In her book Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008) the American philosopher Martha Nussbaum joins a chorus of American intellectuals who have criticized France and other European nations for their failure to embrace the concept of cultural pluralism. In Nussbaum's opinion, the meaning that the French attach to egalité has remained stuck in circumstances peculiar to the eighteenth century. The concept is outdated and has not in the contemporary world been able to protect cultural diversity in general and religious diversity in particular. Her book takes to task what she terms “the French tradition of “coercive assimilation” that is insensitive to what George Washington stressed as the “‘delicacy and tenderness’ that is owed to other people's ‘conscientious scruples.’” The French refusal to allow Muslim schoolgirls to cover their heads with a foulard, however stylish it might be, is linked back to the French emancipation of Jews that required, in Nussbaum's analysis, a heavy requirement of cultural erasure. The French, like most Europeans, grew used to the idea “that citizens are all alike,” an idea that now haunts France as it tries to figure out what to do with its Muslim population.Footnote ¹

Even secular liberals in the United States, the ones who were dismayed by the religious politics that were so famously part of the Bush years, would probably agree with Nussbaum that the American tradition of “separation of church and state” is more protective than French laïcité “of each person's space for both belief and religious practice, and much more skeptical of any kind of public orthodoxy or homogeneity.”Footnote ² The French are aware of these criticisms, and respond to them with bemused references to the American penchant for prayer in public places (including at games of American football), a Yale-educated American president who does not believe in Darwinian evolution, and the fervent baring of religious convictions made by candidates for high office. American and French intellectuals have made a contentious game of trying to correct one another's inadequate sense of what religious liberty is all about. As an example, one might consider the almost uniformly negative reaction of French intellectuals to Joan Scott's The Politics of the Veil (Princeton: Princeton University Press, 2007). Scott is a respected scholar in France, but she, like Nussbaum, is preoccupied with selling a notion of multiculturalism that the French regard with suspicion.

This essay, in its examination of three important books about American thinking on church–state relations, intends to offer a historical perspective on why the French and American formulas for a secular state have become so divergent, this despite the fact that both countries share the following principles: no person suffers any civil disability because of his or her religion; the government cannot maintain an established church or promote any version of an official religion; all religious organizations that are not destructive of public order have a right to exist; government is a secular contract among its citizens, not a pact between them and God. Two of these books, Nussbaum's and Philip Hamburger's Separation of Church and State (Cambridge, MA: Harvard University Press, 2002), have been out for several years and have been widely reviewed. They stake out quite different positions in a heated debate within the United States about what the framers intended when they wrote the religious clauses of the First Amendment. Nussbaum's book has given arguments to liberal justices on the Supreme Court and Hamburger's to the conservatives. Although it is impossible to write about Nussbaum and Hamburger without giving away something of one's position, the aim here is less to provide additional critical perspectives on their arguments than to show in what way the arguments of both books have grown from a historical experience quite different from that of France.

A newer book by Steven Green, The Second Disestablishment: Church and State in Nineteenth-Century America (New York: Oxford, 2010), provides an important corrective to the emphasis on Supreme Court decisions in defining American church–state relations. It opens a new perspective on the internal debate within the United States, one that also points to additional reasons why France and the United States are so different. Neither country perhaps has fully come to grips with the complexity of its past. As a result, both look for unwavering principles in a landscape that history has riddled with ambiguity. With respect to the United States, Steven Shiffrin has suggested in his recent book on church–state relations that the quest to find a single legal formula to interpret constitutional disputes involving the religious clauses of the First Amendment is misguided. Both the Free Exercise Clause and the Establishment Clause rest on a plurality of values that are not always compatible either in the realm of abstract principles or in the more concrete realm of experience.Footnote ³

We begin with Nussbaum. Her book provides powerful historical, legal, and philosophical arguments to define what Americans should consider when they interpret the lines in the United States Constitution's First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The two brief clauses, the first dubbed the Establishment Clause and the second the Free Exercise Clause, have tended to take on separate and often conflicting lives in American constitutional law. As a preliminary point of contrast, the French law of 1905, which put a definitive end to the Concordat that Napoleon signed with Pope Pius VII in 1801, is long (forty-four articles) and specific. French laïcité really did more than separate church and state. It served to institutionalize state suspicion of religious activity as potentially harmful to the interests of the nation. The reasons for the contrast will be explored later. For Nussbaum, the First Amendment rests on a concept of fairness, rooted in the principle of equality that should guide judicial decisions far more than Jefferson's non-constitutional gloss on the Amendment as creating a “wall of separation” between church and state.Footnote ⁴ Although Nussbaum has no use for conservative American evangelicals who, in her mind, regard their religious values as normative for everyone, she also argues against secularists who insist that religion is something that should be utterly private, contained within the walls of houses of worship and without significance for the affairs of state. No one, of course, pretends that such a situation has ever described the realities of religion's role in American public life and culture, but Nussbaum argues that the secularist ideal is a misguided goal. Religious voices have much to contribute to discussions of social justice, even if, and this caveat is central to Nussbaum's argument, religiously grounded views must acknowledge the “deep importance of finding a way to live on terms of mutual respect with people whom one believes to be in error.”Footnote ⁵

