Secularism(s) in Contemporary France: Law, Policy, and Religious Diversity (Boundaries of Religious Freedom: Regulating Religion in Diverse Societies) 3031182308, 9783031182303

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Boundaries of Religious Freedom: Regulating Religion in Diverse Societies

David Koussens

Secularism(s) in Contemporary France Law, Policy, and Religious Diversity Translated by Peter Feldstein

Boundaries of Religious Freedom: Regulating Religion in Diverse Societies Series Editors Lori G. Beaman, University of Ottawa, Ottawa, ON, Canada Lene Kühle, Aarhus Universitet, Aarhus, Denmark Alexander K. Nagel, Institut für Soziologie, Georg-August-Universität Göttingen, Göttingen, Niedersachsen, Germany

Processes of globalization have resulted in increasingly culturally and religiously diverse societies. In addition, religion is occupying a more prominent place in the public sphere at the turn of the 21st Century, despite predictions of religious decline. The rise in religious diversity, and in the salience of religious identity, is posing both challenges and opportunities pertaining to issues of governance. Indeed, a series of tensions have arisen between state and religious actors regarding a variety of matters including burial rites, religious education and gender equality. Many of these debates have focused on the need for, and limits of, religious freedom especially in situations where certain religious practices risk impinging upon the freedom of others. Moreover, different responses to religious pluralism are often informed by the relationship between religion and state in each society. Due to the changing nature of societies, most have needed to define, or redefine, the boundaries of religious freedom reflected in laws, policies and the design and use of public spaces. These boundaries, however, continue to be contested, debated and reviewed, at local, national and global levels of governance. All books published in this Series have been fully peer-reviewed before final acceptance.

David Koussens

Secularism(s) in Contemporary France Law, Policy, and Religious Diversity

David Koussens Faculty of Law University of Sherbrooke Sherbrooke, QC, Canada

Translation from the French language edition L’épreuve de la neutralité. La laïcité française entre droits et discours, by David Koussens, © Bruylant (Bruxelles), All rights reserved ISSN 2214-5281     ISSN 2214-529X (electronic) Boundaries of Religious Freedom: Regulating Religion in Diverse Societies ISBN 978-3-031-18230-3    ISBN 978-3-031-18231-0 (eBook) https://doi.org/10.1007/978-3-031-18231-0 © Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgments

I would like to begin by acknowledging my colleague and friend Lori G. Beaman, who encouraged me to write this book, then patiently advised and encouraged me while writing it. I do not think I could have completed this work without her constant support. I also want to thank Valérie Amiraux, Brigitte Basdevant-Gaudemet, Xavier Delgrange, Hélène Lerouxel, Charles Mercier, Stéphanie Novak, Claude Proeschel, Sara Teinturier, and Vincent Valentin, collaborations and discussions with whom over the past few years have nourished my thinking during the writing of this book on French secularism. The bulk of the writing took place at the Vittore Branca Center (Comparative Studies of Cultures and Spiritualities program) of the Fondazione Georgio Cini in Venice. I thank this institution, and more particularly Francesco Piraino, who hosted me for several weeks and offered me optimal working conditions to complete my project. Thanks also go to Louis Marquis, Dean of the Université de Sherbrooke Faculty of Law, whose support was pivotal in helping me find the resources to carry the work to completion. I must also mention the important translation work done by Peter Feldstein. My thanks go to him for the quality of his work and for his flexibility in adapting to my writing constraints. Finally, my sincere thanks go to Alexandre Maltais; without his patience, presence, and constant support, I could not have given this project the best of myself.

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Contents

1

Introduction: The Submerged Part of the Iceberg ������������������������������    1

Part I Theoretical and Legal Framework 2

Multisecularism����������������������������������������������������������������������������������������   11

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The Legal Framework for Secularism ��������������������������������������������������   33

Part II Churches, Religion and the Secular State 4

Defining Religion: A Secular Paradox ��������������������������������������������������   51

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“Praying Together”: A Secular Challenge?������������������������������������������   77

Part III The Secular State and the Individual Believer 6

Unveiling Marianne: Religious Symbols at School and the New Secular Grammar��������������������������������������������������������������   95

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Public Servants: Apparent Neutrality and Appearance of Neutrality����������������������������������������������������������������������������������������������  113

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Faces of the Enemy, New Battlefields����������������������������������������������������  131

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Conclusion: The Roots and the Sap��������������������������������������������������������  157

References ��������������������������������������������������������������������������������������������������������  163 Index������������������������������������������������������������������������������������������������������������������  173

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Abbreviations

ANAEM CA CAA Cass. ass. plén. Cass. ch. mixte Cass. soc. CE CE, ass. CGCT CJEU Cons. Const. ECHR ECtHR HALDE HCI JO JORF MILS MIVILUDES OHCHR QPC Rec. Leb.

Agence nationale de l’accueil des étrangers et des migrants Cour d’appel Cour administrative d’appel Cour de cassation, assemblée plénière Cour de cassation, chambre mixte Cour de cassation, chambre sociale Conseil d’État (Council of State) Conseil d’État, Assemblée du Contentieux Code général des collectivités territoriales Court of Justice of the European Union Conseil constitutionnel (Constitutional Council) European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms) European Court of Human Rights Haute autorité de lutte contre les discriminations et pour l’égalité Haut conseil à l’intégration (High Council on Integration) Journal officiel Journal officiel de la République française Mission interministérielle de lutte contre les sectes (Interministerial anti-cult mission) Mission interministérielle de vigilance et de lutte contre les dérives sectaires Office of the United Nations High Commissioner for Human Rights question prioritaire de constitutionnalité (priority question of constitutionality) Recueil Lebon

ix

x

SNCF TA UDHR UMP

Abbreviations

Société nationale des chemins de fer (national railway corporation) Tribunal administratif (administrative tribunal) Universal Declaration of Human Rights Union pour un Mouvement Populaire

Chapter 1

Introduction: The Submerged Part of the Iceberg

Abstract  This book embarks on a comprehensive effort to document the multiple areas in which French secularism plays out: in debates over “cults,” chaplaincy services in public institutions, the administration of places of worship, the recognition of associations of worship, and more. It is not limited to consideration of the Muslim question. While this last has undoubtedly helped reshape French secularism in recent decades, it is far from the only relevant issue. The book will examine the main political and legal configurations adopted by French secularism over the last 30  years through a sociological lens, in order to better document its diversity. Such a portrait will serve to emphasize that French secularism is not a univocal phenomenon but one that appears in many guises. We must speak of French secularisms in the plural.

Secularism, as a political organizing principle, is fundamental to the French republic. It entails that the state be separate and neutral with respect to religious denominations and that it guarantee freedom of religion for all citizens, regardless of their beliefs. Although once contested, this principle is widely, perhaps even universally accepted today, in the political realm as in society at large. But the modalities of its implementation continue to arouse contentious debate in an increasingly diversified country. This debate has come to focus in recent decades on the expression of convictions by minority religious groups, most prominently Muslims, whose clothing (the hijab, the niqab, the burkini, and so forth), “street prayers,” or requests for construction of mosques have grabbed media attention and polarized political debate. As the visibility of religious symbols associated with the majority has declined, what with the conversion or demolition of disused Christian places of worship, Islam’s heightened visibility has fed into a sentiment among certain segments of the population that the majority cultural and religious identity is being erased. Testament to this is the growing popularity of a noxious racist theory known as the “great replacement,” which posits that a civilization-level shift, characterized by the substitution of a non-European, primarily African population for the French population, is taking place. These identitarian worries are exacerbated by events happening at the local level. Physical proximity, plus encounters in familiar places—at the beach or in public © Springer Nature Switzerland AG 2023 D. Koussens, Secularism(s) in Contemporary France, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies, https://doi.org/10.1007/978-3-031-18231-0_1

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1  Introduction: The Submerged Part of the Iceberg

gardens, schools, or daycare centres—with religious manifestations perceived as “foreign” are sharpening a perception by many that the values or identity of the “majority” are threatened. These values arise out of people’s daily lives, the interactions and situations that they encounter while at work or at leisure. When a soccer player, a private-sector employee, or a parent accompanying children on a school outing wears an Islamic veil, the incident is combined with others into a popular narrative that isolates them from their social context. Simple, mundane, generally innocuous situations such as these get turned into “problems” demanding action by the public authorities. Calls are heard for a return to “rationalism,” to the “modern” ideals of the Enlightenment, in order to preserve a secular society that has become too permissive and allowed its very essence to be jeopardized by letting religion back into the public sphere. It is asserted that the republic must restore its original fabric along with the corresponding philosophical, ethical, and political repertoires; that it can no longer rely solely on the logic of fundamental rights to maintain social cohesion. The universality of French citizenship—the need for everyone to abandon other identities where applicable—is invoked in almost incantatory fashion, as if warding off the new visibility of Islam and other religions. And yet paradoxically, religion finds itself simultaneously being reinserted into the French national imagination. The religion in question, however, is that of the majority, and many politicians, some of the highest rank, no longer hesitate to refer to the Judeo-Christian history and identity of the French nation. Religious relics attesting to this history are increasingly being identified as part of its cultural heritage, in an attempt to legitimize their presence and visibility in  local and even national public institutions. This defensive reflex is found, for example, in the debates of late 2014 arising out of court challenges filed against the display of nativity scenes in certain communal public buildings, where all religious manifestations are supposed to be prohibited by law. French secularism today, then, is a principle under tension, torn between its historical, political, and philosophical moorings, with their powerful symbolism, and the very concrete and immediate social effects—integration, social cohesion, emancipation—that are expected from its implementation. In this improbable dialectic, secularism becomes a central component of a republican identity and a Judeo-­ Christian culture said to be common to the French nation. The nation is re-­ethnicized, so to speak, as Judeo-Christian and this ethnicity is then claimed to be universalizable.

1  Ceci n’est pas la laïcité française (This Is Not French Secularism) The increasingly tense debates around visibility issues have, no doubt, made the notion of secularism central to public debate, but at the cost of a considerable narrowing of its meaning.

1  Ceci n’est pas la laïcité française (This Is Not French Secularism)

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Its tumultuous birth in early-twentieth-century France came within the context of a long-standing conflict between what were called the “two Frances”: the old Catholic, clerical nation still attached to the monarchy, and the nascent secular and anti-clerical republic. Despite this conflict, church-state separation was established in 1905 by a quite liberal statute that guaranteed freedom of worship and placed all religions on an equal footing. Still today, that liberal spirit can be felt in certain aspects of state-religious relations, such as the legal regime applicable to places of worship, the great majority of which are government-funded. The old conflict, too, can be felt in measures such as the act passed in 2004 banning the wearing of conspicuous symbols in public schools, or the act of 2010 banning the concealment of the face in public places. By monopolizing public debate and often academic debate as well, these headline-making laws have brought this contentious heritage to the fore. It remains that these recent laws do not by themselves embody the essence of French secularism, nor do they reflect the complexity of the state’s relations with religions. There is more to it than that. Indeed, the emphasis placed on these texts in public debate has left many other aspects in the shadows; it obscures profound changes in how the political authorities understand and interpret secularism, in at least two respects. First, although the secularism laws under the Third Republic (1870–1940), the Church-State Separation Act of 9 December 1905 (Loi du 9 décembre 1905 concernant la séparation des Églises et de l’État; the “Act of 1905”) in particular, emerged in a context of heightened tensions between the clerical and the secular, they also stemmed from broader reflections on the relations between the state and (majority and minority) religions and on the freedoms that these religions should be accorded (freedom of conscience; freedom and equality of worship). In recent times, most measures associated with secularism have arisen from ad hoc legislation designed to minimize the visibility of minority religions, and hence to limit the free expression of religious beliefs. These piecemeal measures can be grouped together within a tendency that seeks to rebuild what it perceives as a crumbling secular edifice; they are generally accompanied by ringing, emotionally charged appeals to morals and values. One result is that other essentially secular legislation—legislation that has gone beyond symbolic gestures to transform the reality of church-state relations—has attracted much less attention. Consider the Act reaffirming the Principles of the Republic that was passed on 24 June 2021, at the end of President Emmanuel Macron’s first term. Among the legislative measures of recent decades, this highly complex and technical statute (to which I return in this book) goes the furthest in grappling with the issues of secularism. It tightens controls over places and associations of worship; sets out guidelines for home schooling; implements a republican engagement contract for certain civil servants; modifies the overseas system of recognized religions, and more. These measures amount to nothing less than an overhaul, in both form and spirit, of the church-state separation system implemented in 1905. In short, the legal framework for secularism in France covers many matters having nothing to do with the visibility of religion.

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Second, the highest-profile measures, the ones focusing on religious symbols and artifacts, have partaken of a blurring of the boundaries between state secularization and societal secularization. On the one hand, these measures conflate state emancipation with individual emancipation from religion. By requiring distance from religion in ordinary activities (employment, volunteering), they have taken the battle for secularization to the private sphere, to individuals, often using coercive methods. On the other hand, the state has continually subjected the religious sphere to political interference aimed at determining what is or is not proper to it. It has, for example, indulged in some rather dodgy interpretation of Christian symbols (crucifixes, nativity scenes, religious statues), positing the primacy of their cultural and heritage dimensions over their religious symbolism in an effort to legitimize their presence in secular public institutions and buildings (Zubrzycki 2016; Beaman 2020). Put bluntly, the state has made efforts to secularize religion.

2 French Secularism as a Multiplex Phenomenon As we have said, the visibility of religion (Islam in particular) in today’s world has come to structure public perceptions of secularism in general, and French secularism in particular. This simplistic, reductive image, amplified by the media, French politicians, and even foreign academics, stands to be rectified. Yet its popularity, combined with the rise of populism, risks contributing to a steady erosion of rights and freedoms and, concomitantly, the social fabric as a whole. This was seen in Switzerland in 2019, when the canton of Geneva passed, by popular referendum, a “State Secularism Act” whose first chapter was mainly devoted to banning the wearing of religious symbols by civil servants and elected officials while on the job. That same year, an equally fragmented perception of French secularism led the Quebec National Assembly to pass a law, loftily titled the Act respecting the Laicity of the State, that has nothing to do with the structure of church-state relations but merely bans the wearing of religious symbols by certain categories of civil servants.1 The foreign academic literature on French secularism has likewise tended to make Islam and its symbols central to the analysis. This tendency has led the studies in question into a variety of pitfalls. Few such studies, for example, analyze French secularism in terms of the relations between the state and all the other  A number of newspaper articles have presented the Swiss and Quebec laws as having been inspired by French secularism; see, e.g., “Genève se dote d’une loi de laïcité à la française,” 10 February 2019, online at https://www.swissinfo.ch/fre/politique/votations-­cantonales_ gen%C3%A8ve-se-dote-d-une-loi-sur-la-la%C3%AFcit%C3%A9%2D%2D%C3%A0-la-­ fran%C3%A7aise-/44745554; “Quand Genève tombe dans le piège de la laïcité à la française,” Courrier international, 28 November 2019, online at https://www.courrierinternational.com/dessin/societe-quand-geneve-tombe-dans-le-piege-de-la-laicite-la-francaise; “La laïcité pour François Legault,” Le Journal de Montréal, 12 October 2018, online at https://www.journaldemontreal. com/2018/10/12/la-laicite-pour-francois-legault 1

2  French Secularism as a Multiplex Phenomenon

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denominations, be they the old recognized religions—Catholicism, Judaism, and Protestantism—or more recently arrived minority groups. Yet the structural roles played by these denominations in the French secular landscape have been given ample space in the French academic literature. Recent studies have focused on Protestants (Cabanel 2003; Fath 2005; Willaime 2010; Baubérot 2017) and Jews (Azria 2005; Klein 2015; Cohen 2016) as well as on the tensions between the state and the Catholic Church on contemporary societal issues (Béraud et Portier 2015; Pelletier 2017; Pelletier 2005; Raison du 2019, 2020; Schlegel 2006). Furthermore, the centrality of Islam and conspicuous religious symbols to public debate has tended to eclipse the multiplicity of legal configurations for French secularism. This particular issue has been taken to embody a general standard of secularism (or invisibility) for all French citizens. A significant portion of the secularism literature produced outside France focuses on its most separatist and anti-religious dimensions. In so doing, it entertains the idea that French secularism is in essence opposed to religion, going as far as to term it “rigid” or “closed-minded” (see, e.g., Bouchard and Taylor 2008). This position is too coarse-grained and not sensitive enough to the complexity and ambiguity of church-state relations in France. The legal recognition accorded to some religions in some parts of the country (particularly the departments of Haut-Rhin, Bas-Rhin, and Moselle and certain overseas departments and territories), the state’s munificence vis-à-vis places of worship, and the legitimacy enjoyed by these religions in a number of democratic forums would tend to support the thesis of there being not one but several models for secularism, which may be characterized by other things besides distrust of religion. Third, the lens through which French secularism is observed from abroad is not conducive to a consideration of the abundant legislation that has contributed to emancipating civil from religious normativities. One thinks, for example, of epoch-­ making laws in the areas of ethics and bioethics as well as others that have modernized family law by setting religious norms at a distance in the legal and political regulation of life in society. These laws are, moreover, often fought by religious movements, as attested in 2012 and 2013 by the movement calling itself “La Manif pour Tous” that opposed the redefinition of civil marriage. The act of 17 May 2013 legalizing same-sex marriage was certainly a watershed moment for French secularism in the last decade. Taking these observations as its starting point, this book embarks on a comprehensive effort to document the multiple areas in which French secularism plays out: in debates over “cults,” chaplaincy services in public institutions, the administration of places of worship, the recognition of associations of worship, and more. It is not limited to consideration of the Muslim question. While this last has undoubtedly helped reshape French secularism in recent decades, it is far from the only relevant issue. I will not, however, attempt to present an exhaustive analysis of the legal framework for relations between the state and religious denominations. Such an enterprise would be doomed in advance, given the enormous number of policies adopted on religious issues by different levels of government, but also given the similar numbers of court decisions on the legality or constitutionality of various measures.

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Instead, I will examine the main political and legal configurations adopted by French secularism over the last 30 years through a sociological lens, in order to better document its diversity. Such a portrait will serve to emphasize that French secularism is not a univocal phenomenon but one that appears in many guises. We must speak of French secularisms in the plural.

3 Secularism as a Heritage The gradual media and political construction of Islam as a problem over the last 20  years, given impetus by the tragic terrorist attacks that struck France in the mid-­2010s, has greatly spurred the rise of populist movements and the slow percolation of their political agendas through society. While French secularism cannot be exclusively defined in terms of Islam and its status, Islam has nonetheless become the prism through which successive governments have intervened in the regulation of religious diversity. This period has witnessed a questioning of paradigms that hitherto appeared to have garnered unanimous acceptance. The imperative of defending a common history, values, and destiny now regarded as threatened is being increasingly invoked as an argument against guarantees of fundamental rights. The political authorities have begun to systematically lump secularism together with certain ethical, philosophical, and cultural conceptions of the good, thereby vitiating its traditionally liberal essence. With the continuing judicialization of religion, this trend has often found resonance in the domestic and international courts, which are no longer always able (or lack the will) to position themselves as bulwarks of rights and freedoms. At times, they even acquiesce to a narrowing of the scope of these rights and freedoms on the pretence of providing for better “living together” or coexistence (vivre-­ensemble), a concept whose outlines remain hazily and subjectively defined. Secularism, that is, is steadily being converted into something resembling a national heritage. This conversion is happening in the public mind, and it is also happening as a result of the work done by politicians and consummated by the courts to delegitimize fundamental rights on the pretence of preserving the cohesion of the national community. Traditional schemes of republican universalism are being reinterpreted, leading (paradoxically) to a particularized version of French secularism that is increasingly associated with the defence of an inherited national identity. If anything is in decline, it is not the French community but secularism itself. Confronted by identitarian anxieties, attacked by populisms, it is being increasingly cut off from its liberal origins and losing its pretentions to universality. This book adopts an unabashedly critical stance on these developments and on the new interpretive framework guiding today’s legal and political configurations of secularism.

4  Outline of the Book

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4 Outline of the Book How can secularism be understood when the word itself has never been formally defined in a French legislative or constitutional text and when the normative (philosophical, political, even religious) foundations associated with it are highly diverse? How, with what theoretical tools, can it be characterized in a context where its political and legal configurations are disparate and constantly evolving? Part one of the book takes up this task; it presents the rudiments of a theoretical and legal framework for French secularism. Beginning with the important theoretical contributions and discussions to academic and political debate in this country, it goes on to detail the complex legal framework that has grown up. French secularism, as discussed earlier, is frequently conceived of today in terms of policies restricting the individual expression of religious beliefs, and more particularly the wearing of religious symbols. But this is a relatively new focus for academic work in this field; for many years, French secularism studies concentrated on the relations between religions—organized communities of believers gathered in worship—and the state. This is because the phenomenon has historically been constructed in this way. The Church-State Separation Act of 9 December 1905 established guarantees of freedom of religion even as it put an end to the system of recognized religions that had prevailed under the concordatory regime put in place by Napoleon Bonaparte in 1801. This collective dimension of the question remains both seminal and central to church-state separation today, determining its main configurations. The French state has retained a habitus, so to speak, of institutional recognition of religion. Part two of this book is devoted to this issue. An important consequence is that elected officials and the courts have had great difficulty grasping the individual and subjective dimension of people’s relationship to their beliefs; these tend to be redefined through the prism of the collectivity, without regard for the views of the believers themselves. It is very rare for an Islamic religious symbol to be interpreted by the public authorities as a reflection of its wearer’s individual faith, her or his personal relationship to a transcendent divinity. Such symbols are more often regarded as manifestations of political Islam, communitarianism, or proselytism. The second part of this book focuses on this interpretive difficulty on the part of the French secular state, particularly where the religion in question is not normalized in the majority culture; where its faithful are asked to observe ever more discretion in the public sphere, even at the cost of infringements on their rights and freedoms. Recent acts of international terrorism by Islamic fundamentalists have made the whole question so much harder. The threat is systematically seen as being embodied by the figures of individual believers, “lone wolves,” who must be identified post-­ haste to avert more dramatic attacks. In this tense context, certain outward signs of religiousness become highly suspect. They are interpreted as reflecting a rejection of certain shared values at best, or a sign of anti-social radicalization at worst. In the end, it is freedom that pays the cost.

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References Azria, Régine. 2005. Le judaïsme, contours et limites de la reconnaissance. Archives de sciences sociales des religions 129: 135–150. Baubérot, Jean. 2017. De la sociologie-historique du protestantisme à la sociologie historique de la laïcité. Archives de sciences sociales des religions 180 (4): 51–68. Beaman, Lori G. 2020. The Transition of Religion to Culture in Law and Public Discourse. London: Routledge. Béraud, Céline, and Philippe Portier. 2015. Métamorphoses catholiques: acteurs, enjeux et mobilisations depuis le mariage pour tous. Paris: Maison des Sciences de l’homme. Bouchard, Gérard, and Charles Taylor. 2008. Building the Future: A Time for Reconciliation. Quebec: Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles. Cabanel, Patrick. 2003. Le Dieu de la République: aux sources protestantes de la laïcité (1860–1900). Rennes: Presses Universitaires de Rennes. Cohen, Martine. 2016. Pluralité du judaïsme dans une France plurielle: de nouveaux défis pour la laïcité. In La Laïcité: des combats fondateurs aux enjeux d’aujourd’hui, ed. Jean-Michel Ducomte and Pierre Tournemire, 99–114. Toulouse: Privat. Fath, Sébastien. 2005. De la non-reconnaissance à une demande de légitimation: le cas du protestantisme évangélique. Archives de sciences sociales des religions 129: 151–162. Klein, Laurent. 2015. Judaïsme, valeurs républicaines et laïcité. Administration & Éducation 4 (148): 105–109. Pelletier, Denis, ed. 2005. Les catholiques dans la République, 1905–2005. Paris: l’Atelier. ———. 2017. Les catholiques français, les politiques de la vie et la redéfinition de la sphère politique en France (1980–2017): le retour en politique des catholiques français. In Religión, Laicidad y Sociedad en la Historia Contemporánea de España, Italia e Francia, ed. Pedro Álvarez Lázaro, Andrea Ciampani, and Fernando García Sanz, 395–410. Madrid: Universidad Pontificia Comillas. Raison du Cleuziou, Yann. 2019. Une contre-révolution catholique: aux origines de La Manif pour tous. Paris: Seuil. ———. 2020. L’Église, fille ainée de la République? Les apologies de la catho-laïcité depuis les attentats de janvier 2015. In Nouveaux vocabulaires de la laïcité, ed. David Koussens, Charles Mercier, and Valérie Amiraux, 59–75. Paris: Classiques Garnier. Schlegel, Jean-Louis. 2006. L’Église catholique de France et la laïcité. Revue politique et parlementaire 1038: 67–75. Willaime, Jean-Paul. 2010. Le repositionnement laïque des Églises protestantes dans l’ultramodernité contemporaine. In La modernité contre la religion? Pour une nouvelle approche de la laïcité, ed. Jacqueline Lagrée and Philippe Portier, 113–125. Rennes: Presses Universitaires de Rennes. Zubrzycki, Geneviève. 2016. Beheading the Saint: Nationalism, Religion, and Secularism in Quebec. Chicago: Chicago University Press.

Part I

Theoretical and Legal Framework

Chapter 2

Multisecularism

Abstract  The different types of relations entertained by states with religions (official recognition, conflict, collaboration, etc.) and their evolution over time have unquestionably influenced the way in which secularization has occurred and the various forms of secularism that are observable today. The result is that religion and secularism are treated differently within different states. Consider the example of France; while its version of secularism is often portrayed as unique or exceptional, the discourse and law of that country reflect the sinuous path taken by relations between the state and the country’s various religions.

In France, as elsewhere in the world, the waning of religious influence over politics and the law has been a fitful process, and situations of tension and conflict, most notably with the Catholic Church, have been prominent. A great deal of research has shown how, in majority-Catholic societies, secularism has often been built in antagonistic opposition to clericalism. Such conflicts took place in Mexico with the promulgation of the liberal, secular-leaning Reform Laws of 1859–1860 (Blancarte 2001). They were very much in evidence in Belgium during the School Wars (1879–1884, 1950–1959) that durably inflected the course of secularism in that country (Sägesser 2012; Delgrange and Koussens 2019). And there was the conflict between the “two Frances,” pitting clerical Catholics against anti-clericals, which strongly affected the political divides under the Third Republic until the Act of 1905 put an end to them (Poulat 1987). A few theorists have posited that secularization movements are typical of societies with a Catholic tradition, being rooted in their histories of conflict and typifying the relations between the social forces at play. Françoise Champion (1999) and Guy Haarscher (1996) characterized the modernization of church-state relations occurring in such societies on the basis of the conflicts between clerical Catholics and anti-clerical citizens. The latter were driven, these authors argue, by a desire for emancipation from a “Catholic Church ensconced as a power in its own right vis-à-­ vis the state.” Emancipation from religion was less contentious in societies with a

© Springer Nature Switzerland AG 2023 D. Koussens, Secularism(s) in Contemporary France, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies, https://doi.org/10.1007/978-3-031-18231-0_2

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Protestant tradition, where it was not characterized by a dynamic of state secularization but rather by one of societal secularization (Champion 1993: 48). As Champion indicates, a secularization process may result from “explicit tensions among different societal forces” and thus take on a contentious cast. Such secularization flows, among other things, from “state regulation external to religion” (Baubérot and Mathieu 2002: 293). However, the sole emphasis placed on the contentious dimension of the divide, its identification with relations between clerical Catholics and anti-clericals alone, is not only restrictive but also anachronistic with respect to the contemporary issues of secularism, even in majority-Catholic societies. On the one hand, debates surrounding secularism today are characterized by the continual involvement of new actors, including representatives of denominations newly arrived in the country (evangelical groups, Muslims, Sikhs, etc.), feminist groups, trade unions, and LGBTQ activists. And while the traditional domains of secularism (schools especially) are still sites of tension, these new actors are helping to move the conflict into new areas, many of them never broached by traditional secularism (ethics, bioethics, transformations of the contemporary family). Evidence of this is afforded by the fierce opposition by US and Canadian religious conservatives to abortion rights (Gagné 2020) as well as the mobilization by French identitarian Catholics in opposition to the opening up of civil marriage to LGBTQ people (Portier and Théry 2015). In these two cases, individual believers, often supported by their religious hierarchies, have moved into the political arena in an attempt to regain lost ground. On the other hand, secularization processes can also be observed in majority-­ Protestant states such as the United States (Perry 2009) or Switzerland (Barras 2021), as well as in those where the Catholic and Protestant churches are very much in the minority, or nearly absent. This is the case for secularization—now jeopardized under the authoritarian regime of Recep Tayyip Erdoğan—in Turkey, the first Muslim state to incorporate the principle of secularism into its fundamental constitutional norms in 1937 (Kentel 1998). Further to the east, research has documented how Japan has progressively integrated the principles of church-state separation and freedom of religion into its political governance, having embarked on its secularization journey during the Meiji Restoration of 1868 and then confirmed its model of secularism in the Peace Constitution of 1947 (Date 2020). Finally, while conflict is certainly characteristic of many church-state separation processes, other dynamics of dialogue or even cooperation may also occur. In Quebec, for example, political emancipation from the influence of religion was the outcome of consultation with the province’s denominational traditions, most importantly the Catholic Church. This process may not have been devoid of tension; still, it is undeniable that Catholics participated in the societal and political transformations of the state in the 1960s and 1970s, thanks to new ecclesial resources made available to them by the Second Vatican Council. Some authors have even referred to this process as the “quiet” secularization of Quebec (Balthazar 1990). The different types of relations entertained by states with religions (official recognition, conflict, collaboration, etc.) and their evolution over time have

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unquestionably influenced the way in which secularization has occurred and the various forms of secularism that are observable today. The result is that religion and secularism are treated differently within different states. Consider the example of France; while its version of secularism is often portrayed as unique or exceptional, the discourse and law of that country reflect the sinuous path taken by relations between the state and the country’s various religions.

1 Options for French Secularism The putative uniqueness of church-state separation in France, as delineated in the Act of 1905, constitutes what is known, in a phrase first written by the philosopher Régis Debray in 1989, as the “French exception.” This phrase, which has enjoyed considerable success in French civil society and politics, reigned uncontested for years. Even academia got into the rhetorical act; today, one can find a “neo-­ republican” school of thought, which gained ascendancy during the 1990s, upholding what may be termed a nationalist conception of secularism. Nationalist secularism invokes an extensive and elaborate set of arguments in asserting that this societal state of affairs is bound up with a symbolic moment—the passage of the Act of 1905—when the state adopted a legal norm confirming its separation from the churches. This appeal to a historical milestone for legitimacy has limitations as an analytical method, however, in that social realities continue to evolve long after the events that may have set them in motion. French debate remains nonetheless deeply inflected by this tendency, which also exports well, having found loud echoes in debates on the regulation of religious diversity taking place in Belgium (Crépon 2008) and Quebec (Koussens and Amiraux 2015).

1.1 Nationalist Secularism The nationalist conception of secularism has been constructed in reaction to the new visibility of beliefs that are not normalized within the cultural system of a nation. The discourse of this form of secularism construes it as a political principle rooted in the specific historical context of the society and closely linked to that society’s construction of its national identity. Broadly speaking, the nationalist character of secularism can be discerned, in both public debate and legal provisions, from the fact that it is presented as a political principle (1) flowing from the specific history of church-state relations in the society; (2) ineluctably rooted in a legal system in which the separation of church and state is formalized; (3) upholding certain principles of justice, yet sidestepping the democratic principles of law because it embodies “fundamental” values that these latter principles ignore; (4) assuming that effective civic participation is predicated on (visible) adherence to these values.

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It is worth emphasizing that nationalist secularism can take variable forms in both law and discourse. In one incarnation, it is primarily assimilationist. Its mission in this case is one of emancipation and assimilation, and to that end it may put limits on freedom of conscience and religion by making membership in the polity conditional on the prior suspension of particular allegiances. Assimilationist discourse is prominent today in both French and Quebec public debate and can, where conditions are right, influence the political and legal forms taken by secularism. It creates a climate in which secularism is increasingly likened to a “supreme republican value” (Lorcerie 2007: 109). The state is then guided in its political governance by the pursuit of values not fully conducive to the recognition of freedom of conscience and religion—even though this freedom is integral to secularism itself. In another incarnation, nationalist secularism is primarily differentialist. Here it is charged with a mission of protecting the collective rights of the majority, which are principally associated with values asserted to stem from the heritage or culture of the society. This might be the case where certain emblematic features, more than others—the symbols of its religious heritage, perhaps—are said to epitomize the historical trajectory of a society and are thus associated with its cultural heritage. This latter rhetoric is found, for example, in debates taking place in Germany, Quebec, and Italy around the presence of crucifixes in public institutions (Koussens 2012; Beaman 2020). France, too, played host to this rhetoric in December 2014, when controversy erupted over the display of nativity scenes in some of the country’s town halls (see Chap. 4). In French academia, the philosopher Henri Pena-Ruiz has been a standard-bearer of assimilationist-nationalist secularism. He defines this as the principle “affirming the unity of the people on the basis of the freedom and equal rights of its component individuals” (Pena-Ruiz 1998: 18). In other words, it is the “original affirmation of the people as a union of free and equal individuals. The freedom in play is essentially the freedom of conscience, which is beholden to no obligatory credo, and the equality is that which concerns the status of personal spiritual preferences” (Pena-­ Ruiz 2003: 23). From this perspective, secularism is construed as “a principle of political law” (Pena-Ruiz 2014: 535). It holds aloft an ideal that can only be attained through “a demarcation between that which is common to all … and that which sits within the realm of individual freedom, the private sphere. Such a division aims to establish the proper scope of the law, from which are excluded both thought, for it is shielded from all censorship, and personal convictions, for they are left in the realm of freedom of conscience. It then aims to establish the proper scope for the sovereignty of the will, as the source of the rules of coexistence, and that of conscience and the reason by which it is enlightened” (Pena-Ruiz 1998: 23). For Pena-Ruiz, the formal separation of church and state, entailing a clear demarcation between temporal and spiritual realms, is a necessary prerequisite to secularism. He draws on certain features of the context in which French secularism emerged to argue that such a separation can only be “made possible by a law, a sovereign decision of the people’s representatives” (Pena-Ruiz 1998: 146). And while only law can effectuate this separation, only law can guarantee the attainment of the ends

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pursued by secularism: “freedom of conscience, but also strict equality among various believers, atheists, and agnostics” (Pena-Ruiz 1998: 72). Going further than the philosopher Marcel Gauchet (2008: 58), who contends that the secular ideal is not opposed to religions as such, but only opposes them insofar as they make temporal claims, Pena-Ruiz adds that this ideal comes into contradiction with “a desire for control [said to be] characteristic of clerical overreach, the turning of religious proselytism to political and social ends” (Pena-Ruiz 1998: 24). It follows that freedom, and therefore equality, can only be protected by eradicating denominational favouritism from the public sphere. “The denominational authorities [can be] ‘actors’ with recognized status in law [but must remain confined to the role of] spiritual attractors that each citizen is free to acknowledge as authorities or not” (Pena-Ruiz 1998: 35). Learning to exercise one’s freedom becomes, in this telling, an enlightened choice from among the conceptions of the good life present in society. None of these must be placed off-limits a priori. The secular ideal, believes Pena-Ruiz, is in this way “liberating”; citizens owe it to themselves to be emancipated in order to achieve “secular transcendence” with respect to the “alienating givens” of religion. Régis Debray’s position is rather similar and he has also contributed to the dissemination of this neo-republican paradigm in France. According to him, “the secular shield safeguards a refuge open to all … what it protects [is] the opportunity for everyone … to modulate their identity at will, or to combine several identities, through the informed practice of free examination” (Debray 2004: 28–9). Arguing in favour of a 2004 law banning the wearing of conspicuous religious symbols in public schools, he added: “if only Islam can reform Islam, then we who stand outside of it can and must help; and, in so doing, extend a hand to the enlighteners of this culture who have decided, at their own risk, to secure its future” (ibid., 27). The philosopher Guy Coq writes in an attempted synthesis that the principle of secularism goes hand in hand with two things. On the one hand, it entails autonomy; on the other, it inheres not only in a distinction between the state and religion—this underlies the separation—but also in a relationship of interdependence, profound complicity, between secularism and democracy (Coq 2005). According to this approach, “without democracy, secularism is sick, and without secularism, democracy is diminished” (Coq 2006: 43). Secularism is a foundational principle of democracy (Coq 1997: 279) yet remains freighted with shared republican values from which a new social bond can be forged, especially through the inculcation of shared civic values by the national education system. What transpires from these lines of reasoning is a bona fide nationalist idea of secularism. The philosopher Catherine Kintzler, among others, readily and explicitly invokes the political model—the Republic—as being closely tied to secularism. This latter is, she writes, “a principle from which membership in the polity can be conceptualized” (Kintzler 2008: 9). In France, in the tradition of the Enlightenment, it is often held that individuals acquire full citizenship only after prior suspension of their particular identities, be they communitarian, ethnic, or religious. For Catherine

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Kintzler, secularism becomes a principle giving access to full citizenship and thus making possible the formation of the “political bond” (ibid., 32). Although it pursues goals of equality and freedom of conscience, the conception of secularism advocated by the neo-republicans is forthrightly nationalist, for three reasons. First, it conceives of equality and freedom as being realized a posteriori; it predicates them on prior emancipation for purposes of assimilation. Second, it views secularism through the prism of the French public school system, generalizing the specific arrangements whereby secularism is enacted in the public schools to society as a whole. Third, it views secularism as finding its first expression in a formal separation of church from state—the Act of 1905—that is unique to France, ignoring the many ways in which law has been secularized in the governance of other liberal democracies. Indeed, aspects of secularization manifest themselves in every democratic and liberal society, even outside its formal sanctioning by law.

