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ABSTRACT a Question of Balance: a Study of Legal Equality and State Neutrality in the United States of America, France, and Th

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ABSTRACT a Question of Balance: a Study of Legal Equality and State Neutrality in the United States of America, France, and Th ABSTRACT A Question Of Balance: A Study Of Legal Equality And State Neutrality In The United States Of America, France, And The Netherlands Brenda J. Norton, J.D., M.T.S. Chairperson: Jerold L. Waltman, Ph.D. Western liberal democracy has a dual foundation of limited government implementing the will of the majority and protecting individual autonomy within a sphere of fundamental rights. This foundation is implemented through a constitutional framework with some schema for the recognition of separate powers. When adopting a constitutional structure the polity seeks to provide administrable legal standards which are drawn from moral and political principles. The structure shapes the relationship between religion and government and restricts legislative choice with regard to religion and other basic rights. Within this broad framework, legislatures may freely adopt laws which reflect their political values. Courts are to strive for something more. They are to interpret constitutional standards using specific legal interpretive techniques which may generate an outcome that may run counter to the view of the political branches. Thus, there is a continual balancing required between the enactment of the will of the majority and the protection of individual rights. Under the rubric of universal human rights Western societies take for granted that they tolerate all religions and treat all persons equally. However, through globalization and immigration Western societies are increasingly finding non-Christian people in their midst. This pluralism is causing polities to rethink fundamental notions of the boundaries of religious freedom, equality, and state neutrality. Three countries whose systems are based on the Western liberal democratic philosophy and which are religiously pluralist— the United States, France, and the Netherlands— are reacting in different ways. The politics of the hijab and burqa lie at the intersection of the political and legal spheres. Consequently, the political and legal spheres have each attempted to enforce differing versions of the concepts of equality and neutrality. A cross-cultural and cross- national survey of judicial decisions and legislative action in these countries demonstrates how each is balancing individual rights and communal bonds, and adhering to or retreating from previously accepted human rights norms for women and religious practices. A Question o f Balance: A study of legal equality and state neutrality in the United States of America, France, and the Netherlands by Brenda J. Norton, J.D., M.T.S. A Dissertation Approved by the J.M. Dawson Institute of Church-State Studies ___________________________________ Robyn L. Driskell, Ph.D., Interim Director Submitted to the Graduate Faculty of Baylor University in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Approved by the Dissertation Committee ___________________________________ Jerold L. Waltman, Ph.D., Chairperson ___________________________________ Peter L. Berger, Ph.D. ___________________________________ Charles A McDaniel, Ph.D. ___________________________________ Daniel P. Payne, Ph.D. ___________________________________ Barry G. Hankins, Ph.D. Accepted by the Graduate School August 2013 ___________________________________ J. Larry Lyon, Ph.D., Dean Page bearing signatures is kept on file in the Graduate School. Copyright © 2013 by Brenda J. Norton All rights reserved TABLE OF CONTENTS LIST OF FIGURES vi ACKNOWLEDGMENTS vii Chapter 1. INTRODUCTION 1 2. A BRIEF HISTORY 12 3. THEORETICAL CONTEXT 21 4. THEORY INTO PRACTICE 36 5. FRANCE 53 History 54 Laicite 63 Colonies, Immigrants & Muslims 68 Affair du Foulard 76 The Burqa Ban 85 6. THE NETHERLANDS 105 History 106 Poldermodel 112 Verzuiling 115 Ontzuiling 119 Women 123 Immigration 125 Islamaphobia and National Identity 134 The Veiling Debates 139 7. UNITED STATES 153 History 153 Origin of the Nation 158 The Veiling Debates 180 8. CONCLUSION 198 BIBILIOGRAPHY 209 v LIST OF FIGURES Figures 1. Malcolm Evans, Cruel Culture 203 vi ACKNOWLEDGMENTS I thank my husband, Ken Coffman. Not many men would have said ‘go for it’ when their wife, a practicing attorney of many years, came home one day and announced she’d quit her job to go back to school to learn what all this brouhaha about religion was and then again when she announced that she was going on for a PhD and switching careers to academics. At Baylor I must thank my chair, Jerold Waltman and mentor, Peter Berger. You stepped into the breach when you did not have to and rescued students set adrift by events beyond their control. The rest of the Church-State