Why Hobby Lobby Would Have Lost in France

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Thomas Jefferson’s phrase “a wall of separation between church and state” has come to represent the principle of freedom of religion, which is a Big Deal in the United States. It’s impossible to graduate from elementary school without learning about the pilgrims — Protestants, Puritans, Quakers, and many more — who settled in America in order to practice their religion in peace. If there’s one country that takes separation between church and state just as seriously as the United States, however, it’s France. But if the Burwell v. Hobby Lobby showdown had taken place across the Atlantic, there’s no doubt that Hobby Lobby would have lost.

Why? Because although both countries value “separation between church and state,” the two nations’ legal and cultural attitude regarding religion’s place in society are completely different.

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Here in the United States, the legal priority is protecting citizens’ freedom of religion. The First Amendment says that the government can neither establish a state religion nor prohibit the free exercise of religion. But while the United States’ laws are busy protecting citizens’ religious freedoms, France’s strive for the opposite — protecting politics and the public sphere from religion.

According to Thomas Kselman, history professor at the University of Notre Dame, French secularism stems from France’s early history of one religion outlawing another. The Catholic Church and the Huguenots (members of the Reformed Protestant Church of France) fought throughout the 16th century until the Edict of Nantes granted protestants the right to practice their religion in 1598. That worked until 1685 when the Edict of Fontainebleu revoked the Edict of Nantes. At the turn of the 20th century with no more monarchy to complicate matters, France decided to put an end to the religious conflicts once and for all: 1905 marks the year that the contemporary French idea of laïcité (secularism) was formally legislated, preventing the involvement of religion in politics and of politics in religion.

The concept of laïcité is rooted in the ideas of freedom of thought and freedom of religion. Having all religion separated from the political and public spheres, according to French secularism, guarantees that religion will not interfere with freedom of thought, and politics will not interfere with freedom of religion.

As a result, French culture has adopted a completely different attitude towards religion than American culture. It wouldn’t be unusual to hear an American indicate his or her religion in a casual conversation, and many Americans wouldn’t think twice about asking someone which religion they identify with. In France, however, people tend to be taken aback by a question about something considered a private matter. Professor Kselman explains that while religion isn’t a necessarily a taboo topic in France, “much of the discussion [revolves] around the issue of the proper place of religion in the public sphere . . . The French that I know, even those who are religious, are mystified by the ways in which religion is able to play such a prominent role in politics and public life in general in the US.”

Which is why if Hobby Lobby was a French-owned company in France, things would have played out a whole lot differently. Not only would Hobby Lobby have lost the courtroom battle, it’s likely that a case would have never been filed to begin with. In part, this is because everyone in France is required to have national healthcare covering basic health needs–including contraception. But it’s also because France as a whole maintains a philosophy that religion should stay completely separated from the public sphere, especially political discussions. For example, France passed a law in 2012 that gave all French girls ages 15-18 access to free birth control without requiring a parent’s consent. Although NPR did cite one voice of opposition to the law, a Catholic organization called CLER, their statements are hardly heated. No talk of abortion, just a simple expression of disagreement and a suggestion that the government’s money would be better spent on more effective sex education than on contraception.

Considering the fact that birth control is essentially a non-issue in France combined with the controversial “headscarf ban” laws prohibiting expressions of religious symbols in schools and face coverings in public (which was recently upheld by the European Court of Human Rights), it would seem that laïcité is keeping France’s political sphere from becoming the religious battlefield that is US politics. But Professor Kselman says the system isn’t infallible. “The recent demonstrations against the new laws on gay marriage suggest that there are some French who wish to defend traditional views about gender relations and marriage, a position also defended by conservative Catholics. There aren’t many of them, but on the issue of gay marriage and the rights of gay couples to adopt, they seem to have found a somewhat broader constituency.” Will French secularism continue to keep religion out of the realm of politics? Or could a single issue–if controversial enough–put a crack in the wall?