Nussbaum has a balancing act to perform with respect to Jefferson. Jefferson frequently mentioned religion in his public addresses, and like most of the founders assumed a strong linkage between religion and morality. Yet Nussbaum fears that Jefferson and those who have claimed his legacy often slipped into a “smug” secularism that sought to banish any mention of religion in the public sphere. At the same time she does not believe, as at least four (all Catholic) of the current Supreme Court justices, seem to believe, that government may provide financial aid to organized religion on an even-handed basis, that religion has a legitimate role to play in public schools, that the phrase “under God” belongs in the pledge of allegiance to the flag, and (only one of the justices on this last point) that the ban on a religious establishment limits only the actions of the Federal government and not the actions of the various states. Nussbaum argues that the trouble with these “conservative” justices is not their weakened regard for Jefferson's metaphor but their failure to understand that fairness prohibits the government from doing anything that might be construed as showing favoritism to any particular religious belief. From her perspective, the problem with Justice Antonin Scalia, the most militant among the Court's conservatives, is that he cannot understand why anyone would want to be a Buddhist, or a Mormon, or really anything outside the Christian, and maybe Jewish, tradition. People can, of course, subscribe to whatever religion they choose, and no one is going to harm them in practicing their faith. However, adherents of minority faiths should not be bothered by crèches or even a menorah or two placed in public spaces that reflect things that most people in the United States revere.

Nussbaum's own religious history provides insight into her concern for equal respect, her synonym for fairness, and for her belief that religion lies at the foundation of what has made cultural pluralism an incalculably rich asset in the history of the United States. Raised in a Protestant New England family that claimed genealogical links to the first settlers of colonial Massachusetts, she married a Jew, converted, and joined a Reform temple. The fact that Reform Judaism gets scant respect either from orthodox Jews or from her Protestant family feeds into the point she wants to make. The religious choices she has made, which have been repeated in one way or another by many other Americans, confirm in her mind both the freedom to go against tradition and the extent to which Americans, whatever religious prejudices they might hold, regard religious diversity as something that the law does not police. Nussbaum sometimes writes as if she were merely recording what Americans believe (“the mixture of civil with religious jurisdiction threatened the equality of standing in the public realm that was enormously precious to all Americans”Footnote ⁶). Acting as a scribe for all Americans is a dubious venture, but Nussbaum's assumption of common values can serve as a useful reminder that beliefs are often habitual attitudes picked up by osmosis from culture rather than statements of closely examined principles. The difference between the French and the Americans rests less on principles (who among the French would resist the notion of equal standing in the public realm?) than on the fact that principles have taken shape in historical experiences that have given different reference points to the popular understanding of, for example, the phrase “equal standing.”

Nussbaum's hero is neither Thomas Jefferson nor James Madison, who before the adoption of the American Constitution won a crucial battle for free religious conscience in the state of Virginia. She heralds instead Roger Williams, an ardent Calvinist Puritan who in the seventeenth century bucked the religious order of the Massachusetts Bay Colony. His public censure of the colony's leaders for enforcing religious conformity led to excommunication from his church and exile from Massachusetts Bay. He then founded the colony of Rhode Island, which during his lifetime followed his well-articulated principle that government and religion should stay out of each other's separate business. Rhode Island became a haven for Catholics, Jews, and Quakers who had no welcome elsewhere. The term “religious dissenter” disappeared, along with the original meaning of toleration; that is, a license for a minority religion to exist but without the full legal and social privileges of the majority. In Rhode Island, everyone's religious conscience stood on an equal basis.Footnote ⁷

Some of Nussbaum's critics have seen her close and extensive reading of Williams as eccentric.Footnote ⁸ Actually eccentricity is an excellent way to approach Williams, whose views forever elude neat categorization. Williams almost uniquely among other New England colonists maintained friendly relations with Indian groups and more than once favorably compared their peaceful societies to Christian Englishmen who made a practice of “soul-rape.” The goal of maintaining Christian orthodoxy, he said in rebuking the New England divines who sent him packing into the wilderness, was a poor way to run a civil society. Nussbaum rarely mentions Williams's religious views (Calvinism does not appear in her book's index). She makes him a precursor and a superior thinker to Locke, and tailors him to fit comfortably into the philosophical traditions she admires, from the Stoics to John Rawls. Her efforts to disassociate Williams from his own famous phrase separating the church from the world become a bit tangled, for her analysis depends upon the acknowledgment that Williams saw the government of churches as very different from the government of the civil sphere. In fact one extremely useful corrective she makes to some earlier scholarshipFootnote ⁹ is her persuasive argument that Williams's designation of two spheres was not merely to protect churches from worldly intrusions but equally to protect the state from the interference of churches beating the drum of religious orthodoxy. What matters most to Nussbaum is Williams's strong respect for individual conscience, not necessarily a religious conscience, even when it was likely to push someone into hellfire in the life beyond. It also matters to her that Williams did not base his defense of religious liberty on religious skepticism. In her mind the United States that was yet to be born would owe more to “Williams’ fervent religious quest” than to Jefferson's “disdain for religiosity.”Footnote ¹⁰

