Religious Exemptions, Formal Neutrality, and Laïcité

Abstract

Rights to free exercise in the United States are governed by a doctrine of formal neutrality, which seems to resemble the French doctrine of laicite. This resemblance tempts one to conclude that the doctrinal regimes of religious liberty in the United States and France are also essentially the same. Despite their superficial resemblance, however, formal neutrality and laicite generate regimes of religious liberty that are substantially, even radically, different. Notwithstanding conceptually similar organizing principles, there is a significant difference in the substance of religious liberty in the United States and France owing to very different conceptions of the proper role of the state in securing religious freedom and other human rights. This difference is evident in the grammar that each country uses to describe free exercise rights, in their respective responses to the problem of religious and moral difference, and in their differing conceptions of equality adopted.