When words, scarves threaten democracies

The French Republic, in defense of a militant secularism that grew out of the French revolution, banned Muslim girls from wearing head scarves in public schools. In Massachusetts the state supreme court ruled not only that denying marriage to homosexuals was unconstitutional, but that the word marriage could not be denied, even if all the other benefits of matrimony were bestowed. Both cases were freighted with controversy over symbols and their meaning to society.

In both cases the presidents of their respective republics came down on the side of the majority sentiment. President Jacques Chirac held that the scarf in school was an aggressively ostentatious religious symbol. The French parliament overwhelmingly agreed with a vote of 494 to ban, against only 36 opposed. On this side of the Atlantic, President George Bush said he found the Massachusetts case disturbing, and hinted that he might favor a constitutional amendment banning homosexual marriages. According to polls, most Americans are opposed to gay marriages by a wide margin.

To the French, who consider secularism sacred, the wearing of a head scarf or veil in public schools was seen as a distinct threat to the underpinnings of what it means to be French. Those opposed to the ban argued that a little piece of cloth could not threaten the French Republic, and that allowing Muslims to wear head scarves was a reasonable accommodation to a population that accounts for 8 percent or more of all French citizens.

Some even dared to point out that the Anglo-Saxon countries had no difficulty reconciling head scarves in school with the separation of church and state, which the French codified in 1905. Christian and Jewish religious symbols were also forbidden, but no one had any doubt that the move was directed at head scarves. Many French Muslims were outraged, but some agreed with the ban.

The issue, finally, came down to inclusion and tolerance. Whereas some said that those virtues would be best served by allowing Muslims their religious symbols in school, the majority felt that to allow such a symbol in the public schools would actually lead to a greater intolerance and a separate status for Muslims that would, in the end, mean that they would be something less than French. Many in the European Union disagreed, but the symbolic power of the bit of cloth on a girl's head was too much for the French to accommodate.

Tolerance and inclusion were also the issue in Massachusetts. When the state Supreme Judicial Court first found that withholding marital status from homosexuals was unconstitutional, the Legislature asked if "civil unions," granting couples virtually all the rights of marriage but withholding the word marriage, would do. Justice Martha Sosman argued that, because it was just the word marriage that was in contention, not its accorded rights, the case had become simply "a squabble over the name to be used." She quoted Shakespeare, arguing that "a rose by another name would smell as sweet." She pointed out that Massachusetts could not, in any case, offer the full benefits of marriage to gay couples because their status would not be recognized in other states. So why not let the state call homosexual marriages by another name?

But four out of seven justices disagreed. Chief Justice Margaret Marshall, interpreting the state's Constitution, which is said to be the oldest functioning written constitution in the world -- older than either the US Constitution or the French Republic -- held otherwise. Government could not, she said, "enshrine in law an invidious discrimination" that would relegate a separate but equal status upon homosexuals, even if that went against traditional values held by the majority. In short, the issue was "not semantic, not innocuous." Second class status was what was being offered by the Legislature, and "no amount of tinkering with the language will eradicate that stain."

Thus was a piece of cloth in France, and a single word in Massachusetts, held to be of such symbolic importance that legislation in France, and court action in Massachusetts, was deemed necessary to uphold their power. How these decisions will play out in the rest of the European Union and the United States remains in the future.

In San Francisco, the mayor has defied his state's laws by issuing marriage licenses to gays. But to many Americans the symbolic attachment of the word marriage to heterosexual unions is such that further legislation and constitutional amendments to countermand what Massachusetts hath wrought is bound to follow. And in France, the issue of head scarves may be decided, but the continuing problem of Muslim alienation in France, and throughout Europe, has not.

In the end, however, both cases will test what tolerance and its limits really mean in a democracy, which is what democracies are supposed to do.

H.D.S. Greenway's column appears regularly in the Globe.