Nussbaum's scant regard for Jefferson is odd since Jefferson has figured in far more discussions of American church–state relations over the years than has Williams. Yet she is surely right in noting the respect for religion that underlies American constitutional principles. The French intellectual establishment might wonder whether Nussbaum has fully learned the lessons of well-known cases of Protestant discrimination against immigrant Catholics and the Church of Jesus Christ of Latter-day Saints. The problem is not that she ducks most historical eruptions of religious prejudice. She is one of the few American legal scholars (Sarah Gordon is anotherFootnote ¹¹) who have said boldly that the American Supreme Court in its 1878 ruling Reynolds v. United States used flawed reasoning when it upheld an act of Congress that outlawed polygamy. Still, some will question Nussbaum's confidence that Americans, religious ones and non-religious ones alike, have overcome religious intolerance to the degree that she claims and have created an inclusive society. In her book religion in America is neither a potential danger to society nor a dogmatic position that dampens the exercise of free opinion. Americans, she says, again speaking as the recording voice of the majority, value a polity where different religious doctrines “meet and overlap in a shared moral space.”Footnote ¹²

The possibility of this result rests, in Nussbaum's mind, upon an idea of accommodation between religion and public life, one that carves out special rights for religious practice in everyday life and law. In this matter, she pays special attention to the important Supreme Court case Sherbert v. Verner decided in 1963. The Court decided that Adele Sherbert, a resident of the state of South Carolina who had worked in a textile factory, was entitled to unemployment benefits after she lost her job for refusing to work on Saturday. Ms. Sherbert belonged to the Seventh-day Adventist Church that regarded Saturday as the Sabbath day on which work was forbidden. South Carolina turned aside her claim, arguing that since she had refused to accept “suitable work,” she was not entitled to unemployment benefits. The state of South Carolina further argued that its rules regarding unemployment compensation were even-handed in their application and were not intended to harm anyone's religion. The state could not be made responsible for work rules that were difficult for someone of a particular religious persuasion to accept. No law required Ms. Sherbert to work on Saturday. She had the option of not working, just like people who might quit their job so that they could watch football games on Saturday or have more time with their families.

In siding with Ms. Sherbert, the Supreme Court laid down an important Constitutional principle that the state could not substantially burden someone's religious practice without demonstrating a compelling state interest. Nussbaum applauds the decision based on her litmus test of fairness and equal treatment of all religions. At the time of the dispute the majority of Americans, who were either Protestant or Catholic, regarded Sunday as the Sabbath. Even most non-religious Americans accepted Sunday as the normal day when work was suspended. But what was normal for most Americans should not, according to Nussbaum, “burden” people who for reasons of religious conscience cannot follow the majority practice. Nussbaum writes that “the conditions of liberty must be the same for all,” meaning that no one's religious beliefs can be disadvantaged because of arrangements designed to suit the majority, not without the state offering a compelling reason to refuse the accommodation.

The principle in the Sherbert decision prevailed for many years and was part of the rationale used by the Court to allow the Amish people in the state of Wisconsin to withdraw their children from all formal schooling before the age mandated by state law, and to permit the Church of Santería to practice ritual “animal sacrifice” denied to all other citizens of the state of Florida. However, in a move that Nussbaum deplores, the Supreme Court in a 1990 case, Employment Division of Oregon v. Smith, changed its mind. In this case the Court majority sided with the state of Oregon, which had denied unemployment benefits to two American Indians who were fired for using peyote, a legally banned drug, as part of their worship in the Native American Church. In this case the state of Oregon argued more forcefully than the state of South Carolina had in the Sherbert case that it had a compelling interest to forbid the use of narcotics by all citizens. That reasoning satisfied some of the justices, who were prepared to decide the case in Oregon's behalf under the old test. But Justice Scalia wrote the majority opinion that dismissed the obligation of the state to present a compelling state interest. The very fact that a law was passed indicated that the state thought the law important. So long as the law was not aimed at religion, it did not matter if it burdened, even effectively destroyed, someone's religious practice. Laws always burden someone, and Scalia's idea of fairness means that a religious claim for an exception to a law has no more standing in courts than a secular claim for a similar exception.

There are any number of ironies in the Scalia decision. Among them is the fact that Scalia and the justices who voted with him have in other decisions been friendly to religion and have sought to deconstruct legally Jefferson's wall of separation. They have in their rulings accepted laws that in practice, albeit indirectly, have provided tax support to religious institutions, most notably parochial schools. What dismays Nussbaum is her belief that the conservative justices in the Oregon case unwittingly applied Jefferson's and also John Locke's formula of church–state separation in concluding that the protection of free religious practice did not require the Court to reject a law that had the incidental effect of substantially burdening religion. Their reasoning implied that for the Court to provide an exception not granted by the legislature would signal that the Court favored religion over non-religion. This last point poses a problem for Nussbaum for she is not at all sure that the Constitution protects strong moral convictions based on religion more than strong moral convictions based on a secular philosophy. However, the use of peyote in this case did not raise for her that issue. Here the First Amendment should protect the ritual use of peyote even if it did not protect peyote users who merely sought to expand their humdrum everyday consciousness.