1.2 A Dynamic Understanding of Secularism A number of scholars have used the methods of historical sociology to study how secularization processes can emerge in a society even before the term “secularism” is formally employed. Based on his analysis of Mexico, Roberto Blancarte showed how “secularizing” policies were adopted in Mexico between 1859 and 1861: the creation of registries of civil status, the institutionalization of civil marriage, and the abolition of the status of cemeteries as preserves of the Catholic Church (Blancarte 2001: 846). On this view, secularism is not strictly tantamount to formal separation between church and state; it is better regarded as the reappropriation of popular sovereignty along with the enshrinement of freedom of conscience and thought as constitutionally protected rights. In Spain, the advent of secularism went hand in hand with democratization (Rozenberg 2000; Proeschel 2005). The Constitution of 1978 provides for separation of church and state, even though the term “secularism” is found nowhere in it, and even though relations between the Spanish state and the Catholic Church continue to be governed by specific agreements. The Constitution also reiterates the obligation of state neutrality with respect to religious denominations. These principles are reaffirmed in the Ley Orgánica 7/1980, de 5 de julio, de Libertad Religiosa; they have helped Spaniards both reappropriate their sovereignty and obtain more effective guarantees of their fundamental human rights. Studies by jurists and sociologists in Quebec have traced the elements of secularism back through the history of progressive guarantees of fundamental rights in Canada’s founding treaties, but also, in the contemporary period, through the courts’ liberal interpretations of the rights guaranteed by the Canadian Charter of Rights and Freedoms. While the principle of secularism may not be formally established in Canadian and Quebec law, “a very similar principle is acknowledged [by the courts] under the Canadian and Quebec charters: the principle of state religious neutrality” (Woehrling 2008: 50).

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A similar observation has been made in Italy, where the constitutional court inferred a principle of secularism from its interpretation of the fundamental rights guaranteed by the Italian Constitution, recognizing it as a supreme principle of the country’s legal order. As the jurist Alessandro Ferrari emphasizes, “Italian secularism has retained respect for freedom of conscience and a favourable attitude toward the promotion of cultural and religious pluralism [as well as] an obligation of state neutrality vis-à-vis religions and a distinction between the civil and religious spheres” (Ferrari 2008: 145). Viewed from this angle, secularism is an evolving process, not a settled state determined by its roots in a legal norm. Besides the above-mentioned national contexts, numerous studies done in other countries have identified elements of secularism, even where the term is not explicitly set out in laws and constitutions; a non-exhaustive list would include India (Kondo 2009), Japan (Shimazono 2009), Belgium (Leroy 2007), Brazil (Esquivel 2008; Lorea 2009), the United States (Perry 2009), Argentina (Mallimaci 2008), and Uruguay (Da Costa 2009). Returning to the French context, many researchers here have likewise refused to essentialize secularism, preferring instead to trace the shifts it has undergone in political governance through the use of sociohistorical methods or legal analyses. This angle is adopted in the work of Maurice Barbier, who argues that “secularism is not a static notion but an evolving one” (Barbier 1995: 69). He nonetheless ventures a two-part definition in which the content of secularism is fixed by symbolic legal texts. On the one hand, secularism is “total separation between state and religion” (ibid., 84) and thus corresponds to the first stage of affirmation of “legislative secularism” in France. On the other, it corresponds to “strict state neutrality with respect to religion” (ibid., 86), and this type of secularism, which he calls “constitutional,” was only confirmed in France with the inauguration of the Fourth Republic in 1946. Barbier’s view is that 1905 was not the inaugural year for genuine state neutrality because, in the “highly contentious” climate in which the law was passed, the state was led to enact measures affecting the organization of religions. Secularism, on this view, was only confirmed in 1946 with its enshrinement in a constitutional norm. Similar terms have been employed by other scholars who do not concur with Barbier’s position. While Claude Langlois (2005: 20) and Émile Poulat (1987: 200) write of “affirmed secularism” and “acknowledged secularism,” respectively, they clearly situate the legal formalization of secularism within a longer process of secularization, one that has been extensively documented by the sociologist Jean Baubérot. Baubérot, for his part (2000: 4, 2006: 49), positions himself as an heir to the thought of the first theorist of secularism, Ferdinand Buisson, who defined it as “the outcome of centuries of slow development” in which the various institutions “little by little differentiated themselves, separated from one another, freed themselves from church tutelage.” For Baubérot, the realization of secularism assumes a process of secularization that must be “made to serve the cause of human rights” (2004: 17). For this reason, its aims correspond to “freedom of conscience, freedom of worship, [and] equal rights without regard for religious affiliation” (Baubérot 2000:

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4). Baubérot concurs here with the above-cited authors in at least two respects: that secularism gradually takes form in state governance and has no aims other than the realization of fundamental rights, and that it is not uniquely associated with formal separation consecrated in a legal norm. On this basis, he proposes to appraise the effective relations between church and state, and their evolution, as a better gauge of the separation that actually exists. Baubérot further contends that the passage of the Act of 1905 was only one milestone in a secularization process underway since the French Revolution. In characterizing the situation that evolved after 1905, he appeals to the sociological concept of a “secular pact,” around which a sizeable critical literature has grown up (Barbier 1995; Kintzler 1998; Poulat 1997; Pena-Ruiz 1998). The idea is that the Act of 1905 allowed for the conflict between the “two Frances” to subside or be surpassed (dépassement). In contrast to the revolutionary period, “the new period was built with meticulous attention to the old,” and ultimately, “continuity won out over change” (Langlois 2005: 310). The law was one step, albeit a necessary one, in an ongoing secularization process but remained insufficient to guarantee that secularism would reign in practice. From this perspective, French-style secularism is “the daughter of an English philosopher [John Locke] known as a founder of political liberalism, not Enlightenment liberalism” (Agier-Cabanes 2007: 137). The separation brought about by the Act of 1905 had been advocated by Locke but never envisaged by Voltaire. And “the first provision of this act … concerns the primacy of freedom of conscience,” which takes the form of both an individual freedom, the freedom of thought, and a collective one, the freedom to manifest that freedom and to practice one’s religion (ibid., 138). This does not mean boundless tolerance vis-à-vis religion, and the considerations of public order present in Lockean thought are already detectable in the Act of 1905. Secularism may thus come under tension, and Baubérot proposes to clarify this “tug-of-war” by articulating two ideal conceptions of freedom: “freedom of conscience” and “the freedom to think.” He recalls that French secularism has been at pains to protect freedom of conscience, an individual freedom (Baubérot 1999: 316). In so doing, it has fostered “overt pluralism that is not limited by the distinction previously effected … between ‘recognized religions’ and others that somehow are not” (ibid.). He adds, however, that secularism has, during its sociohistorical trajectory, also established itself “through struggle against religious forms considered dominant, authoritarian, intolerant. Thus it is not merely ‘freedom of conscience’ but also ‘the freedom to think,’” and freedom is conceived of here as “emancipation from any all-encompassing doctrine” (ibid.) and “[rejection] of any subordination of the mind to any given dogmatism” (Zuber 2005: 119). Two conceptions of freedom arise from this conjunction of freedom of conscience with the freedom to think. The first is that the freedom to think may be apprehended as a precondition for freedom of conscience. To enjoy full freedom of conscience, individuals must be emancipated from their Procrustean thinking, even if it means diminishing their right to be wrong—which is part and parcel of freedom of conscience. The second is that freedom of conscience includes the freedom to

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think, which must also be advanced by official policy, although within bounds of respect for freedom of conscience. These ideal types of freedom help understand the tensions inherent in the configuration of French secularism. While Émile Poulat diverges from Baubérot on the concept of the “secular pact” associated with the Act of 1905, he too opines that the law served to appease an ongoing societal conflict and did not enact a separation as such. This transition resulted in the configuration of public life and freedoms henceforth being based on the “principle of secularism” rather than the “principle of Catholicism.” Secularism became “the reaffirmation of the mind and its freedom, thanks to rights defined in law that are guaranteed by the state, even to its own detriment. It did not mark a victory of the state over the church in the battle to govern people’s minds. It was a victory over such government; a re-founding of society through the recognition that everyone enjoys a natural right to public freedom of conscience. It is the organizing principle of this right, which is also shared” (Poulat 1997: 102). This transfer of legitimacy to popular sovereignty, along with the necessary protection of freedom of conscience and freedom of thought, represents the backdrop to the thought of Poulat, who refuses to reduce secularism to its mere formalization in a legal norm. Rather, it is a social fact, “an encompassing, evolving state of society” that must be analyzed in sociological terms, without limiting the analysis to juridical or philosophical theorizing (ibid., 101). In the end, different conceptions of the secularization process emerge in the French context, and these conceptions are not unrelated to the peculiar history whereby secularism emerged in this country. That history consisted in the adoption of symbolic norms (secularism laws) that became imprinted on the public mind, coexisting with other elements of secularization less perceptible to citizens. The modalities according to which the political authorities interpret the foundational principles of secularism will thus bifurcate both over time and as dictated or shaped by the context. Secularism, in short, is not simple or univocal, but plural.

2 The Multiplicity of French Secularisms The act of enshrining secularism in positive law is symbolic. However, this is not sufficient to guarantee its de facto application, nor is it necessary: a state without officially proclaimed secularism can nonetheless apply the fundamental principles thereof. Each state interprets these principles in its own fashion and accords to them a specific weight, and this diversity gives rise to the polysemy of the term “secularism.” Moreover, the varying spatiotemporal articulations of these principles by political authorities can lead to a range of different configurations of secularism within a single society.

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2.1 Secularism and Its Fundamental Principles At the initiative of three sociologists from France, Canada, and Mexico, a Universal Declaration on Secularism in the 21st Century was signed in 2005 by over 250 academics from 30 countries.1 The declaration, cast in the mould of early theoretical work devoted to the conceptualization of secularism, makes no effort to freeze the concept by offering a substantivist definition; instead, it sets forth what it considers the fundamental principles of secularism. These principles, asserted as foundational to the political and legal fact of secularism, serve to identify its  elements in any society, even though what is identified may differ from one society to another according to how the political authorities interpret it. Article 4 of the Declaration defines secularism as “the harmonization amongst individuals originating from diverse geographical and cultural areas of the three above principles: respect for the fundamental right to freedom of speech and worship, individually or as part of a group; separation of the political sphere and civil society from particular religious and philosophical norms; non-discrimination, whether direct or indirect, toward human beings.” These principles can be found today in most theoretical work on secularism, even where the propositions put forward are very different. The Belgian philosopher Guy Haarscher, who can be grouped with the neo-republican tendency, regards secularism as the state’s disengagement from the spiritual conflicts of civil society (i.e., disestablishment). The state stops being a party to the conflict and becomes an arbiter (i.e., neutrality) and a guarantor of freedoms (i.e., freedom of conscience) for all (i.e., equality) (Haarscher 1989: 7). The French sociologist Jean-Paul Willaime emphasizes that similar principles have been consecrated at the European level. His work discusses “freedom of conscience, thought, and religion,” “equality of rights and duties for all citizens,” and “the respective autonomy of the state and religions” (Willaime 2008: 57). More important theoretical developments around these principles have been produced in Quebec (Bouchard and Taylor 2008; Taylor and Maclure 2010), a society where secularism was not set out in a legal norm until 2019. It is precisely this circumstance that made possible the progress accomplished by Quebec sociologists of secularism, who had no choice but to apprehend the concept in its evolutionary, non-static dimension if they were to analyze its effectiveness in state regulation of religious affairs. In the wake of the initial Quebec debate on reasonable accommodation (2006–2008), the report produced on 22 May 2008 by the Bouchard-Taylor Commission (Commission de consultation sur les pratiques d’accommodement reliées aux différences culturelles) specified that equality and freedom of conscience

 This conception of secularism was encapsulated in a “Universal Declaration of Twenty-First-­ Century Secularism” presented at a press conference held in the French Senate on 9 December 2005, the centennial of the Church-State Separation Act of 1905. The declaration was translated into a dozen languages; it was intended as a contribution to debate, reflection, and deliberation in various national contexts. 1

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must be understood as the aims to be pursued by secular arrangements. But for that to happen, state governance must implement means to guarantee the best possible protection, and thus we find here the two other basic principles of secularism: neutrality and church-state separation. In short, there is no pure model of secularism; there are only different configurations of its fundamental principles, each arising from the national context in which they are enmeshed. It is clearly an international reality, one that “may be enacted by other forms of church-state relations than the regulatory regime established by the Church-State Separation Act of 1905” (Willaime 2005: 67). Put another way, every liberal democracy has had to grapple with a number of shared challenges in order to be able to assert itself as such. States have progressively distanced themselves from churches that sought to retain moral and political influence over societal choices. In so doing, they have, in a context of increasing diversity, bolstered their autonomy with respect to the religious sphere. They have also solidified the foundations of a legal order protective of fundamental human rights, such as moral equality between citizens and freedom of conscience and religion. Secularism is not a principle unique to a few rare and peculiar societies. Although marked by different historical trajectories, its fundaments are identifiable in all liberal democracies, since all have faced the same democratic challenges at some point in their history (Milot 2002: 24). The democratic process, that is, is intrinsically linked to the secularization process; fundamental human rights and the full exercise of people’s sovereignty are “equiprimordial” in liberal democracies. On the one hand, rights are a necessary condition for the sovereignty of the people, which must be composed of “free and equal individuals [and] can only exercise its full sovereignty within a framework amenable to these principles of freedom and equality” (Dumont and El Berhoumi 2021: 177). On the other, the expression of people’s sovereignty “legitimates the positivization of human rights [that is, their anchoring in domestic law], in that setting the bounds for their identity, content, scope, limits, and compatibility requires democratic deliberation” (ibid.). This “equiprimordiality” (people’s sovereignty/ fundamental rights), which is imperative and essential under liberal democracy, is equally so under secularism. In this context, the decriminalization of abortion and homosexuality, the abolition of Sunday business closing requirements, the advent of medical assistance in dying, and successive reforms of family law are just a few examples of measures evidencing the extent to which religious normativities have lost control over civil law. There has been an undeniable transfer of legitimacy harking back to the principle of church-state separation, a principle that need not be formalized in a legal norm (the Act of 1905 in France’s case) to play an effective role in governance. This transfer of legitimacy—which is to say, this progressive reappropriation of popular sovereignty—is bound up with the enshrinement of fundamental rights, including freedom of conscience and religion, in a constitution. This dual process has been documented in a great many national contexts, both in Europe and elsewhere, but also in supranational frameworks, as illustrated by the work of Bérengère Massignon (2004, 2007) and Jean-Paul Willaime (2009) on the European Union.

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But if secularism adopts a multiplicity of forms and meanings internationally, it is likewise multiplex in the French domestic context. In France, the various configurations of secularism derive both from their interpretation by the political authorities with reference to the constitutive principles of the concept, and from the subsequent clarification of their meaning by judges in their decisions (Delgrange and Koussens 2020). Secularism will be more open to public religious manifestations in some cases, more recalcitrant to them in others. Secularism is not, to put it succinctly, a single thing. By observing its multiple empirical configurations, one can work back to the reality that there are multiple French ideas of secularism. These can be identified in both the discourses by which it is constructed and the measures by which the regulation of religious diversity is enacted within the legal system.

2.2 Secularism: A Polysemic Term with Polymorphic Manifestations The ways in which different actors—governments, NGOs, trade unions, academics, citizens—interpret the fundamental principles of secularism have consequences for the meaning of the conceptions of secularism to which they subscribe. This means that secularism cannot be frozen as a concept. Indeed, the polysemy of the term ought to remind scholars of the dynamic character of the political phenomenon they study. 2.2.1 Polysemy of the Term “Secularism” Even though France adopted an act governing church-state separation (the Act of 1905) and then enshrined secularism in the Constitution de la IVème République du 4 octobre 1946 (the “Constitution of 1946”), the term itself has never been given an official definition, nor has it been precisely defined in the political sphere. It has no “specific, positive, immutable content” (Barbier 1995: 69); it leaves considerable room for interpretation. Is it diminished by this indefiniteness? Such a claim would be rash, for if this conceptual slack favours the dissemination of multiple representations of secularism and its possibilities, it also serves to enhance scholarly debate. The absence of a formal definition of secularism militates against any normalization of how religious diversity is to be regulated; citizens are free to retain their own conceptions of what the concept corresponds to. In a word, secularism does not mean the same thing to everyone. Yet its basic principles are present in the thought of every one of its theorists, even if implicitly or in various guises. They are also present in the conceptions harboured by politicians, but also citizens, and will thus shape significant events in the regulation of religious affairs, which will then further inflect the dominant

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representations of secularism. Furthermore, these conceptions and representations are often correlated with the adoption of symbolically powerful legal norms; these norms in turn impress themselves on people’s minds and thus more broadly affect the psychosocial and cultural aspects of society’s relationship to religion. While the regulation of religious diversity in France typically flows from the (often littleknown) work of judicial bodies and local political authorities, it is nonetheless the positions taken by political figures at particularly symbolic moments that deeply mark the collective memory. The year 1989 was an emblematic year for the solidification of such representations. Internationally, it was the year when the Ayatollah Khomeini issued a fatwa against the writer Salman Rushdie, as well as the year the Berlin Wall fell. These events made it seem as though politico-religious tensions had supplanted politico-­ economic ones, while also making themselves felt in domestic politics. It was the bicentenary of the French Revolution and the year in which praises to republican universalism became particularly audible with the first polemic around the wearing of religious symbols in public schools. A year rife with debate, it was also (as mentioned earlier) the year that saw secularism being posited for the first time as a “French exception.” If that myth persists, it is very much because certain sociopolitical contexts allow for the emergence of what Alessandro Ferrari or José Casanova, respectively, term “narrative secularism” (Ferrari 2009: 333) or “secular ideology” (Casanova 2011:  66). It is a type of secularism corresponding to the narrative of a certain “secular ideal” or memory of secularism. It finds form in social debate, variously articulating the intrinsic principles of secularism as a function of the political issue of the moment, thus conveying varying conceptions of what secularism might be. Narrative secularism can, in particular, be detected in political discourses and in government reports bearing on the regulation of religious diversity. While this form of secularism has no status as positive law per se, it can effectively influence the development of this body of law, and can thus be said to have normative force of its own. The polysemy of the term “secularism” thus has direct effects on the forms that secularism will take when crystallized in law; in other words, the multiple meanings of the concept upstream result in multiple forms of regulation of religious diversity downstream. 2.2.2 Secularism in Three Dimensions In short, the forms and configurations taken by secularism are varied: it is a case-by-­ case affair. Moreover, a study of the different articulations of its basic principles leads us to posit that it can vary along three different dimensions: temporal, spatial, and material.

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The Temporal Dimension The temporal dimension of secularism is intimately linked to transformations of society over time. French society was traditionally marked by the domination of the Catholic Church, and the power dynamic between religion and state structures led to configurations of secularism specific to that context. Jean Baubérot has shown that the secularization process has been punctuated by a sequence of developments, each of them associated with different types of secularism. In our day, societal attitudes are being challenged by the growing visibility of certain religious groups, even though some of these groups have been established on French soil for decades and have certainly been the protagonists, albeit indirectly, of this country’s secularization process. Certain aspects of their religious practices are more visible today, especially due to heightened media interest in them, and this has resulted in pressure for new legal arrangements. Displays of nativity scenes in municipal public buildings, bans on the wearing of religious symbols by civil servants, the construction of Muslim places of worship with financial support from the local authorities: these new practices are reconfiguring secularism as a function of the social issues and debates of the moment, a matter to which I will return in this book. Political circumstances (changes of government, the rise of the far right, etc.) and social issues (radicalization and terrorist attacks) may thus favour the emergence of new ways of understanding secularism in society: new “narrative secularisms.” It is imperative here to carefully distinguish these discourses on secularism from “legal secularism,” which proceeds from the legal and political regulation of religious affairs. The relationship between “narrative secularism” and “legal secularism” points to “tensions between ideals and practices” (Ferrari 2009: 333). Narrative secularism may not be a source of law, but law can nonetheless draw upon it as a function of the social context in which it evolves. Narrative secularism can fuel legal secularism. As I will show throughout this book, although legal secularism appears more stable, it can ultimately prove sensitive to fluctuations in narrative secularism. Even in the absence of societal transformations, the representations of secularism disseminated through societal debate and detectable in narrative secularism can evolve and, as they evolve, influence the evolution of legal secularism. The Spatial Dimension The spatial dimension of secularism refers to differential treatment by the political authorities of a single social fact of a religious nature from one municipality, region, province, or state to another. While it may seem obvious that the configuration of secularism is not the same in every state, it is also the case that regional differences can be discerned within a single state. Federal states such as Canada, Germany, or Switzerland are examples in which the federal government and the provincial or regional governments share

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legislative power over areas of jurisdiction such as education that have a direct bearing on the issues of secularism. Secularism can be spatially polymorphic, then, because more than one political authority has the power to enact legislative provisions applicable to the citizens of a given territory. But it can also be polymorphic in unitary states such as France as a result of processes whereby powers of the central state are deconcentrated and decentralized to lower-level authorities. This does not mean that delegated power is legislative power; rather, it is a regulatory power that is required, by virtue of the hierarchy of legal norms, to abide by the country’s legislation. It is exercised at the local level and is limited by the law of France to the territory over which local jurisdiction is exercised. As shown by Anne-­ Sophie Lamine (2004, 2005) among others, some of these decentralized authorities have adopted original policies for the regulation of religious diversity, such as forums for interreligious interaction bringing together the representatives of various denominations with the local authorities. Lamine found that such innovative policies can be implemented at the scale of a municipality as well, where authority is most emblematically deconcentrated and decentralized. This could involve, for example, assistance to newly arrived religions with the administration of places of worship. However, such policies remain very much local. They only apply within the jurisdiction of the territorial collectivity that implements them.2 Thus, the ways in which various religious phenomena are treated in Marseille or Paris may differ from how they are treated in Lille or Montpellier, evidencing different articulations of the principles of secularism (church-state separation, neutrality, freedom of conscience and religion, equality). Secularism, that is, can be spatially polymorphic in a unitary state such as France as a result of specific administrative policies that delegate powers from the central state to the territorial collectivities. But such polymorphism is a pure function of the regulatory power enjoyed by those entities and cannot be divorced from the legislative framework from which it derives its legitimacy. It is more surprising to find that spatial polymorphism in France is also due, in part, to the will of Parliament itself. The plurality of legislative regimes for secularism in France arises out of the legacies of the past. The Act of 1905 put an end to Napoleon Bonaparte’s concordatory regime that resulted from the Law of 18 Germinal Year X,3 whereby the Catholic, Protestant, and Jewish religions had been recognized by the state, and established a clear separation between state and churches.4 For historical reasons, the regulation of religious affairs applicable in the departments of Haut-Rhin, Bas-Rhin, and Moselle remains modeled on the concordatory regime and differs from the regime prevailing  Territorial collectivities are political authorities created at different geographical scales and possessing regulatory powers within their areas of jurisdiction. The main types of territorial collectivities are communes, departments, and regions. 3  That is, 8 April 1802. 4  Loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, JORF, 11 December 1905, p. 7207. 2

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in the rest of France.5 To these two regimes in Metropolitan France were added, until the passage of a new law on 24 August 2021,6 a number of special regimes governing church-state relations in overseas France. In Guyane (French Guiana), an overseas department since 1946, religious regulation was inspired by the concordatory system but did not stem from it directly, for it was established by a royal ordinance issued by Charles X on 27 August 1828. Specific regimes applied in the territorial collectivities of Mayotte and Saint-Pierre-et-Miquelon. The three overseas territories—Nouvelle-Calédonie, Wallis-et-Futuna, and Polynésie française— were not covered by the Act of 1905, and the modalities for the regulation of religious diversity were determined there by the Mandel decrees of 16 January and 6 December 1939. Finally, the separation regime applicable in the three overseas departments of Martinique, Guadeloupe, and Île de la Réunion was defined by a decree of 6 February 1911 and was not derived from the Act of 1905 either. In an attempt to clarify the law and harmonize the overseas regimes, Articles 91 et seq. of the Act of 2021 subject these territories to the common law of church-state separation; i.e., the Act of 1905. The Material Dimension As we have just seen, while secularism in France is often thought of as unified, it takes a variety of forms depending on where one is in the Republic. And if it is polymorphic in time and space, it can also be so by virtue of the differential treatment accorded by a state to certain religious manifestations. The material dimension of secularism refers to the fact that political governance may not assign the same weight to the basic principles of secularism as a function of the particular religious manifestation with which it is confronted. More particularly, and I will return to this point, certain manifestations associated with the majority religion (the Christian traditions) may enjoy advantages that are denied to religious manifestations not normalized in the culture of the society (see the issue of street prayers in Chap. 4). I regard this material polymorphism as more problematic than the temporal and spatial polymorphisms just discussed, in that it does not relate to a distinction between legally binding systems of norms, but rather to the discretionary manner in which the political authorities mobilize and interpret a single system of legal norms to grant different statuses to different religious groups. It sends contradictory signals to citizens and can even bolster inequalities among religious groups where they exist.

 This regime was in fact repealed for all other French departments by section 44 of the Act of 1905.  Loi n° 2021–1109 du 24 août 2021 confortant le respect des principes de la République, JORF no. 0197, 25 August 2021, online at https://www.legifrance.gouv.fr/jorf/id/ JORFTEXT000043964778 5 6

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2.2.3 Models of Secularism An analysis of the articulation of the principles fundamental to secularism in political and legal governance serves to elucidate the complexity and multiplicity of French secular configurations. Baubérot distinguishes three “historical” versions of secularism. He begins by identifying an anti-religious form that “regards secularism as a means of imposing total secularization. It holds that true freedom of conscience is acquired through emancipation, rejection of religion. Religions are not regarded as being equal to other beliefs … Separation must aim to suppress the social influence of religion. Neutrality benefits religion de facto by abandoning the social and cultural battle for emancipation” (Baubérot 2015: 35–6). In the second place, a Gallican modality of secularism reflects a form of state intervention in the interpretation of religion with a view to “limiting freedom of conscience in certain places” (ibid., 56). The places targeted are the ones identified, without defining them, as “fundamentalist.” In this context, “secular battles have little impact on separation; most often they focus on the extension of neutrality to such an extent that, for some part of public opinion, secularism and neutrality have become synonymous” (ibid.). A third modality that might be termed “disestablishmentarian secularism” (laïcité séparatiste) is characterized by “the place of choice [accorded to] the separation of religions from the state [as well as] a rejection of an anti-religious or Gallican vision” (ibid., 60). Such secularism is inclusive where guarantees of freedom of conscience in its collective dimension are concerned, but stricter as regards the individual expression of religious convictions. This form of secularism frequently arises in contemporary debate, in the wake of the debates surrounding the wearing of the veil, both in 1989 and since 2003, as I shall show in a subsequent chapter. But while today’s debates are expressed in terms of repertoires inherited from the past, they also draw on referents absent from the discussions surrounding the passage of the Act of 1905. The first of these, called “open secularism” (ibid., 87), is situated at the confluence of a “secularism of recognition” of fundamental rights, and more particularly freedom of conscience, with a “secularism of collaboration” (ibid., 113), in which religion may be perceived as “a resource in a post-secular society” (Willaime 2008: 36) justifying, where applicable, the recognition of its public utility. The second of these new forms of secularism, “identity secularism,” is constructed in reaction to Islam (Baubérot 2015: 103). It is typified by weak state neutrality and limitations on citizens’ freedom of conscience, and also calls for “a resolute extension of the obligation of neutrality to individuals.” It is unequal in that it imposes restrictive conditions on the expression of belief in Islam while, in the same breath, valuing Catholicism as a component of national identity. An illustration of this form can be found in the attempts by mayors, many of them on the right or the far right, to display nativity scenes in public buildings during the Christmas holiday.

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The last new form of secularism, often ignored in French public debate, corresponds to “concordatory secularism” (ibid., 119) and arises from legitimation by the Constitutional Council (Conseil constitutionnel; a non-judicial body implemented by the Constitution of 1958 with a mandate to ensure that legislation passed by Parliament conforms to the Constitution)7 of the ways of doing and thinking derived from the concordatory regime covering certain parts of French territory (see Chap. 3). These modalities are ideal types; they have been constructed by selecting certain features of social, political, and legal phenomena and accentuating their characteristics for purposes of modeling. There can be no perfect correspondence between them and those phenomena. They are interpretive tools and no more than that. In conclusion, it may be observed that several models of “French secularism” overlap and coexist as a function of the articulation of the basic principles of secularism (church-state separation, neutrality, freedom of conscience and religion, equality) in political and legal governance. How can this plurality of models be identified in law when secularism is often presented in public debate as a value to be safeguarded? In France, what correspondences and/or lags are visible between the modalities observable in legal arrangements (legal secularism) and those emerging from discourses constructed around secularism (narrative secularism)? How have these secularisms evolved over the last 30 years? These are the questions that the following chapters will seek to answer.

References Agier-Cabanes, Isabelle. 2007. La laïcité, exception libérale dans le modèle français. Cosmopolitiques 16: 133–143. Balthazar, Louis. 1990. La laïcisation tranquille au Québec. In La laïcité en Amérique du Nord, ed. Jacques Lemaire, 32–41. Brussels: Éditions de l’Université libre de Bruxelles. Barbier, Maurice. 1995. La laïcité. Paris: L’Harmattan. Barras, Amélie. 2021. Formalizing Secularism as a Regime of Restrictions and Protections: The Case of Quebec (Canada) and Geneva (Switzerland). Canadian Journal of Law and Society 36 (2): 283–302. Baubérot, Jean. 1999. Laïcité, sectes, société. In Sectes et démocratie, ed. Françoise Champion and Martine Cohen, 313–327. Paris: Seuil. ———. 2000. Histoire de la laïcité française. Paris: Presses Universitaires de France. ———. 2004. Laïcité 1905–2005, entre passion et raison. Paris: Seuil. ———. 2006. La laïcité en crise? Une conquête toujours en devenir. Informations sociales 138: 48–59. ———. 2015. Les 7 laïcités françaises: le modèle français de laïcité n’existe pas. Paris: Maison des Sciences de l’Homme.

 Conseil constitutionnel, decision no. 2012–297 QPC of 21 February 2013, Association pour la promotion et l’expansion de la laïcité, JORF, 23 February 2013, at 3110, online at http://www. conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-­ depuis-­1959/2013/2012-297-qpc/decision-n-2012-297-qpc-du-21-fevrier-2013.136084.html 7

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Baubérot, Jean, and Séverine Mathieu. 2002. Religion, modernité et culture au Royaume-Uni et en France, 1800–1914. Paris: Seuil. Beaman, Lori G. 2020. The transition of religion to culture in law and public discourse. London: Routledge. Blancarte, Roberto. 2001. Laïcidad y secularización en México. Estudios Sociólogicos 57 (19): 843–855. Bouchard, Gérard, and Charles Taylor. 2008. Building the Future: A Time for Reconciliation. Quebec: Commission de consultation sur les pratiques d’accommodement reliées aux dif­ férences culturelles. Casanova, José. 2011. The Secular, Secularizations, Secularisms. In Rethinking Secularism, ed. Craig Calhoun, Mark Juergensmeyer, and Jonathan Van Antwerpen, 55–67. New York: Oxford University Press. Champion, Françoise. 1993. Entre laïcisation et sécularisation: des rapports Église-État dans l’Europe communautaire. Le Débat 77 (5): 40–63. ———. 1999. De la diversité des pluralismes religieux. International Journal on Multicultural Societies. 1 (2): 40–54. Coq, Guy. 1997. Église et démocratie. Esprit 233: 78–282. ———. 2005. La Laïcité: principe universel. Paris: Félin. ———. 2006. Faut-il changer la loi de 1905? Hommes et migrations 1259: 31–43. Crépon, Sylvain. 2008. La lutte pour la reconnaissance des signes religieux à l’école: une étude comparative France-Belgique. Politique européenne 24: 83–101. Da Costa, Néstor. 2009. La laicidad uruguaya. Archives de sciences sociales des religions 146: 137–155. Date, Kiyonobu. 2020. Trajectoire de la laïcité au Québec au miroir du Japon. In Étudier le religieux au Québec: regards d’ici et d’ailleurs, ed. David Koussens et  al., 505–522. Quebec: Presses de l’Université Laval. Debray, Régis. 2004. Ce que nous voile le voile. Paris: Gallimard. Delgrange, Xavier, and David Koussens. 2019. Les nouveaux arcs-boutants de la laïcité belge pilarisée. In Piliers, dépilarisation et clivage philosophique en Belgique, ed. Lynn Bruyère et al., 83–100. Brussels: Éditions du CRISP. ———. 2020. La fabrique de la laïcité par le juge: éléments de comparaison Belgique-France-­ Québec. Revue interdisciplinaire d’études juridiques 85: 93–127. Dumont, Hugues, and Mathias El Berhoumi. 2021. Droit constitutionnel: approche critique et interdisciplinaire. Vol. 1, L’État. Brussels: Larcier. Esquivel, Juan Cruz. 2008. Laicidades relativas: avatares de la relación Estado-Iglesia en Brasil. In Los Retos de la Laicidad y la Secularización en el Mundo Contemporáneo, ed. Roberto Blancarte, 163–192. México: El Colegio de Mexico-Centro de Estudios Sociológicos. Ferrari, Alessandro. 2008. Laïcité et multiculturalisme à l’italienne. Archives de sciences sociales des religions 141: 145–146. ———. 2009. De la politique à la technique : laïcité narrative et laïcité du droit. Pour une comparaison France/Italie. In Le droit ecclésiastique de la fin du xviiie au milieu du xxe siècle en Europe, ed. Brigitte Basdevant-Gaudemet and François Jankowiak, 333–345. Leuven: Peeters. Gagné, André. 2020. L’influence de la droite chrétienne aux États-Unis et au Canada. Nouveaux cahiers du socialisme 23: 87–93. Gauchet, Marcel. 2008. Crise dans la démocratie. La revue lacanienne 2: 59–72. Haarscher, Guy. 1989. L’Europe, la laïcité et les droits de l’homme. In Laïcité et droits de l’homme: deux siècles de conquête, ed. Guy Haarscher. Brussels: Editions de l’Université de Bruxelles. ———. 1996. La laïcité. Paris: Presses universitaires de France. Kentel, Ferhat. 1998. Recompositions du religieux en Turquie: pluralisme et individualisation. Cahiers d’études sur la Méditerranée orientale et le monde turco-iranien 26. https://journals. openedition.org/cemoti/132. Accessed 29 March 2022. Kintzler, Catherine. 1998. Tolérance et laïcité. Nantes: Pleins Feux. ———. 2008. Qu’est-ce que la laïcité? Paris: Vrin.

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Kondo, Mitsuhiro. 2009. L’avenir du sécularisme en Inde. In Sécularisations et laïcités, ed. Haneda Masashi, 93–101. Tokyo: Koichi Maeda-University of Tokyo/Center for Philosophy. Koussens, David. 2012. Symboles et rituels catholiques dans les institutions publiques québécoises: aspects juridiques, débats politiques et enjeux laïques. Annuaire Droit et Religions 6 (1): 161–172. Koussens, David, and Valérie Amiraux. 2015. Du mauvais usage de la laïcité française dans le débat public québécois. In Penser la laïcité québécoise: fondements et défense d’une laïcité ouverte au Québec, ed. Sébastien Lévesque, 55–77. Quebec: Les Presses de l’Université Laval. Lamine, Anne-Sophie. 2004. La cohabitation des dieux: pluralité religieuse et laïcité. Paris: Presses Universitaires de France. ———. 2005. Mise en scène de la "bonne entente" interreligieuse et reconnaissance. Archives de sciences sociales des religions 12: 83–96. Langlois, Claude. 2005. Depuis soixante ans la République est laïque: réflexions sur une ‘vocation’ tardive. Vingtième Siècle, Revue d’histoire 87: 11–20. Leroy, Michel. 2007. L’État Belge, État laïc. In En hommage à Francis Delpérée – Itinéraires d’un constitutionnaliste, ed. Robert Andersen, Diane Déom, Visscher De Leuruquin, Anne Rasson-­ Rolande, David Renders, et al. Brussels/Paris: Bruylant/L.G.D.J. Lorcerie, Françoise. 2007. « La République aime l’école ». Cosmopolitiques 16: 107–118. Lorea, Roberto Arriada. 2009. Brazilian secularity and minorities in the biggest Catholic nation in the world. Archives de sciences sociales des religions 146: 81–95. Mallimaci, Fortunato Horacio. 2008. Nacionalismo católico y cultura laica en Argentina. In Los Retos de la Laicidad y la Secularización en el Mundo Contemporáneo, ed. Roberto Blancarte, 239–262. Mexico City: El Colegio de Mexico-Centro de Estudios Sociológicos. Massignon, Bérengère. 2004. Les relations entre les institutions religieuses et l’Union européenne: un laboratoire de gestion de la pluralité religieuse et philosophique? In Les mutations contemporaines du religieux, ed. Jean-Robert Armogathe and Jean-Paul Willaime, 25–41. Turnhout: Brepols. ———. 2007. Des dieux et des fonctionnaires: religions et laïcités face au défi de la construction européenne. Rennes: Presses Universitaires de Rennes. Milot, Micheline. 2002. Laïcité dans le Nouveau Monde: le cas du Québec. Turnhout: Brepols. Pena-Ruiz, Henri. 1998. La laïcité. Paris: Flammarion. ———. 2003. Qu’est-ce que la laïcité? Paris: Gallimard. ———. 2014. Dictionnaire amoureux de la laïcité. Paris: Plon. Perry, Michael J. 2009. USA: Religion as a basis of lawmaking? On the non-establishment of religion. Archives de sciences sociales des religions 146: 119–136. Portier, Philippe, and Irène Théry. 2015. Du mariage civil au “mariage pour tous”: sécularisation du droit et mobilisations catholiques. Sociologie (6): 1. https://journals.openedition.org/sociologie/2528. Accessed 29 March 2022. Poulat, Émile. 1987. Liberté, Laïcité: la guerre des deux France et le principe de la modernité. Paris: Cerf/Cujas. ———. 1997. La solution laïque et ses problèmes: fausses certitudes, vraies inconnues. Paris: Berg international. Proeschel, Claude. 2005. L’idée de laïcité: une comparaison franco-espagnole. Paris: L’Harmattan. Rozenberg, Danielle. 2000. Espagne: l’invention de la laïcité. Sociétés contemporaines 37: 35–51. Sägesser, Caroline. 2012. Les cours de religion et de morale dans l’enseignement obligatoire. Courrier hebdomadaire du CRISP 15–16 (2140–2141): 5–59. Shimazono, Susumu. 2009. La laïcisation et la notion de religion au Japon. In Sécularisations et laïcités, ed. Hanada Masashi, 71–78. Tokyo: Koichi Maeda-University of Tokyo/Center for Philosophy. Taylor, Charles, and Jocelyn Maclure. 2010. Laïcité et liberté de conscience. Montreal: Boréal. Willaime, Jean-Paul. 2005. 1905 et la pratique d’une laïcité de reconnaissance sociale des religions. Archives de sciences sociales des religions 129: 67–82.

