on the Role of Religion and Culture in
French Society,” Texas International Law Journal (Summer 2004): 581–623.
60
Historical Reflections • Winter 2008