In noting Nussbaum's strong defense of what she regards as America's fundamental commitment to protecting diverse religious practices, we come back to what lies at the base of her criticism of France and other European countries. The Oregon decision might, in a result that would alarm Scalia if he saw the implications as clearly as Nussbaum, make the United States more like France. For example, the principle laid down in the Oregon case might permit a state to pass a law mandating a uniform dress code for all children in public schools, even if it meant that Muslim schoolgirls could not cover their hair or that Jewish schoolboys could not wear a yarmulke. Such a law is exceedingly unlikely anywhere in the United States, a fact supporting Nussbaum's belief that Americans have progressively widened their concept of fairness and have extended legal respect to all religious groups. Oregon quickly passed a law granting an exception to members of the Native American Church, and a number of states tried in constitutionally questionable laws to override the Court's dismissal of compelling state interest by passing what were called religious freedom restoration acts. The idea that states should accommodate religious practices within a general framework of uniform law is undeniably stronger in the United States than in Europe.

In the American context Nussbaum's views are liberal. Like other American liberals, she worries about claims that America is a Christian nation. She may object to using the phrase “separation of church and state” as a way to silence religious voices in public debates, but she still recognizes that dogmatic claims about what God commands threaten her idea about the need to accord all religions equal respect. That concern seems to be less salient to Philip Hamburger, a professor of law who taught at the University of Chicago, the same school where Nussbaum teaches, before moving to Columbia. The aim of his book is to undercut any argument that Americans might use to criticize religious politics or in other ways to restrict the influence of religious voices in public life. To a certain extent Nussbaum has the same aim, but she has a much stricter view about what constitutes an impermissible religious establishment. By her principles, Hamburger's arguments sustain public endorsement of particular religious persuasions. For Hamburger, copies of the Ten Commandments posted in schoolrooms or in courthouses are just fine. A politician who praises Christianity does not threaten non-Christian minorities or violate the intentions that lay behind the First Amendment. Hamburger does not merely, as Nussbaum does, de-emphasize Jefferson's phrase “separation of church and state” as a proper interpretation of that amendment. He rejects it, and in so doing becomes ever more vigorously opposed, although for different reasons, to anything resembling French laïcité.

Hamburger is nobody's fool and in his own reading of the United States Constitution he makes full use of the irony that Jefferson was enjoying life in Paris when the American Congress adopted the First Amendment. His historical quest to understand what drafters of the First Amendment meant when they wrote the curious phrase “Congress shall make no law respecting an establishment of religion” begins in the religious struggles that gripped many of the English colonies prior to the American Revolution. Most of the colonies levied a tax to support religion, and in most of them a favored church received most of that tax money. Religious “dissenters” won the right to build their own churches but in most cases did not free themselves from the burden of the general tax levy to support religion. Although most religious dissenters in the period between the end of the American Revolutionary War (1781) and the beginning of the American government under the Constitution (1789) were in principle able to direct the taxes they paid to the maintenance of their own churches, this principle in practice was hedged with difficulties. Hamburger regards their anger as justified and argues that their demand for the state to leave their churches alone is the key to understanding the religious clauses of the First Amendment. The purpose of those clauses, however, was to encourage religion, not to place it under a general stigma.

Hamburger's argument rests on demonstrating that the struggle waged by dissenters against an established church, important as it was to making the category “dissenter” legally obsolescent, did not constitute a demand for separation of church and state. Those Baptist ministers in Connecticut to whom Jefferson wrote his famous letter welcomed Jefferson's support of their grievances about tax-supported churches, but they continued to endorse strong penalties for the crime of blasphemy as well as laws that mandated the closing of businesses and places of entertainment on Sunday. Hamburger seems to view the various ways that church and state did not separate in the early republic as benign, and he therefore skirts around the fact that a stricter attention to Jefferson's wall would have prevented discrimination against Catholics, Jews, and non-believers that some states encoded in their constitutions well into the nineteenth century and even into the twentieth.

How, then, did Jefferson's phrase “separation of church and state,” which Hamburger insists represented the opinion of only a few freethinkers and “anticlericalists,” become important? Hamburger attributes the spreading popularity of the concept to an ugly strain of anti-Catholicism that gripped Protestant America from the first heavy wave of Irish immigration into the United States in the 1840s until the election of John F. Kennedy in 1960. The issue that sparked widespread use of the phrase was a controversy about how to fund the nascent public school system. In fact, a prior issue that had nothing to do with Catholics deserves far more attention than Hamburger accords it. This was the Sunday mail issue that was sparked when groups of Protestant evangelicals tried to close post offices and stop mail delivery on the Sabbath observed by most Christians. That effort was held off with the charge that such stoppage amounted to a union of church and state. Even so, despite Hamburger's hasty rush to get to the subject of American Protestant nativism, the fight over public schools was important in defining church–state relations.

Catholic immigrants objected to the Protestant character of public schools that was developing in Northern states in the first part of the nineteenth century. In a famous incident that roiled politics in the 1840s, Catholics in New York City asked for public funds to build their own separate system of schools. Catholics had a good foundation for their request. Public schools in the nineteenth century often opened with a reading from the King James Version of the Bible, a literary jewel of the English Reformation, and used reading texts written by Protestant ministers. In a few states in the early nineteenth century, including New York, tax money regularly went to schools run by churches. Why, Catholics thought, could they not ask for some of that money for their own purposes?