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———. 2008. Le retour du religieux dans la sphère publique: vers une laïcité de reconnaissance et de dialogue. Lyon: Oliviétan. ———. 2009. Les laïcités belge et française au défi de la laïcité européenne. In Politique et religion en France et en Belgique, ed. Francois Foret, 161–177. Brussels: Éditions de l’Université de Bruxelles. Woehrling, José. 2008. Les fondements et les limites de l’accommodement raisonnable en milieu scolaire. In L’accommodement raisonnable et la diversité religieuse à l’école publique: normes et pratiques, ed. Marie Mc Andrew, Micheline Milot, Jean-Sébastien Imbeault, and Paul Eid, 43–53. Montreal: Fides. Zuber, Valentine. 2005. L’idée de séparation en France et ailleurs. In De la séparation des Églises et de l’État à l’avenir de la laïcité, ed. Jean Baubérot and Michel Wiewiorka, 107–120. Paris: l’Aube.

Chapter 3

The Legal Framework for Secularism

Abstract  To better understand the singular features of French secularism, it helps to discuss the complex legal framework within which the French public authorities interpret its foundational principles—separation of church and state, neutrality, freedom of conscience and religion, equality. The following discussion will serve to delineate the context in which the interpretive work of politicians and judges has brought into being the configuration of secularism in law. The purpose of this chapter, then, is to sketch out the principal legal mechanisms whereby the principles fundamental to secularism take form in state governance.

While secularism in France has often been presented as a “French exception,” this contention no longer has any empirical basis. The Council of State (Conseil d’État; the country’s highest administrative tribunal) has nothing to say about French secularism being exceptional in any way; instead, it emphasizes its “singularity,” which is said to flow from the express inclusion of the concept in the Constitution (Conseil d’État 2004: 359). This argument is bolstered by the jurisprudence of the European Court of Human Rights (Decaux 2010).1 Today, secularism is very much an international fact: numerous liberal democracies are governed by secular regimes of different kinds, even though not all of them have formalized the concept in law, as has France. To better understand the singular features of French secularism, it helps to discuss the complex legal framework within which the French public authorities interpret its foundational principles—separation of church and state, neutrality, freedom of conscience and religion, equality. The following discussion will serve to delineate the context in which the interpretive work of politicians and judges has brought into being the configuration of secularism in law. The purpose of this chapter, then,  In Dogru v. France and Kervanci v. France, the European Court of Human Rights (ECtHR) mentioned the “French secular model” (¶ 19), tracing its history and constitutional basis (¶ 17). Moreover, Dogru v. France deconstructed the hypothesis of French secular exceptionalism by discussing secularism in Turkey (¶ 66). See ECtHR, Dogru v. France [4 March 2009] App. no. 27058/05; Kervanci v. France [4 March 2009] App. no. 31645/04. 1

© Springer Nature Switzerland AG 2023 D. Koussens, Secularism(s) in Contemporary France, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies, https://doi.org/10.1007/978-3-031-18231-0_3

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is to sketch out the principal legal mechanisms whereby the principles fundamental to secularism take form in state governance. The French legal framework for the regulation of religious diversity corresponds to a “four-tiered” right (Messner et al. 2003: 287) that has taken on considerable complexity in the contemporary era and is sanctioned by multiple courts.

1 The Sources of Domestic Law 1.1 Regulatory and Legislative Sources Secularism in France was guaranteed in the letter of the law before it had any other existence. Until the 1970s, the state was bound by the “principle of legality.”2 The law governing religions “was characterized by the supremacy of Parliament, considered the expression of the sovereign people, whose acts, laws, enjoyed supreme political legitimacy and total legal immunity” (Messner et al. 2003: 285). The sole jurisdiction of the administrative tribunals was over the legality of regulatory acts; i.e., acts carried out by the executive branch in the course of wielding its delegated power to enforce the law. Two early laws relating to the school system played a significant role in the secularization process. The first, dated 28 March 1882 and known as the Jules Ferry Law, secularized the public schools (Basdevant-Gaudemet 1998: 70). Section 2 reads: “Public primary schools shall close one day a week, other than Sunday, in order for parents, if they so desire, to give their children religious instruction outside of school buildings. Religious teaching is optional in private schools.”3 A second law, dated 30 October 1886 and known as the René Goblet Law, complemented the 1882 law by secularizing the teaching staff of public primary schools (Basdevant-Gaudemet 1998: 74). Article 17 provides that “in public schools at all levels, teaching shall be exclusively entrusted to secular staff.”4 The central text of the legal framework has long been the Act of 1905. This law, which does not expressly refer to secularism, nevertheless establishes its contours in two ways.

 The principle of legality is today subordinate to both the Constitution and international treaties, but this was not always so. It is only since 1989 that French legislation has had to conform to international treaties ratified by France, and only since 1991 that individuals can apply to the European Court of Human Rights to challenge violations of a right guaranteed by the European Convention on Human Rights (ECHR). 3  Loi no. 11–696 du 28 mars 1882 sur l’enseignement primaire obligatoire, online at http://www. senat.fr/evenement/archives/D42/mars1882.pdf. This provision is still in force and is now codified in article L. 141–3 of the Code de l’éducation. 4  Loi du 30 octobre 1886 sur l’organisation de l’enseignement primaire, online at http://www. senat.fr/evenement/archives/D42/oct1886.pdf. This provision is now codified in article L. 141–5 of the Code de l’éducation. 2

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First, it guarantees freedom of conscience. Section 1 provides: “The Republic shall ensure freedom of conscience. It shall guarantee freedom of religious worship, subject to ... restrictions in the interests of public law and order.” The idea is that freedom of conscience has freedom of religion, freedom of worship, and the principle of non-discrimination among religions as its corollaries. Second, the act abolished the concordatory system of “recognized religions” in existence prior to 1905. Section 2 reads: “The Republic shall not recognize, nor pay the wages of, nor subsidize any faith.” Jurists such as Olivier Dord contend that the affirmation of church-state separation in this section has the effect of anchoring the state in a position of “denominational neutrality” (Dord 2004: 19). This general legislative framework of 1905 has since been reinforced by numerous provisions relating to state regulation of religious diversity in particular local contexts. In Chap. 2, I discussed the various configurations of secularism prescribed by the legislative body in Alsace-Moselle, but also those prevailing in the overseas departments, regions, and collectivities until the passage of the Loi du 24 août 2021 confortant le respect des principes de la République5 (the “Act of 2021”; see below). Mention must also be made of the specific regime applied in Algeria during the colonial era. The Act of 1905 should theoretically have applied there and yet, under a decree of 27 September 1907, it was not. In French Algeria, very close ties were maintained between religions and the state. The latter regulated Islam by paying the salaries of imams and subjecting their speech in mosques to prior approval by the administrative authorities. The Act of 2021 was the outcome of extensive and often acrimonious debate over the desirability of updating the Act of 1905. It came in the wake of two speeches by President Emmanuel Macron on 4 September and 2 October 2020, but also as a “republican reaction” to the October 16 assassination by an Islamic fundamentalist terrorist of a teacher, Samuel Paty, who had shown his students caricatures of the prophet Muhammad. The law was aimed at countering a growing trend toward a retreat into communitarianism—there was even talk of calling it the “Anti-­ Separatism Act”—and the development of radical Islam. This new legislation falls into line with a tightening of French secularism observable since the early 2000s (documented extensively in the remainder of this book). In the face of increasingly visible expressions of faith in Islam, perceived by many as a form of communitarianism that is weakening the Republic, secularism is presented as a common value whose content admits of no discussion, one to which citizens must adhere. The act puts in place a set of “anti-separatism” measures that either provide for greater control (either direct or indirect) over the conditions of allegiance to republican principles or carry secularism onto new terrain where it was hitherto unknown. It reinforces state control over religions (through the financing of associations of worship; see Chap. 4) and requires certain categories of civil servants to take secular training (see Chap. 7) and then swear allegiance to the values of the Republic before  Loi no. 2021–1109 du 24 août 2021 confortant le respect des principes de la République, JORF no. 0197, 25 August 2021, online at https://www.legifrance.gouv.fr/jorf/id/ JORFTEXT000043964778 5

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assuming their positions. The law covers numerous fields, including family and estate law, with the particular aim of guaranteeing the principle of equality between the sexes on the majority-Muslim territory of Mayotte; education law, laying out the rules governing home schooling; civil service and government procurement law, and so on. But the act also makes changes to immigration and refugee law, thus widening the scope of application of secularism to identity issues and attesting to how the debate has shifted in recent years. The general legislative framework for secularism had previously been complemented through the enactment of laws relating to the individual expression of religious convictions, to which I return at length in Chaps. 6 and 7: the Loi du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant ostensiblement une affiliation religieuse dans les écoles, collèges et lycées publics6 (Act respecting the Wearing of Religious Symbols in Schools or the “Act of 2004”) and the Loi du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public (Act prohibiting the Concealment of the Face in Public Places or the “Act of 2010”).7

1.2 Constitutional Sources It is often said that the constitutional sources of French secularism are indeterminate: on the one hand, these sources are today so disparate that it is difficult to determine just how many there are; on the other, even outside of an ordinary constitutional reform procedure, existing legal texts can be recognized retroactively as having constitutional status, following the lead of the Constitutional Council (Ségur 2003: 385). The first fundamental text is the Declaration of the Rights of Man and of the Citizen (Déclaration des droits de l’homme et du citoyen  or the “Declaration of 1789”), which provides for pluralism in matters of conscience (Ségur 2003: 386). Article 10 reads: “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.” While the Council of State found that this provision constitutes the “die in which the liberal conception of secularism was cast” (Conseil d’État 2004: 250), it should be emphasized that the religious opinions covered by this text are purely individual; despite the mention of their “manifestations,” the Declaration of 1789 remains silent on the collective expression of beliefs (Ségur 2003: 387). The Constitution of 1793 (Constitution montagnarde du 24 juin 1793) was more explicit, specifying that the free exercise of worship may not be prohibited. The same is true  Loi no. 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant ostensiblement une affiliation religieuse dans les écoles, collèges et lycées publics, JO no. 65, 17 March 2004, at 5190. 7  Loi no. 2010–1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public, JORF, no. 0237, 12 October 2010, at 18344. 6

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of the  Constitution of 1795 (Constitution du 5 Fructidor an III),  Article 354 of which provides that: “No one may be prevented from practising, with conformity to the laws, the religion of his choice. No one may be forced to contribute to the expenses of a religion. The Republic shall not pay the wages of any clergy.” The rights guaranteed by the Declaration of 1789 have long retained their powerful symbolic weight in the public mind, even though they lost their legal status in 1793. The Declaration was for centuries, in fact, nothing more than a historical text lacking the force of law. The principles that it embodies were not reaffirmed until the preamble to the Constitution of 1946; however, the constitutional status of this text was contested until 1971; I return to this matter. Article 1 of the Constitution of 1946 explicitly invokes the principle of state secularism; it reads: “France is an indivisible, secular, democratic, and social republic.” The thirteenth paragraph of the preamble adds that “the organization of free and secular public education at all levels is a duty of the state.” For the first time in France, secularism became a constitutional principle, even though the concept is not defined in the Constitution. The principle recurs in the Constitution de la Vème République du 4 octobre 1958 (the “Constitution of 1958”), which is just as laconic on the subject.8 It was consecrated yet a third time, yet again without a definition, when the Council of State, in a decision of 6 April 2001 concerning the system of religious governance in effect in Alsace-Moselle, elevated it to the rank of a “fundamental principle recognized by the laws of the Republic.”9 This last concept appeared for the first time in the preamble to the Constitution of 1946. It reappeared in a Constitutional Council decision of 16 July 1971,10 which held that a principle can be “revealed” as such if it satisfies several conditions. First, it must have been set out in a law of the Republic prior to 1946. Second, it must have been repeatedly recognized by the courts, and its elevation to constitutional status must be necessary. Finally, there must be something fundamental about the principle as it relates to fundamental rights and freedoms, national sovereignty, and/or the organization of the public authorities. In this 1971 decision, the Constitutional Council expanded the corpus of French legal texts that constitute higher law (known collectively as the bloc de constitutionalité) to include the preamble to the Constitution of 1946, the Declaration of 1789, and any fundamental legal principles that may be subsequently revealed. The Council of State decision of 2001 raises the question of when secularism became a constitutional principle. One might suppose that the effect of this decision

 Article 1 of the Constitution provides that “France is an indivisible, secular, democratic, and social republic. It guarantees equality before the law for all citizens without distinction by origin, race, or religion. It respects all beliefs.” 9  The Council of State states that “the preamble to the constitutions of 27 October 1946 and 4 October 1958 reaffirmed the fundamental principles recognized by the laws of the Republic, among which is the principle of secularism”; see Conseil d’État (CE), 6 April 2001, Syndicat national des enseignements du second degré, no. 219379. 10  Decision no. 71–44 DC of 16 July 1971, Loi complétant les dispositions des articles 5 et 7 de la loi du 1er juillet 1901 relative au contrat d’ association. 8

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was to make this status retroactive to the Act of 1905, which meets the criterion of a pre-1946 law in which secularism is set out. But the decision does not mention the Act of 1905 or any other such law; in view of this decision, it is hard to give a definitive answer to the question of when France became constitutionally secular. Moreover, this new enshrinement of secularism as constitutional was needless, for it was in reality guided by other considerations: namely, those relating to the compatibility of secularism with local laws governing religion, as for example in the case of Alsace-Moselle. The Constitutional Council had never before been asked to rule on the issue; indeed, prior to 2010 (when the “priority question of constitutionality” procedure came into being; see below), it lacked jurisdiction over pre-1958 laws. The compatibility of secularism with the laws governing religion in Alsace-Moselle had always fallen under administrative jurisdiction. Traditionally, the Council of State had held that a law could be tacitly repealed by a subsequent constitutional provision. In the Alsace-Moselle decision of 2001, however, it did not follow that line of reasoning. Although it found secularism to be a revealed principle predating the constitutions of 1946 and 1958, it also held that these texts had not had the effect of tacitly repealing the laws which, in 1924, confirmed the local law governing religion in Alsace-­ Moselle.11 Thus, while it may seem redundant to have reaffirmed the constitutionality of secularism, the primary purpose of the Council of State’s use of the procedure was to validate the compatibility of the Alsace-Moselle legal order with the principle of secularism. What, then, was the legal status of this Alsace-Moselle system that stood in contrast to the common law of church-state separation? The doctrine often adduces the hypothesis of a system based on constitutional convention (convention de la Constitution).12 Alsace-Moselle law was not constitutional in the strict sense and was within the realm of legislation. Being neither enshrined in the constitution nor consecrated by the Constitutional Court, it could have been repealed by a constitutional reform or amended by new legislative provisions. Today, the Constitutional Council has the power to hear cases on the constitutionality of laws (including pre-1958 laws). The proceeding in question is that of the “priority question of constitutionality” (question prioritaire de constitutionnalité)

 The Council of State held as follows: “Given that Article 7 of the act of 1 June 1924, enacting French civil legislation in the departments of Haut-Rhin, Bas-Rhin, and Moselle, kept Articles 21 to 79 of the local civil code in force; that the continued force of the local legislation thus flows from the will of the legislative body; and that although, subsequent to the aforementioned act of 1 June 1924, the preambles to the constitutions of 27 October 1946 and 4 October 1958 reaffirmed the fundamental principles recognized by the laws of the Republic, among which is the principle of secularism, this reaffirmation did not have the effect of implicitly repealing the provisions of that act.” 12  This concept “does not signify that the convention is applied de facto as a norm of constitutional rank. It signifies that in the current state of things, one cannot deduce a limitation on or negation of the specificity of local laws governing religions from an indeterminate conception of secularism” (Ségur 2003: 400). 11

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and was put in place by the Loi organique du 10 décembre 2009,13 which prescribes the procedure further to the passage of the Loi constitutionnelle du 28 juillet 2008.14 In a decision rendered 5 August 2011 in application of this procedure and bearing on freedom of enterprise, the Constitutional Council had held that: The republican legislation existing prior to the entry into force of the Constitution of 1946 sanctioned the principle according to which, as long as they have not been replaced by provisions of common law or harmonized with them, legislative and regulatory provisions specific to the departments of Bas-Rhin, Haut-Rhin, and Moselle may remain in force; that in the absence of their repeal or their harmonization with common law, these specific provisions may only be changed insofar as the resulting differences in treatment are not increased and their scope of application is not expanded; that this is the scope of the fundamental principle recognized by the laws of the Republic having regard to the particular provisions applicable in the three departments in question; that this principle must also be reconciled with the other constitutional requirements.15

In this case, the purpose of this “fundamental principle recognized by the laws of the Republic” was to protect the laws of Alsace-Moselle from challenges on the grounds that they violate the principle of equality, not from other constitutional challenges. The legislative body may amend this local body of law as long as it does not enlarge its scope of application. This reasoning, which could have led to explicit recognition of Alsace-Moselle’s laws governing religion as a fundamental principle recognized by the laws of the Republic, hence as constitutional, is not found in a subsequent decision of 21 February 2013.16 The Constitutional Council had been asked by the Council of State to rule on a priority question of constitutionality in regard to an act called the Loi du 18 germinal an X, and more specifically on the question of whether the fact that recognized clergy members in Alsace-Moselle are paid by the state violated constitutionally guaranteed rights or freedoms. The Constitutional Council held that this particular legislation did not violate such rights. In that case, what is the legal scope of the term secularism? Although it has never been specifically defined in law, a Constitutional Council decision of 19 November 200417 finally afforded some clarity. The Council wrote that “Articles 1 to 3 of the Constitution stand in opposition to the recognition of the collective rights of any group whatsoever that is defined by a community of origin, culture, language, or belief.” It added: “the provisions of Article 1 of the Constitution, according to which ‘France is a secular Republic’ … forbid anyone from availing himself of his  Loi organique no 2009–1523 du 10 décembre 2009 relative à l’application de l’article 61–1 de la Constitution, JORF, no. 0287, 11 December 2009, at 21379. 14  Loi constitutionnelle no 2008–724 du 23 juillet 2008 de modernisation des institutions de la Ve République, NOR: JUSX0807076L. This constitutional law came into force on 1 March 2010. 15  Conseil constitutionnel, decision no. 2011–157 QPC of 5 August 2011, Société SOMODIA, JO, 6 August 2011, at 13476. 16  Conseil constitutionnel, decision no. 2012–297 QPC of 21 February 2013, Association pour la promotion et l’expansion de la laïcité, JORF, 23 February 2013, at 3110. 17  Conseil constitutionnel, decision no. 2004–505 DC of 19 November 2004, Traité établissant une Constitution pour l’Europe, at 2004–505. 13

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religious beliefs as a means of exempting himself from the common rules governing the relations between public collectivities and individuals.” This formulation calls for two remarks. The first is that the opposition it posits between secularism (Article 1 of the Constitution) and recognition of collective rights can be examined with reference to the actually existing legal framework for French secularism; it expresses “a deep ‘Jacobin’ well of distrust of all forms of communitarian affiliation” (Prélot 2006: 140) and collides with numerous provisions of the Act of 1905, as I shall show in the next chapter. The doctrine has attempted to explain this formulation by indicating that this decision indirectly served as a posteriori confirmation of the provisions of the Act of 2004 relating to the wearing of religious symbols in public secondary institutions.18 The second remark is that the Constitutional Council evokes “common rules” from which citizens cannot exempt themselves by reason of their religious convictions. Pierre-Henri Prélot argues that on this reading, secularism was defined “by submission to the common law and the barring of all forms of objection to public power on the basis of individual religious conscience” (Prélot 2006: 129). He therefore criticizes this definition, which envisages secularism from a purely subjective standpoint and ignores its substantive content; i.e., the constitutive principles that should, after all, be foundational to it. These principles were more explicitly stated as constitutive elements of a definition of secularism in the above-cited Constitutional Council decision of 21 February 2013: that the principle of secularism figures among the rights and freedoms guaranteed by the Constitution; that it entails the neutrality of the state; that it further entails that the Republic recognizes no religion; that the principle of secularism dictates, in particular, respect for all beliefs, the equality of all citizens before the law regardless of religion, and that the Republic guarantee the free exercise of worship; that it entails that the Republic shall subsidize no religion.19

1.3 Legal Scope of the Constitutive Principles of Secularism The complexity of the domestic legal framework for state regulation of religious diversity finds an echo in the difficulty one encounters when attempting to precisely delineate the basic principles of secularism. While the legal status of the ultimate goals of secularism—equality and freedom of conscience and religion—does not appear to pose a problem, that of the principles of neutrality and of church-state separation gives rise to various questions.

 Loi no. 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une affiliation religieuse dans les écoles, collèges et lycées publics, JO no. 65, 17 March 2004, at 5190. 19  Conseil constitutionnel, decision no. 2012–297 QPC of 21 February 2013, Association pour la promotion et l’expansion de la laïcité, JORF, 23 February 2013, at 3110. 18

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There can be no doubting the constitutionality of the principle of equality, for it is affirmed by both Article 1 of the Declaration of 1789 and Article 1 of the Constitution of 1958. The legal status of freedom of conscience and religion is equally unproblematic, since this freedom is triply enshrined in the Constitution. It is affirmed by Article 10 of the Declaration of 1789 and by the preamble to the Constitution of 1946, and it acquired constitutional status in 1971 when these two texts were elevated to constitutional rank.20 One might add that freedom of conscience, which includes freedom of religion, was also raised to constitutional rank by a Constitutional Council decision of 23 November 1977 that held it to be a fundamental principle recognized by the laws of the Republic; it affirmed that “freedom of conscience must … be regarded as one of the fundamental principles recognized by the laws of the Republic.”21 In contrast, the principle of state neutrality lacks that status, even though the Constitutional Council could have recognized it as such when it did so for the principles contained in the Act of 1905 (Ségur 2003: 394). The Council has traditionally taken the view that state neutrality applies to the civil service only (Durand-­ Prinborgne 2004: 54);22 however, in a decision of 21 February 2013, it adopted a broader conception of neutrality, making it a constitutive principle of secularism for the state as a whole, not just the civil service. In this context, with the Constitutional Council having refrained from defining the content of state neutrality, the meaning taken on by this obligation depends on how it is interpreted by the courts. In a decision of 16 March 2005, the Council of State evoked state neutrality as a principle having constitutional status, and clarified the notion in certain ways:  Conseil constitutionnel, decision no. 71–44 DC of 16 July 1971, Loi complétant les dispositions des articles 5 et 7 de la loi du 1er juillet 1901 relative au contrat d’association, online at http:// www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/ decisions-­depuis-1959/1971/71-44-dc/decision-n-71-44-dc-du-16-juillet-1971.7217.html 21  Conseil constitutionnel, decision no. 77–87 DC of 23 November 1977, Loi complémentaire à la Loi no 59–1557 du 31 décembre 1959 modifiée par la Loi no 71–400 du 1er juin 1971 et relative à la liberté de l’enseignement, online at http://www.conseil-constitutionnel.fr/conseil-­constitutionnel/ francais/les-decisions/acces-par-date/decisions-depuis-1959/1977/77-87-dc/decision-n-77-87-dc-­­ du-23-novembre-1977.7529.html 22  Since a decision of 18 September 1986, the Constitutional Council has rejected the idea that public services can be provided differently as a function of the staff’s or users’ political or religious convictions, and held that the principle of neutrality, as a corollary to the principle of equality, is a “fundamental principle of the public service” (Gonzalez 2006: 156); see Conseil constitutionnel, decision no. 86–217 DC of 18 September 1986, Loi relative à la liberté de communication, online at https://www.conseil-constitutionnel.fr/decision/1986/86217DC.htm. The Constitutional Council mentions here “the fundamental principles of the public service and, in particular, the principle of equality and its corollary, the principle of service neutrality.” In a decision of 23 July 1996, the Constitutional Council added that neutrality is indeed a constitutional principle governing the public service, even without the principle of the state’s neutrality as a whole having been declared; see Conseil constitutionnel, decision no. 96–380  DC of 23 July 1996, Loi relative à l’entreprise nationale France Télécom, online at http://www.conseil-constitutionnel.fr/conseil-­ constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/1996/96-380-dc/ decision-n-96-380-dc-du-23-juillet-1996.10820.html 20

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3  The Legal Framework for Secularism the constitutional principle of secularism … entails the neutrality of the state and the territorial collectivities of the Republic and the equal treatment of different religions … it does not by itself forbid the granting, in the interest of all and under conditions defined by law, of certain subsidies for activities or facilities within the purview of religions.23

For these reasons, the thesis that the French state operates on the basis of “negative neutrality” is untenable; it cannot be said that it ignores religion entirely, refraining from intervention in religious affairs. The Act of 1905 contains numerous provisions authorizing state intervention in the religious sphere, and “nothing is more foreign to the French legal tradition than state indifference to, or abstention from, supervision of religious activities” (Woehrling 1998: 45). State neutrality, then, boils down to two principles: neutrality in the delivery of public services, and equality among citizens (Durand-Prinborgne 2004: 54). Another common construction of neutrality is as the organic freedom of churches with respect to the state, the autonomy of the religious sphere (Prélot 2003: 433). This brings us to the last principle of secularism, that of church-state separation. Gérard Gonzalez writes of the “oneness of the principle of secularism throughout the territory of the Republic, as opposed to the fragmented application of the principle of church-state separation” (Gonzalez 2006; 161). I have dwelled on the constitutionality of secularism, but church-state separation has never in itself been elevated to constitutional status—probably because it has, for historical reasons, been implemented heterogeneously across France.24 The legislative status of this principle clearly flows from the Act of 1905, but one might also contend that its constitutionality was confirmed by the Council of State decision of 6 April 2001.25 Since that decision upheld the compatibility of the Alsace-Moselle regime of church-state separation with secularism, even though it stands as an exception to French common law, it becomes apparent that the latter has constitutional status. The law governing church-state relations has, in short, undergone important structural transformations since the 1970s, with constitutional law becoming increasingly prominent in this sphere. Olivier Dord is right to stress in this connection that “the debate around secularism has long since deserted the legislative chambers and moved into the courtrooms” (Dord 2004: 20). With the inception of the Constitutional Council in 1958 and the development, under its aegis, of a body of law concerning public freedoms starting in 1971, the content of rights and freedoms is now determined to a much greater extent by judicial interpretations than by the letter of the law.

 CE, 16 March 2005, Ministre de l’Outre-mer, no. 265560.  The cases of Alsace-Moselle and the overseas departments and territories are illustrations of this. 25  This decision dealt with the compatibility of the local Alsace-Moselle regime with the principle of secularism. 23 24

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1.4 The Role of the Courts The Constitutional Council, when petitioned by the president of the Republic, the prime minister, the president of the National Assembly, and the president of the Senate, or by sixty Assembly members or senators, reviews the constitutionality of laws enacted by Parliament before the president of the Republic signs them into law. As a result of this power, the Council has had occasion to clarify the extent of the protections accorded to numerous rights and freedoms. The scope of its jurisdiction has broadened, and the “priority question of constitutionality” procedure now allows a party to a proceeding to challenge the constitutionality of an existing law before the presiding judge. The Council of State has also played a critical role in the history of French secularism. The functions of this institution are twofold. On the one hand, it serves as an advisor to the government, issuing opinions on the constitutionality of bills and on the legality of decrees and circulars prepared by the government; it can also be asked by the government for clarification of the law as it exists. On the other hand, it is the highest administrative jurisdiction of France, the supreme arbiter of the administrative order, and the final judge of disputes relating to the state. It is thus a jurisdictional institution which, while not directly occupying the political arena, is nonetheless called on to play a political role. As Danièle Lochak notes, the Council of State expresses itself “as much by the dissemination of certain values as by more direct interventions in politics, [and thus plays] a vital role in the development of state-related dogmas” (Lochak 2007: 19). In judging the legality of acts whereby the state and the territorial collectivities regulate religious diversity, the Council of State plays a leading role in the interpretation of the constitutive principles of secularism, on which Parliament has been silent. An act of 30 December 2004 created a body called the Haute autorité de lutte contre les discriminations et pour l’égalité (HALDE), which held advisory and investigative powers where a discriminatory practice was brought to its knowledge. It was not a jurisdiction but an independent administrative authority with the power to submit matters to the prosecutor where discrimination was identified, to propose fines to be levied against people who committed discrimination, and to take cases to court if the offender refused to cooperate. That is, the opinions and deliberations rendered by the HALDE lacked the force of law; their value was purely symbolic. In numerous cases, this authority did succeed in serving as a watchdog against expansive interpretations of secularism by politicians or citizens. The powers of the HALDE have since been devolved to a new constitutional authority, the Ombudsman (Défenseur des droits), mentioned in the Constitution since 23 July 2008 and instituted by the organic law of 29 March 2011. This discussion shows that the French legal framework has become more complex in the contemporary period and that this greater complexity—which is of some import for the content of the constitutive principles of secularism—has also been characterized by the growing role of the courts and the narrowed leeway afforded Parliament. Even parties holding a majority can no longer do as they please. Minorities of all sorts, including religious minorities, now have a remedy at the

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constitutional or international level, further illustrating the transformations undergone by the French legal context.

2 International Sources Article 55 of the Constitution of 1958 recognizes the superior authority of international treaties over French domestic law, stipulating that “regularly ratified or approved treaties or agreements have, as of their publication, higher authority than laws, subject, for each agreement or treaty, to its application by the other party.” While the courts long hesitated to give treaties precedence over domestic laws, such decisions disappeared altogether following a Council of State decision of 20 October 1989.26 Before getting into the specific sources of international law, we must take note of what probably constitutes its principal distinction from domestic law, especially constitutional law on state regulation of religious diversity. Domestic law is essentially characterized by constitutional affirmation of the principle of secularism. International law, for its part, takes no position on this notion, which is bound up with national specificities, but accords more importance to one of its components: freedom of religion (Larralde 2014; Messner et al. 2003). Article 2 of the Universal Declaration of Human Rights (UDHR) of 10 December 1948 prohibits discrimination on the grounds of religion. Article 18 provides that “[e]veryone has the right to freedom of … religion [including] freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” However, the UDHR is not a legally binding instrument. It has no status in domestic law (Marie 2003: 34; Stirn 2004: 90) and its scope is purely symbolic. Yet many UN texts refer to it and the broad conception of freedom of religion that it embodies (Gonzalez 2003: 295). Probably the most important tool is the International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966 and ratified by France on 4 November 1980. On the strength of the ICCPR, the United Nations Human Rights Committee (OHCHR), in a communication of November 2012, condemned the Act of 2004 and the limitations that it placed on the wearing of symbols or clothing conspicuously manifesting a religious affiliation in public primary and secondary schools27.28

 Conseil d’État, Assemblée du contentieux (CE, ass.), 20 October 1989, Nicolo, Rec. Leb., p. 190. The Cour de Cassation had previously accepted the precedence of international treaties over laws subsequent to 1975; see Cass. ch. mixte, 24 May 1975, Jacques Vabre. 27  Loi no 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant ostensiblement une affiliation religieuse dans les écoles, collèges et lycées publics, JO no. 65, 17 March 2004, at 5190. 28  See OHCHR, communication no. 1852/2008 of 1 November 2012, Bikramjit Singh v. France, online at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno= CCPR%2FC%2F106%2FD%2F1852%2F2008&Lang=en 26

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In terms of European law, the European Convention on Human Rights (ECHR) has had the force of French law since its ratification on 3 May 1974. While freedom of religion is enshrined in Article 9, this freedom was long considered window dressing and only became effective after a European Court of Human Rights (ECtHR) decision of 19 April 1993.29 France has since found itself on the losing end of several decisions,30 with the Court holding that the automatic taxation of gifts by hand received by associations of worship, and the tax adjustments that they had undergone, violated freedom of religion (Larralde 2014: 647). France was also found to have violated other articles of the ECHR: Article 10 (freedom of expression),31 Article 14 (discrimination),32 and even Article 3 (torture and inhuman or degrading treatment).33 Furthermore, European Union law has made explicit reference to the ECHR since the adoption of the Treaty on European Union at Maastricht on 7 February 1992. Article 6.2 of this treaty stipulates that “[t]he Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … as general principles of Community law.” It may also be noted that European Union law has made more specific reference to religion as such since the addition of the eleventh declaration of the Treaty of Amsterdam (Conseil d’État 2004: 365), although it refers jurisdiction in this domain to each of the member states. This declaration stipulates as follows: “The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States. The Union equally respects the status of philosophical and non-denominational organisations.” This text is only a declaration, however, meaning that it is annexed to the treaty without forming a part of it and has no more than interpretive value in European Union law (Torfs 2003: 350). As we shall see in Chap. 7, the Court of Justice of the European Union may also intervene in domestic secular matters, in particular through the use of anti-discrimination law. Freedom of religion is also guaranteed by Article 10 of the Charter of Fundamental Rights of the European Union of 7 December 2000, in conjunction

 ECtHR, Kokkinakis v. Greece, 19 April 1993.  ECtHR, Association des Chevaliers du Lotus D’Or v. France [31 January 2013] App. no. 50615/07; ECtHR, Association cultuelle du Temple Pyramide v. France [31 January 2013] App. no. 50471/07; ECtHR, Église évangélique missionnaire and Salaûn v. France [31 January 2013] App. no. 25502/07; ECtHR, Association Les Témoins de Jéhovah v. France [30 June 2011] App. no. 8916/05. 31  This list of judgments is obviously, and unfortunately, not exhaustive; see ECtHR, Mamère v. France [7 November 2006] App. no. 12687/03; ECtHR, Brunet Lecomte and Lyon Mag v. France [6 May 2010] App. no. 17265/05. 32  ECtHR, E.B. v. France [22 January 2008] App. no. 45546/02. 33  ECtHR, Vincent v. France [24 October 2006] App. no. 6253/03. 29 30

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with the Treaty of Lisbon of 1 December 2009:34 “Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.”35 Given these diverse sources of law, some jurists argue that the concrete influence of international law over French positive law is changing perceptions of how the state should relate to churches (Gonzalez 2006: 153). On this view, “while this [relationship] was dominated, as regards the domestic sources, by the idea of ‘secularism-­as-separation,’ these international texts are inspired above all by the idea of religious freedom” (ibid.). Jean-Marie Woehrling adds that with European integration, “France is not at leisure to ignore the organization of church-state relations in other European and Western countries” (Woehrling 1998: 44). But while it is true that domestic jurisdictions, notably the Council of State, almost unanimously defer to the ECtHR, this latter jurisdiction has not always been impervious to a “republican conception” of secularism. Moreover, it can validate a domestic legal provision that falls afoul of the stipulations of Article 9 by deferring to states parties using the “margin of appreciation” doctrine of the ECHR.36 This happened in the S.A.S. v. France decision of 1 July 2014, in which a French national had contested the conventionality of the law of 11 October 2010 before the Court, availing herself of her freedom to express her religious convictions by wearing the full-face veil as a function of her “spiritual mood” at any given time.37 I indicated in the first chapter that the meaning and form taken by secularism evolve in step with the manner in which political authorities interpret its constitutive principles and the modalities whereby the courts incorporate them into their standard of review. The importance of jurisprudence in the emergence of the principles of secularism in law can indeed be observed, and while the principles of equality and freedom of conscience have constitutional status, their scope will depend on judicial interpretations of the two other principles of secularism, including that of neutrality, which is not affirmed as such in French legal texts. According to this approach, positions of state neutrality emerge from the jurisprudence of the courts that regulate religious diversity. While Danièle Lochak (2007: 19) contends that the Council of State can “disseminate certain values” in society, it might rather be said that judges take it upon themselves to interpret values that they have sought out in their work on the bench. And they are not the only ones  The Treaty of Lisbon gives the Charter of Fundamental Rights of the European Union “the same legal value as the Treaties” (TUE Article 6(1), first paragraph) and provides that “the rights, freedoms and principles in the Charter shall be interpreted … with due regard to the explanations referred to in the Charter, that set out the sources of those provisions” (TUE Article 6(1), third paragraph); see Bailleux, Van Drooghenbroeck, and Delgrange 2011. 35  Charter of Fundamental Rights of the European Union, online at http://www.europarl.europa.eu/ charter/pdf/text_en.pdf 36  See Gérard Gonzalez’s position on this issue in Gonzalez and Haarscher (2015), 219–28. 37  ECtHR, Gr. Ch., S.A.S. v. France [1 July 2014] App. no. 43835/11. 34

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doing this interpretive work, for the legal norms adopted by Parliament, which judges are moreover called upon to interpret, flow from a similar effort. These considerations afford the framework for my discussion, in the following chapters, of the multiple configurations of French secularism that have emerged from the work of regulation, by lawmakers and judges, of the collective and individual expression of religion in the public sphere.

References Basdevant-Gaudemet, Brigitte. 1998. Droit et religions en France. Revue internationale de droit comparé 50 (2): 335–366. Conseil d’État. 2004. Un siècle de laïcité  – Rapport public 2004. Paris: La Documentation française. Decaux, Emmanuel. 2010. Chronique d’une jurisprudence annoncée : laïcité française et liberté religieuse devant la Cour européenne des droits de l’homme. Revue trimestrielle des droits de l’homme 82: 251–268. Dord, Olivier, 2004. Laïcité: le modèle français sous influence européenne. https://www.robert-­ schuman.eu/fr/doc/notes/notes-24-fr.pdf. Accessed 27 March 2022. Durand-Prinborgne, Claude. 2004. La laïcité. Paris: Dalloz. Gonzalez, Gérard. 2003. Les sources internationales du droit français des religions. In Traité de droit français des religions, ed. Francis Messner, Pierre-Henri Prélot, and Jean-Marie Woehrling, 291–299. Paris: Litec. ———. 2006. L’exigence de neutralité des services publics. In Laïcité, liberté de religion et Convention européenne des droits de l’homme, ed. Gérard Gonzalez, 153–200. Bruxelles: Bruylant. Gonzalez, Gérard, and Guy Haarscher. 2015. Consécration jésuitique d’une exigence fondamentale de la civilité démocratique? Le voile intégral sous le regard des juges de la Cour européenne. (Cour eur. dr. h., Gde Ch., S.A.S. c. France, 1er juillet 2014). Revue trimestrielle des droits de l’homme 101: 219–233. Larralde, Jean-Marie. 2014. Le principe de laïcité: regard de l’internationaliste. Revue générale de droit public international 3: 639–655. Lochak, Danièle. 2007.Le Conseil d’État en politique. Pouvoirs 4, (123) : 19–32. Messner, Francis, Pierre-Henri Prélot, and Jean-Marie Woehrling. 2003. Traité de droit français des religions. Paris: Litec. Prélot, Pierre-Henri. 2003. La neutralité religieuse de l’État. In Traité de droit français des religions, ed. Francis Messner, Pierre-Henri Prélot, and Jean-Marie Woehrling, 427–445. Paris: Litec. ———. 2006. Définir juridiquement la laïcité. In Laïcité, liberté de religion et Convention européenne des droits de l’homme, ed. Gérard Gonzalez, 115–149. Brussels: Bruylant. Ségur, Philippe. 2003. Droit constitutionnel des religions. In Traité de droit français des religions, ed. Francis Messner, Pierre-Henri Prélot, and Jean-Marie Woehrling, 383–415. Paris: Litec. Stirn, Bernard. 2004. Les libertés en question. Paris: Montchrestien. Torfs, Rik. 2003. Le droit de l’Union européenne au regard des relations Églises-États. In Traité de droit français des religions, ed. Francis Messner, Pierre-Henri Prélot, and Jean-Marie Woehrling, 347–362. Paris: Litec. Woehrling, Jean-Marie. 1998. Réflexions sur le principe de la neutralité de l’État en matière religieuse et sa mise en œuvre en droit public français. Archives de sciences sociales des religions 101: 31–52.

