A GJ Advances article.

Abstract

This article aims at providing an overview of a common evolution of religious freedom that has occurred in France and in the United States during the last fifteen years. Indeed both systems have chosen to restrict religious freedom by switching from a case by case approach to an a priori approach. More precisely whenever the law of the State has entered into conflict with the law of a religious community, courts and legislators have refused to weigh the various interests at stake. This choice may unfortunately lead to domination by the mainstream religion. More symbolically, it means that society does not wish to "listen" to what the religionists have to say, that society is not willing to "see" the faith requirements of each one of its citizens but only of the majority of them. The prior legal system dealing with religious liberty issues appeared more respectful of religious freedom in various respects. A "law endowed with sight" is the guarantee that neither the State nor the religionists will be disfavored by the judges. It is the guarantee that no solutions shall be taken prior to the examination of the factual circumstances of the case. There are infinite ways to live one’s religious faith and consequently it would be a mistake to refuse to acknowledge all the possible nuances developed by the consciences of individuals. This reflection on the evolution of freedom of religion constitutes in essence an epistemological analysis. The French and American legal systems have today substantially different features, especially as to the role played by judges and statutes in the administration of justice. These differences between the two systems help us to put in perspective their evolutions with regard to religious freedom. More precisely the two systems seem to have adopted crossed dynamics. The French system adopted a statute in 2004 that deprived the judge of the right to proceed to a factual examination in each case. On the opposite side the American system abandoned its legal tradition since the Smith case (1990), clearly establishing that the Court would no longer balance the interests of religious groups against the interests of the society. The future evolution of each legal system will, in any case, have to take into account the cultural dimensions of the law.

Originally published in Global Jurist Advances.

Recommended Citation

Taieb, Julien (2004) "Freedom of Religion: from France to the United States, a National Conflict of Law," Global Jurist Advances: Vol. 4 : Iss. 3, Article 1.
Available at: http://www.bepress.com/gj/advances/vol4/iss3/art1