State constitutional questions about whether tax money might go to parochial schools arguably had not been decided in 1840. It was the arrival of Catholic immigrants and their demand for a separate school system that tipped the balance toward reserving state aid only for purportedly secular schools. Separation of church and state became the chosen formula for Protestants, especially Whig and, later, Republican Protestants, who were determined to close the public treasury to any enterprise that might encourage the survival and spread of Roman Catholicism. Never mind that these same Protestants used the government to promote social aims dictated by their religion, as for example in various campaigns to prohibit the sale of alcoholic beverages. In 1875 the Catholic “menace” prompted Republicans in the House of Representatives to vote for a Constitutional Amendment banning all aid to parochial schools. It failed to pass the Senate, largely because Americans did not want the federal government to take a role in education, a responsibility jealously guarded by the states. Yet the legislative bodies in all of those states agreed with the intentions of the “anti-Catholic” amendment, and all of them, evoking the principle of separation and church and state, denied tax money to benefit church-run schools.

Hamburger tracks the anti-Catholic bias that he thinks underlay the principle of church–state separation into the opinions of Hugo Black, one of the most famous twentieth-century justices, who sat on the Supreme Court from 1937 until his death in 1971. In 1947 Black wrote the majority opinion in Everson v. Board of Education, a case that arose when a citizen of the state of New Jersey objected to a law that permitted local boards of education in New Jersey to provide free bus transportation for all schoolchildren, including Catholic children who attended parochial schools. Despite the dissent of four justices, Black corralled the votes of the majority behind an opinion that upheld New Jersey's law. The busing of schoolchildren, according to Black's reasoning, was an issue of public safety akin to police and fire protection that everyone agreed extended to churches and church schools. At the same time, Black's opinion contained a ringing endorsement of the idea that the wall of separation of church and state must be kept high and impregnable. The most famous passage included the sentence, “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”

Hamburger attributes Black's thinking to the justice's past involvement in anti-Catholic activity. Born in Alabama, Black once belonged to the Ku Klux Klan, an organization formed in the defeated southern states after the Civil War and revived in the 1920s with a broad platform of bigotry that targeted Catholics and Jews almost equally with blacks. Never mind that Black's decision in the Everson case allowed a benefit to go to Catholic schoolchildren, a benefit that the four dissenting justices who had not been members of the Klan wanted to deny. Hamburger argues that Black's larger purpose was to make sure that no direct aid could ever be offered to Catholic schools, either to buy textbooks for secular subjects, or to provide assistance for teacher's salaries, or to allow professionals to come into those schools to help students with learning disabilities. For a long time, the Everson case served just that purpose.

Hamburger's book is a good example of how a well-taken point can inundate an analysis, driving out all nuance and contrary points, and result in bad history. American lawyers excel in this ability. His point about Catholicism, however, provides a very good perspective for understanding how history did something very different in France than in the United States. Hamburger's argument that most Americans have never cared to ban all points where government and religion might be said to intersect is most certainly correct. Far more than the French citoyens of 1789, American revolutionaries equated religion with virtue. Alexis de Tocqueville noted that fact during his famous visit to the United States in 1831. However, Hamburger fails to give sufficient weight to the fact that nineteenth-century Catholicism, as pronounced in Rome, was not friendly to democratic republics. Not everything said against Catholic pronouncements was ill-informed prejudice.Footnote ¹³

To summarize for a moment, Nussbaum and Hamburger, whatever their difference in interpreting the religious clauses of the First Amendment, regard the American Constitution as an appropriate formula for arranging matters between church and state. Both of them value the importance of religion as a part of public life, and neither looks to tighten the limits placed upon religion by a secular state. Neither looks elsewhere for models of church and state, and in particular neither cites the French example of laïcité as a notion that might have value to American politics. When Nussbaum looks elsewhere, not only to France but to Germany, Holland, and India, she records cases of abused religious consciences that should prompt the government of those other nations to learn from the American example. Nussbaum and Hamburger give no weight to one conviction of the European Enlightenment, not overlooked by the French when they wrote the law of 1905, that religion itself, with its claims of exclusivity and a historical tendency to use power to enforce those claims, has in its very nature something that poses a danger to liberty of conscience. Both speak from an American national history that, unlike the experience of many other nations, has been untroubled by the political ambitions of an established church.

French secularists will see both authors as ignoring certain realities about the Catholic Church. Nussbaum points to a “long Protestant tradition of anti-Catholicism that had caused centuries of strife in Europe.”Footnote ¹⁴ Rome's own considerable role in that strife goes unmentioned, as does, in both Nussbaum and Hamburger, papal conservatism in the nineteenth century that turned Catholicism into an unyielding opponent of liberalism (the John Locke variety), nationalism, and secular Constitutional principles. These are significant oversights that surely owe much to the fact that Vatican policies in the nineteenth century never came close to posing threats to American national identity. The United States was not a country where Catholicism had ever received special privileges. Quite the contrary. American Protestants for much of the nation's history disliked Catholicism, but in comparative national terms Catholicism was not a danger to their political interests at the state or national level. Imagined dangers had significant consequences, but they played upon American history in a very different way than real dangers did in France.

