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It probably doesn’t happen too often that, at the very moment the U.S. Supreme Court is considering a case, it can see other nations grappling with the same issue. So it would seem to be good luck that we’re not the only multiethnic Western democracy trying to figure out — again — the proper role of religion in public schools. Unfortunately, as the justices look around, what they’ll see are two alternate realities that are equally unappealing. Next month, the high court hears arguments about whether the Constitution allows public schools to prompt students to pledge allegiance to the flag “under God.” The case hinges on the meaning of our First Amendment, which keeps the government from making laws “respecting an establishment of religion, or prohibiting the free exercise thereof.” Figuring out where to draw the legal lines between creed and country is a devilish mess everywhere. Like us, France and Italy are debating what role religion should play in public schools. Both are toying with solutions that jibe with their own cultures — and that should strike Americans as distressingly foreign. France shows the problems of ignoring the free exercise clause; Italy shows the perils of establishing a religion. Somehow, our Supreme Court needs to find a way to solve the Pledge of Allegiance problem without pushing us toward one or the other. Since there seems to be no easily reasoned way to do that, I suppose this is a time for faith. ‘INDIVIDUALS MUST CONFORM’ Start with France. On March 2, the French Senate is scheduled to vote on a bill that would ban “ostensibly” religious symbols in public schools. That means that Christians who wear large crosses, or Jews who wear yarmulkes, or Sikhs who wear turbans, or Muslims who wear head scarves, can’t do so in school. President Jacques Chirac proposed the bill, and the lower house of the French legislature has already approved it — by a margin of 494-36. As a member of the national committee that wrote the report backing the law said, “Democracy is weak in the face of fundamentalism.” Put another way, the state religion of France is secularism. At least in theory, it defines the French. According to the report, “The French Republic constructed itself around secularism.” What does that mean for the people? “Individuals must conform in the same fashion regardless of their religious beliefs.” Otherwise, the country runs the risk of a cultural “tribalization” that “nourishes racial and religious tension [and] a revived anti-Semitism.” Again, that’s the theory. But in practice, France’s relationship with religion is more complicated. While the law would ban religious symbols in public schools, it would allow them in private schools — even private religious schools, which receive state funding. While there are many such Roman Catholic schools, there are but two Muslim school in the whole country. Of that nation’s 11 holidays, seven are Catholic. The overwhelming portion of the population is Catholic, though only 8 percent is practicing. And Catholic churches, which ring bells heard throughout the community, are actually owned by the state. Given the nation’s lingering ties to Catholicism, it’s not surprising that a bill against religious symbols won’t serve purely secular ends. What prompted the call for change wasn’t too many crucifixes; it was too many head scarves, which devout Muslim girls and women wear. The report that led to the bill is subtitled “The commission of thought on the implementation of the principle of secularism . . . created . . . over the controversy over the Islamic veil.” The French prime minister said during debate over the bill that France was the “old land of Christianity” and that he was especially pushing secularism “for the most recently arrived, I’m speaking here of Islam.” So it’s not merely that France is asserting secularism. It’s asserting secularism specifically against a minority religion that conflicts with France’s dominant culture, both secular and religious. NOT CREATURES OF THE STATE Suffice it to say, none of this would sit well under our Constitution. Look at the main thrust behind the French law — that individuals must “conform” to the state’s views of faith. Well, around here, the Supreme Court wrote in Pierce v. Society of the Sisters of the Holy Names of Jesus (1925), “The fundamental theory of liberty . . . excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state.” And what about forcing students to abandon the rules of their religion in order to attend public school? In West Virginia State Board of Education v. Barnette (1943) — a case about whether schools could compel Jehovah’s Witnesses, against their faith, to salute the American flag — Justice Robert Jackson wrote for the Court that “If there is any fixed star in our constitutional constellation, it is that no official . . . prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The French report says that because schools “prepare citizens of tomorrow for living together at the breast of the Republic,” students must accommodate themselves to secularism early on. Justice Jackson in Barnette responds to that sort of argument by proclaiming that the very fact that government is “educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual.” From this American perspective, there’s not much room for the French one. But if the Gauls’ problem is that they’re driving religion out of public schools, the Italian problem is that they’re embracing it. For the last few months, the government has been fighting in court — so far successfully — to allow a small town about 90 miles from Rome to keep a crucifix on the wall of its only public school. A 1924 law says that schools must display crucifixes. But a local Muslim man objects to his children attending their classes under the cross of Christ. (He also has a good legal argument, since the Italian constitution states that “Religious denominations are equally free before the law.”) What are the arguments in favor of keeping crosses in public schools? The Vatican has weighed in on the importance of the publicly displayed crucifix. The lower house of the Italian legislature passed a resolution stating that the crucifix is “a symbol of the values of freedom which are at the basis of our national, European, and Western identity.” And the judge who ruled in favor of the crucifix wrote last November that it is a “symbol of the country’s identity.” THE ROLE THAT FAITH PLAYS Clearly, that sort of reasoning wouldn’t work here. In Engel v. Vitale (1962), the Supreme Court considered the constitutionality of a New York law that directed teachers to oversee a daily prayer stating in part, “Almighty God, we acknowledge our dependence upon Thee.” Justice Hugo Black, writing for the Court, refused to allow it. He wrote, in words that might well epitomize the American creed, that “a union of government and religion tends to destroy government and to degrade religion.” Everyone agrees with that, right? Maybe not. Solicitor General Theodore Olson’s brief to the Supreme Court defends the Pledge of Allegiance in terms that the Italians would understand. He writes: “The reference to God permissibly acknowledges the role that faith in God has played in the formation, political foundation, and continuing development of this Country.” Olson has a point — “faith in God” did drive our country’s creation. The Puritans, and later the Mormons, were driven by faith. But that’s precisely what’s so troubling about the reasoning. After all, most early Americans were Christians. So if the government can say that “under God” reflects our national history, why not a cross? The government’s brief also has troubling echoes of the French arguments: If secularism for them is an expression of national culture, likewise “the Pledge of Allegiance, with its reference to God, ‘has become embedded’ in the American consciousness and ‘become part of our national culture.’ ” In both situations, by tying identity so closely to dogma, there’s a hint of fundamentalism — religious for us, secular for the French. For either nation, if culture offends conscience, so be it. Which leaves Americans in something of a bind. If our Court affirms the Pledge of Allegiance as written, we begin to look like the Italians. If it strikes down the “under God” language, we’ve started down the road toward the French. I hope the justices know how to avoid both fates — because I sure don’t. Evan P. Schultz is associate opinion editor at Legal Times , where his column, “Controversies & Cases,” appears regularly. For their translation help, he thanks professor Robert O’Brien and Joan Schultz. The views expressed, of course, are solely those of the author, who can be reached at [email protected].

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