Part II

Churches, Religion and the Secular State

Chapter 4

Defining Religion: A Secular Paradox

Abstract  The French state has no formal, direct definition of religion. Its silence is predicated on the “secular character” of the French Republic, and it is not merely a legal void: the political authorities, too, rarely uttered the word “religion” until the 1990s. The concept has instead emerged as an outgrowth of the methods used by the secular state as it sought to protect freedom of conscience and religion. Even if the state does not recognize religion directly, the dictates of protecting these freedoms have led it to intervene in and interpret the religious sphere. It has had to clearly mark out the bounds of that sphere, rather than relying on ad hoc perceptions and decisions by the political authorities. In other words, to guarantee freedom of conscience and religion for those who demand it a posteriori, the state has had to place guideposts for secularism in law a priori. This chapter will discuss how it went about doing this—how it defined religion as a functional notion having consequences for the collective expression of the groups concerned.

The French state has no formal, direct definition of religion. Its silence is predicated on the “secular character” of the French Republic, and it is not merely a legal void: the political authorities, too, rarely uttered the word “religion” until the 1990s (Boyer 2005: 38). The concept has instead emerged as an outgrowth of the methods used by the secular state as it sought to protect freedom of conscience and religion. Even if the state does not recognize religion directly, the dictates of protecting these freedoms have led it to intervene in and interpret the religious sphere. It has had to clearly mark out the bounds of that sphere, rather than relying on ad hoc perceptions and decisions by the political authorities (Woehrling 2003: 24). In other words, to guarantee freedom of conscience and religion for those who demand it a posteriori, the state has had to place guideposts for secularism in law a priori. This chapter will discuss how it went about doing this—how it defined religion as a functional notion having consequences for the collective expression of the groups concerned. First Consul Napoléon Bonaparte, upon taking power in 1799, was convinced of the importance of reconciling the French after the tumultuous period of the Revolution. The Concordat of 1801 between his government and Pope Pius VII © Springer Nature Switzerland AG 2023 D. Koussens, Secularism(s) in Contemporary France, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies, https://doi.org/10.1007/978-3-031-18231-0_4

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reflected this concern to normalize relations with the Catholic Church after a decade of anti-clericalism in arms. The Concordat officially recognized Catholicism as “the religion of the great majority of French citizens,” but also acknowledged religious pluralism by extending state recognition to the minority Protestant churches in 1802 and to Jewish groups in 1808. The Concordat played another role as well: it was integral to Bonaparte’s efforts to keep these religions under control. The state appointed archbishops and bishops. It determined the number of religious employees (priests) and paid their wages, and also determined the number of parishes. The institutional dimension of religion was acknowledged in the form of “public religious establishments,” i.e., established churches. The Act of 1905 put an end to the Concordat’s official recognition of religions. Article 1 of the Act provides that “[t]he Republic shall ensure freedom of conscience. It shall guarantee freedom of religious worship.” Article 2 establishes separation per se, providing that “[t]he Republic shall not recognize, nor pay the wages of, nor subsidize any faith.” Although the act established a strict separation of church and state, the context in which it was passed had long been characterized by public recognition of religious institutions. It retains a habitus, perhaps, of institutional recognition of the religious sphere. One consequence is that even as it guarantees the freedom for individuals to express their beliefs, it strongly emphasizes the collective dimension of this freedom. It does this by establishing a regime governing “associations of worship” (associations cultuelles) that allows each church to be organized according to its own rules. It never defines the words culte or religion (in this sense synonyms for “religion”), of course. The courts have progressively been led to interpret the criteria for access to the status of association of worship and hence to draw the outlines of the concept of religion (Schwartz 2007: 15). Indirectly, then, the job of deciding on what does or does not constitute a religion has fallen to the courts.

1 Churches, Religions, and Associations of Worship Parliament created the legal status of “association of worship” in 1905. These associations, which supplanted the Concordat’s “public religious establishments,” have a very pragmatic purpose: to provide for the public practice of worship. Already, in the early twentieth century, the new regime pointed toward a position of state neutrality. The state no longer recognized certain designated religions but placed them all on an equal footing. It was no surprise to find the Jewish and Protestant religions rapidly adhering to this new regime (Boussinesq 1994: 35; Durand-Prinborgne 2004: 86). The minority evangelical churches even regarded it as an “act of providence,” for the Act of 1905 “blurred, by the grace of Parliament, the old hierarchy of religions” (Fath 2005), giving these churches new prospects for development and evangelism. At that time, the Catholic Church was locked in opposition with the government and would not accept being relegated to the status of a “diocesan association” until 1924, after lengthy diplomatic wrangling between

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France and the Vatican (Basdevant-Gaudemet 1998: 46) and an easing of the legal framework by the Council of State (Portier 2005: 123). The Act of 1905 made no distinction among religions. The new status benefited all the existing religions, even though the old established ones, the great French religious traditions, were more amply represented. These new associations enjoyed a specific legal regime granting them significant advantages, notably in the area of taxation: their buildings were exempt from property tax; they could issue tax receipts to legal and moral persons who gave them donations; and they were exempt from certain other taxes on donations and bequests. Some authors contend that these advantages are justified even today because these religious traditions “have partaken of the historical heritage and life of the country for sufficiently long that certain aspects of their status differentiate them from new beliefs that do not have the same historical roots” (Le Vallois 2003: 187). But if the act was egalitarian in 1905, it is much less so a century later. It does not define “religion” (culte), nor does it prescribe the conditions that denominations must meet in order to be granted this advantageous status. Everything is left to the judges’ discretion.

1.1 Religions Any religious group, whether new to the world or new to France, that wishes to be designated an “association of worship” must first declare itself as such. Only once the state has validated this declaration can the group enjoy the corresponding advantages (Rolland 2003: 57). These new religious groups are at a disadvantage with respect to the historical religions. Noting this, the jurist Jacques Robert wondered 30 years ago whether “discrimination … might occur between the old and new religions, inasmuch as they do not all exert the same influence over national culture or have the same position within France’s common heritage” (Robert 1994: 641). In the absence of a legal definition, the courts have long ruled on the effective existence of worship (culte), without thereby marking out the bounds of this notion.1 As an example, though it did not define the word culte, the Council of State held that the Atheists’ Union (Union des athées) is not an association of worship because its purpose was to serve as a “‘grouping of those who consider God a myth’ [and it] did not [undertake] to provide for costs, maintenance, or the public practice of worship.”2 The situation would not be clarified until the Council of State issued an important ruling on 24 October 1997.3  In several of its decisions, the Council of State avoided ruling on the definition of worship; see CE, 14 May 1983, Association internationale pour la conscience de Krishna; CE, 9 October 1992, Commune de Saint-Louis c. Association Siva Soupramanien de Saint-Louis. 2  CE, 17 June 1988, Union des Athées, Rec. Leb., p. 247. 3  CE, ass., opinion, 24 October 1997, Association locale pour le culte des témoins de Jéhovah de Riom, Rec. Leb., p. 372. 1

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In this last case, Jacques Arrighi de Casanova, the Government Commissioner (Commissaire du Gouvernement, a Council of State judge responsible for presenting the claim to the court along with a discussion of the applicable law and a set of recommendations), emphasized that recognition of the existence of worship requires the coincidence of a subjective element—belief or faith in a divine power—with an objective element, which concretizes this belief and consists in the gathering of a community to practice this belief during ceremonies (Bokdam-Tognetti 2016: 35). Jacques Robert, who also regards religion as being composed of objective and subjective elements, has this to say on the subject: “The objective element is provided by the existence of a community. A community is not a mere aggregation of individuals; it is a coherent group, a ‘moral being’… The second or subjective element is faith. Faith has its seat within the individual conscience. Nevertheless, what constitutes religion is not a solitary conscience but a reciprocity of consciences” (Robert 1994: 639). In its 1997 opinion, the Council of State did not go as far as the Government Commissioner, opting to rule explicitly on the definition of the practice of worship (exercice du culte) rather than the existence of worship. It wrote: “associations applying for the status of associations of worship must have as their exclusive object the practice of worship; i.e., as per [Articles 18 and 19 of the Act of 1905], the holding of ceremonies with a view to the observance, by persons joined in one and the same religious belief, of certain rites or practices.” In this ruling on the specific legal regime governing associations of worship, which has consequences for the collective expression of religion, the Council of State gave primacy to an objective criterion (rite and community) and did not assess the subjective criterion (belief). Yet the judge did not exclude it entirely. Consequently, the existence of a religion is verified by verifying that worship is being practiced. Government Commissioner Sophie Boissard’s remarks in a case involving a challenge by an Aumist group of the government’s denial of association of worship status are telling in this regard. She addressed her Council of State colleagues as follows: “Aumism undoubtedly constitutes a religion… Since you refuse to pass any value judgment whatsoever on individual or collective beliefs, you regard as worship or as religion any practice or rite that gathers the faithful around a single belief in a divinity or supernatural power.”4 Adopting this same reading, and for the first time, the Council of State granted association of worship status to several local Jehovah’s Witnesses’ associations in

 Conclusions of Commissioner of Government Sophie Boissard in CE, 28 April 2004, Association cultuelle du Vajra triomphant, no. 248467, at 4. Two points must be stressed, however: (1) Boissard based the recommendation to deny association of worship status to the Aumist group on other grounds; namely, that it had relations with associations that had criminal records and therefore posed a potential threat to public order; (2) her conclusions have no precedential value. 4

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two decisions rendered on 23 June 20005 and a third on 30 March 2007.6 It thereby enunciated “the principle of recognition, the affixing of a label that it had itself helped to define, to a grouping which does not in and of itself disturb the public order” (Gonzalez 2001: 1212). While according to Council member Rémy Schwartz, these decisions reflect “the universal scope of the concept of worship” (Schwartz 2007: 18), this remark calls for nuance. One might say instead that this jurisprudence has shown itself to be liberal in its interpretation of worship, hence indirectly liberal in its interpretation of religion. These decisions apprehend the religious fact entirely through the prism of the legal regime governing the freedom of conscience and religion. The interpretation is broad, enabling a very large number of religious groups to be regarded as engaging in “worship”; even many of the most marginal religious groups have had their requests for status approved, leading to a situation of increasing equality among faiths. They need only meet a minimal definition of religion: a body of beliefs, a community, religious rituals. In these two-decades-old decisions, it should be further noted, the Council of State showed a general indifference to a particularly virulent secular debate then taking place around minority religious groups termed “cults” (sectes). Concurrent with the Jehovah’s Witnesses case, the news was filled with the misdeeds attributed to these other groups—most notoriously the massacres committed by the Order of the Solar Temple. Parliamentarians debated anti-cult legislation.7 The Council’s decisions rowed against a strong current of public opinion and a cult-hostile political environment; it had to brave public incomprehension. In the face of such attitudes, it kept up a genuine stance of neutrality, refusing to subject less “socially acceptable” denominations to less favourable treatment.

1.2 Associations of Worship As stated earlier, association of worship status affords benefits to groups obtaining it, largely relating to taxation and management of places of worship. These benefits have a direct impact on the collective expression of beliefs by these groups. However, some religious groups have been excluded from this status.

 CE, 23 June 2000, Ministre de l’économie, des finances et de l’industrie c. Association locale des témoins de Jéhovah de Clamecy, no. 215109; CE, Ministre de l’économie, des finances et de l’industrie c. Association locale des témoins de Jéhovah de Riom, no. 215152. 6  CE, 30 March 2007, Ville de Lyon, no. 304053. 7  Loi no 2001–504 du 12 juin 2001 tendant à renforcer la prévention et la répression des mouvements sectaires portant atteinte aux droits de l’homme et aux libertés fondamentales, JO no. 135, 13 June 2001, at 9337. 5

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1.2.1 Is There True Equality? Even as the courts were exhibiting neutrality in their definition of worship, and hence religion, they continued to use more subjective criteria in basing groups’ eligibility for association of worship status on their tangible activities. More specifically, the jurisprudence appears to restrict such status to groups solely involved in the collective practice of worship. To wit, the first criterion for this status flows directly from Article 19 of the Act of 1905, which prescribes that the applicant association must have worship as its sole object.8 In a decision of 9 October 1992, the Council of State denied status to a Hinduist association on these grounds. It declared the association ineligible by virtue of having routinely gathered its members together to study the Hindu religion, and thus having engaged in social and cultural activities other than worship.9 The second criterion relates to the practice of genuine worship, which the judges defined as the observance of ritual ceremonies that bring together a group of the faithful sharing the same faith in a divinity.10 A third criterion was added with the 1997 Council of State ruling mentioned earlier. It concerns the preservation of public order: “the fact that some of the association’s activities could disturb public order weighs against its enjoyment of the status of association of worship.”11 A number of jurists have found these criteria problematic. They argue that the courts have been given too much discretionary power, so that it is impossible to ensure that the state “does not confound the definition of religion with the definition of good religions” (Woehrling 2003: 24). For Jean-Marie Woehrling, “they have at times fallen into this trap when attempting to make association of worship status subject to the exclusive practice of worship… Exclusivity has not served in practice to distinguish ‘pure’ religious practice but to rule out undesirable religions” (ibid.). Patrice Rolland went further, contending that the status of association of worship includes “elements of the status of ‘recognized religion’ [that] violate the principle of separation and the common law of rights and freedoms” (Rolland 2003: 186). Sociologists too have joined the fray, arguing that the way the French government uses these criteria to categorize controversial religious groups corresponds to an “implicit system of recognized faiths” (Willaime 2005: 71) or to consecration of “the concept of recognized religion” (Liogier 2010: 119). The demographers Jeanne-Hélène Kaltenbach and Michèle Tribalat have gone as far as to argue that the  CE, 21 January 1983, Association des serviteurs du nouveau monde, Rec. Leb., p.  18; CE, 9 October 1992, Commune de Saint-Louis de la Réunion, no. 94455. 9  CE, 9 October 1992, Commune de Saint-Louis c. Association Siva Soupramanien de Saint-Louis, La Semaine juridique, 1993, no. 24 J, no. 22068. 10  CE, 14 May 1982, Association internationale pour la conscience de Krishna, Rec. Leb., p. 179; CE, 17 June 1988, Union des Athées, Rec. Leb., p. 247. 11  CE, ass., opinion, 24 October 1997, Association locale pour le culte des témoins de Jéhovah de Riom, Rec. Leb., p. 372; see also CE, 28 April 2004, Association cultuelle du Vajra triomphant, no. 248467. 8

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state “uses the term ‘association of worship’ as a state-sanctioned label,” ultimately corresponding to a form of “concordatory recognition” (Kaltenbach and Tribalat 2002: 110). I concur with this position. It is my view that the breadth of the criteria governing associations of worship could indeed allow for the exclusion of socially shunned religious groups. Consider the decision of 26 April 2016, in which the administrative appeals court of Nantes held that the worship activities of one association were “not, in large measure, open to the public, with a large portion of the ceremonies and services being reserved to adherents, to a small circle of insiders or invitees,” and that “only the service held on the second Tuesday of each month is open to all.” On these grounds, it denied status to the group Lectorium Rosicrucianum de Rennes.12 Another significant problem is that the granting of association of worship status for religions recently arrived in France is contingent upon their fulfilling these legal and jurisprudential criteria, while the historical religions were able to form associations of worship automatically. If worship as sole object and preservation of public order are problematic criteria, it is also because there is legitimate doubt that all Catholic, Jewish, and Protestant associations of worship can meet them. Many such groups sponsor cultural, sports, or charity activities. Some have disturbed the public order, with only one illustration being the child sexual abuse scandals that have rocked the Catholic Church. In short, the law imposes restrictive conditions on the collective expression of new religious groups in France. The egalitarian legal framework of 1905 has led to various departures from formal equality, a situation that the Council of State’s decisions, however liberal, have yet to rectify. Taking note of these departures, then minister of the interior Nicolas Sarkozy formed a commission on 20 October 2005 to study the relations between religions and the public authorities (the Machelon Commission). The commission was tasked with proposing potential amendments to the associations of worship regime. In its 2006 report, the commission identified the same inequalities among religious groups. It found in relation to the objective dimension of religion that “only the material element serves to distinguish the notion of worship, which has legal status, from that of religion, which lacks it” (Commission Machelon 2006: 46). However, it also found that the criteria for association of worship status “do not take account of the context in which different faiths exist today” (ibid., 43), that they are no longer relevant. It noted that less than 10% of French mosques were managed by associations of worship, mainly because the worship-only criterion produced discriminatory effects against religious denominations in which worship and cultural activities cannot be easily separated: “the partition placed between ‘worship’ (in the sense of the Act of 1905) and ‘cultural activities,’ to use the term generally employed to denote anything that is not exclusively ritual, is particularly difficult to incorporate for Islam, which knows no such distinction. More than any other place of

 Cours administrative d’appel de Nantes (CAA Nantes), 3rd chamber, 21 April 2016, Association Lectorium Rosicrucianum Rennes, no. 15NT00581. 12

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worship, a mosque is a living environment and a point of social rootedness whose activity goes well beyond the ‘observance’ of worship” (ibid., 44–5). Yet the Commission found that it would be difficult to insert more leeway into the jurisprudence because this would give the government increasing discretionary power. It proposed the creation of a new status based on the “particular form of recognition of public utility for religious activities” (ibid., 49) so as to allow denominations not solely engaged in worship to enjoy some of the benefits of which they are now legally deprived. This new status would be issued by the prefect to any association documenting “that its religious activities have public utility, which could involve contributions to education or culture, integration, or engaging in charitable activities” (ibid.). In making this recommendation, the Machelon Commission adopted an ambivalent line of reasoning with regard to the imperative of state neutrality. Since the associations of worship regime, it said, leads to processes of indirect recognition, it proposed that this be remedied through the implementation of a public utility regime recognizing these groups’ contributions to society. The paradox is that this recommendation would have had the effect of reinforcing a situation that the Commission had criticized. It would have amounted to a narrowing of the scope of Article 2 of the Act of 1905, doing away a priori with the principle of non-recognition of churches in order to better justify a posteriori a form of indirect state recognition of religion. When the state values religious belief and presents it in a positive light, one can hardly describe this as a neutral stance. In a secular society, guaranteeing the freedom of conscience and religion entails equal protection for the freedom to believe and the freedom to disbelieve. Moreover, the creation of public utility status could result in discrimination against certain religious groups. Vesting the power to grant such status in the prefect makes it beholden to his subjective appraisal of any group’s usefulness to society. Such discretionary power could certainly have proved problematic at a time of recrudescence of strikingly anti-religious discourse against certain minority religious groups—“cults” in the 1990s, Islam in the 2000s. Such narrative secularism would be of the “collaborative” type in which the state grants collective privileges and rights to certain denominations (Baubérot 2015: 113). The Machelon Commission’s proposal may well have drawn on principles of justice (more equality between faiths; freedom to collectively express beliefs), but it also betrayed a prejudice in favour of religions as opposed to non-religious beliefs, and an implicit one in favour of the old religious traditions. 1.2.2 New Restrictions on Associations of Worship In the 1990s and 2000s, the bulk of the new jurisprudence concerning associations of worship dealt with minority groups, often depicted as “cults” in public debate. In the 2010s, things began to change. The cases coming to court increasingly concerned Muslim associations, some of them associations of worship, others covered by the laws relating to associations in general. After the first terrorist attacks struck

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France in 2015, the government subjected Islamic associations to closer scrutiny where they were alleged to be contributing to terrorist activities or spurring on the radicalization of young Muslims. It also sought to place tighter controls on the funders of these associations, particularly those located abroad. In 2017, the government created special units in each French department in charge of combating Islamic fundamentalism (Cellules de lutte contre l’islamisme et le repli communautaire— CLIR). In 2020, these units closed 394 premises or structures identified as separatist and conducted numerous tax audits.13 In one case, the courts upheld a decision by the Minister of Economy and Finance to freeze the funds of an Islamic association broadcasting sermons that funded terrorist activities overseas, advocating armed jihad and the use of violence to bring about a worldwide caliphate.14 The courts also allowed the dissolution, by order of the President of the Republic, of an Islamic association recruiting for jihad and keeping ties with persons implicated in terrorism.15 Several administrative closings of mosques were also upheld. A ruling of 11 January 2018 concerned a mosque whose imams had made “radical remarks inciting hatred of the adherents of other religions and rejection of the values of the Republic”; these sermons had been attended by “radicalized persons from various neighbouring departments, young women in particular, several of whom were fully veiled and one of whom went to Syria, as well as individuals linked to terrorism rings.”16 The court held that Muslims living in the neighbourhood could go to another nearby mosque, so that the closing of the mosque did not violate their freedom of worship. The succession of terrorist attacks on France caused the government to reinforce the legal arsenal for “resolutely fighting separatisms.” It decided to “reorganize the regime governing religions derived from the Act of 9 December 1905” to “protect [associations of worship] from hostile takeovers,” to ensure “that places of worship are not diverted from their mission,” and to ensure that they “cannot serve as a conduit for remarks or theories provoking violence or hatred.”17 The resulting act, known as the Loi du 24 août 2021 confortant le respect des principes de la République (the “Act of 2021”),18 implements reforms with major consequences for the organization of religions. It places stricter conditions on the internal organization of associations of worship and strengthens oversight by the administrative authorities. After reiterating the rules governing associations of worship that were set out by the Council of State in 1997 (“Associations of worship have as their exclusive object the practice of worship. They shall not, by their statutory object or effective  Conseil des Ministres, 9 December 2020, address, observance of principles of the Republic.  CAA Paris, 27 April 2017, Centre culturel islamique bangladais de France, no. 15PA01986. 15  CE, 15 December 2017, Association des musulmans de Lagny-sur-Marne, no. 401378. 16  CE, order, 11 January 2018, Communauté musulmane de la cité des Indes, no. 416398; See also CE, order, 20 January 2017, no. 406618. 17  Conseil des Ministres, 9 December 2020, address, observance of principles of the Republic. 18  Loi no. 2021–1109 du 24 août 2021 confortant le respect des principes de la République, JORF no. 0197, 25 August 2021, online at https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000043964778 13 14

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activities, disrupt the public order”), Article 68 of the Act of 2021 requires associations of worship to create “deliberative bodies having the power, among others, to decide on who shall be a new member, to amend the statutes, to assign any real property belonging to the association and, where relevant, to recruit a minister.” The Senate was the source of this measure, having adopted an “anti-putsch” amendment designed to “combat the risk of entryism by radicalized elements.”19 This provision amounts to a thorough overhaul of religious governance as it has existed since 1905. The state has now taken a hand in the internal operation of religions, going as far as to determine certain modalities for the recruitment of ministers. It has also strengthened external oversight over associations of worship. Government control over their activities has been tightened by the novel measures of Article 69, which requires these associations to renew their declaration of status with the prefect every five years, affording him new opportunities to revoke it. There are also stricter accounting obligations for associations of worship and stricter surveillance of any overseas donations that they may receive. It will be recalled that only 10 per cent of French mosques were governed by associations of worship in 2021. The remainder operated under the laws governing ordinary associations,20 and the Act of 2021 further innovates by bringing this overwhelming majority of “hybrid” associations under the new rules applicable to associations of worship, and hence subjecting them to more intense government scrutiny. What the Act of 2021 has essentially done is to legitimize a form of secular Gallicanism. Under the pretext of combating fundamentalism, the administrative authorities have been given new ways to intervene in religious affairs. They are permitted to specify and oversee the structure of these organizations at given intervals. These features of the act convey a palpable mistrust of collective religious expression that has not been so objectively strong since the 1990s, when the government was locked in combat with entities that it considered outright foreign bodies in the nation: the entities popularly known as cults.

 Projet de loi confortant le respect des principes de la République: Rapport, report no. 454 (2020–21) by Jacqueline Eustache-Brinio and Dominique Vérien on behalf of the Commission des lois, tabled 18 March 2021, online at http://www.senat.fr/rap/l20-454-1/l20-454-1_mono.html 20  Cécile Chambraud, “Mosquées, imams… Les propositions de Macron pour un islam ‘libéré des influences étrangères,’” Le Monde, 3 October 2020, online at https://www.lemonde.fr/societe/ article/2020/10/03/mosquees-imams-les-propositions-de-macron-pour-un-islam-libere-des-influences-etrangeres_6054621_3224.html 19

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2 “Cults” and “Pseudo-Religions” In 1982, Prime Minister Pierre Mauroy sent a letter of engagement to member of parliament Alain Vivien asking him to “study the problems posed by religious and pseudo-religious cults.”21 The text of this letter is remarkable, coming as it does from one of the highest representatives of a secular state. On the one hand, it implies that the state is competent to distinguish a “cult” or “pseudo-religion” from a “religion.” On the other, it presumes that groups designated as “cults” are the source of problems that must be analyzed.22 The letter set the terms of the debate: namely, that the government was waiving its obligation of neutrality vis-à-vis minority religious groups termed “cults.” It embarked on a campaign against these movements, henceforth regarding them as “hindrances to citizenship” (Luca 2010). The Prime Minister’s remarks and Vivien’s report gained no traction. It was only in the 1990s, after the massacres of several dozen members of the Order of the Solar Temple in Switzerland, France, and Quebec, that the government’s campaign against cults went into high gear. These killings, committed between October 1994 and March 1997, caused such an uproar that they touched off a years-long crusade on the part of the French government against certain religious minorities.

2.1 Identifying Cults These were not the only dramatic and shocking crimes committed by cult-like groups. Sixteen years before this drama, on 18 November 1978, the massacre of 909 members of the Temple of God in Jonestown, Guyana had monopolized headlines. But as hermetic as they may be, not all minority religious groups commit such crimes, nor do they even disturb the peace. That did not stop many religious groups, whether or not they effectively (sociologically) exhibited cult-like behaviour, from being tarred with the same brush: accused of indoctrination, mental manipulation, extortion, and so forth. The Order of the Solar Temple massacres quickly went from being an isolated incident to a matter of public worry, contributing to the “social construction of the problem of cults in France” (Champion and Cohen 1999: 7; Luca 2004). The government decided to act.

 Pierre Mauroy to Alain Vivien, mission letter, 1 September 1982, online at https://www.viepublique.fr/sites/default/files/rapport/pdf/124000514.pdf, p. 3. 22  The report, titled Les sectes en France: expressions de la liberté morale ou facteurs de manipulation? Rapport remis au Premier ministre (Paris: La documentation française 1983, online at https:// www.vie-publique.fr/sites/default/files/rapport/pdf/124000514.pdf), was submitted to the National Assembly in February 1983. 21

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But exactly how to act was not a straightforward matter. How can a government combat something that it does not understand? How can a secular state fight an enemy whom the principle of secularism forbids it from designating as such? A “cult” was an unidentified religious object. Law and jurisprudence alike were silent on the concept (Florand and Séguy 1986: 18). Certain jurists had even asserted that since cults elude all attempts at legal definition, “as far as the state is concerned, they do not exist” (D’Onorio 1988: 3336). The government did not trouble itself with such considerations. A year after the first massacre, National Assembly members Alain Gest and Jacques Guyard tabled a report on behalf of a commission of inquiry on cults.23 The report began by stressing that the term “cult” cannot readily be defined in law without weakening freedom of conscience and religion (and hence secularism). In lieu of a definition, Gest and Guyard presented “dangerousness criteria” on the basis of which to identify such groups: “mental destabilization,” “more or less anti-social speech,” “disturbance of public order,” “cutting off members’ contacts with their environment of origin,” and “indoctrination of children.” They then proceeded to draw up a list of over 170 groups said to qualify as “cults.” The imprecise, arbitrary criteria used to draw up the list could be argued to apply to a great many religious denominations, such as Pentecostals, Adventists, and Baptists—the last being the group with which then­US President Bill Clinton identified. Despite its flagrant lack of neutrality with respect to religious affairs, indeed its utter lack of rigour, this list was appended to two ministerial circulars (dated 29 February 1996 and 1 December 1998) concerning attacks against persons and property committed by cult-like movements. The Church of Scientology of Île de France was quick to challenge the legality of these circulars. After lengthy proceedings, the Council of State held that the appendix “was for purposes of information only and did not [reflect] an intent to adopt or ratify the contents of this list.”24 The situation remained problematic nonetheless. Even after its status as law was removed, this catalogue of unacceptable religious groups remained a source of reference information for official bodies at all levels. Over 15 years later, Alain Gest prided himself on its having been “of inestimable assistance to judges, municipalities facing requests to lend or rent rooms … all the way up to departmental councils, whose social workers seemed defenceless in the face of cults.”25 The discriminatory potential of the list seems not to have occurred to him. In the wake of the Gest-Guyard Report, the government took charge of the “problem.” An interministerial observatory on cults (Observatoire interministériel

 Assemblée nationale, Rapport fait au nom de la Commission d’enquête sur les sectes, 22 December 1995, online at https://www.assemblee-nationale.fr/rap-enq/r2468.asp 24  CE, 18 May 2005, Association spirituelle de l’Église de scientologie d’Île de France, no. 259982; conclusions of Commissioner of Government Donnat in CE, 18 May 2005, Association spirituelle de l’Église de scientologie d’Île de France, no. 259982. 25  MIVILUDES, Rapport au Premier ministre 2011–2012, at 70, online at http://www.derivessectes.gouv.fr/sites/default/files/publications/francais/rapport_annuel_2011_miviludes.pdf 23

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sur les sectes—OIS) was formed by a decree of 9 May 1996.26 Within 2 years, it was replaced by an interministerial anti-cult mission (Mission interministérielle de lutte contre les sectes—MILS).27 The bellicose vocabulary (lutte, combat) employed in naming this agency is not innocent; quite the contrary, it as if the state is readily acknowledging that it must fight on a religious battlefield where it does not belong. MILS in turn was replaced, in 2002, by a new interministerial body called MIVILUDES (Mission interministérielle de vigilance et de lutte contre les dérives sectaires),28 exemplifying a new focus on the establishment of more objectively defined relations with the religious sphere. The implication was that the state intended to focus on a posteriori punishment of offences committed by cult-like groups rather than on combating these movements upstream. But this approach was to be short-lived. It was not long before a number of parliamentarians objected to MIVILUDES’ more liberal orientation. The deputy Philippe Vuilque, chair of a National Assembly study group on cults, deplored that “the apprehension of the phenomenon of cults tends to morph into a concern around religious minorities [= equality and freedom of religion], whereas a secular, republican understanding of the phenomenon has already been reached [= specific conception of the good]” (Vuilque 2007: 18). The hardening of MIVILUDES’s stance led to the resignations of some of its academic appointees. One was the anthropologist Nathalie Luca, who objected to the authorities’ non-neutral stance. She deplored that freedom of conscience and religion “bumps up against … the cultural principles of the dominant morality, making the very idea of restricting [this freedom] highly elastic” (Luca 2004: 79). In addition to several studies of parliamentary origin,29 the 1990s and 2000s saw these three agencies produce a copious literature of their own, attesting to growing government interest in these religious groups. MILS published three annual reports, while MIVILUDES has authored 15 or so reports dealing with the aberrations of cults, as well as six practical guides for governments, businesses, and citizens. The work of these agencies continually refers to the vulnerability of those who must be protected from “mental manipulation,” which became the topic of a symposium held by MIVILUDES on 27 October 2014.30 The prevention of mental manipulation has offered a pretext for reviving the republican rhetoric around the  Décret no 96–387 du 9 mai 1996 portant création d’un observatoire interministériel sur les sectes, JO, 11 May 1996, at 7080. 27  Décret no 98–890 du 7 octobre 1998 instituant une mission interministérielle de lutte contre les sectes, JO, 9 October 1998, at 15286. 28  Décret no 2002–1392 du 28 novembre 2002 instituant une mission interministérielle de vigilance et de lutte contre les dérives sectaires, JO no. 278, 29 November 2002, at 19646. 29  The Council of State specified that these studies are not sources of law; see CE, 30 March 2001, Association du Vajra Triomphant, no. 211419; conclusions of Commissioner of Government Christine Maugüe in CE, 30 March 2001, Association du Vajra Triomphant, no. 211419. 30  MIVILUDES, L’emprise mentale au coeur de la dérive sectaire: une menace pour la démocratie? Colloque national, Paris, 23 novembre 2013, online at https://www.derives-sectes.gouv.fr/ publications-de-la-miviludes/colloques-et-s%C3%A9minaires/lemprise-mentale-au-coeur-dela-d%C3%A9rive-sectaire 26

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philosophical role of the emancipatory state. Back in 2000, in its annual report, MILS stated that “in combating cults … France is in keeping with the purest strain of its republican tradition: protecting human rights threatened by contemporary forms of obscurantism, promoting them on every occasion, and constantly calling on citizens to obey the law.”31 These documents are the setting for so many semantic shifts. They forthrightly distance themselves from anything resembling a neutral stance, making constant use of a warlike vocabulary (“combat,” “arsenal”) in depicting the “fight” that the Republic must henceforth wage against what are perceived as foreign bodies in the nation. This attitude had been presaged in the Gest-Guyard Report of 1995: “the state cannot … let something develop within it which in many respects resembles a genuine scourge … dangerous to the democratic principles on which the Republic is founded.”32 The fight was and is a republican fight. The state arrogated to itself the right to determine the religious acceptability of any group with reference to political principles presumed to be superior, at the risk of limiting the scope of fundamental rights, and hence secularism itself.

2.2 Fighting Cults The legislative debates surrounding cults in the early 2000s are particularly interesting as a test and a reinforcement of republican rhetoric around secularism, which was then to be mobilized, as of 2003, against expressions of faith in Islam. This tendency emerges from the parliamentary debates preceding the passage of a 2001 bill that came as the capstone to the anti-cult campaign (the “Act of 2001”).33 This bill provided for the dissolution “of any legal person, regardless of legal form or object, that engages in activities whose purpose or effect is to create, maintain, or exploit the psychological or physical subjection of persons participating in these activities.” Cult-like groups, per this act, are those guilty of mental manipulation. The debates in the National Assembly found numerous members claiming to be working within the great philosophical tradition of the Enlightenment. Jean-Pierre Brard asserted that the law is “faithful to the Enlightenment in combating cults, those modern scourges of obscurantism and oppression.”34 Fidelity to the Enlightenment,  Mission interministerielle de lutte contre les sectes, Rapport 2000, at 9, online at https://www. vie-publique.fr/sites/default/files/rapport/pdf/004000552.pdf 32  Assemblée nationale, Rapport fait au nom de la Commission d’enquête sur les sectes, 22 December 1995, online at https://www.assemblee-nationale.fr/rap-enq/r2468.asp 33  Loi no. 2001–504 du 12 juin 2001 tendant à renforcer la prévention et la répression des mouvements sectaires portant atteinte aux droits de l’homme et aux libertés fondamentales, JO no. 135, 13 June 2001, at 9337. 34  Assemblée nationale, parliamentary debates, complete minutes of the sessions of Wednesday, 30 May 2001, JORF, 31 May 2001, at 3662. 31

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perhaps, but to Voltaire much more than to Locke! The debates were peppered with anti-clerical and anti-religious remarks; Philippe Vuilque even quoted the author of Letters on England, who famously wrote that “every sect, in whatever sphere, is the rallying-point of doubt and error.”35 Catherine Picard argued that such groups are not by nature religious, but rather “nothing but intellectual, pseudo-spiritual, pseudo-philosophical, or religious scams.”36 Denying the religiousness of these groups made it easier for the parliamentarians to evade their obligation to be neutral and to  protect freedom of conscience and religion. Dominique Bussereau declared that while “the state is certainly neutral toward all religious beliefs … it is time … to call a spade a spade, to take our heads out of the sand; all that does is promote a species of tolerance or benevolence.”37 Rudy Salles gave a speech in favour of the fight and asking Parliament to “further develop the anti-cult legal arsenal.”38 Many of the members emphasized what they called the “freedom to think” (liberté de penser), a form of freedom “perceived as emancipation from any all-­ encompassing doctrine” (Baubérot, 1999, 316; see chapter 1) and as rejection of any dogmatism that deprives people of their individual will. The remarks of the Minister of Parliamentary Relations on this score are telling: “the shared determination [to fight cults] does not violate the fundamental freedoms recognized and guaranteed by the Republic… On the contrary, we are not the ones killing freedom. It is those who attempt to limit the individual freedom of the people who fall under their spell, who indoctrinate them, whether it be the cults themselves, their leaders, or anyone who engages in proselytism in their name.”39 These debates around the Act of 2001 attest to an incipient rise of narrative secularism, oscillating between Gallicanism and anti-religious discourse. They betray a mistrust of minority religions that allegedly justifies state-sanctioned restrictions on freedom of conscience and religion in order to better protect the autonomy and free will of citizens. This relationship to minority religions and this opposition between “freedom to think” and “freedom of conscience and religion” would gain new prominence in the discourse on secularism emerging with respect to Islam in 2003 (see Chaps. 6, 7, and 8).