In France, the law of 9 December 1905 that separated churches from the state overturned centuries of Catholic privilege within French borders. The relation between Paris and Rome had been complicated. The kings of France had struggled to make the Church serve royal interests, meaning among other things that they wanted the authority to appoint the bishops of the Church. France had in fact won concessions from Rome that had lessened the direct interference of the Pope in French affairs.Footnote ¹⁵ By the time of the 1789 Revolution, the French clergy was loyal to the monarch (a victory of Gallicanism over Ultramontanism), a fact that served the ancien régime but that put the Church in serious trouble with the Revolutionaries of 1789. Strongly anti-clerical, the latter stripped the Church of its privileges and property, promulgating the view that religion promoted interests counter to the interests of the new republic.

From that point until the passage of the 1905 law, the interests of the French Church, which Rome struggled to control, and the interests of the French state remained in a state of controlled tension. The 1801 Concordat between Napoleon and Pope Pius VII restored to the Church many of the privileges it had enjoyed under the ancien régime. The French state paid the salaries of Catholic clerics as well as the salaries of Lutheran, Calvinist and Jewish religious teachers. The Concordant stopped short of making Catholicism the official state religion, but it recognized Catholicism as the majority faith. That recognition carried influence, privilege, and, until the early 1880s, the right to direct the education of French schoolchildren. Since, however, the Concordat gave the French state considerable supervision over ecclesiastical affairs, including the power to name the bishops of the Church, conflicts between French officials and the Pope were inevitable. Those grew more severe after the formation of the Third Republic in 1870. Events moved the Church in political matters toward the forces of reaction, a stance that took dramatic form during the Dreyfus affair when many French clerics found themselves in league with French monarchists and a host of nasty anti-Semitic groups.Footnote ¹⁶

Neither Nussbaum nor Hamburger is interested in considering the possibility that French Catholicism got exactly what it deserved. Nor is either interested in following implications arising from the fact that Pope Leo XIII, who paid attention to the United States as a possibly strong influence upon France, issued an encyclical in 1899 warning Europe to resist the attraction of the heresy of “americanism.” The 1905 law, unlike the First Amendment, served to institutionalize state suspicion of religious activity as potentially harmful to the interests of the nation. In separating church and state, the French state gave back to the Catholic hierarchy the power to name its own bishops. However, it confiscated Church land and property, assuming control of all Church buildings constructed before 1905. The state agreed in most cases to let the Catholic Church use these buildings without paying rent, but that privilege of use was not given to the Church hierarchy but to religious organizations registered as associations cultuelles.Footnote ¹⁷ Religious practice was free only within a narrowly defined concept of religious worship and ritual. The culte associations are strictly bounded in what they can do. Participation in politics is, for example, not permitted.

We need not for our purposes pursue all of the troubles between the French state and the Catholic hierarchy in the early twentieth century. What is important is the fact that the separation of church and state in France did not prove to be the boon to religion that it was in the early American republic. No fact more strikingly underlines the difference between the two countries. French laws, as do the laws of many countries other than the United States, permit the government considerable discretion in suppressing religious activity deemed disruptive of public order. Although Roman Catholicism, the original target of the 1905 law, has settled most of its quarrels with the French nation, France remains vigilant about dangers posed by other religions. In 2001, the French parliament passed an “anti-cult” law that gave the state power to dissolve any legal entity “pursuing activities which have as their purpose or effect to create, maintain or exploit the psychological or physical subjection of persons taking part in these activities.” The target of the law was not trade unions or political parties but religious “cults” that intellectuals and elected officials had accused of brainwashing young adherents and turning them against their families and the French nation. Calling something religious does not in France carry with it a presumption of beneficial consequences. French history had made that impossible. In the United States almost the reverse has been true. The French historian and sociologist Jean Baubérot has noted that in France religion raises suspicion whereas in America it is atheism that does.Footnote ¹⁸

One thing about French republican resistance to Catholicism does parallel what happened in the United States during the nineteenth century. The conflict affected the development of public education, an institution that in both countries was placed at the core of republican principles. The French, in laws adopted in 1881 and 1882, before the 1905 law, set up secular public schools that were intended to take from the Catholic Church its monopoly control over French education. The same series of laws that ended religious instruction in the state schools also dissolved the Jesuits, abolished chaplains in the French military, and removed nuns from their role in hospitals. From the French republican perspective, Catholic schools attracted a disproportionate number of children of the country's elite population. Although providing quality education, they were not turning out republican citizens.

Somewhat unpredictably, the same fear about parochial schools in the United States led to a different outcome than it did in France. Despite the limited implementation of voucher programs, the individual states have persisted in their refusal to provide direct financial aid to parochial schools. The supposedly more atheistic French now provide funding for Catholic schools and allow religious instruction in classrooms outside school hours. That aid is not premised so much on the principle of free religious practice as upon the ability of Catholic schools to deliver a good education for its students, a quality monitored by the state. Muslims in France therefore have no presumptive right to receive state aid for Muslim schools on a claim of religious equality with Catholics. The refusal of the French to think of parochial schools primarily as an extension of free religious practice again brings us back to why Nussbaum is critical of the French. The French just don't get cultural pluralism.

