Please ensure Javascript is enabled for purposes of website accessibility

Commentary: In praise of foreign moods

Justice Thomas has said, while ignoring the views of other countries about some aspect of criminal punishment, that courts should not “impose foreign moods, fads, or fashions on Americans.” Justice Scalia quoted the phrase to resist decriminalization of homosexuality. How far we have come from the words of Thomas Jefferson in the Declaration of Independence extolling “a decent respect to the opinions of mankind”!

To me it’s obvious that we should attend to what other countries do and think – just as they should be looking at us. Nobody’s too dumb to teach or too smart to learn. American “exceptionalism” rarely has much to recommend it. Two recent news stories have illustrated that for me.

But first – a story of my own. When I was four my mother and I were guests at a Carmelite monastery for a month. I was told before we arrived that all the nuns would be veiled, and you could not see their faces, though at the time we were welcomed the mother superior took the veil away so as not to frighten me. The rest of the time I did not see any of their faces, or, I guess, much else of them. I’m sure there were some in that era, inclined to view “Papists” with distrust, who heartily disapproved and found the Carmelites’ habit a little sinister. But surely nobody seriously considered telling the good nuns they couldn’t dress that way.

I thought of this experience when reading about France’s headlong drive to ban the burqa, a similar form of garb: a religiously-inspired complete covering of the body and face of a woman. I am quite certain that even with our nation’s current conflicts with Muslim zealots and, some say, with Islam itself, such a ban would run smack up against the Free Exercise clause of our First Amendment. We might require driver’s license photos or make other reasonable exceptions, but we wouldn’t forbid the burqa outright. That kind of garb just never has been and never would be a big deal here. But France is making an issue of it.

There has been excellent blogging on the subject by Martha Nussbaum on the New York Times’ website, which I shall not attempt to duplicate or summarize. But among other things, Nussbaum points out the subtle differences in U.S. and French constitutional culture which enable the different results. The U.S. First Amendment is neutral, not only among religions, but also between religion and atheism. French law, on other other hand, is vigilant to shield the nation from the heavy hand of religion, and while atheism is not compelled, it is protected in a way that faith is not. For France to legislate against religious observance is acceptable in a way it would never be here.

Meanwhile, there is a strong sense that the state has a right to compel newcomers to adopt culturally French ways. We Americans flirt with formally requiring English; this is mild compared with what France does, exerting many legally permissible pressures on immigrants to assimilate. Perhaps not surprisingly, it doesn’t succeed all that well. Blame the heavy-handedness, plus the unwillingness to have immigrants add their own flavors to French culture. By contrast, every group that comes to the U.S. ends up culturally American in a couple of generations, but enlarges and amends what it means to be American in the process. Accepting that amendment is part of America’s secret of success.

The moral? France would do well to study and internalize some American First Amendment values. It’s going to do no damage to France to have the occasional burqa on the street. (French police estimate there are perhaps 2,000 burqa wearers in the country.) The refusal to allow it may well cost lives, and paradoxically slow down the integration of Muslim immigrants into the French mainstream.

Javert and Valjean

We too have things to learn. We received a subtle rebuke from the Swiss courts three weeks ago, when they set Roman Polanski free. (If you just came in, Polanski, a renowned director, raped a 13 year old in 1977, and served 42 days before being released, but fled when it seemed likely the judge was going to go back on a promise to give no more jail time. He has lived and worked since in countries where he felt safe from extradition. Switzerland had seized him, however, to entertain an extradition request.)

The stated reason the Swiss gave for freeing Polanski was that the authorities seeking Polanski’s expatriation had failed to provide transcripts of testimony by a prosecutor concerning sentencing negotiations at the time of the original trial. The transcripts would likely have confirmed the contours of the original sentencing deal, relevant under Swiss extradition law, but also, not coincidentally, relevant to the whole reason Polanski had run. In other words, the Swiss would not turn over Polanski without paying some heed to the judicial misconduct.

The Los Angeles prosecutors had been trying to put issues in the opposite order: Polanski’s fugitive status here and now, the judicial bad faith to be resolved later, maybe. This order envisioned Polanski as burdened with an ineradicable stain that blotted out his own claim for justice – at least in the extradition proceeding. The Continental view shies away from this rigidity, and the Swiss ruling echoed it.

The Europeans have the better of this difference. However bad what the Polanski of 1977 did was – and it was – you cannot punish him. He no longer exists, worn away by half a lifetime of experiences and choices. The offender escaped, and in truth cannot be recaptured, even if today’s Roman Polanski were put in prison.

The real question was much more complex: how do you respond to demands to put in jeopardy of imprisonment a man who a) committed a serious crime 33 years ago but has done nothing similar since; b) was apparently the victim of an intended judicial doublecross that might or might not be rectified were the fugitive rendered up; c) has been making a major creative contribution to society; and d) whose victim has publicly stated she wants the matter dropped?

Long ago the Continental view was crystallized in Victor Hugo’s Les Miserables. To the implacable Inspector Javert, once Jean Valjean had committed a crime, he had placed himself in a category from which he could never escape, come what might, and he needed to be pursued and exiled from society. However admirable Javert’s zeal for the law, he remains the villain of the piece, and Valjean the hero. The correct moral calculus, in Hugo’s view, rested on the totality of circumstances, not broad and rigid categories. Javert’s villainy stemmed directly from his inability to see matters that way.

There is something awfully Javert-ish, and not all that atypical of U.S. law enforcement, about the way the Los Angeles prosecutors are behaving this time. And it looks as if the Swiss court saw that, and called them on it. I suspect most Europeans who cared were cheering them on.

A teachable moment, if those prosecutors are willing to learn.

As I say, we should all be learning from each other.

Jack L.B. Gohn is a partner with Gohn, Hankey & Stichel LLP and a former member of The Daily Record’s Editorial Advisory Board. The views expressed here are solely his own. See a longer version, with links to his authorities, at