 Assemblée nationale, parliamentary debates, complete minutes of the sessions of Thursday, 22 June 2000, JORF, 23 June 2000, at 5725. 36  Assemblée nationale, parliamentary debates, complete minutes of the sessions of Wednesday, 30 May 2001, JORF, 31 May 2001, at 3662. 37  Assemblée nationale, parliamentary debates, complete minutes of the sessions of Thursday, 22 June 2000, JORF, 23 June 2000, at 5727. 38  Assemblée nationale, parliamentary debates, complete minutes of the sessions of Wednesday, 30 May 2001, JORF, 31 May 2001, at 3686. 39  Assemblée nationale, parliamentary debates, complete minutes of the sessions of Thursday, 22 June 2000, JORF, 23 June 2000, at 5738. 35

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3 Religion, Culture, and Heritage Today, all public buildings are non-denominational, but that does not mean all traces of religion have disappeared. Movable artifacts such as crosses, crucifixes, and statues have been removed from these buildings, but symbols remain engraved in their walls, attesting to the dominance of the Catholic Church in French history. The removal of the first religious symbols from public buildings dates back to the secularization of public education with the Loi Ferry du 28 mars 1882 (one of the “Jules Ferry Laws”).40 The Ministry of Education evinced a conciliatory attitude toward the Catholic religion, damping the enthusiasm of those who went about zealously removing crucifixes from classrooms. In a circular of 2 November 1882, it stressed that the removal of crucifixes should follow “the wishes of the population” and ideally be done during holidays so as not to provoke any incidents (Baubérot 2004: 24). This accommodation was intended to mitigate the conflict of the “two Frances,” the secular and the Catholic, at the end of the nineteenth century. Similarly, a clear attempt was made to depict the Act of 1905 as an attempt to appease the Catholics: despite their secularization, public buildings were permitted to retain numerous religious symbols. Today, the accommodations take place at the level of jurisprudence more than legislation.

3.1 The Legal Secularization of Christian Symbols The wording of Article 28 of the Act of 1905 reflects an intent by Parliament to reconcile the country’s religious history with its secularization. One way in which it does this is by setting out a number of exceptions, material and temporal, to its ban on “the affixing of religious symbols or emblems to public monuments or in any public place whatsoever.” These material exceptions are “buildings used for worship, burial grounds in cemeteries, funerary monuments, and museums or exhibitions.”41 Soon after the end of the First World War, the Council of State was asked to rule on the legality of a religious symbol dedicated to soldiers who had died in the war, which was affixed to a monument on a public square. In its decisions of 4 July 1923 and 9 July 1924, it clarified the meaning of the term “funerary monument,” writing that it “applies to all monuments intended to recall the memories of the dead, even if they do not sit on burial sites and wherever they are erected.”42 In a recent decision

 Loi no 11–696 du 28 mars 1882 qui rend l’enseignement primaire obligatoire, JO, 29 March 1882.  Loi du 9 décembre 1905 concernant la séparation des Églises et de l’État, online at http://www. legifrance.gouv.fr/affichTexte.do;jsessionid=50F9A1D92B16952B6AC1DB7CF83B3D3E.tpdjo0 7v_2?cidTexte=LEGITEXT000006070169&dateTexte=20100125 42  CE, 4 July 1923, Abbé Guerle, no. 75410; CE, 9 July 1924, Commune de Fouilloy. For a recent application, see CAA Lyon, M.A., 16 March 2010, no. 07LY02583. 40 41

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disallowing a cross that had been affixed to the entrance of a cemetery, it made clear that the precedent set by these old decisions was not intended to be broad. Its reasoning was that cemeteries are in the public domain and their exterior doors are not encompassed by any of the exceptions in Article 28 (burial grounds, funerary monuments, buildings used for worship).43 The temporal exception set out in the Act of 1905 is that Article 28 only applied as of its entry into force (9 December), not retroactively. While new religious ornaments were banned, pre-existing ones were permitted to stay in place. This provision amounted to a secularization of the pre-existing symbols, which thereby became part of the common heritage. Many subsequent judicial decisions have reinforced this clear temporal demarcation. On 20 December 2001, the administrative tribunal of Besançon deemed that “the affixing of a religious emblem to a public building subsequent to the entry into force of the Act of 1905 … gives the building as a whole the aspect of a place of worship.”44 In another case concluded in 2017, a local freethinkers’ association challenged the legality of the installation, in 2006, of a statue of John Paul II topped with an arch and a large cross on the public square in the village of Ploërmel. The court allowed the statue of John Paul II, a head of state, to remain in place but ordered the cross atop the statue, as an ostentatious religious symbol, to be removed.45

3.2 The Judicial Secularization of Christian Symbols To the two exceptions established by the Act of 1905, the jurisprudence has, over time, added a third: the culture and heritage exception. 3.2.1 The Culture and Heritage Exception The courts have repeatedly held that symbols of the majority religion affixed to public buildings after 1905 can stay there as “cultural” or “heritage” symbols. The administrative appeals court of Nantes, for example, invoked the Catholic history of the Vendée region in upholding the presence of a Catholic symbol on the pediments of certain secondary schools. “This logotype,” it wrote, “was not made for the purpose of religious exhibition, nor is it meant to promote a religion; its sole function

 CE, opinion, 28 July 2017, no. 408920; see also Tribunal administratif de Poitier (TA Poitier), 23 November 2017, no. 1500305. 44  TA Besançon, 20 December 2001, M. Guilleminot c/ville de Besançon. 45  TA Rennes, 30 April 2015, Fédération morbihannaise de la libre pensée, Mme C…B…, et M.  A…D…, nos. 1203099, 1204355, 1204356; CA Nantes, 15 December 2015, commune de Ploërmel, no. 15NT02053, 15NT02054; CE, opinion, 25 October 2017, Fédération morbihannaise de la libre pensée, Mme C…B…, et M. A…D…, no. 396990. 43

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is to identify, by means of historical points of reference and stylized design, the action of the department of Vendée.”46 In two other decisions, the administrative appeals court of Nantes ruled against the installation, in a town hall meeting room, of a crucifix acquired by a municipality in 1938,47 but allowed the crucifix to stay in the building if kept “in a display case as part of the historic heritage of the commune.” The court held that even if the display case is housed in a room open to the general public, “the crucifix cannot then be regarded as a religious emblem installed in a public place.”48 This reclassification of the crucifix as a heritage symbol, even though purchased after 1905, follows from a subterfuge in the interpretation of the Act of 1905, and its effect is to legitimize the symbolic value of this religious object for the commune. The court’s ruling essentially voided the religious sphere of its substance; it secularized a religious object and brought it into the culture. It identified it with the common heritage, hence with shared values. In the mid-2010s, many mayors went about zealously setting up nativity scenes in municipal buildings during the Christmas holiday. This happened in traditionally Catholic regions such as Vendée, but also in municipalities governed by right-wing or far-right parties attempting to reassert what they saw as a Christian identity under threat. Appeals to the administrative tribunals were not long in following. In late 2014, these tribunals handed down several contradictory decisions, sowing confusion about the status of the law in this field. The administrative tribunal of Nantes held on 14 November 2014 that a nativity scene “represents, by virtue of its content illustrating the birth of Jesus Christ and its concomitance with the preparations for the Christian Festival of the Nativity, a specific religious emblem whose symbolism goes beyond the typical and traditional … household representation of this holiday period.”49 Unless justified by a “local particularism,” wrote the court, its exhibition in a public building would be illegal.50 With this phrase, the court allowed for nativity scenes to be subsumed under the heading of culture, lose their religious character, and be legally displayed in public buildings. The appeals court struck down the ruling of illegality on 13 October 2015, holding that the small size of a nativity scene is such that it “falls within a tradition relating to the preparation of the family Christmas holiday and is not in the nature of a ‘religious symbol or emblem.’”51 Shortly afterward, on 22 December 2014, the administrative tribunal of Melun held that “while the Christmas holiday was long conflated with the Christian festival of the Nativity, it has lost its religious character in a largely secularized society and become a traditional family holiday… It therefore constitutes one of the decorations traditionally associated with

 CAA Nantes, 11 March 1999, Association “Une Vendée pour tous les vendéens,” no. 98NT00357.  CAA Nantes, 4 February 1999, M. Georges G., no. 98NT00337. 48  CAA Nantes, 12 April 2001, M. Georges G., no. 00NT01993. 49  TA Nantes, 14 November 2014, Fédération de Vendée de la libre pensée, no. 1211647. 50  Ibid. 51  CAA Nantes, 13 October 2015, Département de la Vendée, no. 14NT03400. 46 47

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Christmas, like Christmas trees and lights.”52 The doctrine was highly critical of this decision (Hochmann 2016; Prélot 2006) and it was overturned by the administrative court of appeal of Paris on 8 October 2015; nativity scenes, said the court, are undeniably religious in nature.53 Other decisions, while acknowledging the religious character of nativity scenes, have invoked the museum exception of Article 28 of the Act of 1905 to justify their presence in public buildings. One of them, dated 16 July 2015, concerned a nativity scene exhibited in the city hall of Béziers. The tribunal found that the municipal authorities had always presented this installation as “an exhibition coming in the context of cultural activities held in conjunction with the Christmas holiday” and that in this context, “the display of this nativity scene cannot be regarded as having the character of a presentation claimed as symbolic of the Christian religion.”54 As of year-end 2015, total jurisprudential confusion reigned, with several appellate jurisdictions squaring off over how to categorize nativity scenes. 3.2.2 Religion or Culture? The Nativity Scene, a “Hybrid Object” The Council of State clarified the jurisprudence in two decisions handed down on 9 November 2016. It began by specifying that “Christmas nativity scenes are a representation that can take on a plurality of meanings”: religious, because they are “scenes belonging to Christian iconography”; cultural, because nativity scenes “are decorations and illustrations traditionally accompanying end-of-year holidays, with no religious significance attached.”55 The Council of State concurred with the remarks of the public rapporteur in these cases. She said: “nativity scenes have been carried along, as it were, by the sweeping secularization of Christmas that French society, like others, has undergone since the nineteenth century, until it became, to a certain extent, bound up with the protocol of this holiday.” Today it has become “a hybrid object imbued with a plurality of meanings.”56 The Council invoked this “plurality of meanings” in ruling that the mere fact that nativity scenes have a religious meaning is not sufficient to subject them to the ban imposed by Article 28. A religious symbol can be tolerated when temporarily affixed to a public building,

 TA Melun, 22 December 2014, Fédération départementale des libres penseurs de Seine-etMarne, no. 1300483. 53  CAA Paris, 8 October 2015, Fédération départementale des libres penseurs de Seine-et-Marne, no. 15PA00814. 54  TA Montpellier, 16 July 2015, M. G. et Ligue des droits de l’homme, no. 1405625. 55  CE, ass., 9 November 2016, Fédération des libres penseurs de Seine-et-Marne, no. 395122; CE, ass., 9 November 2016, Fédération de la libre pensée de Vendée, no. 395223. 56  Conclusions of the Public Rapporteur in CE, ass., 9 November 2016, Conditions d’installation d’une crèche de Noël sur un emplacement public, online at https://actu.dalloz-etudiant.fr/fileadmin/actualites/pdfs/09.2017/Lebon_concl._creche.pdf 52

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provided that it is presented as cultural, artistic, or festive and does not express recognition of a religion or religious preference by the municipal authorities.57 Permanent installations, then, are prohibited. Only temporary installations of a “hybrid symbol,” one having several meanings including a religious one, may be authorized, depending on the setting. In the Council’s casuistic approach, inspired by American case law, there is no general ban on temporary displays of nativity scenes in public buildings, but only on those that “express recognition of a religion or religious preference.”58 The primary test for whether a municipality is exhibiting such a preference is the absence of proselytism, but the courts must also consider “the particular conditions of the installation, the existence or absence of local customs, but also the site of the installation.”59 On this last criterion, the Council distinguishes according to whether the symbol is displayed in a public building (town hall, school, etc.) or a “public place” (square, park, street, etc). These two decisions are highly dubious. First, they adopt a circumscribed interpretation of Article 28, whose text is nonetheless clear: “It is henceforth prohibited to elevate or affix any religious symbol or emblem to public monuments.” The Council of State has added to the law by creating a new cultural and heritage exception that Parliament did not intend (Pauliat 2017; Camguilhem 2018). Second, and probably more problematic, the reasoning is based on a false premise (Slama 2017: 2); namely, that the plurality of meanings of a nativity scene somehow deprives it of its “irreducible, intrinsic religious import” (ibid.; Hochmann 2016: 53). This is especially true in light of the statements made by numerous mayors to the effect that the purpose of the display was to defend France’s Christian values. The reasoning is all the more surprising in that many other decisions relating to the Islamic veil have ignored its “plurality of meanings,” despite what its wearers have had to say about this practice (see Chap. 6).60 Third, the new test for whether a municipality “expresses recognition of a religion or religious preference” is discriminatory. It benefits older established religious traditions and prejudices newer ones. A denomination recently arrived within a municipality’s limits has no way to avail itself of such a “local custom.” This criterion alone favours the visibility of established religious symbols, and very particularly Christian symbols, in public places. These symbols may be authorized in conjunction with the Christmas holiday, incontestably a religious one, even if some would claim that it has been reduced to a tradition or custom belonging to France’s shared heritage. In the wake of these two decisions, the courts have heard numerous challenges of religious symbols displayed in public buildings and have had to define the term

 CE, ass., 9 November 2016, Fédération des libres penseurs de Seine-et-Marne, no. 395122; CE, ass., 9 November 2016, Fédération de la libre pensée de Vendée, no. 395223. 58  Ibid. 59  Ibid. 60  See, in particular, CE, 5 December 2007, M. et Mme Bessam Ghazal, no. 295671. 57

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“local custom” in concrete terms. One, concerning a nativity scene displayed in the mining town of Hénin-Beaumont in northern France, led to a decision by the administrative tribunal of Lille that “the characters in the nativity scene are in no way linked to a specific mining tradition … the simultaneous holding of an exhibition in the hall that reconstructed the mining district of Darcy was insufficient to regard the display of the nativity scene as an extension of that exhibition or even a distinct cultural manifestation.” The tribunal added that “while the commune did put this display on the calendar of festive events organized by the municipality for the end of the year, it has not been established that it is rooted in a pre-existing local tradition.”61 Elsewhere, the administrative tribunal of Lyon held that even if a nativity scene is built by regional artisans and the display allows for the exhibition of their craft, it cannot legally be displayed in a public building because it does not partake of a “local custom.”62 Contrariwise, the administrative court of appeal of Nantes held in 2017 that a nativity scene displayed every Christmas for the last 20 years does indeed partake of “a local cultural custom and a festive tradition.”63 In all these cases, the arguments put forward by the political authorities strove to universalize the nativity scene as a symbol, by claiming that it is part of the shared culture and by presenting it as a symbol of “living together” or coexistence (vivre-­ ensemble) (Beaman 2020: 89). “Christmas is celebrated by the entire nation,” said one official.64 This type of argument has also, it should be noted, been heard in other national contexts. During the COVID-19 pandemic, several heads of state relaxed public health measures during the Christmas holidays to allow for people to celebrate. Such reassertions of Christian symbols as elements of a shared heritage come in reaction to the visibility of other, often Islamic symbols that are not normalized in the culture. The effect has been to progressively redraw the boundaries of the national community. Lori Beaman states this clearly: “A narrative that insists that anyone who is French celebrates Christmas creates a rather exclusive vision of belonging as well as an impossible position for those who do not feel part of this ‘anyone’” (Beaman 2020: 90). Ultimately, the judicial reinterpretation of the scope of Article 28 of the Act of 1905 reinforces a differentialist form of nationalist secularism (see Chap. 2) clearly favouring those religious traditions that have centuries-long roots in French soil.

 TA Lille, 30 November 2016, Commune d’Hénin-Beaumont, no. 1509979. This decision was upheld on appeal by CAA Douai, 16 November 2017, Commune d’Hénin-Beaumont, no. 17DA00054; see, along the same lines, TA Nîmes, order, 21 December 2016, Ligue française pour la défense des droits de l’homme et du citoyen, no. 1603877, upheld on appeal by CAA Marseilles, 3 April 2017, Commune de Béziers, no. 15MA03863. 62  TA Lyon, 5 October 2017, Fédération de la libre pensée et d’action sociale du Rhône, no. 1701752. 63  CAA Nantes, 6 October 2017, Fédération de la libre pensée de Vendée, no. 16NT03735. The Council of State rejected the appeal; see CE, 14 February 2018, Fédération de la libre pensée de Vendée, no. 416348. 64  See, e.g., the arguments in CAA Nantes, 13 October 2015, Département de la Vendée, no. 14NT03400. 61

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These traditions are now said to be part of the country’s culture and heritage. Any member of the new national “anyone” is expected to share them.

4 The State and the “Principal Spiritual Families” The participation of religious traditions long established in France in the construction of the national “anyone” also occurs through collaboration with the state, however secular it claims to be, in conjunction with certain political activities. Religious traditions regularly collaborate with the French state, alongside other civil society movements, in efforts to find answers to contemporary societal questions. As Alain Boyer notes, “the state makes a point of hearing the opinion of theologians and religious officials in numerous forums” (Boyer 2005: 45). These individuals, that is, often interact with the state upstream of the legislative process. They advise and make recommendations in the context of councils of the wise and ad hoc commissions. As an example, the National Council on Ethics (Conseil national d’éthique), whose mission is to “advise on ethical problems and societal issues raised by the progress of knowledge in the fields of biology, medicine, and health,”65 is composed of 39 members, including five belonging to “the principal philosophical and spiritual families.” Several members of these “families” are chosen to sit on the council, which has issued opinions on amendments to the regulations on palliative care66 and on the marketing of human stem cells.67 Similarly, the National Council on AIDS and Viral Hepatitis, whose mission is to “advise on the whole set of societal problems posed by AIDS and to make recommendations to the government,” also includes five members of the “families” in question. It is more than surprising to find the state seeking advice from “spiritual families” on ethical questions that, in many cases, relate to the separation of religious and civil normativities (hence to church-state separation), but the word “principal” raises eyebrows as well. How does a secular state go about identifying spiritual families? What criteria does it then use to determine the “principal” ones, the ones enjoying privileged status in public debate? It should be recalled that religious statistics are prohibited in France. A look at the composition of the committees shows that the “principal spiritual families” correspond to the old established religions,

 Loi no 2004–800 du 6 août 2004 relative à la bioéthique, JORF no. 182, 7 August 2004.  Comité consultatif national d’éthique pour les sciences de la vie et de la santé, opinion no. 108, Avis sur les questions éthiques liées au développement et au financement des soins palliatifs, 12 November 2009, online at https://www.ccne-ethique.fr/sites/default/files/publications/ avis_108.pdf 67  Idem, opinion no. 93, Commercialisation des cellules souches humaines et autres lignées cellulaires, 22 June 2006, online at https://www.ccne-ethique.fr/sites/default/files/publications/ avis093.pdf 65 66

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with the addition of Muslims and Buddhists,68 a selection that does not afford egalitarian representation to all the “spiritual families” of France. Such processes point to an institutionalization of dialogue between the state and certain “spiritual families” or privileged religions. In 2002, Prime Minister Lionel Jospin arranged for annual meetings with representatives of the Catholic Church to address topics such as the internal administration of the Church, policies on places of worship, and governance of associations of worship (Boyer 2005: 44). Prime Minister Jean-Pierre Raffarin reaffirmed these meetings and brought in the Jewish religion in the form of the chief rabbi (grand rabbin) and the French Council of Jewish Institutions (Conseil représentatif des institutions juives). The same considerations led to local initiatives for coordination and dialogue with religions, with numerous cities getting in on the act (Lamine 2005: 83). Mayors held public meetings with local representatives of different traditions. These meetings proliferated after the Gulf War; from the early 1990s to the mid-2000s, the number of interreligious associations grew from a few dozen to over 300 (ibid., 87). These cities are exploiting both the association angle and the cultural one to involve religious groups in the organization of public events, whether it be exhibitions on religion held in public buildings, restoration of places of worship, or promotion of peace in the world (Aveline 2005: 220). One high-profile initiative was carried out by Marseille Espérance, an association that has served since 1991 as a liaison between city hall and local faiths selected by the city (Frégosi 2006: 81). Marseille Espérance’s secretariat is housed at city hall and the organization holds symposia, conferences, and information meetings on societal issues. Its mission is to arrive at “a true covenant among the representatives of the various spiritual families [so that from now on in Marseille], no one will be able to invoke the authority of any religious leader in justifying intolerance toward other religions” (Aveline 2005: 236). Such events are at times presented as being in the “public interest of the commune” and hence deserving of municipal financial support. This was the conclusion reached by the Council of State in a decision of 4 May 2012. The freethinkers’ federation of the Rhône region (Fédération de la libre pensée et d’action sociale) had applied for cancellation of a grant made by the city of Lyon to Communauté Sant’Egidio, a Catholic association planning to hold an international meeting on peace.69 The Council held that this meeting lacked a religious character and that the city of Lyon could fund it. It reached this conclusion even though representatives of religious groups were participating, sessions were being held on religious themes, and a flexible schedule was being offered “so that the members of different denominations could … participate in prayers in the places of worship of their choice.” The Council found that this activity “adhered to the principle of neutrality with respect to faith; [that it] was, in view of the large number of participants, including foreign participants, and the participation of numerous national and international

68 69

 The presence of a Buddhist representative justified the use of the term “spiritual.”  CE, 4 May 2012, Fédération de la libre pensée et d’action sociale du Rhône, no. 336462.

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p­ ersonalities during roundtables, positive for the brand image and outreach of the commune of Lyon, and that it was likely to make a useful contribution to the city’s economy.”70 These examples show that even in secular France, certain political representatives believe that religion is a wellspring for democracy. This was indeed the argument of President of the Republic Nicolas Sarkozy in a speech given at the Lateran Palace  on 20 December 2007: “In the secular republic, the politician I am must refrain from making decisions based on religious considerations. But it matters that his thinking and his conscience are enlightened by opinions making reference to norms and convictions unburdened by immediate contingencies. All intelligent people, all spiritualities existing in our country, must take part. We will be wiser if we unite the resources of our various traditions.”71 To me, this “social recognition of religions” (Willaime 2005: 80) is problematic, for it strains the neutrality of the state and the equality of religious groups in two ways. The first is that these collaborations between religions and French public authorities often have consequences for the regulation of minority religions, as the sociologist Anne-Sophie Lamine has noted. She has shown how “recognition by the public authorities of religious groups goes hand in hand with an implicit definition of ‘religiously acceptable’ and thus has the secondary effect of categorizing groups not chosen for interlocutors as ‘fundamentalist’ or ‘dangerous’ groups whose public image is thereby further tarnished” (Lamine 2004: 101; 2005: 90). The second problem is that “in these practices of church-state relations in France, we are far from religion being reduced to a mere private, individual option” (Willaime 2005: 72). The value placed on religion violates the equality that should obtain between believer and nonbeliever, putting the secular state at odds with its obligation not to privilege or devalue any family of thought. Nevertheless, state collaboration with spiritual or religious families is now widespread on both the national and local scales. It affords new evidence of how the secular state adopts a multivalent, differentiated approach to religion, thus contributing to a situation in which secularism takes two different forms. In the first form, privileged and/or majority groups considered to be of public utility are implicitly recognized as having collective rights. Their collective expressions of belief are said to be bound up with the society’s heritage, to have become “common” or “shared” values. This state-enhanced prominence in public debate, this heightened visibility, further reinforces their status in a positive feedback loop of sorts. The state does more than show awareness of religion: it grants recognition to it. Such regulation of the religious sphere resembles secularism of collaboration (see Chap. 2), in which certain belief systems are recognized by the state as legitimate resources—more legitimate than others—for “living together” in society.

 Ibid.  Address by the President of the Republic, Stanza della Segnatura, Palazzo del Laterano, Rome (Italy), 20 December 2007. This position was nuanced in a speech given in Riyadh on 14 January 2008. 70 71

References

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In the second form, the recognition of religions is made conditional on loyalty to the republican pact. But the oldest religious traditions do not have to pass this test; they are presumed loyal, so thoroughly are they associated with the republican national identity. The situation resembles what Jean Baubérot termed “republican secularism (civic religion)” (Baubérot 2009: 17), in which the state even holds that “the supplement to the soul accorded by belief in something transcendent is necessary to the social bond” (ibid., 21). Meanwhile, not all groups enjoy such benevolence from the French state; the transcendence that they embody does not necessarily enjoy the benefit of normalization in French republican culture. The years since the 1990s have witnessed the revival of anti-religious secularism, expressed as mistrust of minority groups perceived as “foreign bodies” in the French nation and by concomitant limitations on their freedom. While this mistrust initially affected groups termed “cults” in public debate, it was rapidly redirected toward Islam during a subsequent decade marked by a proliferation of terrorist attacks. Since then, the growing influence of far-right parties has been instrumental in accelerating this shift. Islam is increasingly excluded from the national narrative as incompatible with French “values” and “identity.” The debates held during the 2021–2022 presidential campaign were in fact the most striking illustration of this newly acceptable Islamophobia, which has been voiced by some of the highest representatives of the French state.

References Aveline, Jean-Marc. 2005. Le dialogue interreligieux: médiation pour la paix? In La religion dans la sphère publique, ed. Solange Lefebvre, 220–239. Montreal: Presses de l’Université de Montréal. Basdevant-Gaudemet, Brigitte. 1998. Droit et religions en France. Revue internationale de droit comparé 50 (2): 335–366. Baubérot, Jean. 1999. Laïcité, sectes, société. In Sectes et démocratie, ed. Françoise Champion and Martine Cohen, 313–327. Paris: Seuil. ———. 2004. Laïcité 1905–2005, entre passion et raison. Paris: Seuil. ———. 2009. L’évolution de la laïcité en France : entre deux religions civiles. Diversité urbaine 9 (1): 9–25. ———. 2015. Les 7 laïcités françaises: le modèle français de laïcité n’existe pas. Paris: Maison des Sciences de l’Homme. Beaman, Lori G. 2020. The Transition of Religion to Culture in Law and Public Discourse. London: Routledge. Bokdam-Tognetti, Émilie. 2016. Le financement des cultes dans la jurisprudence du Conseil d’État. Les Nouveaux Cahiers du Conseil constitutionnel 4 (53): 33–52. Boussinesq, Jean. 1994. La laïcité française. Paris: Seuil. Boyer, Alain. 2005. Comment l’État laïque connaît-il les religions? Archives de sciences sociales des religions 129 (January-March): 37–49. Camguilhem, Benoît. 2018. Ménager l’âne et le bœuf : retour sur la neutralité du service public. Les Annales de droit 12: 123–140. Champion, Françoise, and Martine Cohen, eds. 1999. Sectes et démocratie. Paris: Seuil. Commission Machelon. 2006. Les Relations des cultes avec les pouvoirs publics. Paris: La Documentation française.

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D’Onorio, Jean-Baptiste. 1988. Les sectes en droit public français. JCP 1 (6): 3336. Durand-Prinborgne, Claude. 2004. La laïcité. Paris: Dalloz. Fath, Sébastien. 2005. De la non-reconnaissance à une demande de légitimation: le cas du protestantisme évangélique. Archives de sciences sociales des religions 129: 151–162. Florand, Jean-Marc, and Olivier-Louis Séguy. 1986. L’émergence judiciaire du phénomène des sectes. Les Petites Affiches 124: 28–29. Frégosi, Franck. 2006. Regards contrastés sur la régulation municipale de l’islam. Les cahiers de la sécurité, Revue trimestrielle de sciences sociales 62: 71–92. Gonzalez, Gérard. 2001. Les témoins de Jéhovah peuvent constituer des associations cultuelles. Revue trimestrielle des droits de l’homme 48: 1208–1219. Hochmann, Thomas. 2016. Le Christ, le père Noël et la laïcité, en France et aux États-Unis. Les Nouveaux Cahiers du Conseil constitutionnel 53 (4): 53–61. Kaltenbach, Jeanne-Hélène, and Michèle Tribalat. 2002. La République et l’Islam: entre crainte et aveuglement. Paris: Gallimard. Lamine, Anne-Sophie. 2004. La cohabitation des dieux: pluralité religieuse et laïcité. Paris: Presses Universitaires de France. ———. 2005. Mise en scène de la “bonne entente” interreligieuse et reconnaissance. Archives de sciences sociales des religions 129: 83–96. Le Vallois, Philippe. 2003. Les mouvements religieux socialement controversés en France. In Traité de droit français des religions, ed. Francis Messner, Pierre-Henri Prélot, and Jean-Marie Woehrling, 156–166. Paris: Litec. Liogier, Raphaël. 2010. La distinction sociocognitive et normative entre bonne et mauvaise religion en contexte européen : le cas de l’Islam et du bouddhisme. In Pluralisme religieux et citoyenneté, ed. Micheline Milot, Philippe Portier, and Jean-Paul Willaime, 99–122. Rennes: Presses Universitaires de Rennes. Luca, Nathalie. 2004. Les sectes. Paris: Presses Universitaires de France. ———. 2010. Les “sectes”: une entrave à la citoyenneté? Politiques européennes et états-­uniennes. In Pluralisme religieux et citoyenneté, ed. Micheline Milot, Philippe Portier, and Jean-Paul Willaime, 123–136. Rennes: Presses Universitaires de Rennes. Pauliat, Hélène. 2017. Installation des crèches dans un emplacement public : des critères flous. Revue du droit des religions 4: 67–82. Portier, Philippe. 2005. L’Église catholique face au modèle français de laïcité: histoire d’un ralliement. Archives de sciences sociales des religions 129: 117–134. Prélot, Pierre-Henri. 2006. Définir juridiquement la laïcité. In Laïcité, liberté de religion et Convention européenne des droits de l’homme, ed. Gérard Gonzalez, 115–149. Brussels: Bruylant. Robert, Jacques. 1994. La liberté religieuse. Revue internationale de droit comparé 46 (2): 629–644. Rolland, Patrice. 2003. Le droit devant le nouveau fait social : les sectes. In Traité de droit français des religions, ed. Francis Messner, Pierre-Henri Prélot, and Jean-Marie Woehrling, 179–194. Paris: Litec. Schwartz, Rémy. 2007. Un siècle de laïcité. Paris: Berger-Levrault. Slama, Serge. 2017. Jésus revient au Palais Royal ou quand le Conseil d’État fait obstacle à la séparation de l’État et de l’étable. Revue des droits de l’homme 11: 1–7. Vuilque, Philippe. 2007. Avant-propos. In Les difficultés de la lutte contre les dérives sectaires, ed. Nicolas Guillet, 17–19. Paris: L’Harmattan. Willaime, Jean-Paul. 2005. 1905 et la pratique d’une laïcité de reconnaissance sociale des religions. Archives de sciences sociales des religions 129: 67–82. Woehrling, Jean-Marie. 2003. Définition juridique de la religion. In Traité de droit français des religions, ed. Francis Messner, Pierre-Henri Prélot, and Jean-Marie Woehrling, 12–21. Paris: Litec.

Chapter 5

“Praying Together”: A Secular Challenge?

Abstract  The previous chapter discussed the legal framework implemented by the French government in 1905 and its implications for the collective expression of beliefs. As mentioned, it revolved around recognition of associations of worship but also included a specific legal regime applicable to places of worship. This regime, which placed the Catholic, Protestant, and Jewish religions on an equal footing, has aged poorly; over time, it has resulted in inequalities between the “old religions” and newly arrived religious groups. The situation finds echo, moreover, in the organization of chaplaincy services in certain public institutions (hospitals, prisons, the army, etc.), where minority religious groups, some of them less socially accepted, now find themselves at a disadvantage.

Throughout the year 2020, Catholic communities held street prayers in many cities of France in reaction to public health policies banning the saying of mass in churches during the COVID-19 pandemic.1 The street ceremonies, although illegal and often cut short by the police, were regarded rather benevolently by the public authorities. Certain local government representatives turned a blind eye to them, while Minister of the Interior Gérald Darmanin stated that he would have to enforce the law if they continued, but that he preferred not to “send the police or the army to ticket believers in front of a church, obviously.”2 The desirability of tolerating religious protest had been anything but obvious several years earlier, when Muslims prayed in the streets on Friday nights because they lacked decent places of worship. Controversy had erupted in the early 2010s  See, e.g., “Les prières de rue ce week-end à Versailles et Nantes étaient-elles légales?,” France info, online at https://www.francetvinfo.fr/sante/maladie/coronavirus/confinement/les-prieres-derue-ce-week-end-a-versailles-et-nantes-etaient-elles-legales_4175051.html; “Tours: une prière dans la rue pour le retour du culte,” La Nouvelle République, 16 November 2020, online at https:// www.lanouvellerepublique.fr/tours/tours-une-priere-dans-la-rue-pour-le-retour-du-culte 2  “Les prières de rue interdites dimanche devant Saint-Sulpice,” Libération, 14 November 2020, online at https://www.liberation.fr/france/2020/11/14/les-prieres-de-rue-interdites-dimanche-devantsaint-sulpice_1805616/ 1

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when Muslims prayed outdoors in Clichy, Nice, Marseille, and Lagny-sur-Marne. Their opponents alleged that the prayers were stunts designed to convert whole neighbourhoods to Islam and that a response was called for. The language of the ensuing debate often evoked metaphors of occupation and resistance in reference to the Second World War (Khemilat 2018: 86). People called for a secular republican mobilization and for government intervention to put a stop to these practices. The polemic was revived in 2017 when street prayers were held in front of Clichy-la-­ Garenne city hall in the Paris suburbs.3 The political judgment was final and irrevocable: “These are unauthorized prayers,” said the mayor, Rémi Muzeau.4 They are “an affront to the Republic,” said senator Philippe Pemezec.5 “The state must not retreat, the Republic must not bow its head,” said Valérie Pécresse, president of the Ile-de-France region,6 in the face of what she ascribed to “an intent by radical Muslims and partisans of political Islam to assert the superiority of religious law over our republican laws.”7 The diagnosis was alarmist, but also incorrect. The Muslim street prayers were not a symptom of aggressive proselytizing or an intent to stage a male occupation of public space, nor more generally of an intent to convert society to Islam. Rather, they stemmed from France’s outdated laws governing places of worship, which date back to 1905. These laws have failed to keep pace with societal transformations, producing discriminatory effects against religious minorities. The previous chapter discussed the legal framework implemented by the French government in 1905 and its implications for the collective expression of beliefs. As mentioned, it revolved around recognition of associations of worship but also included a specific legal regime applicable to places of worship. This regime, which placed the Catholic, Protestant, and Jewish religions on an equal footing, has aged poorly; over time, it has resulted in inequalities between the “old religions” and newly arrived religious groups. The situation finds echo, moreover, in the organization of chaplaincy services in certain public institutions (hospitals, prisons, the army, etc.), where minority religious groups, some of them less socially accepted, now find themselves at a disadvantage.

 “Prières de rue: la polémique ravivée,” France info, online at https://www.francetvinfo.fr/societe/ religion/prieres-de-rue-la-polemique-ravivee_2461634.html 4  Ibid. 5  “Faut-il interdire les prières de rues?,” Capital, 21 November 2017, online at https://www.capital. fr/economie-politique/faut-il-interdire-les-prieres-de-rues-1256879 6  “Prières de rue: pour Valérie Pécresse, ‘il ne faut pas que l’État recule,’” Europe 1, 12 November 2017, online at https://www.europe1.fr/politique/prieres-de-rue-pour-valerie-pecresse-il-ne-fautpas-que-letat-recule-3490097 7  Prières de rue: “La foi oui, aussi loin qu’elle ne se substitue pas à nos lois,” Le Figaro, 8 December 2017, https://www.lefigaro.fr/vox/politique/2017/12/08/31001-20171208ARTFIG00176-prieresde-rue-la-foi-oui-aussi-loin-qu-elle-ne-se-substitue-pas-a-nos-lois.php 3

1  Churches, Temples, Synagogues, and Mosques: Who Pays?

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1 Churches, Temples, Synagogues, and Mosques: Who Pays?8 The legal status of religious property today, and in particular the status of buildings used for worship, “looks much more like the product of historical contingencies than the result of rational considerations” (Conseil d’État 2004: 299). This is because the system created by the Act of 1905 makes that status contingent on their date of construction.

1.1 An Inegalitarian Regime The legal framework for places of worship implemented by the secularization laws of the early 1900s ensues both from historical events and from relations entertained by the state with religions, most notably the Catholic Church. This regime finds its roots in the French Revolution, when numerous places of worship, the immense majority of them Catholic, were “put at the disposal of the nation.” In a word, they were nationalized; they became the property of the state, which took financial responsibility for the organization of worship.9 Parliament did not change this situation in 1905, and today, these places of worship and their associated movable assets are made available to associations of worship free of charge. With the Concordat of 1801 (see Chap. 2), Napoleon Bonaparte had implemented a system of recognized religions and created the entity known as a “public religious establishment” (see Chap. 3). Places of worship already built on municipal land became municipal property, while those built on land belonging to public religious establishments became the property of those establishments. With the creation of legally incorporated associations of worship by the Act of 1905, buildings that had belonged to the old public religious establishments were deeded to these new associations (Article 8). The Protestant and Jewish religions (which had been public religious establishments) rapidly adhered to the new regime and were awarded the corresponding real and movable property. An estimated 344 Protestant buildings and 58 Jewish buildings were affected by these provisions (Delsol et al. 2005: 228). The Act also specified that places of worship built after 1905 are the property of the groups that built them. However, as discussed in the previous chapter, it was not until 1924 that the Catholic Church (also a former public religious establishment) accepted association

 This section deals only with the common law régime governing places of worship, to the exclusion of special régimes such as that of Alsace-Moselle. 9  Decree of the Constituent Assembly, 2 November 1789. 8

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of worship status. In the interim, an act of 2 January 190710 had provided that places of worship unclaimed by an association of worship became state property (Boyer 2005: 42). In this way, all buildings owned by the Catholic Church between 1802 and 1905 were nationalized in 1907. After 1924, the state retained ownership of these buildings and bore their maintenance costs, but made them available to the Catholic Church for religious use. As may be seen, the historic churches are the winners in this sweepstakes. The Catholic Church in particular derives enormous advantages, since the immense majority of the buildings in which it holds religious services are owned and maintained by the state. Newer religious groups have to build and maintain their own places of worship; consider, for example, the first mosque built in 2005 in the suburban Parisian department of Seine-Saint-Denis, which cost its members €1 million.11 The government has been alerted to this inegalitarian situation by a number of official bodies. The concerns became especially urgent in the 2000s, when many in the growing population of practising Muslims were unable to hold prayer services under decent conditions. In 2006, the Machelon Commission (see Chap. 4) noted that an evangelical prayer room was being opened every week and a Muslim place of worship every ten days (Commission Machelon 2006: 20). It went so far as to challenge the “principle according to which ‘the Republic respects all beliefs’ in a context where the faithful of two recently expanding denominations, Islam and evangelical Christianity, encounter real difficulties practising their religion” (ibid., 20). In a report on Islam in France, the High Council on Integration (Haut conseil à l’intégration—HCI) wrote of a “crisis of separation” (HCI 2001: 15), noting that the Act of 1905 had led to “the freezing in time of the public religious heritage as it existed in the early twentieth century, [making it impossible] to grant public assistance to compensate for … the real estate inequality thus created” (ibid., 39). The Council of State wrote in the same vein in 2004 that “the legal framework regulating places of worship [is] a source of unequal treatment among different religions” (Conseil d’État 2004: 317). Yet the legal framework for places of worship had undergone some modifications during the twentieth century in an attempt to keep pace with societal transformations. The law was successively eased to allow for pragmatic alternatives to be adopted by various communes. Certain jurists even argued that these accommodations had led to “the rampant neutralization of the principle according to which public funding of religions is prohibited” (Delsol et al. 2005: 263). One such accommodation took place on 25 December 1942 when a law was passed authorizing local collectivities to contribute to repairs on places of worship  Loi du 2 janvier 1907 concernant l’exercice public des cultes, JORF, 3 January 1907, p.  34, online at http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000877839&dat eTexte=19070103 11  “Bondy inaugure la première mosquée édifiée en Seine-Saint-Denis,” Le Monde, 17 March 2005, at 10, online at https://www.lemonde.fr/societe/article/2005/03/16/bondy-inaugure-la-premieremosquee-edifiee-en-seine-saint-denis_401779_3224.html 10

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that they did not own, even if the buildings were not historical monuments.12 Another, found in Article L. 1311–2 of the Code général des collectivités territoriales (CGCT), allowed communes to sign leases in perpetuity (baux emphytéotiques) with associations of worship on real property belonging to the commune so that the buildings could be used as places of worship. Such a lease could only, however, be given to an association of worship. The Council of State ensured that market rents were charged and no disguised subsidies were being given. Finally, Articles L. 2252–4 and 3231–5 of the CGCT allowed communes and departments to “guarantee loans taken out to finance, in urban areas undergoing development, the construction, by local groupings or associations of worships, of buildings answering collective needs of a religious nature.” Indeed, the Council of State ruled in a decision of 16 March 2005 that the principle of secularism did not by itself rule out “the granting of certain subsidies to activities or facilities under the control of religions, where this is in the public interest and done under conditions defined by law.”13 All these legal arrangements pertain only to associations of worship i.e., religious denominations recognized as such by the state (see Chap. 3). Muslim communities and other denominations not enjoying this status but rather the status of hybrid associations (see Chap. 3) are excluded. Furthermore, communes often decide arbitrarily to whom they will give this indirect assistance, retaining oversight over the activities carried out by associations of worship. This procedure enhances the spatial polymorphism of secularism, since religious groups may enjoy differential treatment based on the municipality where they are located. A former mayor of Montpellier made some highly revealing remarks in justification of his city’s assistance to associations of worship: “We can revoke this agreement at any time if the republican secular pact is violated. We are well acquainted with the president of the association, who shares the city’s position on secularism—that is essential.”14 In short, the legal regime governing places of worship at the start of the new millennium encompassed “heterogeneous situations of fact and law” (HCI 2001: 17) and appeared ill-adapted to increasing religious diversity. It no longer served, if it ever had, to guarantee the equal right of all to collectively express their religious beliefs.