What Nussbaum sometimes forgets, despite the attention she gives to religious persecution in the United States, is that Americans for most of their history did not get cultural pluralism either. Until the 1960s very few voices in the United States viewed multiculturalism as a good thing. Scholars praised religious diversity but did not see its value in preserving the integrity of different cultural groups. American schools, when immigration from non-English-speaking countries accelerated in the latter part of the nineteenth century, made it part of their mission to turn immigrants into Americans. What saved the United States for a much later endorsement of cultural pluralism was the fact that it was already multicultural in ways that the melting pot was powerless to boil away. The rapid economic growth of the country after the Civil War made immigration essential. If nineteenth-century white Protestants of New England heritage could have imitated a concept of French citizenship, where no accident of birth or cultural heritage or place of origin or religious affiliation muddled a “core” heritage, they would have done so. But American dependence upon immigration made a mockery of any such effort and finally forced Americans, after they had come to terms with their history of racism, to think about cultural diversity as a source of strength and in fact the reason why religion flourished in their country. That epiphany, it bears repeating, grew out of experience, long years of experience, not prior principle. Without that historical experience, the principle of multiculturalism is a hard sell.

We turn now to Steven Green's book about the second disestablishment. Green, like Nussbaum and Hamburger, has a law degree, and like them is primarily interested in the legal matters that attend to interpretations of the First Amendment. However, the focus of his argument is on the practices of states during the first hundred years of the American Republic. The First Disestablishment, the one that resulted from the Constitution's prohibition of any federal laws establishing a religion or interfering with the freedom of religion, did not have dramatic effects on the laws of many of the states. In saying this, Green acknowledges one of Hamburger's main points that separation of church and state hardly described practices that continued to prevail in many areas of the United States. Connecticut, New Hampshire, and Massachusetts maintained for some years a tax-supported church establishment, Connecticut until 1818, New Hampshire until 1819, and Massachusetts until 1833. Most of the state constitutions had religious qualifications for holding public office. Sabbatarian laws, blasphemy laws, religious requirements for jury selection and swearing oaths were settled practices in what many American citizens regarded as a “Christian nation.” That language found its way into many judicial decisions, and the attitude that Christianity was part of the common law, a position held by the respected figure of Justice Joseph Story, formed a legal consensus in many state courts. Story, who was far more important to American jurisprudence in the antebellum period than any Jeffersonian-influenced legal scholar, believed that the individual states could encourage Christianity so long as their actions did not interfere with private rights of conscience and the freedom of religious worship.

So much for Jefferson's wall of separation in state courts and legislative bodies. Church–state issues rarely made their way into the national courts, and once when they did, in the 1892 ruling Church of the Holy Trinity v. the United States, the Supreme Court noted that America is a “Christian nation.” However, what Green traces with meticulous detail over the course of the nineteenth century goes toward demonstrating that the declaration in the Holy Trinity case was the dying gasp of a comatose tradition. At local levels, an important process of secularization had made steady progress. It was not a secularization that was premised on the death of religion. Organized American religion in fact thrived. But religious diversity among Protestant sects, between Protestants and Catholics, between Christians and non-Christians, gradually forced a legal and institutional disestablishment, a second disestablishment that Jefferson might have smiled upon. Sumptuary laws and Sabbath laws, where they continued to exist, were redefined as policies to further secular goals deemed essential to a good society. Jefferson's near-victory, and a total victory if measured by Story's position, preceded by fifty years the Supreme Court decision that made the religion clauses of the Constitution binding on the states.

Green's historical story is a complicated one. The confused thinking that attended efforts to rethink blasphemy laws, Sabbatarian laws, and public school policy did not indicate a steady march in any direction. Nor did the same thinking prevail everywhere in the nation. However, although contemporary political pundits often point to the South as the stronghold of evangelicals who try to salvage the idea of Christian nationhood, it was the North Carolina Supreme Court that in 1904 wrote “it is incorrect to say that Christianity is a part of the common law of the land.” The “beautiful and divine precepts of the Nazarene shaped American civilization but not because they are a part of the organic law, which expressly denies religion any place in the supervision or control of secular affairs.”

Green's painstaking look at the records of state courts and legislatures is important to this essay in several ways. It reminds us of how crucially the federal system affects American policies on any subject. The interplay between states and the national government, and the different rulings in state courts, make consensus difficult if not impossible to achieve. The French system, in contrast, is much more centralized, and its experience with religious diversity much more circumscribed. Until the period of heavy immigration from the Maghreb that followed the collapse of French authority in Algeria, religion in France meant Catholicism. The policies of laïcité were easier to standardize than any American jurist's version of church–state separation. In the United States, the Supreme Court may outlaw school prayer but the extent of voluntary prayer in public schools, and the social pressures that such practices might create, varies depending upon what region of the country one pinpoints.

