In deliberating on the application of the Establishment and Free Exercise Clauses of the United States Constitution’s First Amendment, the Supreme Court since 1947 has consistently failed to develop a principled distinction between religion and non-religion. This has hampered its ability to respond to developing challenges in Religion Clauses jurisprudence and to interpret those clauses in a systematic manner. Its recourse to facile characterizations of secularism and pluralism has exacerbated this problem. Attending to incoherence in the Court’s understanding of religion points to a definition of religion based in revelation and grounded not in the language of preference, identity or value, but in natural law and metaphysics. / text

For a variety of historical, cultural and political reasons, the Islamic headscarf has become an increasingly controversial matter in Europe. This is particularly the case in France, where the Parliament passed, in March 2004, a piece of legislation that prohibits students from wearing the Muslim veil—together with any other ‘conspicuous’ religious sign—in the classroom. Although Statute 228/2004 proved highly controversial and attracted unprecedented media attention, it was overwhelmingly supported by French MPs as a response to popular opposition towards religious insignia at school and was heralded as a ‘liberating’ piece of legislation that faithfully reasserted the beloved French principle of laïcité. Overseas, the new law was less favourably perceived and was often accused of being discriminatory and of violating the students’ freedom of religious expression. This thesis compares the French and American attitudes towards religious symbolism in general and the Islamic veil in particular. As in other matters, at first sight these two countries seem to adopt a very different—if not opposite—approach to religion and the Muslim veil, and so much so that their positions are often described as ‘irreconcilable’. This thesis will argue that this is hardly the case. Indeed, it will show that, at least before the passage of Statute 228-2004, the French and American legal systems adopted a substantially similar approach that appeared respectful of a veiled student’s right to wear religious insignia. This, the work will also suggest, is not surprising, for contrary to popular belief, the American conception of secularism is in many respects stricter than the French idea of laïcité, with the result that French ‘exceptionalism’ on matters of religion is hardly a convincing ground for justifying the new piece of legislation. The fundamental value of a Franco-American comparison, this work will suggest, ultimately lies with the fact that such a comparison demolishes a good portion of the popular myths surrounding the affaire des foulards: that the French legal system is fiercely secular; that the American one is strongly ‘religious’; and that France was, in 2004, confronted with a veritable ‘veil emergency’ that rendered the passage of the new statute all but inevitable.

For a variety of historical, cultural and political reasons, the Islamic headscarf has become an increasingly controversial matter in Europe. This is particularly the case in France, where the Parliament passed, in March 2004, a piece of legislation that prohibits students from wearing the Muslim veil—together with any other ‘conspicuous’ religious sign—in the classroom. Although Statute 228/2004 proved highly controversial and attracted unprecedented media attention, it was overwhelmingly supported by French MPs as a response to popular opposition towards religious insignia at school and was heralded as a ‘liberating’ piece of legislation that faithfully reasserted the beloved French principle of laïcité. Overseas, the new law was less favourably perceived and was often accused of being discriminatory and of violating the students’ freedom of religious expression. This thesis compares the French and American attitudes towards religious symbolism in general and the Islamic veil in particular. As in other matters, at first sight these two countries seem to adopt a very different—if not opposite—approach to religion and the Muslim veil, and so much so that their positions are often described as ‘irreconcilable’. This thesis will argue that this is hardly the case. Indeed, it will show that, at least before the passage of Statute 228-2004, the French and American legal systems adopted a substantially similar approach that appeared respectful of a veiled student’s right to wear religious insignia. This, the work will also suggest, is not surprising, for contrary to popular belief, the American conception of secularism is in many respects stricter than the French idea of laïcité, with the result that French ‘exceptionalism’ on matters of religion is hardly a convincing ground for justifying the new piece of legislation. The fundamental value of a Franco-American comparison, this work will suggest, ultimately lies with the fact that such a comparison demolishes a good portion of the popular myths surrounding the affaire des foulards: that the French legal system is fiercely secular; that the American one is strongly ‘religious’; and that France was, in 2004, confronted with a veritable ‘veil emergency’ that rendered the passage of the new statute all but inevitable.

For a variety of historical, cultural and political reasons, the Islamic headscarf has become an increasingly controversial matter in Europe. This is particularly the case in France, where the Parliament passed, in March 2004, a piece of legislation that prohibits students from wearing the Muslim veil—together with any other ‘conspicuous’ religious sign—in the classroom. Although Statute 228/2004 proved highly controversial and attracted unprecedented media attention, it was overwhelmingly supported by French MPs as a response to popular opposition towards religious insignia at school and was heralded as a ‘liberating’ piece of legislation that faithfully reasserted the beloved French principle of laïcité. Overseas, the new law was less favourably perceived and was often accused of being discriminatory and of violating the students’ freedom of religious expression. This thesis compares the French and American attitudes towards religious symbolism in general and the Islamic veil in particular. As in other matters, at first sight these two countries seem to adopt a very different—if not opposite—approach to religion and the Muslim veil, and so much so that their positions are often described as ‘irreconcilable’. This thesis will argue that this is hardly the case. Indeed, it will show that, at least before the passage of Statute 228-2004, the French and American legal systems adopted a substantially similar approach that appeared respectful of a veiled student’s right to wear religious insignia. This, the work will also suggest, is not surprising, for contrary to popular belief, the American conception of secularism is in many respects stricter than the French idea of laïcité, with the result that French ‘exceptionalism’ on matters of religion is hardly a convincing ground for justifying the new piece of legislation. The fundamental value of a Franco-American comparison, this work will suggest, ultimately lies with the fact that such a comparison demolishes a good portion of the popular myths surrounding the affaire des foulards: that the French legal system is fiercely secular; that the American one is strongly ‘religious’; and that France was, in 2004, confronted with a veritable ‘veil emergency’ that rendered the passage of the new statute all but inevitable.