 Loi no 42–1114 du 25 décembre 1942 portant modification de la loi du 9 décembre 1905 relative à la séparation des églises et de l’État, JO, 2 January 1943. 13  Although this decision concerned the financing of a place of worship in French Polynesia, the principle set out here applies throughout the territory of France; see CE, Ministre de l’Outre-mer, 16 March 2005, no. 265560. 14  “Sans financer, les villes aident à construire les lieux de cultes,” Les Échos, 16 June 2004, at 9. 12

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1.2 The Arduous Path toward Equality The terms of reference of the Machelon Commission (see Chap. 4) had included the task of issuing recommendations on necessary adjustments to the regime governing places of worship. The commission’s report, tabled in 2006, began on a surprising note: it asserted the legitimacy of certain advantages enjoyed by the “historic religions.” The commissioners wrote: “it is out of the question to deny or obscure the legitimate representativeness enjoyed by the religions connected with the history of the French nation and rooted in its soil for centuries” (Commission Machelon 2006: 14). They added that “striving for perfect equality among religions, as desirable as that may be, seems illusory in theory and unachievable in practice” (ibid., 17). With these remarks, the commission ipso facto narrowed the scope of any recommendations that it would make. It nonetheless went on to propose several adjustments to the legal regime in question. One was that hybrid associations be granted the right to sign leases in perpetuity with communes, in this respect putting them on an equal footing with associations of worship regulated by the Act of 1905. Another was that local collectivities have more expansive powers to guarantee loans for the construction of places of worship; communes, it found, should be allowed to directly subsidize such construction on their territories (ibid., 25). A third was for there to be review of urban planning law (ibid., 29), which had become a “weapon” wielded by territorial collectivities in cases involving places of worship (Delsol et al. 2005: 251). Parliament took up none of the Machelon Commission’s proposals and allowed the inegalitarian regime governing places of worship to persist. Subsequently, the Council of State, in five important decisions handed down on 19 July 2011 in cases appealed from the administrative courts, sought to clarify the law in question.15 This effort found the Council engaging in a balancing act, attempting to reconcile Article 1 of the Act of 1905 (“The Republic shall ensure freedom of conscience. It shall guarantee the free exercise of religion”) with Article 2 (“The Republic neither recognizes, employs, nor subsidizes any religion”). It accepted that local collectivities can fund projects relating to places of worship provided that three conditions are met. First, the involvement of the commune or department must answer to a local public interest. Such an interest might concern, for instance, the development of cultural, economic, or tourism activities, or the protection of public health or hygiene. Second, the involvement must be directly connected to the local public interest, meaning that it must not be a disguised subsidy for worship and that it must produce something useful to the municipality. Third, the involvement must adhere to the principles of neutrality and consequently must conduce to equality among religions.

 CE, 19 July 2011, Commune de Trélazé, no. 308544; CE, 19 July 2011, Fédération de la libre pensée et de l’action sociale du Rhône et M. P, no. 308817; CE, 19 July 2011, Communauté urbaine du Mans–Le Mans métropole, no. 309161; CE, 19 July 2011, Commune de Montpellier, no. 313518; CE, 19 July 2011, Mme V, no. 320796. 15

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In one case, it held that a commune can set up a temporary slaughterhouse for lamb on Eid al-Adha, provided that public health and food safety so dictate, and that the slaughterhouse is made available “under conditions, including pricing, adhering to the principle of neutrality with respect to religions and the principle of equality.”16 In another, involving purchase and restoration of an organ for the village church by the commune of Trélazé, it held that this action had a local public interest in that its purpose was to “develop arts education and organize cultural events.”17 It also reiterated the conditions under which communes can sign leases in perpetuity18 or make communal buildings available to associations of worship19 without violating the Act of 1905. With these decisions, the Council has interpreted the Act of 1905 pragmatically in its efforts to ensure freedom of religion (Slama 2011). The approach has drawn criticism from republican-leaning authors who contend that it is causing secularism to unravel (Touzeil-Divina 2011). And yet, although these decisions do strive to redress the unequal treatment originating in the secular laws of the early nineteenth century, they reproduce forms of differential treatment at the local level that can also be observed at the national level. For example, the Council disallowed the signing of a lease in perpetuity with a non-association of worship.20 Along the same lines, Article 71 of the Act of 2021 provides that associations of worship “may not, in any form whatsoever, receive subsidies from the state or the territorial collectivities,” but adds that “sums allotted for repairs or for work on the accessibility of buildings used for public worship are not considered subsidies.” This last holding eases the restrictions imposed by the Act of 1905, albeit without discriminating against any particular association of worship. But it also restricts such subsidies to associations of worship formally recognized by the state.

2 Prayers, Rituals, and Chaplaincies in the Public Administration Contrary to other Western societies, particularly in North America, France no longer permits religious rituals, such as prayers, to take place in public institutions. Prayers at the opening of parliamentary sessions were abolished by a constitutional law of 14 August 1884 (Durand-Prinborgne 2004: 41). Yet there is anecdotal evidence that  CE, 19 July 2011, Communauté urbaine du Mans–Le Mans métropole, no. 309161.  CE, 19 July 2011, Commune de Trélazé, no. 308544. 18  CE, 19 July 2011, Mme V, no. 32079. 19  CE, 19 July 2011, Commune de Montpellier, no. 313518. An initial application of this jurisprudence was rendered by the interim relief judge (juge des référés) of the Council of State on 26 August 2011 in his ruling on the conditions for refusal to make a commune-owned space temporarily available for Muslim associations to celebrate Ramadan; Conseil d’État, référé (CE, réf.), 26 August 2011, Commune de Saint Gratien, no. 352106. 20  CAA Paris, 26 October 2015, Ville de Paris, no. 14PA03125. 16 17

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a disused ritual—the republican baptism—was revived in several French city halls on the bicentennial of the French Revolution in 1989 and is now offered in numerous French cities.21 This ritual service is not prescribed by any legislative text. Its purpose is to induct children into the republican community, whereupon they symbolically adhere to the values of the Republic. And while prayers have vanished from state institutions, numerous other religious rituals are still practised there. Chaplaincy services, for example, are permitted in certain institutions by the Act of 1905. Article 2 (“The Republic neither  recognizes, employs, nor subsidizes any religion”) also  provides  that “expenses relating to chaplaincy services and intended to ensure the free practice of worship in public institutions such as primary and secondary schools, hospices, asylums, and prisons may be included [in state, department, and commune budgets].” The state’s obligation to be separate from churches must, that is, be tempered by its obligation to guarantee freedom of religion, particularly in its collective dimension. This act has been complemented by numerous legislative and regulatory provisions. Article 45 of a decree of 14 January 1974, to take one example, allows for ministering to the sick in the hospital system,22 and this is also mentioned in circulars of 2 February 2005, 20 December 2006, and 5 July 2011.23 The last of these stipulates that “the public service shall guarantee the religious freedom of patients and shall permit users to practice their religion during hospital stays. Chaplains are present in hospitals and are responsible for attending to patients who so request and for enabling them to practice their religion.” Where primary and secondary schools are concerned, the Loi Debré du 31 décembre 1959 reiterates that chaplaincies must be created where necessary to ensure students’ freedom of worship. The presence of chaplains is in fact mandatory in boarding schools (Conseil d’État 2004: 316). The Council of State has made a liberal interpretation of the Act of 1905 (Article 2) and its successors.24 It has held that such laws do not violate the principle of state neutrality as long as their purpose is not to promote the expression of a particular religion in the public sphere, and that these laws are justified by the imperative of guaranteeing freedom of conscience and religion. In a case where a union representing penitentiary staff objected to the presence of Catholic nuns in a prison, the Council wrote that “as long as the involvement of the members [of a religious

 This ritual had been created during the Revolution by the Décret du 20 prairial an II (8 June 1794). 22  Décret no 74–27 du 14 janvier 1974 relatif aux règles de fonctionnement des centres hospitaliers et des hôpitaux locaux, online at https://www.legifrance.gouv.fr/loda/id/LEGITEXT000006062174/ 23  Circulaire no DGOS/RH4/2011/356 du 5 septembre 2011 relative à la charte des aumôneries dans les établissements mentionnés à l’article 2 de la loi 86–33 du 9 janvier 1986 portant dispositions statutaires relatives à la fonction publique hospitalière, online at http://circulaire.legifrance. gouv.fr/pdf/2011/09/cir_33766.pdf 24  CE, ass., 6 June 1947, Union catholique des hommes du diocèse de Versailles. 21

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group] is exclusive of all proselytism, it cannot be held that the principle of secularism, or that of public service neutrality, is transgressed.”25 The presence of Catholic nuns in the chaplaincy services of public institutions, often for historical reasons, nonetheless raises the question of whether religious traditions are equally represented in chaplaincies, and the answer is no. Religions corresponding to the old public religious establishments (Catholicism, Judaism, Lutheran and Reformed Protestantism) dominate these entities, especially in the case of the army and prisons.

2.1 The Example of the Army Soldiers, like all citizens, enjoy freedom of conscience and religion. Article L. 4121–2 of the Code de la défense provides, however, that they may only express their religious convictions “outside the service and with the reserve required by military status.” The article continues by guaranteeing the collective expression of beliefs within military institutions themselves, and in particular “freedom of worship inside military facilities and on board ships of the fleet.” Until 2005, only the Catholic, Protestant, and Jewish religions enjoyed representation in military institutions. There were 254 Catholic, 71 Protestant, and 49 Jewish chaplains that year for a total of 374 (Conseil d’État 2004: 315). The army had had a Muslim chaplain in 1920, who was assigned to the North African units detached to Syria for a short period of three years, as well as 15 “civilian imams” during the Second World War to “reinforce the infantrymen’s patriotic spirit” (Settoul 2017: 110–11). Apart from these instances, there were no Muslim chaplains in the army before 2006, yet there were a large number of Muslim soldiers in the late 1990s: 5800, in fact, accounting for 2.5–3% of infantrymen, 1% of marines, 0.6% of the air force, and 1% of the military police (Settoul 2012, 276). A 1992 circular from Minister of Defence Pierre Joxe was one attempt to better cater to the needs of Muslim soldiers. It proposed accommodations such as days off to observe religious holidays, flexible schedules during Ramadan, and halal meals. This text was applied quite unequally throughout the service and did not accomplish much (Settoul 2017: 110–11). In 1996, the Minister of Defence attempted to implement a Muslim chaplaincy service in the army in collaboration with the Muslim Institute of the Paris Mosque, but this project also proved abortive (Settoul 2012: 276). Several studies, some conducted within the army itself, expressed concern about this lack of Muslim representation, as did the Stasi Commission (see Chap. 6). In 2003, this latter proposed “that a general Muslim chaplain be appointed under the same conditions as the general chaplains of other religions” (Commission Stasi 2003: 64). On 16 March 2005, Minister of Defence Michèle Alliot-Marie ordered

 CE, 27 July 2001, Syndicat national pénitentiaire FO-Direction, no. 215559; CE, 27 July 2001, Syndicat national pénitentiaire FO, no. 220980. 25

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the creation of a chief Muslim chaplain position for the army.26 Article 2 of the order reads: “The military chaplains placed with the army chief of staff are called, respectively, chief Catholic chaplain; chief Jewish chaplain; chief Protestant chaplain; chief Muslim chaplain.” The first chief Muslim chaplain was appointed in 2006, an event some have called historic for its contribution to a degree of recognition and institutionalization of Islam in France (Settoul 2017: 117). This progressive recognition of Islam in the military also partakes of a “pragmatics of secularism” that is redefining the manner in which the republican model is applied to Muslim participation in public institutions (Bertossi 2017: 83). Christophe Bertossi discusses the example of how the army has, since 2010, been organizing the Mecca pilgrimage for Muslim soldiers and their families (ibid., 84). This pragmatic administration of Muslims’ presence in the army gestures in some respects toward a more open secularism; however, this remark requires some perspective. It will have been noticed that Article 2 of the order of 16 March 2005 mentions only four specific religions, at the risk of excluding others and placing limitations on their adherents in the army.

2.2 The Example of Prisons The correctional system is one of the main spheres in which ad hoc measures have been taken to better accommodate religious diversity. Article R-57-9-3 of the Code of Criminal Procedure (Code de procédure pénale) reads: “Each detainee shall have the opportunity to satisfy the demands of his religious, moral, or spiritual life. Upon his arrival in the institution, he shall be informed of his right to receive visits from a minister and to attend religious services and prayer meetings organized by persons accredited for this purpose.” Article 26 of the Penitentiary Act of 24 November 2009 further provides that “detainees are entitled to freedom of opinion, conscience, and religion. They may practice the religion of their choice, under conditions suited to the organization of the premises, with no other limits than those necessitated by the security and good order of the institution.”27 A ministerial circular of 1997 provided for six nationally accredited religions to send chaplains into prisons: Catholicism, Protestantism, Judaism, Orthodox Christianity, Islam, and Buddhism. This limited selection would appear to be utterly inegalitarian. Moreover, on 6 July 2007, the administrative tribunal of Paris held that it was illegal to deny accreditation to a chaplain belonging to the Jehovah’s Witnesses on the sole grounds that this movement does not appear on the list in

 Arrêté du 16 mars 2005 pris pour l’application du décret no 64–498 du 1er juin 1964 relatif aux ministres attachés aux forces armées, JO, 18 March 2005. 27  Loi pénitentiaire no 2009–1436 du 24 novembre 2009, JORF no. 0273, 25 November 2009, at 20192. 26

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question.28 Today, ministers are appointed by the government on a proposal from or after validation by the religious authorities. A circular of 20 September 2012 notes that “the advice of the religious authorities is required for the accreditation of all chaplaincy personnel in penitentiary institutions.” This procedure relates to the obligation of church-state separation, and the state cannot “take the place of the religious authority in reviewing applications submitted.”29 As discussed earlier in this chapter, the state only interacts with denominations that it officially recognizes, which are those organized as associations of worship. Others are de facto excluded from the negotiating table. That said, discriminatory measures by the correctional system, particularly with regard to the Jehovah’s Witnesses, have been rejected by the courts. On 22 February 2010, the HALDE found that denial of prison chaplaincy accreditation to a Jehovah’s Witness minister “appears to be such as to limit the [prisoner’s] right to practice his religion and constitutes interference in his freedom to manifest his convictions.”30 This was even less justifiable in that the church in question was a recognized association of worship. The decision was upheld by the administrative tribunal of Lille on 4 February 2011, and then by the administrative court of appeal of Douai on 25 October 2011.31 This last was one in a series of appeals court judgments32 clarifying that the criterion for approving the designation of chaplains is not the number of prisoners belonging to the corresponding denomination and likely to use the service.33 The Council of State upheld this jurisprudence in nine decisions of 16 October 2013: “an insufficient number of prisoners identifying themselves as belonging to the Jehovah’s Witnesses could not constitute grounds for denying accreditation as a chaplain.”34 In another case, the administrative court of appeal of Bordeaux heard a case concerning the refusal by the director of the Châteauroux penitentiary service to issue a visitor’s  TA Paris, 6 July 2007, Association cultuelle Les Témoins de Jéhovah de France, no. 0613450/7; TA Paris, 6 July 2007, M.  Alfred B, no. 0613454/7; TA Paris, 6 July 2007, M.  David. F, no. 0613453/7. 29  Circulaire du 20 septembre 2012 relative à l’agrément des aumôniers rémunérés ou bénévoles, des auxiliaires bénévoles d’aumônerie des établissements pénitentiaires et des accompagnants occasionnels d’aumônerie, NOR: JUSK1240021C, at 3, online at http://www.textes.justice.gouv. fr/art_pix/JUSK1240021C.pdf 30  HALDE, Délibération relative aux refus opposés aux demandes d’un détenu d’assistance spirituelle d’un ministre du culte appartenant aux Témoins de Jéhovah, no. 2010–43, 22 February 2010, at 5. 31  CAA Douai, 1st chamber, 25 October 2011, no. 11DA00554. 32  CAA Douai, 1st chamber, 25 October 2011, no. 11DA00554; CAA Douai, 1st chamber, 25 October 2011, no. 11DA00555; CAA Douai, 1st chamber, 25 October 2011, no. 11DA00556; CAA Nancy, 13 October 2011, no. 11NC00211; CAA Lyon, 4th chamber, 24 May 2012, no. 11LY01352; CAA Paris, 27 June 2011, no. 10PA03749. 33  CAA Douai, 1st chamber, 25 October 2011, no. 11DA00554; CAA Douai, 1st chamber, 25 October 2011, no. 11DA00555; CAA Douai, 1st chamber, 25 October 2011, no. 11DA00556. 34  CE, 16 October 2013, Garde des Sceaux, ministre de la Justice et des Libertés v. m. n… et autres, no. 351115; no. 351116; no. 351152; no. 351153; no. 351220; no. 354484; no. 354485; no. 354507; no. 354508. For an application of this jurisprudence, see CAA Bordeaux, 22 October 2013, no. 12BX01613. 28

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permit to a minister of the Jehovah’s Witnesses. The court affirmed that the mere fact that the Jehovah’s Witnesses are identified as a sectarian movement in a report produced by MIVILUDES (see Chap. 4) is not enough to conclude that visits by such ministers could hinder a convict’s return to society.35 The most important problem that has confronted the correctional administration is that of the representation of Muslim chaplains. This problem became especially crucial in the 2010s with the radicalization of certain Muslim prisoners while in custody. In the mid-2000s, when Muslims made up 50–80% of the prison population, there were a mere 80 designated Muslim prison chaplains. That situation changed rapidly, however: by 2013, the number of Muslim chaplains had more than doubled, to 164. That same year, the numbers of chaplains for the following faiths were as follows: Catholic, 668; Jewish, 75; Orthodox, 30; Protestant, 339; other denominations, 35.36 Another problem is that numerous forms of discrimination persist as regards the opportunity for prisoners to express their beliefs. Possession of ritual objects such as prayer mats37 and access to halal food are impeded. In an opinion of 24 March 2011, the chief prison commissioner (Contrôleur général des lieux de privation de liberté), Jean-Marie Delarue, expressed alarm on this score and called on the penitentiary administration to fulfil its responsibilities: “It must be permitted for prisoners to keep religious objects that are unlikely to compromise security. Such objects must be respected, regardless of the denomination of the person possessing them (neutrality as expression of secularism) and regardless of the convictions of the staff in charge of custody (neutrality of the public officer).”38 He added that penitentiary officials “are obviously not themselves to determine which claimed grouping or denomination is or is not a religion,” nor “to give lesser status to its chaplains on the grounds that the religion is in the minority. From the moment a religion is regarded as such by the applicable law, its chaplains must be permitted the same prerogatives as all other chaplains and may not be confined, in penitentiary institutions for example, to the status of visitors, leading to the status of a “'visiting room religion.'”39 Two years later, in 2013, the chief prison commissioner remained highly critical, especially as regards the opportunity for prisoners to receive meals prepared

 CAA Bordeaux, 20 October 2009, Garde des Sceaux, de la justice et des libertés, no. 08BX03245.  Les chiffres clés de l’administration pénitentiaire au 1er janvier 2013, Ministère de la Justice, Direction de l’administration pénitentiaire, at 10, online at http://www.justice.gouv.fr/art_pix/ Chiffres_cles_2013_opt.pdf 37  Article R. 57–9–7 of the Code of Criminal Procedure: “Detained persons are authorized to receive or retain in their possession any objects of religious practice and books necessary to their spiritual life.” 38  Avis du Contrôleur général des lieux de privation de liberté du 24 mars 2011 relatif à l’exercice du culte dans les lieux de privation des libertés, NOR: CPLX1110094V, JORF no. 0091, 17 April 2011. 39  Ibid. 35 36

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according to the appropriate rites.40 He reproved the administration, writing that the application of the law cannot be subject to the whims of society: “The administration’s stances, which may be considered hesitant, do not in fact help clarify the debate, the solution to which may be deduced from the principles of the applicable law. It is true that it would surely seem less complicated if the matter did not chiefly concern a denomination whose public manifestations apparently disturb public opinion, and therefore tie the hands of the responsible public officials.”41 The administration’s neutrality thus requires it to shield itself from societal debate and its pressures in order to better assess each prisoner’s specific demands, using order and public health as the sole criteria.42 He added: “the principle of secularism in no way contradicts … the preparation or distribution of ‘denominational’ foods in custodial facilities—quite the contrary.”43 This recommendation was reflected in several court judgments,44 even though the Council of State stressed that the penitentiary administration’s obligation is first and foremost one of means. In a decision of 10 February 2016, it held that penitentiary administrators are not required to give prisoners food appropriate to their religious convictions under all circumstances, since the material constraints of each institution must be taken into account. The Council upheld on this basis the provision of pork-free or vegetarian meals to all prisoners at one institution, with Muslim prisoners being allowed to purchase halal meal supplements and to request special meals during religious holidays.45 After the attacks of 2015, the penitentiary administration invested massively, albeit tardily, in the Muslim chaplaincy. This investment was not solely guided by the concern of restoring equality among religions; rather, it fell within a logic of national security, in which the Muslim chaplain became a bulwark against extremism and radicalization (Béraud and De Galembert 2019: 133). The number of Muslim chaplains was increased to 231  in 2018, and Islam became the religion receiving the most prison funding (ibid., 28). Muslim chaplains were now perceived as “‘useful’ actors in the fight against radicalization” who were expected to commit to the “effective defence of republican principles” (ibid., 133–4). As government employees, Muslim chaplains have been required since 2016 to take a civilian training course funded by the Ministry of the Interior and to obtain a

 Article R. 57–6–18 of the Code of Criminal Procedure: “Each detained person shall receive a varied, well prepared and presented diet corresponding … to the greatest extent possible, to his philosophical or religious convictions.” 41  Le Contrôleur général des lieux de privation de liberté: Rapport d’activité 2013 (Paris: Éditions Dalloz, 2014), at 247, online at http://www.cglpl.fr/wp-content/uploads/2014/04/CGLPL_rapport-2013_version-WEB.pdf 42  Ibid. at 249. 43  Ibid. at 255. 44  See, e.g., TA Grenoble, 7 November 2013, no. 1302502; CAA Lyon, 20 March 2014, no. 14LY00115. 45  CE, opinion, 10 February 2016, M.A.B. c. Centre pénitentiaire de Saint-Quentin-Fallavier, no. 385929. 40

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university diploma in secular and civic training (De Galembert et al. 2016: 79).46 This training equips them with “rhetorical ammunition” that draws as much on the republican repertoire as on Islamic theology, the idea being for them to use religious arguments to combat “visions of Islam, notably its jihadist and Salafist versions, that are considered deviant” (Béraud and De Galembert 2019: 134). Here again, we see the emergence of a form of Gallican secularism in which the state “indirectly polices legitimate religious speech” (Fregosi 2018: 36) through chaplains; it meddles in the religious sphere, putting forward what it regards as acceptable interpretations thereof. Some authors have descried a version of “religious utilitarianism” (De Galembert et al. 2016) that is all the more surprising given that the penitentiary administration claims to uphold the principle of church-state separation when denying certain accommodations to Muslim prisoners. That a putatively secular French state should “govern Islam” (Fregosi 2018) in this way may seem paradoxical. But in a context deeply marked by terrorism, the state has continually stepped up its policing of this religion and its public expression. Muslim chaplains become an agent of “social control” (De Galembert et al. 2016: 77; Fregosi 2018: 47) whose role is to regulate Muslim speech, but also to avert or correct the radicalization of young Muslim prisoners. The issue is especially important in that some of the terrorist attacks were prepared, supported, or committed by young Muslims who were radicalized in prison. The threat came to be personified in the public mind by young Muslims, the lost children of the Republic, who had strayed into the most fundamentalist recesses of their religion. The attacks brought public mistrust in Muslims to the highest point that it has reached in the last three decades. They also fed into renewed public opprobrium directed at the practices of Muslim women who seek to express their beliefs by wearing the Islamic headscarf, the burkini, or the full-face veil.

References Béraud, Céline, and Claire De Galembert. 2019. La fabrique de l’aumônerie musulmane des prisons en France. Paris: Mission de recherche Droit et justice. Bertossi, Christophe. 2017. Raisonnements publics et appartenance à une institution : les musulmans dans les armées françaises. Migrations Société 169 (3): 81–102. Boyer, Alain. 2005. Comment l’État laïque connaît-il les religions? Archives de sciences sociales des religions 129 (January-March): 37–49. Commission Machelon. 2006. Les Relations des cultes avec les pouvoirs publics. Paris: La Documentation française. Commission Stasi. 2003. Commission de réflexion sur l’application du principe de laïcité dans la République: rapport au Président de la République. Paris: La Documentation française. Conseil d’État. 2004. Un siècle de laïcité  – Rapport public 2004. Paris: La Documentation française.

 These training sessions are not limited to the correctional service but are also compulsory in the hospital and military portions of the civil service. 46

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De Galembert, Claire, Céline Béraud, and Corinne Rostaing. 2016. Islam et prison: liaisons dangereuses? Pouvoirs 158 (3): 67–81. Delsol, Xavier, Alain Garay, and Emmanuel Tawil, eds. 2005. Droit des cultes: personnes, activités, biens et structures. Lyon: Dalloz – Juris Associations. Durand-Prinborgne, Claude. 2004. La laïcité. Paris: Dalloz. Frégosi, Franck. 2018. De quoi le gouvernement de l’islam en France est-il le nom? Confluences Méditerranée 106 (3): 35–51. Haut Conseil à l’Intégration. 2001. L’Islam dans la République. Paris: La Documentation française. Khemilat, Fatima. 2018. La construction des prières de rue comme problème public. Confluences Méditerranée 106 (3): 81–94. Settoul, Elyamine. 2012. Contribution à la sociologie des forces armées: analyse des trajectoires des engagements des militaires issus de l’immigration. PhD diss. Paris: Institut d’Études Politiques. ———. 2017. 2006-2016, 10 ans d’aumônerie militaire du culte musulmane. Hommes et migrations 13–16: 109–117. Slama, Serge. 2011. Test jurisprudentiel de résistance de la loi de 1905 à l’épreuve du temps et de l’intérêt public local. Revue des droits de l’homme 1: 1–6. Touzeil-Divina, Mathieu. 2011. Laïcité latitudinaire. Toulouse: Dalloz.

Part III

The Secular State and the Individual Believer

Chapter 6

Unveiling Marianne: Religious Symbols at School and the New Secular Grammar

Abstract  Although the controversies surrounding the wearing of religious symbols in schools emerged in the late 1980s, it was not until 2004 that Parliament stepped in to clarify the applicable policies. Public debate on French secularism has taken a new turn since then, bearing almost exclusively on the visibility of religious symbols in the public sphere. I shall revisit this debate here, along with the legal framework concerning the wearing of religious symbols by public school students since 1989. This will serve to uncover the reasoning—upstream of the passage of the Act of 15 March 2004, but also downstream—that gave rise to the emergence of a “new French secularism”.

Although the controversies surrounding the wearing of religious symbols in schools emerged in the late 1980s, it was not until 2004 that Parliament stepped in to clarify the applicable policies.1 Public debate on French secularism has taken a new turn since then, bearing almost exclusively on the visibility of religious symbols in the public sphere. I shall revisit this debate here, along with the legal framework concerning the wearing of religious symbols by public school students since 1989. This will serve to uncover the reasoning—upstream of the passage of the Act of 15 March 2004, but also downstream—that gave rise to the emergence of a “new French secularism” (Hennette Vauchez and Valentin 2014). This period witnessed the most systematic development of a rhetoric in which secularism is associated with what is said to be the state’s duty to be the emancipator of individual minds. To be sure, such rhetoric has always punctuated the debates over French secularism, as illustrated by the 1990s debates over cults (see Chap. 4). In the early 2000s, however, the argumentation became especially elaborate, turning up in government reports on secularism and guiding the development of a new secular mindset to which the law would not remain insensitive.

 This chapter does not deal with the wearing of religious symbols by teachers, who are prohibited to do so by virtue of their status as civil servants (see next chapter). 1

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1 The Authorization Regime (1989–2004) In the French conception of secularism, as we have seen, the obligation of neutrality falling on public officials runs in parallel with the right of citizens to manifest their freedom of religion. In the field of education,2 for example, students have the right to express their religious convictions at school. Article 10 of an act passed on 10 July 1989 provides that “in secondary schools, students shall enjoy freedom of information and freedom of expression, with observance of pluralism and the principle of neutrality. The exercise of these freedoms is limited and may not interfere with teaching activities.”3 This was the legal framework in force when the first controversy over the Islamic veil erupted in 1989.

1.1 The Liberal Bent of Legal Secularism In 1989, a bitter controversy erupted when girls wearing the veil were expelled from a college in Creil, in the northern suburbs of Paris. Lionel Jospin, the Minister of National Education, referred the matter to the Council of State, asking it to rule on whether the wearing of religious symbols such as the Islamic veil at school is compatible with secularism. The Council issued a detailed opinion marking out the conditions under which this is permitted.4 It remarked that the freedom of conscience and expression enjoyed by students “comprises the right to express and manifest their religious beliefs within educational institutions, with observance of pluralism and the freedom of others.” Students may wear such symbols at school, but always with respect for “educational activities [and] curriculum content” as well as the more general objectives of republican education: “the acquisition of a culture by the child, his preparation for professional life and to take on his responsibilities as a person and a citizen … the development of his personality … equality between the sexes.”5 A particularly important passage of the opinion reads as follows: “The wearing by students of symbols whereby they seek to manifest their affiliation with a religion is not in and of itself incompatible with the principle of secularism, to the extent that it constitutes the exercise of the freedom to express oneself and to manifest one’s religious beliefs.” Freedom, albeit perhaps a limited form of it, is the operative principle. The Council found that freedom of expression and religion must be reconciled with the right to health, freedom of education, and the principles of

 CE, 3 May 2000, Melle Marteaux, no. 217017.  Loi d’orientation sur l’éducation (no. 89–486 of 10 July 1989), JO, 14 July 1989. 4  CE, ass., Intérieur, opinion, 27 November 1989, no. 346893. 5  Ibid. 2 3

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public order: human dignity and public security.6The administration of an educational institution has to evaluate each case in which a student wears a religious symbol to determine whether the behaviour is compatible with secularism. And the Council of State itself is bound, as a state institution, by the principle of neutrality. It cannot rule on the meaning to be assigned to a religious symbol (Kessler 1993a: 99). Moreover, the danger of such an interpretation would be great, for girls who wear headscarves do not assign a univocal meaning to their action, but rather a wide range of symbolic interpretations. For this reason, the Council could not have considered religious symbols incompatible with secularism in and of themselves. To arrive at such a position, it would have had to adopt an interpretation of the symbol a priori in order to deduce its incompatibility with the principles inculcated by the republican school a posteriori. Put more bluntly, this would have been tantamount to a finding that the values cherished by Islam, to which a large immigration-­derived community in France adheres, are incompatible with the principle of secularism and the values of the Republic. The next 14 years of jurisprudence on the wearing of religious symbols in public schools were to find justification in this opinion from 1989. In connection with the Council of State’s much-discussed Kherouaa decision of 2 November 1992,7 Government Commissioner David Kessler clearly enunciated the liberal character of the jurisprudence. He wrote: “Secularism no longer appears as a principle justifying the banning of all religious affiliation. Education is secular not because it bans the expression of different faiths but, on the contrary, because it tolerates them all. I regard as important this reversal of perspective, in which freedom becomes the principle and prohibition the exception” (Kessler 1993b: 114). Exceptions must therefore be determined on a case-by-case basis (ibid., 117). This decision gave rise to a state of jurisprudential equilibrium in which all secondary school bans on religious symbols were overturned.8 Furthermore, the Council of State forthrightly stressed the illegality of any such sweeping ban on  The Council of State held that “this freedom cannot be interpreted so as to permit students to display symbols of religious affiliation that, by their nature, by the conditions under which they are worn individually or collectively, or by their ostentatious or protest-related nature, would constitute an act of pressure, provocation, proselytism, or propaganda, infringe the dignity or freedom of the student or other members of the educational community, compromise their health or safety, disrupt the course of teaching activities and the educational role of teachers, or disturb the peace of the institution or the normal operation of the public service.” 7  CE, 2 November 1992, M. Kherouaa et Mme Kachour, M. Balo et Mme Kicic, no. 130394. 8  It is therefore prohibited for a principal, except in particular circumstances, to issue a rule denying school admission to students “wearing a head covering,” since such a ban, by virtue of its permanence, would infringe the students’ freedom of expression; see CE, 2 November 1992, M. Kherouaa et Mme Kachour, M.  Balo et Mme Kicic, no. 130394; CE, 14 March 1994, Melles Neslinur et Yilmaz, no. 145656; CE, 20 May 1996, Ministre de l’Éducation nationale, no. 170343; CE, 27 November 1996, M. et Mme Mechali, no. 172663; CE, 27 November 1996, M. et Mme Jeouit, no. 172686; CE, 27 November 1996, Ministre de l’Éducation nationale, no. 172719; CE, 27 November 1996, Ministre de l’Éducation nationale, no. 172787; CE, 27 November 1996, M. et Mme X, no. 170941. The principle of students’ freedom to express their religious convictions is also the rule in universities; see CE, 26 July 1996, Université de Lille II, no. 170106. 6

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religious symbols, censuring, for example, a ministerial circular of 20 September 1994 calling on school principals to ban symbols considered ostentatious while remaining tolerant of those that are “more discreet, [reflecting] only attachment to a personal conviction.”9 Contrariwise, it did not hesitate to uphold the case-by-case expulsion of students whose wearing of a headscarf disrupted certain courses.10 Until 2004, all such disputes around the wearing of religious symbols in public schools concerned female Muslim students, and in every case the neutrality of public institutions was upheld. There was no legal interpretation of the symbols, and as long as order was preserved, the individual’s moral right to arrive at her own interpretation of the good life prevailed over any state-sponsored philosophy of emancipation. Freedom of conscience and religion was kept front and centre.

1.2 Narrative Secularism and Semantic Wrangling The Creil controversy and the 1989 Council of State opinion had the effect, in the ensuing years, of exacerbating the societal debate over secularism, and even provoked division among organizations advocating for secularism. For example, the Ligue de l’enseignement, a popular education movement with nearly 20,000 local member associations, was soon accused (sometimes by its own members) of treason for its endorsement of the Council’s liberal opinion (Tournemire 2014). If treason there was, it was against what these commentators held to be an “authentic,” “true,” or “republican” form of secularism—the only genuine form, in their view. They criticized the Ligue for ignoring the founding texts and giving in to contemporary expressions of religious obscurantism. Its overly liberal position, said these critics, had corrupted the principles of the republican pact, replacing them with a new, “open-ended” or “pluralistic” secularism (Balibar 1991). Yet the Council of State had done nothing novel; all it had done was make use of its advisory powers to clarify the state of the law. Judge Jean-Paul Costa later clarified this stance, writing, as to the form of the decision, that it was “an opinion to the government on a problem formulated in abstract terms,” and, as to the content, that the “mode of reasoning … was equally conventional … striv[ing] as always to reconcile freedom with public order, to arbitrate between different freedoms in conflict” (Costa and Marcou 1995). What emerged in 1989, then, was a battle for the “true meaning” of secularism, pitting partisans against opponents of the ban on the Islamic veil in the school context (Fiala 1991: 52). Both sides invoked the same legal texts—the Act of 1905 and the Constitution of 1958—but interpreted them differently. These multiple exegetic  Circulaire du 20 septembre 1994 relative au port de signes ostentatoires dans les établissements scolaires, Bulletin officiel de l’Éducation nationale, no. 35, 29 September 1994. 10  CE, 10 March 1995, M. et Mme Aoukili, no. 159981; CE, 27 November 1996, M. et Mme X, no. 170209; CE, 20 October 1999, Ministre de l’éducation nationale, de l’enseignement supérieur et de la recherche, no. 181486. 9

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interpretations of the secular legal apparatus fell within a new framework that obliged “a society that has built its political vocabulary over a centuries-long conflict between Catholicism and free thought to reflect on the theological, political, and sociological facts of the confrontation with Islam” (Balibar 1991: 74). French citizens have always, of course, debated the “true” meaning of secularism, at times bitterly (Kheir 2014). The novelty in 1989 essentially resided in the heightened visibility of Islam. New actors (feminist movements, right-wing and far-right political parties, etc.) were now defending a form of republican secularism they regarded as being under attack, and to rehabilitate it became their primary agenda, as evidenced by the emergence of new prefixes and suffixes (“Catho-­ secular,” “ultra-secular,” “anti-secular,” “pseudo-secular”) and of phrases including polemical adjectives (“open secularism,” “new secularism”) (Bonnafous 1991: 66–67). Far from running their course, the debates for and against the “new” secularism were gathering steam.