On the other hand, regional difference is not irrelevant in France. The concept of laïcité has no legal significance in Alsace-Moselle, which was not part of France in 1905. The Vichy period gave strong evidence that the idea of laïcité had not taken a strong hold over France forty years after the separation of church and state. Today, France is more observantly Catholic in some areas than in others, and everywhere visible evidence proclaims France's Catholic past. Even if half the French population is atheist, half of the population also identify themselves as Catholic. In France one can be both. A Parisian looking at Notre Dame, which like all cathedrals built before 1801 is maintained by the government as a historical monument, may see no religious significance in the structure, whatever goes on inside. A Muslim immigrant, whose mosques are not on the public dole, most certainly does. In Marseilles and in other important French cities, French citizens see large mosques as alien presences. Muslims are free to practice their faith, but somehow they are not as French as Catholics who still in some areas of France manage to fill the local churches. Assumption Day, Easter Monday, Whit Monday, Ascension Day, and All Saints Day, all days with important significance in the Catholic liturgical calendar, are public holidays in France. These are in addition to Christmas. DeGaulle was ostentatiously Catholic. His political opposite, the atheist François Mitterand, was buried in a state funeral in Notre Dame. French flags flew at half-staff when Pope John Paul II died in 2005. These matters might pass unnoticed when laïcité had only to deal with a Catholicism that was a tamed adversary that had learned to obey the rules. Globalism and the accelerated passage of people and their religions across borders has made that more difficult.

Green's book also serves to remind his American readers of the complexities of the interpretations about church–state relations and implies reasons why disagreements will continue. Nussbaum's and Hamburger's books are in fact part of renewed and heated debates in American political and legal circles that no longer take for granted the wisdom of Justice Black's declaration in the Everson decision. For the majority of the justices on the present Supreme Court it has no resonance at all. Both Hamburger and Nussbaum take issue with American secularists, particularly on the left, who might be properly viewed as people who would gladly see the United States follow the example of French laïcité in keeping churches out of political activities. At the same time neither wants to be confused with Islamic militants who in many parts of the world wish to put religious leaders in charge of nation states and turn those entities into instruments of God's will.

In France as well, the debate about the meaning of laïcité has been reopened. Two important French historians, Jean-Marie Mayeur and Jean Baubérot, have written histories of the 1905 law that see religious intolerance as a possible result of some implementations of laïcité.Footnote ¹⁹ (Baubérot was the only member of the Stasi Commission, a special panel appointed by President Jacque Chirac in 2003 to study the implementation of laïcité, who did not vote to endorse its proposal to ban children from wearing religious symbols in French schools.) Some French intellectuals, including Alain Touraine, have endorsed an idea of multiculturalism, even if that endorsement did not prevent their approval of the Stasi Commission's recommendation.Footnote ²⁰ However little sympathy there might be for Islam in France, the Muslim presence in France, estimated at 10 percent of the population, has changed the nature of the debate about laïcité, and not just with respect to Islam. Michel Wieviorka, a French sociologist who directs the Fondation Maison des Sciences de l'Homme in Paris, has traced a shift in the attitudes of French Jewry away from of a position of “republican fanatics” toward a position of an acculturated but distinct Jewish identity. That evolution took time. After World War II, French Jews who had escaped deportation or who came back to France after the end of the conflict embraced strongly the idea of a unified French identity and saw any species of religious communalism as a problem. The jubilation over Israel's victory in the Six Day War in 1967 signaled a shift in attitude that had begun with the Eichmann trial in Jerusalem in 1961 and 1962. A part of this change was due to the arrival of Jews among the pieds noir who came to France from North Africa in the 1960s. They were less attached to the cult of the Republic than their predecessors. Wieviorka suggests that by the end of the 1990s Jews in France embraced a mild form of “multiculturalism à la française.”Footnote ²¹

One curious figure in the debate has been the French president Nicholas Sarkozy. Once the minister of the interior with a portfolio that included the surveillance of religious “cults,” Sarkozy has endorsed the concept of laïcité ouverte that among other things would allow the French government to help finance French mosques. Part of that strategy, of course, is to make the French Muslim community less dependent on foreign money. Sarkozy has managed to capture most of the intensely nationalist vote that was once part of the Front National by strong attacks on the immigrants who rioted in the Paris suburbs in 2006. At the same time he has endorsed a French version of Affirmative Action that has won little support from the French left, although the French left has yet to establish a clear agenda about how to deal with France's Muslim population in a way that can preserve the myth of a single French identity founded on liberté, egalité, and fraternité.

Roger Finke and Rodney Starke, two American sociologists, have suggested a strong correlation between the degree of cultural pluralism in a nation and the strength of its population's religious mobilization.Footnote ²² That equation does seem to explain a lot about the high degree of recorded religiosity in the United States, but France's adjustment to immigrant populations in the early twenty-first century will not likely come close to duplicating the American experience of the late nineteenth century. Islam will not send lapsed French Catholics scurrying to attend Mass as a way to declare a social marker for their imagined subgroup or to reassert their endangered ideal of French citizenship. Nor will the French begin to regard with envy the American example of church–state relations. Neither nation can repeal its history. The only thing that seems certain is that the accelerated movement of people and their religions across national borders will write different experiences into the national histories of both countries and compel them to continue their debates about the boundaries of religious liberty in a secular state. They must do this without the assurance that a particular version of church–state relations constitutes a self-evident truth for much of the world's peoples, or, for that matter, for all of their own population.