Department who listened politely to the woman who is incapable of following her own advice to witnesses –answer with a simple yes or no and don’t volunteer information. You have certainly heard more about law and legal theory than any of you ever imagined you would outside of going to law school. To the students I have already had the privilege of teaching, you continue to challenge my mind and show me new ways of thinking about how to achieve a better democracy. vii CHAPTER ONE Introduction In the lobby of the United Nations General Assembly Building in Manhattan there hangs a gift from the Netherlands, a perpetual pendulum.1 A perpetual pendulum slowly sways in time with the rhythm of the Earth never straying from a fixed boundary circle. The Earth, while it may feel motionless and stable to us, is in continuous motion on its own axis and around the sun. Its core must remain liquid and moving or all life will die. These movements must not stray beyond the boundaries set by nature or all life will die. Even when we feel an earthquake the Earth’s axial spin and movement around the sun remain constant. So, too, is democracy. It is messy and constantly changing and no one can clearly define it. We see evidence of its movement through the actions of individuals and groups, ever changing in time and place, but which must remain within boundaries of its own if it is to retain its essence. Scientists can calculate precisely the amount of movement, or lack thereof, necessary to sustain life on Earth. We cannot, however, precisely calculate the boundaries of democracy. But by observing events in different geographical areas with similar democratic structures we can attempt to sketch an amoeba-like edge beyond which we can declare democracy cannot breathe. The West is experiencing events which are pushing the pendulum of democracy to the edge, and some argue over it, due to an increase in religious pluralism. 1 A perpetual pendulum is also called a Foucault pendulum and was first created in 1851 to prove the movement of the Earth. In order to counteract the friction of air, which would eventually stop the pendulum, the pendulum in the UN building has a small electro magnet underneath it. 1 The West has been and is a Christian majority area. Its societal structure largely emanates from the implementation of Christian values. In the West the concepts of dignity of the person, free will, and a transcendent justice all reflect Christian values morphed into universal human rights. Western societal characteristics consequently include a constitutional structure and the recognition of individual rights.2 When this structure was being shaped, the majority of people identified themselves as Christian, and the theories influencing the development of society claimed Christianity as their foundation. Thus, arguments about political equality and religion revolved around the same foundational axis. Western liberal democracy has a dual foundation of limited government implementing the will of the majority and protecting individual autonomy within a sphere of fundamental rights. This foundation is implemented through a constitutional framework with some schema for the recognition of separate powers to legislate, administer, and interpret rules by which those governed consent to abide. All government institutions are supposed to implement the foundational principles of liberal democracy and balance the will of the majority with the protection of individual rights. When adopting a constitutional structure the polity seeks to provide administrable legal standards which are drawn from moral and political principles. The structure shapes the relationship between religion and government and restricts legislative choice with regard to religion and other basic rights. Within this broad framework, legislatures 2 It can be argued whether concepts of dualism existed in Judaism or Greek and Roman polities, but without question the presence of Christianity shaped Western social and political thought for centuries. See Said Amir Arjomand, “Religion and Constitutionalism in Western History and in Modern Iran and Pakistan” in The Political Dimension of Religion, ed. Said Amir Arjomand (Albany: State University of New York Press,1993); Carl Friedrich Transcendent Justice (Durham: Duke University Press,1964); Brian Tierney, Religion, Law, and the Growth of Constitutional Thought, 1150-1650 (New York: Cambridge University Press, 1982). 2 may freely adopt laws which reflect their political values. Constitutional courts are to strive for something more. They are to interpret constitutional standards using specific legal interpretive techniques which may generate an outcome that may run counter to the view of the political branches. The area of religious belief and practice is often considered the first of these individual spheres of private choice.3 Thus, there is a continual balancing required
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