2 Prohibition (2004 to Date) The question of the wearing of religious symbols in schools took a new turn at the turn of the millennium with the occurrence of dramatic incidents, both internationally and in France, that deeply marked the public mind. The attacks committed in Paris in 1995 and 1996 by the Armed Islamic Group of Algeria, as well as the one perpetrated by Al-Qaïda on 11 September 2001 in New York, signaled to many that the (Muslim) threat had broken out of the geographical area in which it had appeared to be confined and spread out over the West. The external threat (Islamic terrorism) found echo in representations of an internal one (Muslim communitarianism) that was reinforced by the heightened visibility of religion in society. French society was further traumatized by the presidential election of May 2002, in which far-right leader Jean-Marie Le Pen reached the second round. Many perceived this event as a new milestone in the deepening French social and political divide, and all these events were to have enduring repercussions for the new secular configuration.

2.1 Narrative Secularism: Toward a Committed “New Secularism”11 The production of a number of reports, by both parliamentarians and special commissions, in this tense political and social context helped to define a new narrative approach to French secularism, one that would have influence over subsequent developments in the law. 11

 On the “new secularism,” see Hennette-Vauchez and Valentin 2014.

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2.1.1 The Baroin, Stasi, and Debré Reports In 2003, deputy François Baroin delivered a report to Minister Jean-Pierre Raffarin arguing that what with the development of communitarianism and Islamism, “secularism has become a political issue” on which the republican right, represented by the Union pour un Mouvement Populaire (UMP), ought not to allow the left-wing parties a monopoly. He contended that the Council of State opinion of 1989 was a “misconstruction of the situation … [and] of the consequences of acceptance of the veil for the workings of our republican model” (Baroin 2003). He called for a “re-­ politicization” of secularism, for its conversion into “a value of the right in its struggle with the left, which has largely converted to multiculturalism and has failed to take up the challenge of communitarianism” (ibid.). This report, titled Pour une nouvelle laïcité (Toward a New Secularism), proposed to reaffirm secularism’s constitutive principles in order to better “respond to the shock of 21 April [Le Pen’s electoral progress]” and “revitalize the republican dynamic” (ibid.). Baroin’s “new secularism” aimed to meet four major goals: to “reaffirm the importance of secularism in our society”; to “guarantee religious freedom and freedom of conscience”; to better “recognize the role of religion in our society”; and to achieve a “republican revival.” This political agenda was soon to be narrowed to the first of these goals and to the visibility of Islam in the public sphere. It sought to accomplish it by promoting an increasingly maximalist conception of an obligation of neutrality that was to be applied to the individual expression of religious convictions. The perceived social tensions in France were heightened by a number of headline-­ making incidents during this period, leading President Jacques Chirac to reopen the debate on secularism. He assigned a senior official, Bernard Stasi, to chair a commission on the implementation of a version of secularism “that could guarantee national cohesion and respect for differences” (Chirac 2003). The resulting report stated at the outset that schools must allow for the construction of “a common destiny” for all French citizens (Commission Stasi 2003: 17). While it did emphasize the societal value of religious diversity, arguing against the combative secularism asserted by some to be necessary to seat the Republic on stable foundations, it also found that the republican agenda was challenged by a form of communitarianism that was leading to exclusion. It continued, “the principle of neutrality is the primary condition of secularism” (ibid., 22). It is a corollary of the principle of equality among citizens, entailing that all users of public services be treated identically by the public service, “which is beholden to the political authorities … [It must give not only] all guarantees of neutrality [but also] the appearance of neutrality, so that users cannot doubt its neutrality.” The report nonetheless found that “the dictates of absolute neutrality are tempered by ‘reasonable accommodations’ enabling each person to exercise his religious freedom” (ibid., 23). And such accommodations, as the report noted, were already being offered in the public sector: civil servants could take time off from work to observe religious

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holidays;12 public premises could be loaned to community organizations for celebration of these holidays; and provisions for religious dietary requirements were often being made. Moreover, municipalities were increasingly willing to approve the construction of places of worship and, in some cases, to sign leases in perpetuity with associations of worship on public buildings (see Chap. 4). The report recommended a series of accommodations, such as offering “substitutes for pork and fish on Fridays … in cafeterias,” as long as such measures did not hinder the normal operation of the public service (Commission Stasi: 64). However, the report did not mention the fact that members of these communities can be dispensed from observance of a norm or practice that would discriminate against them by preventing them from freely expressing their religious convictions. Quite the reverse: it expressed support for the ban on the wearing of religious symbols deemed conspicuous in public educational establishments. It reads: the imperative of secularism demands … that each person work on himself … Through secularism, citizens win their freedom of conscience; in return, they must respect the public space that all can share. Demanding state neutrality would not seem readily reconcilable with displays of aggressive proselytism, particularly in the school environment. Agreeing to moderate the public expression of one’s denominational particularities and to place limits on the affirmation of one’s identity allows for the encounter of all with one another in the public arena” (ibid., 16).

On these grounds, the report proposed to limit students’ expression of beliefs (and hence their wearing of religious symbols) in public educational institutions, this restriction of freedom allegedly favouring “the encounter of all in the public arena.” In this narrative, secularism is presented as a “republican value” (ibid., 10) that “cannot be reduced to state neutrality” (ibid., 12). The report took marked distance from a position of neutrality, adopting a forthright position on the nature of several religious symbols—a large cross, a kippa, an Islamic veil—that would “[be likely to] disrupt the tranquility of the school environment” (ibid., 41). The report went further by invoking the rhetoric of emancipation in its discussion of the veil: “today, the issue is no longer freedom of conscience but public order. The context has changed in just a few years … girls under legal age are pressured in an attempt to compel them to wear a religious symbol. The family and social environment at times imposes choices on them that are not their own. The Republic cannot remain deaf to these girls’ cry of distress. The school environment must remain, for them, a place of freedom and emancipation” (ibid., 58). The narrative secularism emerging from this report is situated halfway between a secularism of recognition on the one hand and identitarian or assimilationist-­ nationalist secularism on the other (see Chap. 2). The report invokes freedom of

 The Council of State allowed students to “be individually granted leaves of absence necessary for the purposes of worship or the celebration of a religious holiday, where such absences are compatible with the accomplishment of the tasks inherent in their studies and with observance of public order in the institution”; see CE, 14 April 1995, Consistoire central des israëlites de France, no. 125148. Conversely, systematic exceptions to the obligation to be present on Saturday were not permissible; see CE, 14 April 1995, M. Yonathan Koen, no. 157653. 12

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conscience and religion in proposing better recognition of religious diversity in public institutions. But it also proposes limitations (“the issue is no longer freedom of conscience but public order”) for the sake of emancipation, very clearly marking the distinction between the public sphere (the republican school) and the private sphere. While the Stasi Commission was sitting, the president of the National Assembly, Jean-Louis Debré, had formed a fact-finding mission on religious symbols in schools (Debré 2003). The resulting report emphasized the historical foundations of emancipatory republican secularism and the course that it had followed in France. It went on to insist that this form of secularism is now under threat: “the affirmation of pluralism is supplanting state neutrality. Secularism is no longer conceived of as the emancipatory principle par excellence. The logic of the right to difference is supplanting that of the general interest, where once they were seen as complementary. The affirmation of a singular identity is asserted by the wearing of religious symbols that separate rather than uniting us” (ibid.). In this report, the wearing of the headscarf is regarded as a “retreat into communitarianism” and treated as a symbol of women’s inferiority: “many of those who spoke before the commission, especially women, asserted that women’s social conditioning, and their confinement to a status of inferiority with respect to men, is the basis of the requirement or ‘recommendation’ made by certain preachers that they wear the veil” (ibid.). This report, published 4 December 2003 (a week before the tabling of the Stasi Commission report), critiqued the legal framework ensuing from the Council of State opinion of 1989 and called for the passage of a law that “will inevitably be more protective and emancipatory than the existing legal situation” (ibid.). The aim of this law would be to ban the visible wearing of all religious symbols, “all symbols that the eye can see” (ibid.). As is clear, the extent of the ban proposed by the Debré report went well beyond conspicuous symbols, making the Stasi report seem moderate by comparison. In such a context, where the “experts” concurred on both the diagnosis (rampant communitarianism leading to exclusion) and the solution (a combative, emancipatory, mind-freeing secularism), little doubt subsisted as to how the debate would evolve among the political authorities. 2.1.2 The Parliamentary Debates A few months after the Stasi and Debré reports, French parliamentarians drew heavily on them in passing a law that represented a historical milestone for French secularism: the Act of 15 March 2004 on the wearing of symbols conspicuously manifesting a religious affiliation in the public schools (the “Act of 2004”).13 The act was clearly guided by a philosophy of emancipation, as can be seen in the

 Loi no 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant ostensiblement une affiliation religieuse dans les écoles, collèges et lycées publics, JO no. 65, 17 March 2004, at 5190. 13

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parliamentary debates leading up to it, which dwelled on the meaning to be assigned to the Islamic veil and the Republic’s protective role vis-à-vis girls wearing it. This thrust began with Prime Minister Jean-Pierre Raffarin’s speech presenting the bill to the National Assembly on 3 February 2004. The values of secularism, he said, had to be defended because they flowed from history. He reminded the chamber that “secularism is crucial to our Republic. It is all at once a tradition, a way of living, but also, for the French, a promise of freedom.”14 In this conception, republic and secularism have little or no space between them, the values of the first being fully reflected in the second.15 Raffarin exhorted the parliamentarians to create the conditions for the sharing of these values, by which he meant “freedom, hence freedom of conscience; equality, hence equality between the sexes; fraternity, that humanistic value that is both spiritual and authentically secular.”16 Given this narrative, with its invocation of a peculiar version of French history and the need to preserve its specific features, including certain concomitant conceptions of the public good, it became imperative to take action in  the face of the increasing visibility of religion—a “retreat into communitarianism,” as Raffarin put it, ascribing counter-republican, hence counter-secular, values to it. The solution was to advocate for republican fraternity, to promote and defend republican values. He nonetheless added that secularism “also carries the idea of justice for the faithful of all religions.”17 Thus far, it might be inferred that the Prime Minister was referring to freedom and equality, the first two secular values that he had just mentioned. But that was not his argument. For him, secularism was not just the legal precondition for students’ freedom; it was more akin to a philosophical condition for their liberation. He said: “because [the state] is the guardian of freedom of conscience, it is duty-bound to intervene when proselytism, retreat into communitarianism, and denial of equality between the sexes threaten this fundamental freedom lying at the heart of our republican pact.”18 He concluded his speech by stating that the Republic “must speak up and affirm its own convictions” in the face of these threats.19 This significant speech contained, in microcosm, the emerging national discourse marking out the hazy, evolving, and hence unstable bounds of allegiance to a French republican national identity (Korteweg and Yurdakul 2014: 15). Now, what was the alleged source of the threat? The preliminary work for the drafting of the bill and the parliamentary debate lost no time in identifying it. The debate largely focused on a targeted population, Muslims, and on the meaning to  Assemblée nationale, parliamentary debates, regular session of 2003–2004, 148th session, complete minutes of the 2nd session of Tuesday, 3 February 2004, JORF, 4 February 2004, at 1288. 15  The Prime Minister stated that “the values of our Republic are fully embodied in secularism.” Assemblée nationale, parliamentary debates, Regular session of 2003–2004, 148th session, complete minutes of the 2nd session of Tuesday, 3 February 2004, JORF, 4 February 2004, at 1286. 16  Ibid. 17  Ibid. at 1288. 18  Ibid. at 1287. 19  Ibid. at 1305. 14

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be assigned to the wearing of the veil. Numerous legislators tried their hand at interpreting this symbol. For Marie-George Buffet, it amounted to “an intolerable attack on the integrity and dignity of women; a negation of their bodies, desires, and personality.” François Bayrou contended that it “signifies that a woman is not respectable in and of herself.”20 The veil symbolized, for another member, Olivier Jardé, “inferiority, the absence of equality between the sexes, but also the absence of personal freedom.” René Dosière added that the veil “evidences women’s social conditioning and their confinement to inferior status with respect to men.”21 The parliamentary debate soon took on the overtones of combat, with secularism presented as the solution, the shield against a religious symbol (the veil) politically constructed as a counter-republican value. The rapporteur on the bill, Pascal Clément, wrote in striking terms that the bill was “an act of faith in France, in the Republic, in its values of respect for others and the joy of living together.”22 Although the debate overwhelmingly dealt with Islam, the bill extended the ban to all “conspicuous” symbols. Yet, remarkably, it included only an abbreviated list of them: those “symbols and clothing whose wearing leads to immediate recognition of the wearer’s religious affiliation. Such symbols—the Islamic veil, however named; the kippa; a manifestly outsized cross—have no place within the confines of public schools. In contrast, discrete signs of religious affiliation shall naturally remain possible.”23 In sum, both the government reports and the parliamentary work that derived direct inspiration from them embodied a reinforcement of a combative approach to narrative secularism. This would soon be reproduced in the legal system, thereby diminishing the neutrality of the latter.

 Assemblée nationale, parliamentary debates, regular session of 2003–2004, 148th session, complete minutes of the 2nd session of Tuesday, 3 February 2004, JORF, 4 February 2004, at 1294, 1303. 21  Assemblée nationale, parliamentary debates, regular session of 2003–2004, complete minutes of the sessions of Wednesday, 4 February 2004, JORF, 5 February 2004, at 1377, 1381. Each of the parliamentarians mentioned voted in favour of the bill; see Assemblée nationale, Analyse du scrutin no 436  - Séance du 10 février 2004, Scrutin public sur l’ensemble du projet de loi relatif à l’application du principe de laïcité dans les écoles, collèges et lycées publics, online at http://www. assemblee-nationale.fr/12/scrutins/jo0436.asp 22  Assemblée nationale, parliamentary debates, regular session of 2003–2004, 148th session, complete minutes of the second session of Tuesday, 3 February 2004, JORF, 4 February 2004, at 1292. 23  In so doing, it alluded directly to the list that had previously appeared in the Stasi report; see Assemblée nationale, Projet de loi relatif à l’application du principe de laïcité dans les écoles, collèges et lycées publics, no. 1378, 28 January 2004, at 3, online at https://www.assemblee-nationale.fr/12/projets/pl1378.asp 20

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2.2 Legal Secularism: The “New Secularism” Takes Root in Law The Act of 2004 was passed by a very large majority in the National Assembly (494 votes in favour, 36 against, 31 abstentions). The bill was approved by the Senate and then signed into law on 15 March 2004 by the President of the Republic, with no review by the Constitutional Council. This situation deserves mention, for it seems as though the Assembly may have bypassed the Council so as to avoid censure of the new law. 2.2.1 The Act of 2004 The initial passage of the act elicited much less controversy than the foregoing debates might have led one to expect. A first glance at the text even yields an impression of neutrality: no specific religious symbols are mentioned, nor is there any reminder of republican values demanding protection from the visibility of religion. Article 1 reads: “In public primary and secondary schools, the wearing of symbols or clothing whereby students conspicuously manifest a religious affiliation is prohibited.” But make no mistake, this neutrality is merely formal. The text of the act inevitably nods toward the principles of church-state separation and neutrality, which forbid the state from intervening in the religious sphere with the aim of defining or redefining its meaning or symbols. As we have seen, the act clearly derives its justification from the government reports and parliamentary debates, which were not (formally) bound by the same obligation of neutrality.24 These reports and debates are not part of positive law and are not binding on the state in the same way that legislative texts are. But in reality, the new legal secularism is only neutral in appearance. It relies on the version of narrative secularism that carries conceptions of the good presumed to be superior to the principles of justice, thus redrawing the outlines of republican values. What the rapporteur termed an “act of faith” gestures only vaguely toward a position of neutrality. The act may be likened to a species of “identitarian faith” secularism (Baubérot 2015: 103) or assimilationist-nationalist secularism (see Chap. 2) in which the invisibility of expressions of faith constitutes a non-negotiable prerequisite for allegiance to republican principles.

 It will be further noted that the ministerial circular in application of the Act of 2004, which had only interpretive status and no legal status, also mentions the prohibited symbols (using terms similar to the bill). But the text was not a formal undertaking by the government and does not follow from secularism in the purely legal sense; see Circulaire du 18 mai 2004 relative à la mise en œuvre de la loi no. 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes religieux ou de tenues manifestant ostensiblement une affiliation religieuse dans les écoles, collèges et lycées publics, JORF no. 118, 22 May 2004. 24

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2.2.2 Expansive Interpretations of the Law In four decisions rendered on 5 December 2007, the Council of State issued its initial rulings on the application of the Act of 2004. Three of these decisions concerned students of the Sikh religion,25 the fourth a Muslim girl who had been expelled from public school for refusing to remove her bandanna.26 Two remarks are in order. First, while the law had until then been (formally) silent on the nature of religious symbols that might be deemed conspicuous, now the Council of State defined them: “students at primary and secondary schools may wear discrete religious symbols … [but] symbols or clothing, in particular an Islamic veil or headscarf, a kippa, or a large cross, whose wearing in and of itself conspicuously manifests a religious affiliation, are prohibited.” With this qualification, the Council of State determined the religious dimension of a symbol and drew conclusions about its conspicuousness. This position is highly surprising for a jurisdiction bound by the principle of neutrality. It is even more so in that it was ruling on a symbol not even mentioned by the Parliament of the day: the Sikh keshi. It held that “although [this symbol] is of more modest dimensions than the traditional turban and dark in colour, it could not be considered discreet and … the interested party, by the mere wearing of this symbol, conspicuously manifested his affiliation with the Sikh religion.” These decisions reflect a form of judicial activism in that the Council augmented the Act of 2004 by spelling out the religious nature of certain symbols. It was not the only body to follow this course, it should be emphasized. In an astonishing turn, the HALDE, which had previously tempered such expansive interpretations of the Act of 2004 (see Chap. 6), concurred with its arguments in 2008, making an erroneous citation of Article L. 145–5–1 of the Education Code in doing so. According to the HALDE, this article “flow[s] from Act no. 2004–228 of 15 March 2004 [and] provides that ‘symbols or clothing, in particular an Islamic veil or headscarf, a kippa, or a large cross, whose wearing in and of itself conspicuously manifests a religious affiliation, are prohibited, as are those whose wearing conspicuously manifests a religious affiliation only by virtue of the student’s conduct.’”27 This reading of Article L. 145–5–1 is erroneous, for this article merely transposes the provisions of the Act of 2004 and never specifies which religious symbols are to be considered conspicuous. Second, in addition to designating those religious symbols that may be deemed conspicuous by nature, the Council of State added that some may be so deemed by virtue of their purpose (Dord 2004b: 1524); namely, those “whose wearing  This was the first case concerning the wearing of religious symbols in public schools by nonMuslim students; see CE, 5 December 2007, M. Chain Singh, no. 285394; CE, 5 December 2007, M. Gurdial Singh, no. 285395; CE, 5 December 2007, M. Bikramjit Singh, no. 285396. 26  CE, 5 December 2007, M. et Mme Bessam Ghazal, no. 295671. 27  See HALDE, Délibération no 2008–183 du 1er septembre 2008 relative au port du turban sikh par un élève au sein d’un établissement scolaire public, 1 September 2008, online at https:// juridique.defenseurdesdroits.fr/index.php?lvl=notice_display&id=793&opac_view=-1 25

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conspicuously manifests a religious affiliation only by virtue of the student’s conduct.” These, said the Council, are “not, by nature, denominational symbols [but] become so when the student displays them in a manner subjectively imparting religious meaning to them, making them a placeholder for the student’s denominational affiliation” (ibid.). The Council went on to enlarge the scope of the term “conspicuous religious symbol,” breaking with the precedent set by its own opinion of 1989, according to which “the wearing by students of symbols whereby they seek to manifest their affiliation with a religion is not in and of itself incompatible with the principle of secularism.” Henceforth, the logic of discretionality is turned on its head. It is now up to the principal of the educational institution to deem clothing religious and conspicuous based on what he claims to know of the religion and what he claims to recognize as a wrongful intention (proselytism, disturbance of the peace) when a student wears an article of clothing to which he allegedly assigns religious meaning (ibid.). In the fourth decision of 5 December 2007 on the wearing of a bandanna by a Muslim girl, the Council of State ruled directly on the student’s behaviour in inferring the religiousness and conspicuousness of the bandanna she wore and upholding her expulsion from school. The Government Commissioner justified this form of control by the administrative judge on the grounds that “for the first time, Parliament … has given the administration the power to venture onto the terrain of religion and freedom of conscience, interpreting religious symbols.”28 It is now the administration’s role, he continued, “to verify the ostentatiousness of the student’s behaviour,”29 from which it may infer the conspicuousness of a symbol that is nonetheless not religious by nature. The Council of State’s decision may seem surprising. The girl had “decided to replace the traditional Islamic headscarf with a more mundane piece of cloth”30 and had therefore, to some extent, accepted some kind of accommodation in order to stay in school. But the Council held that both the behaviour and the symbol remained conspicuous in that it was clearly “for religious reasons that [the applicant] wore the bandanna,” which she refused to remove despite the administration’s requests.31 Rarely have the Council of State’s decisions on secularism exhibited such a paltry degree of neutrality. On the one hand, it introduced into law the category of “symbols conspicuous by virtue of their purpose,” which had not been expressly envisaged by Parliament, and on the other, it invaded the girl’s privacy by classifying the symbol as religious on the basis of hazy, ill-defined, undeniably subjective criteria.  See conclusions of Commissioner of Government Rémi Keller in CE, 5 December 2007, M.  Chain Singh, no. 285394; CE, 5 December 2007, M.  Gurdial Singh, no. 285395; CE, 5 December 2007, M. Bikramjit Singh, no. 285396, and CE, 5 December 2007, M. et Mme Bessam Ghazal, no. 295671, at 2. 29  Ibid. at 3. 30  Ibid. 31  Ibid. 28

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Finally, it should be emphasized that although the conventionality of the act (its adherence to the stipulations of the ECHR) was challenged before the European Court of Human Rights, the latter court has rejected all such applications.32 In these decisions, it has declined to review the proportionality of the litigious measures, retreating instead behind the margin of appreciation doctrine in allowing France’s judgments to stand. This does not mean that the ECHR endorsed the new French secular vocabulary, which makes no appearance in these rulings. All it means is that it gave the French Parliament free rein to decide on how the constitutional principle of secularism is to be implemented and protected on school premises (Bribosia et al. 2014; Delgrange 2018). 2.2.3 A New Configuration for School Secularism The ultimate import of the Act of 2004 is that it has reinforced the emancipatory philosophical duty of the republican state to guarantee students’ “freedom to think” (see Chap. 2), with particular reference to the Muslim girls who are the act’s implicit targets. There is a clear implication that limiting students’ freedom of conscience and religion is a necessary precondition for their “freedom to think.” What emerges is “no longer a pluralistic conception of freedom, but one of freedom perceived as emancipation from any all-encompassing doctrine—emancipation thanks to the instruments provided by reason and science” (Baubérot 1997: 316). The Act of 2004, that is, partakes of a newly revived republican and anti-­ religious conception, one insisting that society must adhere to shared values by suppressing any evidence of particular affiliations. Here in outline is the thought of the philosopher Henri Pena-Ruiz, for whom the public arena is constructed “through the original production of a space of universality, concretely constituted by the common interest of all, and, by reason of its own order, a source of openness to a horizon unbound from the limits inherent in various particularisms” (Pena-Ruiz 2003: 194). This line of thinking has resonated in significant ways. An echo of it can be found in the work of the High Council for Integration (HCI) subsequent to the Act of 2004, and more particularly in a draft opinion of 5 August 2013 titled “Religious expression and secularism in public institutions of higher education in France” (HCI 2013). This text homes in on the “increasing frequency, at university, of communitarian demands, most often of a religious nature, that jeopardize the practice of secularism, at times leaving the authorities at a loss as to how to respond” (ibid., 3). After explicitly referring to the Act of 2004, the HCI worries about “the malaise experienced by a growing number of teachers facing students who flaunt symbols of religious affiliation that [according to the HCI] look like symptoms of the rise of identitarian and communitarian demands, closed-mindedness, even ostracism,  See ECtHR (Fifth Section), Kervanci v. France [4 March 2009] App. no. 31645/04; Dogru v. France [4 December 2008] App. no. 27058/05, §68–82; ECtHR, decisions of 30 June 2009  in Bayrak v. France, Gamaleddyn v. France, Ghazal v. France, Aktas v. France, Jasvir Singh v. France, and Ranjit Singh v. France. 32

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rejection of certain kinds of knowledge.” The document goes on to offer an interpretation of the religious symbol in question: “The veil crystallizes these tensions, for it represents the foregrounding of another framework in which … women are made inferior” (ibid., 12). Basing its reasoning on the fact that many universities have already adopted bans on conspicuous religious symbols (but neglecting to mention that these rules are illegal!), the HCI recommends to the Prime Minister “that a legislative measure establish that symbols and clothing conspicuously manifesting a religious affiliation be banned from classrooms and other teaching and research sites and situations in public institutions of higher education” (ibid., 15). Although these practices on the part of French universities are now illegal, a number of deputies and senators would like to see them imposed across the board; examples include bills tabled in 2015,33 2018,34 and 2020.35 All draw on the HCI’s arguments in extending the ban on wearing conspicuous symbols to universities, some going as far as to propose that it be extended to all users of French public services. Furthermore, these arguments go far beyond the narrative field to which they should have been confined. At a time when numerous French businesses and associations had transposed the provisions of the Act of 2004 into their internal regulations, the HALDE frequently found itself having to play a watchdog role, emphasizing the limits of the law’s applicability. In one case, it found that there had been discrimination when a hotel invoked the Act of 2004 in refusing to rent a room to a veiled customer.36 In another, it reached the same conclusion in regard to a driving instructor who had refused to give lessons to a veiled student.37 The Ombudsman (Défenseur des droits), an administrative authority in existence since 2011, has shown itself to be equally watchful for overreaching interpretations of the act. On 5 March 2013, for example, it overturned the exclusion of a Muslim woman wearing a headscarf from a diploma program on the grounds that this symbol was banned from the premises of a public secondary school.38  Assemblée nationale, Proposition de loi visant à étendre le principe de laïcité aux établissements publics d’enseignement supérieur, no. 2595, 18 February 2015, online at http://www.assembleenationale.fr/14/propositions/pion2595.asp 34  Sénat, Proposition de loi relative à l’interdiction des signes prosélytes ou contraires à l’égale dignité entre les hommes et les femmes à l’Université, no. 622, online at https://www.senat.fr/leg/ ppl17-622.html 35  Assemblée nationale, Proposition de loi visant à étendre les règles de la laïcité à tous les usagers des services publics, no. 3559, 17 November 2020, online at https://www.assemblee-nationale.fr/ dyn/15/textes/l15b3559_proposition-loi 36  HALDE, Délibération relative au refus d’un hôtelier de louer une chambre à une cliente au motif que celle-ci porte un voile, no. 2006–133, 5 June 2006. 37  Idem, Délibération relative au refus d’un instructeur d’auto-école de donner des leçons de conduite à une candidate qui refuse d’ôter son voile, no. 2005–25, 19 May 2005. 38  Défenseur des droits, Décision no MLD–2013–7 du 5 mars 2013 relative à l’exclusion d’une formation en raison du port d’un signe religieux ostensible, adopted 5 March 2013, recommendation, online at https://juridique.defenseurdesdroits.fr/index.php?lvl=notice_display&id=9899& opac_view=-1 33

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By moving the headscarf issue onto specifically religious terrain and then subjectively marking out the bounds of that terrain, France “pitted a particular identity against a historically constructed model, that of republican secularism” (Lacroix 2007:27). It thereby distanced itself from guarantees of individual rights and embraced a nationalist conception of secularism. Where the individual expression of religious convictions is concerned, this secular narrative has, since 2003, served as the anchor for the new legal secularism. The Act of 2004 brought the two forms of secularism, narrative and legal, into increasing alignment, thus shifting the configuration of the French secular landscape. This correlation bears within it the seeds of future shifts as well, to a secularism no longer uniquely associated with the state or confined to the public sphere, but one that has become an obligation resting on individuals. In this emerging world, secularism will have invaded the private sphere from which it has been separate until recently.

References Balibar, Étienne. 1991. Faut-il qu’une laïcité soit ouverte ou fermée? Mots 27 (June): 73–80. Baroin, François. 2003. Pour une nouvelle laïcité: rapport officiel. Paris: La Documentation française. Baubérot Jean. 1997. La morale laïque contre l’ordre moral. Paris: Seuil. ———. 2015. Les 7 laïcités françaises: le modèle français de laïcité n’existe pas. Paris: Maison des Sciences de l’Homme. Bonnafous, Simone. 1991. Quand la presse catholique parle de “laïcité.” Mots: Les langages du politique 27: 66–67. Bribosia, Emmanuelle, Gabrielle Caceres, and Isabelle Rorive. 2014. Les signes religieux au cœur d’un bras de fer entre Genève et Paris: la saga Singh. Revue trimestrielle des droits de l’homme 25: 495–513. Chirac, Jacques. 2003. Lettre de mission du Président de la République à M. Bernard Stasi. Paris: La Documentation française. Commission Stasi. 2003. Commission de réflexion sur l’application du principe de laïcité dans la République: rapport au Président de la République. Paris: La Documentation française. Costa, Jean-Paul, and Jean Marcou. 1995. Le Conseil d’État, le droit public français et le “foulard”. Cahiers d’études sur la Méditerranée orientale et le monde turco-iranien 19: 55–65. Debré, Jean-Louis. 2003. Rapport fait au nom de la mission d’information sur la question du port de signes religieux à l’école. Paris: La Documentation française. Delgrange, Xavier. 2018. Une nouvelle source du droit: le Dress Code. In Le droit malgré tout: hommage à François Ost, ed. Yves Cartuyvels et al., 659–706. Brussels: Presses de l’Université Saint-Louis. Dord, Olivier. 2004b. Laïcité à l’école: l’obscure clarté de la circulaire “Fillon” du 18 mai 2004. Actualité juridique – Droit administratif 28: 1523–1529. Fiala, Pierre. 1991. Les termes de la laïcité: différenciation morphologique et conflits sémantiques. Mots 27 (June): 41–57. Haut Conseil à l’Intégration. 2013. Expression religieuse et laïcité dans les établissements publics d’enseignement supérieur en France. Paris: La Documentation française. Hennette Vauchez, Stéphanie, and Vincent Valentin. 2014. L’affaire Baby Loup, ou, La nouvelle laïcité. Issy-les-Moulineaux: LGDJ. Kessler, David. 1993a. Laïcité: du combat au droit. Les Débats 77 (November–December): 95–101.

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———. 1993b. Neutralité de l’enseignement public et liberté d’opinion des élèves (À propos du port de signes distinctifs d’appartenance religieuse dans les établissements scolaires): conclusions sur Conseil d’État, 2 novembre 1992, M. Kherouaa et Mme Kachour, M. Balo et Mme Kizic. Revue française de droit administratif 9 (1): 113–118. Kheir, Mayyada. 2014. Le vocabulaire de la laïcité de Guizot à Ferry. L’Atelier du Centre de recherches historiques, PhD thesis in History, EHESS. Korteweg, Anna C., and Gökçe Yurdakul. 2014. The Headscarf Debates: Conflicts of National Belonging. Stanford, CA: Stanford University Press. Lacroix, Justine. 2007. Communautarisme et pluralisme dans le débat français: essai d’élucidation. Éthique publique 9 (1): 50–56. Pena-Ruiz, Henri. 2003. Qu’est-ce que la laïcité? Paris: Gallimard. Tournemire, Pierre. 2014. La Ligue de l’enseignement et la laïcité: un même chemin. In Laïcité, laïcités: reconfigurations et nouveaux défis (Afrique, Amériques, Europe, Japon, pays arabes), ed. Jean Baubérot, Micheline Milot, and Philippe Portier, 33–43. Paris: Maison des sciences de l’homme.

Chapter 7

Public Servants: Apparent Neutrality and Appearance of Neutrality

Abstract  What characterizes the secularism said to be observable in the French civil service? What is its legal basis, and what obligations does it impose on government officials? The Council of State noted in an opinion on public education dating from 1972 that “the constitutional provisions that established the secularism of the state and of education dictate the neutrality of all public services.” In this chapter, we shall see that bans on the wearing of religious symbols by public servants are a notable form in which this obligation of neutrality has been imposed. The explicit requirement of apparent neutrality reflects a peculiar conception of secularism, one that evidences the French state’s discomfort with the visibility of religion in the public sphere.

In a January 2008 survey of 2553 French public servants, 38% of the respondents stated that secularism is the second most important value characterizing the public service and the public administration in France.1 For 93% of them, secularism was so integral to public service and the civil service that it was no longer merely a “value” whose defence ought to be a priority of political governance.2 This survey might seem surprising at a time when certain religious denominations still enjoy privileges within public institutions, as I have shown thus far. And yet the assumption that secularism’s enshrinement in the Constitution by itself guarantees some kind of natural secularism of state institutions as well as the officers working within them remains widely shared.

 The question asked was: “For you, what are the values best embodied today by the public service and the public administration, i.e., those services and bodies answerable to the state, the hospitals, and the local collectivities?” See Le regard du grand public et des fonctionnaires sur les valeurs et les évolutions de la fonction publique, Ifop survey conducted 18–25 January 2008 with a sample of 2553 civil servants from the three levels of the public administration, as presented in Silicani 2008. 2  The question asked was: “What are the values that you would like to see developed immediately and on a priority basis in the public service and the public administration?” (Silicani 2008). 1

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What, then, characterizes the secularism said to be observable in the French civil service? What is its legal basis, and what obligations does it impose on government officials? The Council of State noted in an opinion on public education dating from 1972 that “the constitutional provisions that established the secularism of the state and of education dictate the neutrality of all public services.”3 In this chapter, we shall see that bans on the wearing of religious symbols by public servants are a notable form in which this obligation of neutrality has been imposed. The explicit requirement of apparent neutrality reflects a peculiar conception of secularism, one that evidences the French state’s discomfort with the visibility of religion in the public sphere.

1 Legal Secularism In French law, it is illegal to discriminate against citizens seeking civil service positions on the grounds of their religious convictions. This constitutional principle, however, goes hand in hand with a constraint placed on civil servants after they are hired: a ban on expressing their religious convictions in the work setting.

1.1 Access to the Public Service Article 6 of the Declaration of 1789 provides as follows: “law is the expression of the general will.… All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.” In French law, public servants may only be hired on the basis of merit; a corollary is that the state must observe strict neutrality toward candidates for hiring. The Council of State has issued several reminders of this obligation since 1954. It has systematically overturned discrimination on the grounds of religious convictions4 and has even extended this protection to clergy members, who may hold public employment as long as that status has no impact on the performance of their duties (Prélot 2003: 428). The state has in general exhibited such neutrality in this connection, but with a significant exception to be found in the sphere of education. This exception directly relates to the evolution of the legal order in France. As noted in Chap. 2, it was only  Conseil d’État, Étude demandée par le Défenseur des droits le 20 septembre 2013, adopted by the General Assembly of the Council of State on 19 December 2013, at 15. 4  CE, ass., 28 May 1954, Barel, Rec. Leb., at 308; CE, 1948, Delle. Pasteau, Rec. Leb., at 464; CE, 25 July 1939, Delle. Beis, Rec. Leb., at 524; CE, 22 March 1941, Union nationale des parents d’élèves de l’enseignement libre, Rec. Leb., at 49; CE, 5 January 1944, Dame Tétaud, Rec. Leb., at 1. 3

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with the adoption of the Constitution of 1946 that the Declaration of 1789 acquired the force of law;5 this is why post-1946 jurisprudence expressly adheres to the Declaration while pre-1946 jurisprudence does not. However, the principal laws and court decisions relating to education predate 1946 and were not bound by the Declaration of 1789. Article 17 of the Loi du 30 octobre 1886 sur l’organisation de l’enseignement primaire, for example, provides that “in public schools at all levels, education shall be exclusively entrusted to secular personnel.6 Initially, this prohibition only applied to primary schools, but the Council of State, in a famous decision of 10 May 1912, Abbé Bouteyre, subsequently extended it to secondary schools.7 While aware that these measures came within the particular historical context of school secularization, I regard this decision as dubious for two reasons. First, from a strictly legal perspective, the extension of the restriction on clergy members to secondary schools overrode the will of Parliament as expressed in 1886; moreover, its consideration of individuals’ ecclesiastical status introduced a distinction not found in law since the Act of 1905 (Waline 1957: 285). Second, the decision echoed the notably anti-clerical conclusions of Government Commissioner Jacques Helbronner, who had stated as follows: it may readily be conceived that, depending on the era and the fashions, those who exercise spiritual power may be barred from asking to participate in the exercise of temporal power.… in the present era, under the conditions and in the spirit of the general legislation, the interest of the service [that the minister of education] is charged with ensuring does not appear to him to allow for the admission of ecclesiastics into the ranks of public secondary school staff (Helbronner, quoted in Conseil d’État 2004: 273).

This decision was subsequently nuanced, in particular by a Council of State opinion of 21 December 1972 that expressly cited the Declaration of 1789. The opinion revisited the ban on secondary school teaching by clerics:8 while the constitutional provisions that established the secularism of the state and of education require the neutrality of all public services—and, in particular, the neutrality of education—with respect to all religions, they are not in and of themselves an obstacle to some functions of the services being entrusted to clergy members.

