TWO MODELS OF SEPARATION OF CHURCH AND STATE

If you go to the U.S. State Department Web site, you will find a 2004 posting entitled “Separation of Church and State in the U.S.” It includes the following proposition about comparative law: “The government of the United States – unlike Great Britain and other European countries – may not declare one religion as the national religion nor support one religion over another.” The implication is that the United States is unique among Western countries in its commitment to the separation of church and state. There is certainly some truth in this claim. American law is in fact unusually strict about maintaining an institutional separation of church and state. As a result, we Americans are not likely to embrace German or Scandinavian practices like paying pastors from state funds. Nor are we likely to permit the state to subsidize religious schools, as it does in France.

It is also true that our constitutional tradition of “free exercise” guarantees liberties that are not guaranteed elsewhere. This means that American law will never tolerate anything like the much denounced 2004 French headscarf law, which led the State Department to list France, along with numerous Third World dictatorships, as a country guilty of “abuses of religious freedom.” Nor has that particular “abuse,” if that is what it is, vanished since 2004. On the contrary, efforts to ban headscarves and burkas have been spreading across Western Europe for several years.