For a variety of historical, cultural and political reasons, the Islamic headscarf has become an increasingly controversial matter in Europe. This is particularly the case in France, where the Parliament passed, in March 2004, a piece of legislation that prohibits students from wearing the Muslim veil—together with any other ‘conspicuous’ religious sign—in the classroom. Although Statute 228/2004 proved highly controversial and attracted unprecedented media attention, it was overwhelmingly supported by French MPs as a response to popular opposition towards religious insignia at school and was heralded as a ‘liberating’ piece of legislation that faithfully reasserted the beloved French principle of laïcité. Overseas, the new law was less favourably perceived and was often accused of being discriminatory and of violating the students’ freedom of religious expression. This thesis compares the French and American attitudes towards religious symbolism in general and the Islamic veil in particular. As in other matters, at first sight these two countries seem to adopt a very different—if not opposite—approach to religion and the Muslim veil, and so much so that their positions are often described as ‘irreconcilable’. This thesis will argue that this is hardly the case. Indeed, it will show that, at least before the passage of Statute 228-2004, the French and American legal systems adopted a substantially similar approach that appeared respectful of a veiled student’s right to wear religious insignia. This, the work will also suggest, is not surprising, for contrary to popular belief, the American conception of secularism is in many respects stricter than the French idea of laïcité, with the result that French ‘exceptionalism’ on matters of religion is hardly a convincing ground for justifying the new piece of legislation. The fundamental value of a Franco-American comparison, this work will suggest, ultimately lies with the fact that such a comparison demolishes a good portion of the popular myths surrounding the affaire des foulards: that the French legal system is fiercely secular; that the American one is strongly ‘religious’; and that France was, in 2004, confronted with a veritable ‘veil emergency’ that rendered the passage of the new statute all but inevitable.

La tesi approfondisce il complesso rapporto tra diritto, religione e sanità nella realtà americana, concentrandosi in particolare sulle problematiche scaturenti dall’orientamento religioso del paziente, del care provider e della struttura sanitaria. La prima sezione si propone di studiare, sempre in chiave giuridica, l’evoluzione del rapporto tra fede e medicina, presentando altresì due casi di studio: i nativi americani e christian science. Nella seconda sezione, invece, si ricostruiscono le linee interpretative essenziali del primo emendamento con specifico approfondimento tanto della Free exercise clause che dalla establishment clause. Parimenti, viene tracciato un disegno di sintesi del sistema sanitario americano, soffermandosi tanto sugli aspetti pubblicistici che su quelli privatistici dello stesso. La ricerca, poi, si sofferma sull’analisi dettagliata delle problematiche evidenziate dalla giurisprudenza americana con riferimento al care receiver, al care provider e, soprattutto, al contenzioso in materia pediatrica. L’ultima parte è dedicata allo sviluppo di due distinti filoni, ovvero: il rapporto tra scienza e diritto ed il ruolo dell’economia. Questo ultimo aspetto viene approfondito sotto due diversi punti di vista. In primo luogo si ricostruisce l’impatto economico delle policy che garantiscono la libertà religiosa sul “sistema sanità”. In secondo luogo, si approfondisce il tema dell’influenza del dato economico sullo sviluppo della libertà religiosa in ambito sanitario. / This work deals with the complex relationship between law, religion and the sanitary system in the U.S. setting, by focusing on the problems emerging from the religious view of the patient, of the care provider and the religious orientation of the hospital or HMO. The first section of the work aims to study, from a legal point of view, the evolution of the relationship “medicine-religion”, and focuses on two case studies: native Americans and Christian science. In the second section the essential interpretative streamlines about the first amendment are presented, through a deep analysis of the Free Exercise Clause and of the Establishment Clause. At the same time, the American (U.S.) sanitary system is deeply studied both in the private sector and the public one. The research then focuses on a detailed analysis of the jurisprudence related to the care provider and the care receiver, while a specific section is dedicated to the litigation concerning pediatric patients and the related litigation cases. The last part develops two different subjects: the relationship between science and law, and the role of economy. This last subject is deeply analyzed under two different points of view: the economic impact of the religious freedom on the “sanitary system” on the one hand; and the influence of the economic data on the development of religious freedom in the health care system setting on the other.