The Council added, however, that it cannot abolish “the titular duties of an officer, or deny him employment … if it is not established that this officer is in a situation incompatible with the pursuit of his activity.” Since there is as yet no definition of compatibility, and the opinion of 21 December 1972 relates to the taking on of religious duties by a secondary school teacher who is already a public servant involved  The constitutional status of this declaration was subsequently upheld by the Constitutional Council in its decision no. 71–44 DC of 16 July 1971 in relation to the Loi complétant les dispositions des articles 5 et 7 de la loi du 1 juillet 1901 relative au contrat d’association. With this decision, the Council enshrined the constitutional status of the preamble to the Constitution of 1958 and that of the Constitution of 1946 (which referred to the Declaration of 1789). 6  Loi du 30 octobre 1886 sur l’organisation de l’enseignement primaire, online at http://www. senat.fr/evenement/archives/D42/oct1886.pdf 7  CE, 10 May 1912, Abbé Bouteyre, no. 46027. 8  CE, ass., opinion, 21 September 1972, no. 309354. 5

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in national education, the extent of the nuance remains to be confirmed (Stirn 2004: 107) and the decision of 1912 has not been totally abandoned. In an opinion of 19 December 2013, the Council of State recalled that “the acquisition by an officer of ecclesiastical status does not allow for … his exclusion on these grounds alone.”9 Despite this major exception in the sphere of education, nondiscrimination on the grounds of religious convictions remains the rule in public employment. However, there are constraints on the expression of religious convictions by French public servants once they are in the employ of the state (Van Ooijen 2012: 202). One might even hypothesize that certain citizens refrain from applying for such positions because they know that they will have to dispense with their religious symbols in order to hold them.

1.2 Holding Employment in the Public Service 1.2.1 Civil Servants’ Duty of Neutrality The right of every citizen to freely express his religious opinions is constitutionally protected. It is guaranteed by Article 11 of the Declaration of 1789: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”10 Article 6 of the Loi du 13 juillet 1983 modifiée portant droits et obligations des fonctionnaires further provides that “no distinction, whether direct or indirect, may be made among public servants on the basis of their political, union, philosophical, or religious opinions.”11 Freedom of expression of religious convictions comprises a positive dimension that translates, for example, into the inclusion of chaplaincies or canteens in public institutions. Public employees may also enjoy certain scheduling concessions to accommodate their religious freedom, provided that such concessions do not disrupt the operation of the public service.12 A circular from the minister of the public service, updated yearly, establishes a non-exhaustive list of eligible religious

 Conseil d’État, Étude demandée par le Défenseur des droits le 20 septembre 2013, adopted by the General Assembly of the Council of State on 19 December 2013, at 15. 10  The principle is affirmed by the stipulations of Article 10 of the ECHR, according to which, subject to the necessary legislative guidelines, freedom of expression corresponds to “the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” 11  Loi no 83–634 du 13 juillet 1983 portant droits et obligations des fonctionnaires: Loi dite loi Le Pors, online at http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006068812 &dateTexte=20100224 12  CE, order, 16 February 2004, M. B., no. 264314. 9

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holidays.13 Department heads are not at leisure to construe this list restrictively, ­however; they must give consideration to requests for leave to observe religious holidays or respect belief systems not mentioned in the minister’s circular.14 Freedom of expression of religious convictions also comprises a negative dimension, for “the public authority must abstain from any measure likely to infringe public servants’ freedom of expression that is not justified by the demands of the position” (Prélot 2003: 429). On the basis of these position-specific requirements, the constitutional principle of public service neutrality15 has been interpreted expansively to impose restrictions on public servants. First, they must observe strict neutrality in the exercise of their duties and may not express their convictions in that context. The political, philosophical, and religious opinions of public employees may not influence their actions nor lead to differentiation among service users. The Council of State has noted along these lines that a public servant may not use means of communication afforded him by virtue of his position in the service of his religious denomination,16 in order to spread propaganda.17 These decisions place undoubted limits on the expression of religious convictions by government employees, but do so to ensure that the administered parties enjoy equality and freedom of conscience; public servants’ freedom is limited in order to better protect users. This is a form of neutrality in action. Second, a more recent development has extended the obligation of neutrality imposed on public servants to include neutrality in appearance. A circular from then minister of education Lionel Jospin dated 12 December 1989 reads: teachers, in carrying out their duties, and by virtue of the example they explicitly or implicitly set for their students, must imperatively avoid all distinctive marks of a philosophical, religious, or political nature that violate children’s freedom of conscience and the recognized educational role played by families. Teachers who contravene this rule commit a serious wrong.18

Although this circular lacked regulatory (and hence legal) force, it had significant symbolic force and was probably applied in many educational institutions. The same argumentation is found in the conclusions presented by Government  Conseil d’État, Étude demandée par le Défenseur des droits le 20 septembre 2013, adopted by the General Assembly of the Council of State on 19 December 2013, at 16. 14  Ibid. 15  The constitutionality of the principle of the neutrality of the public service was reiterated by a decision of the Constitutional Council of 18 September 1986; see Conseil constitutionnel, Décision no 86–217 DC du 18 septembre 1986: Loi relative à la liberté de communication, online at http:// www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/1986/86-217-dc/decision-n-86-217-dc-du-18-septembre-1986.8289.html 16  The Council of State wrote that “the fact of using departmental means of communication for the benefit of the Association pour l’unification du christianisme mondial … constituted a breach of the principle of secularism and the obligation of neutrality incumbent upon any public employee”; see CE, 15 October 2003, M. Jean-Philippe Odent, no. 244428, at 3. 17  CE, 8 December 1948, Delle. Pasteau, Rec. Leb., at 464. 18  Circular, Laïcité, port de signes religieux par les élèves et caractère obligatoire des enseignements, JO, 15 December 1989, and BO no. 46, 21 December 1989. 13

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Commissioner Rémy Schwartz to the Council of State before the latter rendered the Delle Marteaux decision of 3 May 2000 that was to establish the principle according to which the wearing of religious symbols by public servants should be banned: Equality and neutrality go together, neutrality being an essential principle of public services… you do not merely require the service to observe de facto neutrality, but you also require that it give the appearance of neutrality. Users must not be given the slightest cause to doubt this. To this end, public employees are bound, by their behaviour, their manifestations, and their attitude to avoid raising doubts among users.19

Drawing on these conclusions, the Council of State held that: while employees of the public education service enjoy, as do all other public employees, the freedom of conscience that bars all discrimination in access to employment and in career development on the grounds of their religion, the principle of secularism militates against their enjoying, in the context of the public service, the right to exhibit their religious beliefs.20

The Council went on to specify that this ban affects all public employees, whether or not they perform teaching duties. It stated that “an employee’s … manifesting his religious beliefs in carrying out his duties, in particular by wearing a symbol intended to signal his affiliation, constitutes a breach of his obligations.”21 While this decision theoretically applies to all religious symbols, it opened the door for government departments to interpret and treat such symbols in different ways. They can, with a judge’s sanction, interpret “the nature and degree of the symbol’s ostentatiousness”22 in determining any disciplinary measures that they may choose to apply to such wrongful conduct (Conseil d’État 2004: 275). This may lead to public servants receiving different treatment depending on the position taken by their department on the contentious religious symbol. I regard this Council of State decision as problematic for two reasons. First, it places upstream limits on public servants’ freedom of conscience in the name of a highly restrictive conception of secularism, without consideration for the reality of their professional duties. Government Commissioner Schwartz wrote on this point that “freedom of conscience is not absolute because it comes up against a principle, the secularism of the Republic, that implies the neutrality of the public service.… This principle of secularism is reinforced by the republican conception of the state.”23 Second, this decision forces public employees to conduct themselves in accordance with a normalized set of social behaviours. The reasoning of the administrative tribunal of Lyon in this regard is telling:

 Conclusions of Commissioner of Government Rémy Schwartz in CE, 3 May 2000, Delle. Marteaux, no. 217017; see also CAA Versailles, 23 February 2006, Rachida E. c. Cne Guyancourt, no. 04VE03227. 20  CE, 3 May 2000, Delle. Marteaux, no. 217017. 21  Ibid. 22  Ibid. 23  See the conclusions of Commissioner of Government Rémi Schwartz in CE, 3 May 2000, Delle. Marteaux, no. 217017, at 2. 19

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the circumstance in which a public servant … persists in ritually wearing a headdress in the service as a means of conspicuously exhibiting his religious affiliation and expressing his devotion to a religion … is such as to instill, both in the service vis-à-vis his colleagues and in the eyes of users, a doubt not only as to his neutrality but also as to his loyalty to the institutions and his faithfulness to a French republican tradition intended to preserve freedom of conscience, including religious freedom, in a climate of civil peace.24

Doubting users are fearful users. In this context, concerns about the “appearance” of a public employee, and attempts to render that appearance “neutral” so as to preserve users’ trust in the public service, are founded on a rather pessimistic anthropological worldview. Users are assumed to experience fear and distrust when confronted with an employee who clearly does not share their convictions (Van Drooghenbroeck 2011: 116). But as the jurist Sébastien Van Drooghenbroeck notes, “if users’ fears are to be taken seriously, there would appear to be no logical reason to limit this protection to fears aroused by the ‘visible’; the public employee’s ‘concealed’ affiliations could be just as anxiety-provoking as his visible ones, or even more so. What is invisible is not necessarily nonexistent” (ibid., 118). Predicating the requirement of apparent neutrality on the need to protect users also serves to maintain negative social representations of “visible” religion that are posited as being essentially incompatible or at cross-purposes with the “shared” values of the Republic, even in opposition to them. The effect of this ban on the wearing of religious symbols is to engender a very real double cost for the public servants in question. First, it restricts their freedom of conscience and religion. Second, it potentially affects their right to equal access to the public service, for while this right is guaranteed in the letter of the law, it is only effectively guaranteed for citizens whose religious dogma does not prescribe any outward manifestations. That translates into indirect discrimination against those Sikhs and Muslims, in particular, who choose to seek public office. This ban on religious symbols casts suspicion on the “loyalty” of employees to a public service to which, be it noted, they plan on devoting their careers. The burden of proof is reversed, with believers (more than nonbelievers) being obliged to offer up-front proofs of neutrality, whereas all officers should enjoy a presumption of neutrality. Such a presumption should stand unless an objective, a posteriori appraisal of the conduct of the individual in question determines otherwise. In a particularly tense social context marked, according to many political officials by a rise in religious communitarianism (see Chap. 3), the government, in the summer of 2020, tabled an “anti-separatism” bill. After a year of parliamentary debate, the Act Reaffirming the Principles of the Republic (the “Act of 2021”)25 was passed. Article 3 of the act aims to reinforce secularism and neutrality by requiring all civil servants to take secularism training. Each governmental jurisdiction at every level must have a staff person (called a référent laïcité) whose job is to advise  TA Lyon, 8 July 2003, Delle. Nadjet Ben Abdallah, no. 0201383. This decision was upheld on appeal; see CAA Lyon, 27 November 2003, Delle. Nadjet Ben Abdallah, no. 03LY01392. 25  Loi n° 2021–1109 du 24 août 2021 confortant le respect des principes de la République, JORF no. 0197, 25 August 2021, online at https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000043964778 24

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decision-makers on any secularism-related issues that may arise within their purview. This employee is to hold an annual secularism day each year on 9 December, the anniversary of the Act of 1905. 1.2.2 The Duty of Neutrality Extended to Public Service Partners Until very recently, the obligation of neutrality only applied to public employees, whereas occasional partners of the public service were exempt.26 The Council of State had, moreover, reiterated this principle in its decisions of 27 July 2001 and 29 May 2002.27 But the Act of 2004 (see Chap. 6) had opened a Pandora’s box. Veiled Mothers as Monitors When school resumed in September 2004, the Act of 2004 was widely interpreted by many political decision-makers (mayors) and institutional decision-makers (rectors of academies), leading many educational institutions to ban the wearing of conspicuous symbols (headscarves) by parents voluntarily accompanying children on school outings (Karimi 2021: 105). However, a HALDE decision of 14 May 200728 found that such mothers were not “occasional partners of the public service” beholden to an obligation of neutrality. The political reaction was not long in coming. On 22 July 2008, 65 members of the National Assembly tabled a bill “to prohibit the wearing of symbols or clothing conspicuously manifesting a religious, political, or philosophical affiliation by any person vested with public authority, charged with a mission of public service, or taking part in such a mission.”29 The wording of the bill was relatively alarmist; its authors appealed to the HALDE decision in claiming that some of the institutional guarantees of secularism appeared to be giving way to communitarian pressures. They deplored that the HALDE “had found in favour of mothers of students who had been denied the possibility to participate in educational activities because they were wearing the Islamic veil.”30 This, they said, constituted “a blatant attack on the  Occasional partners of the public service are those who occasionally take part in a mission of public service even though they are not government employees. This would be the case for parents accompanying students on school activities taking place during school hours but off school premises. See circular no. 91–124 of 6 June 1991, as amended by circulars nos. 92–216 of 20 July 1992 and 94–190 of 29 June 1994, at 7. 27  CE, 27 July 2001, Syndicat national pénitentiaire Force ouvrière; CE, 29 May 2002, Syndicat national pénitentiaire Force ouvrière. 28  HALDE, deliberation no. 2007–117 of 14 May 2007, 16 June 2009. 29  Assemblée nationale, Proposition de loi visant à interdire le port de signes ou de vêtements manifestant ostensiblement une appartenance religieuse, politique ou philosophique à toute personne investie de l’autorité publique, chargée d’une mission de service public ou y participant concurremment, 22 July 2008, online at www.assemblee-nationale.fr/13/propositions/pion1080.asp 30  Ibid. at 2. 26

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principle of secularism in education, [which] assumes that in order to guarantee absolute freedom of conscience, thought, and expression to all, the state must not only guarantee strict neutrality but also ensure that, within the scope of its public service activities, this neutrality is observed.” They therefore proposed to ban the wearing of symbols conspicuously manifesting a religious affiliation on the part of civil servants, elected officials, and anyone taking part in a mission of public service. They also called for a ban on such symbols “on the premises of institutions in which a public service activity takes place, where they are inciteful or contrary to human dignity.”31 The bill did not pass; still, there has been a clear and growing trend for educational institutions to ban occasional partners from wearing religious symbols. A sizeable number of parliamentarians, many associated with right-wing parties, have supported these sporadic attempts, following the lead of Minister of National Education Luc Chatel. On 27 March 2021, he issued a circular aimed at “guaranteeing secularism” in which he states that “the principles of secular education and public service neutrality are fully applicable on the premises of public schools. These principles may serve, in particular, to prevent parents of students or anyone else from manifesting, by their attire or speech, their religious, political, or philosophical convictions while accompanying students on school outings and trips.”32 The circular has no regulatory (hence no legal) status but it did have considerable impact, leading to numerous amendments to school bylaws that extend the obligation of neutrality to people accompanying school outings. As the polemic reached its height in 2013, Ombudsman Dominique Baudis requested an opinion from the Council of State on the status of the applicable law. The Council responded with a study published on 19 December 2013 reiterating that parents who go along on school outings are neither civil servants nor occasional partners of the public service. They are users of the public service and, consequently, cannot be subjected to the principle of neutrality.33 However, the Council also held that where there is a risk of disturbance of public order, parents could be asked to abstain from manifesting their religious convictions. There were two prevailing interpretations of this opinion. Some observers criticized the Council for what they saw as its retreat by reauthorizing the appearance of the Islamic veil in educational institutions. Others, school administrators in particular, rushed into the breach that the Council had opened up by adapting any number of bans on veiled parents on the grounds of a “risk of disturbance of public order” (Karimi 2021: 105). Minister of Education Najat Vallaud-Belkacem forcefully reaffirmed in the fall of 2014 the principle laid out by the Council of State less than a year earlier: parents are not bound by an obligation of neutrality. This position was  Ibid.  Circulaire n° 2012–056 du 27 mars 2012 relative aux orientations et instructions pour la préparation de la rentrée 2012, online at https://juridique.defenseurdesdroits.fr/index.php?lvl=notice_ display&id=12867 33  Conseil d’État, Étude demandée par le Défenseur des droits le 20 septembre 2013, online at https://www.defenseurdesdroits.fr/sites/default/files/atoms/files/ddd_avis_20130909_laicite.pdf 31 32

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later stated in a guide to secularism (Vademecum pour la laïcité) sent out to all schools (ibid.). Since then, the controversy has refused to die down. New bills have continued to crop up in Parliament seeking to definitively extend the scope of neutrality to mothers wishing to accompany their children on school outings. Employees of Private Enterprises Administering a Public Service Mission The 2010s also witnessed a progressive expansion of the obligation of neutrality to certain employees of private companies. This new obligation began in the jurisprudence before taking form in legislation. In CPAM de Seine-Saint-Denis, a decision rendered on 19 March 2013, the Social Chamber of the Cour de Cassation, France’s highest court of appeal,34 upheld the dismissal by the health insurance office (Caisse primaire d’assurance maladie) and the department of Seine-Saint-Denis of a “health care benefits technician” on the grounds that she was wearing an Islamic headscarf in the form of a bonnet. The employee worked under a private law contract for a private law organization and yet the latter partook of a mission of public service such as to impose on her a requirement of neutrality . The court held that “the principles of neutrality and secularism of the public service are applicable to all public services, including when they are provided by private law organizations.” It added that employees of such companies “are governed by specific constraints resulting from the fact that they partake in a mission of public service, which prohibit them from manifesting their religious beliefs through outward symbols, in particular those inherent in their attire.” According to this decision, employees working for private law organizations vested with a mission of public service must observe an obligation of neutrality, “even if users do not come into contact with them.” The result is a considerable expansion of the obligation of neutrality. This jurisprudential trend was to be entrenched several years later in the Act of 2021. Article 1 affirms that the state is not the only holder of an obligation of secularism and neutrality; that this obligation also falls on public or private law organizations entrusted with a mission of public service. The act provides that such organizations must ensure that their “employees or the persons over whom [they wield] hierarchical authority or managerial power, where such persons take part in the delivery of a public service, refrain in particular from manifesting their political or religious opinions, treat all persons equally, and respect their freedom of conscience and their dignity.” Numerous public and private enterprises, including the Paris airport authority (Aéroports de Paris), the national railway corporation SNCF (Société nationale des chemins de fer), and corporations administering low-income housing clearly have such a mission and are therefore covered by this provision. But the act goes even further, also targeting employees of enterprises to which these organizations delegate a portion of their public service mission. Finally, the act

34

 Cass. soc., 19 March 2013, Mme X c. CPAM de Seine-Saint-Denis.

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extends the neutrality requirement to any public or private enterprise holding a contract or procurement agreement under which it carries out a public service activity, whether in whole or in part. The act, several of whose provisions were made stricter during the parliamentary debates after the assassination of Samuel Paty in October 2020, falls resolutely within a new militant republicanism that enlists an idealized version of secularism in its fight against communitarianism. The hardening of the jurisprudence, and then the legislation, comes in the wake of an abundance of discursive material on secularism that has, since 2003, helped construct it as a republican ideal to be protected.

2 Narrative Secularism Throughout the first decade of the millennium, the debate on the expression of religious convictions in the public sphere found another target in the form of visible religious symbols in hospitals. A number of government reports on this subject have continued to purvey a version of narrative secularism, one that is at pains to depict a certain “secular ideal” as increasingly under threat. The first of these reports to appear was that of the Stasi Commission.35 Later ones included the “Rossinot report” of 13 September 200636 and the HCI report of January 2007.37 The HALDE,38 and more recently the Ombudsman and the governmental advisory body called the Observatory on Secularism (Observatoire de la laïcité), took up a more balanced

 While this report did address the question of the neutrality of civil servants, it did so only briefly in the form of a proposal intended to “affirm the strict observance of the principle of neutrality by public employees” and to “include the obligation of neutrality of staff in contracts signed with businesses that are delegatees of the public service and with those assisting the public service” (Commission de réflexion sur l’application du principe de laïcité dans la République, Rapport remis au président de la République, 2003: 6). I will not discuss this report further in this section, since the proposal had little influence over the societal debate and was not taken up by Parliament. The Stasi report is more often considered to be the one relating to the wearing of religious symbols by students in public schools. 36  This report had been commissioned by Nicolas Sarkozy in his capacity as president of the Union pour un Mouvement Populaire (UMP). The interested party was also Minister of the Interior and Land Use Planning, a position involving the administration of matters relating to worship. However, this report did not come from an institutional body but from a group of politicians. 37  During this same period, Prime Minister Dominique de Villepin asked the HCI to draw up a charter of secularism for the public service. He said that this was needed because of “significant concerns on the part of our fellow citizens” about the visibility of religion in the public sphere; see letter of referral from Dominique de Villepin to Blandine Kriegel, President of the HCI, 15 May 2006. 38  This was an administrative authority created by an act of 30 December 2004 that operated until 2011. Its mandate was to issue opinions and recommendations to the public authorities on needed improvements to anti-discrimination-related texts. It was replaced in 2011 by the Défenseur des droits. 35

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position, often issuing reminders of the text of the law along with liberal interpretations of the founding texts of secularism.

2.1 The Rossinot Report The introduction to the Rossinot report postulates that “secularism begins as an ideal before it becomes a legal norm that creates rights and obligations”; it is not a new idea, flowing instead from “a vision of the common good forged by our history and by the choices of the French people” (Rossinot 2006: 3). This vision “expresses the idea that the state rests directly on the will of the citizens, without subordination to any authority above this will.” On this reading, secularism is not a specific configuration of the political aimed at providing better guarantees of fundamental rights; it is more akin to “a value that cannot be imposed unless the French subscribe to it in overwhelming numbers” (ibid., 13). The report finds that for this reason, “the role of the public service [is] decisive. Indeed, it is upon the public service that the obligation falls most heavily to work for the dissemination and promotion of republican values, particularly secularism, in society” (ibid.). The report goes on to analyze how religious tensions have been heightened in the public sphere39 before presenting two categories of proposals. The first aim to reinforce the obligation of neutrality incumbent on public servants (ibid., 49) and its extension “to all non-statutory agents of the state, the territorial collectivities, and their public institutions as well as to the employees of enterprises mandated to provide public services and to the partners of the public service” (ibid., 48). The second aim to impose an obligation of neutrality on the users of public services; i.e., on citizens. They ought to be bound to “observe republican principles” in the public sphere (ibid., 24); concretely, by refraining from requesting accommodation on religious grounds. The Rossinot report derives its reasoning from a conception of the good (the values of the Republic) that it places above the principles of justice themselves. Situated within a framework of “republican secularism as civil religion” (Baubérot 2009: 16), it might be thought of as epitomizing a version of Rousseau-inspired secularism predicated on a civic profession of faith (Baubérot and Milot 2011: 105). This paradigm calls on all citizens to swear allegiance to “higher” civic (republican) principles; it envisions no other way of strengthening the polity than by near-­ exclusive adherence to these principles and suspects religious groups of disseminating values irreconcilable with the Republic. This Rousseauist profession of civic  The report noted the appearance of tensions in schools, where absenteeism, acts of violence (A. Rossinot, La laïcité dans les services publics: Rapport, op. cit., at 17), and other “identitarian demands,” such as requests for halal and kosher meals in cafeterias (ibid., at 26), were reportedly on the rise. It emphasized that these tensions also affected hospitals and noted instances in which medical services were denied or staff members were rejected for religious reasons (ibid., at 21). According to the report, hospitals were also being increasingly infiltrated by cults (ibid., at 24). 39

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faith is clearly evident in the report’s reasoning: “consensus is furthered not through concessions but through adherence by the greatest number to strongly espoused values” (Rossinot 2006: 35). This adherence to republican values, being “the sine qua non for the long-term durability of the social pact,” is non-negotiable (ibid., 36). Peering out from this report, in short, is a maximalist conception of obligatory neutrality in the public sphere. The appearance of neutrality requirement has been extended from civil servants to everyone who collaborates with and participates in the public service.

2.2 The HCI Report (2007) A similar maximalism can be detected in the HCI report published in January 2007, although it is based on different premises than the Rossinot report. It is revealing of the motivations for the production of this second report that it was entrusted to a committee specializing in matters of integration; there would appear to be an intent here to promote narrative secularism beyond the sphere of law by focusing on the conditions for the successful integration of immigrants into French society. The HCI has experienced a near-total turnover of its members since 2002 and its stance on secularism has changed radically. It now considers itself “the secular vanguard of the government” (Hajjat and Mohammed 2013: 147). It was not long in making a contribution to the rhetoric surrounding what is increasingly being called the “new secularism” (see Chap. 8). The HCI report of 2007 breaks away from the concept of secularism as civic profession of faith. Its introduction states that “secularism is fundamentally a freedom granted to everyone, not a constraint imposed on everyone” (Haut conseil à l’intégration 2007: 191). Yet the report clearly places it within a specifically French history culminating in “the republican state’s becoming, by virtue of its prestige and neutrality, the locus of interaction and coexistence of all French citizens” (ibid., 194). It finds that this locus is now threatened: In a context of intensifying identity demands, respect for and reconciliation of differences is necessary, between religious or philosophical convictions, but also between political convictions in the broadest sense of the term, and between individual life choices. There can be no countenancing a segmentation of the public sphere in response to the fragmentation of personal aspirations. Social and national cohesion are at stake (ibid., 196).

The report goes on to delve into “the boundaries of the public service” (ibid. 202); that is, the scope of application of the state neutrality requirement. It too proposes that this scope be expanded. Like the Rossinot report, it finds that employees of entities to which the delivery of public services is delegated, and of private associations funded with public monies, should be held to the same obligation of neutrality as government employees. It sets itself at odds with legal secularism as regards

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occasional partners of the public service,40 calling for the same obligation to fall on them as well. It argues that this obligation should be symbolically enshrined in a secular charter for the public service and disseminated throughout all orders of French government. Concerning users, the report confronts a dilemma that it attempts to resolve by imposing on them an obligation whose basis cannot be found in law, but rather in morality and observance of the values of the republican state: In view of the binding rules governing the conduct of public officers, the principle of freedom guaranteed to users is without a doubt a major illustration of the ambiguity of the principle of secularism. This does not imply that freedom means laissez-faire, and this is why, in the absence of systematic legal obligations, there are moral obligations weighing upon users, organized around a few reasonable rules of conduct (Haut conseil à l’intégration 2007, 203–4).

As in the Rossinot report, the narrative secularism emerging from the HCI report exhibits very little in the way of neutrality, resting as it does on a strongly republican conception of secularism. It is more akin to an idealized disestablishmentarian secularism than to civic faith secularism. The emphasis is primarily placed on the tangible demarcation between private life and public institutions. The HCI report concludes on the following note: secularism shakes up and transcends the natural communities of origin of all human beings.… It does not demand that we renounce what we are, nor does it invite us to forget where we have come from, to cease to value any given culture, custom, or faith; rather, it calls on us to outgrow all particularisms together so as to assemble within a broader, more neutral, more open space (Haut conseil à l’intégration 2007: 209).

Following this report, the Prime Minister issued a circular on 13 April 2007 containing a “Charter of Secularism in the Public Service” for distribution to all government organizations.41 The charter has no legal status but does carry considerable symbolic weight. It does not take up the HCI’s recommendation to impose an effective obligation of neutrality on contractors and partners of the public service. In so doing, the circular would have “created law” beyond the intentions of Parliament and would probably have been censured by the Council of State. Narrative secularism can fuel legal secularism, but that does not make it a source of law. The circular of 13 April 2007 nonetheless suggests a clear intent to impose obligations on public service users. It fully endorses the corresponding proposals by the HCI, providing that “users of public services shall refrain from all forms of proselytism [and] may not refuse to deal with a public servant or other users, nor demand any adaptation to the operation of the public service or to public infrastructure.”42

 See CE, 27 July 2001, Syndicat national pénitentiaire Force ouvrière; CE, 29 May 2002, Syndicat national pénitentiaire Force ouvrière. 41  Circulaire n° 5209/SG du 13 avril 2007 relative à la charte de laïcité dans les services publics, online at http://www.dgdr.cnrs.fr/bo/2007/07-07/521-bo0707-cir5209.htm 42  Ibid. 40

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2.3 Narrative Secularism and Its Watchdogs The maximalist conception of neutrality in the public service emerging from the charter was certainly influenced by the passage, in 2004, of a law restricting the expression of religious convictions by a very specific type of user: public primary and secondary school students (the Act of 2004).43 Yet this law banning the wearing of conspicuous religious symbols by public school students is the exception. The HALDE had recalled on several occasions that denial of access to a public institution to a citizen wearing a religious symbol constitutes an act of discrimination. It had positioned itself as a watchdog against an expansive interpretation of the neutrality obligation incumbent on the state. For example, it found on 5 June 2006 that the exclusion from a hearing room of an individual wearing a Sikh turban constituted discrimination, noting that “the principle of neutrality must be observed by officers of the public service alone, not by its users.… The justice system is subject to the same regime.”44 It took the same position in a second ruling that day, concerning a case in which a woman wearing a headscarf had been denied access to a naturalization ceremony taking place on the premises of the prefecture.45 The HALDE did permit a hospital to enforce its dress code by requiring a woman to remove her niqab before entering the anesthesia unit where her daughter was receiving pre-­ surgery treatment.46 In view of this corpus of expansive interpretations of the obligation of neutrality in public institutions, it recommended that the government “take all measures necessary to ensure that all of its officers refrain from erroneously applying the principles of secularism and neutrality in such a manner as to lead to discriminatory practices.” Earlier in this chapter, I discussed the guardrails that the HALDE had attempted to place around the extension of the principle of neutrality to occasional partners of the public service.47 The Ombudsman took a similar position. But the body that has adopted the most liberal reading of the legal texts on secularism in recent years is the Observatory on Secularism, an advisory body created in 2007 to advise the government on the relevant issues. The Observatory issued a clear reminder that it continually strives to emphasize “the freedoms and prohibitions inscribed within the secular framework … in a fragile social context that has seen the rise of demands that are either communitarian or

 Loi no 2004–228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant ostensiblement une affiliation religieuse dans les écoles, collèges et lycées publics, JO no. 65, 17 March 2004, at 5190. 44  HALDE, deliberation no. 2006–132, 5 June 2006. 45  HALDE, deliberation no. 2006–131, 5 June 2006. 46  HALDE, deliberation no. 2007–210, 3 September 2007. 47  The short term of politician Jeannette Bougrab, a former member of the HCI and self-described “fighter for secularism,” as president of the HALDE in 2010 did, however, have a temporary influence on this liberal leaning. 43

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seek to hijack secularism for purposes of stigmatization.”48 It adopted a rights-based perspective in accord with the liberal origins of the concept: Secularism is, first and foremost, freedom of conscience, which is the freedom to believe or not to believe. The freedom to believe entails that of practising a religion, in private or in public, as long as the manifestations of this practice do not disturb the public order.49

The sole purpose for which certain obligations can be imposed on public servants, including a “strict duty of neutrality,” is therefore to provide maximal guarantees of this freedom. These employees too enjoy guarantees of freedom of conscience: “they can take authorized leaves of absence to celebrate religious holidays, as long as these are compatible with the normal operational requirements of the public service.”50 And this freedom may only be curtailed to protect the freedom of others; namely, the users of public services. Several different versions of narrative secularism, then, are squaring off in the public arena. One of these tends liberal, prioritizing upstream guarantees of freedoms; the other tends more restrictive, seeking to render manifestations of religion in the governmental sphere increasingly invisible, on the pretext of neutrality. This latter version is today finding some resonance in the legal sphere, partaking of a continual thrust to extend the obligation of neutrality. But this tendency is not specific to France. Sébastien Van Drooghenbroeck shows how Belgian law has apparently abandoned trust “for a more exacting conception of neutrality” imposed on civil servants. In his analysis of the new legal configuration, “acts remain important, no doubt, but the appearances given by their authors, as well as the fears that these may arouse in users, must be taken just as seriously, even to the detriment of the authors’ unabridged ‘freedom of expression’” (Van Drooghenbroeck 2011: 84). In the Quebec context, a similar pattern appeared during the debates of 2013 and 2014 surrounding a proposed “Quebec Charter of Values” (Koussens and Lavoie 2018). The bill tabled by the provincial government proposed to establish in law a duty of reserve and religious neutrality for government employees in the exercise of their duties, in order to reflect “separation of religions and State and the religious neutrality … of the State.” It added that it was necessary to ban the wearing of easily visible religious symbols having a demonstrative character for government employees while at work, this being considered as having an aspect of passive or silent proselytism that would appear incompatible with the neutrality of the state, the good workings of its institutions, and their secularity.51  Observatoire de la laïcité, Libertés et interdits dans le cadre laïque, 3 October 2016, online at https://www.gouvernement.fr/libertes-et-interdits-dans-le-cadre-laique 49  Observatoire de la laïcité, Déclaration pour la laïcité, online at https://www.gouvernement.fr/ sites/default/files/contenu/piece-jointe/2018/07/declaration_pour_la_laicite.pdf 50  Observatoire de la laïcité, Charte de la laïcité dans les services publics, online at https://www. gouvernement.fr/sites/default/files/contenu/piece-jointe/2014/07/charte_laicite-sp2007.pdf 51  Bill 60, Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests, online at http:// www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-60-40-1.html 48

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More recently in Quebec, the populist government of the Coalition Avenir Québec party passed An Act respecting the Laicity of the State on 16 June 2019. The Act places an obligation of neutrality on civil servants and, in particular, bans certain categories of officers holding positions of authority in the provincial government from wearing religious symbols (Koussens 2020). In sum, the resonance of this conception of “visible” or “apparent” neutrality with certain bodies of domestic law has caused it to become increasingly institutionalized in law, resulting in its increasing public acceptance. Various domestic legal frameworks have, moreover, bolstered a representation of secularism as relating only to visible religious manifestations, which considerably reduces its scope (Koussens et al. 2020). As Van Drooghenbroeck showed for Belgium, “this ‘overriding trend’ is discernible, in public opinion … in overwhelmingly negative reactions to ‘deviations’ from a standard of behaviour supposed to impose a strict duty of purity vis-à-vis the public authorities” (Van Drooghenbroeck 2011: 84). This conception of “visible” neutrality has also enjoyed widespread success in France, forging outward from the governmental sphere to conquer new territory.

References Baubérot, Jean. 2009. L’évolution de la laïcité en France : entre deux religions civiles. Diversité urbaine 9 (1): 9–25. Baubérot, Jean, and Micheline Milot. 2011. Laïcités sans frontières. La couleur des idées. Paris: Seuil. Conseil d’État. 2004. Un siècle de laïcité. Rapport public 2004, Études et documents. Paris: La Documentation française. Hajjat, Abdellali, and Marwan Mohammed. 2013. Islamophobie: Comment les élites françaises fabriquent le “problème musulman”? Paris: La Découverte. Haut Conseil à l’intégration. 2007. Charte de la laïcité dans les services publics et autres avis. Paris: La Documentation française. Karimi, Hanane. 2021. De l’application à l’extension de la nouvelle laïcité : le cas des mères accompagnatrices. Mouvements 3 (107): 104–112. Koussens, David. 2020. Une laïcité moindre. In Modération ou extrémisme? Regards critiques sur la loi 21, ed. Leila Ceilis, Dia Dabby, Dominique Leydet, and Vincent Romani, 83–96. Quebec: Presses de l’Université Laval. Koussens, David, and Bertrand Lavoie. 2018. Fondements et effets socio-juridiques de la loi du 17 octobre 2018 favorisant le respect de la neutralité religieuse au Québec. Revue du droit des religions 6: 117–137. Koussens, David, Delgrange, Xavier and Lavoie Bertrand. 2020. La neutralité religieuse des fonctionnaires au Québec et en Belgique. Enjeux constitutionnels. Revue belge de droit constitutionnel (4): 393–423. Prélot, Pierre-Henri. 2003. La neutralité religieuse de l’État. In Traité de droit français des religions, ed. Francis Messner, Pierre-Henri Prélot, and Jean-Marie Woehrling, 427–445. Paris: Litec. Rossinot, André. 2006. La laïcité dans les services publics. Paris: La Documentation française. Silicani, Jean-Ludovic. 2008. Livre blanc sur l’avenir de la fonction publique. Paris: La Documentation française. Stirn, Bernard. 2004. Les libertés en question. Paris: Montchrestien.

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Van Drooghenbroeck, Sébastien. 2011. Les transformations du concept de neutralité de l’État: quelques propositions provocatrices. In Le droit et la diversité culturelle, ed. Julie Ringelheim, 75–121. Brussels: Bruylant. Van Ooijen, Hana. 2012. Religious Symbols in Public Functions: A Comparative Analysis of Dutch, English and French Justifications for Limiting the Freedom of Public Officials to Display Religious Symbols. Utrecht: Intersentia. Waline, Marcel. 1957. Les concours de recrutement de la fonction publique en droit français. International Review of Administrative Sciences 23 (3): 281–292.

Chapter 8

Faces of the Enemy, New Battlefields

Abstract  In the past two decades, the allegorical conflict pitting young veiled Muslims against emancipatory, liberating republican values inherited from the Enlightenment has continued to set down roots in law. There can now be no denying that the legal system has been enlisted since the turn of the millennium in efforts to refurbish the iconography of deviance from the republican ideal. Such deviance is increasingly embodied in figures whose behaviour is regarded as hostile to the Republic—most notably, Muslim women who wear the veil. Otherness, that is, has come to be largely (with the exception of radicalized Muslim youths who have turned to terrorism) embodied by feminine representations of Islam. Many in society are increasingly intolerant of the veil; meanwhile, women who wear fuller religious garments have come to be treated as the quintessence of communitarianism, an ideal said to be encroaching ever more aggressively on French society and its values. Some of the most virulent debates of the 2010s have dealt with these garments: first the full-face veil, then the burkini. A parallel development has seen secularism moving onto new terrain from which it was formerly excluded, particularly in the private sector. Domestic and European courts alike have increasingly legitimized an obligation of visible neutrality falling on businesses, furthering eroding the individual rights that they are supposed to protect.

In the past two decades, the allegorical conflict pitting young veiled Muslims against emancipatory, liberating republican values inherited from the Enlightenment has continued to set down roots in law. There can now be no denying that the legal system has been enlisted since the turn of the millennium in efforts to refurbish the iconography of deviance from the republican ideal. Such deviance is increasingly embodied in figures whose behaviour is regarded as hostile to the Republic—most notably, Muslim women who wear the veil (Amiraux 2008: 54). Otherness, that is, has come to be largely (with the exception of radicalized Muslim youths who have turned to terrorism) embodied by feminine representations of Islam. Many in society are increasingly intolerant of the veil; meanwhile, women who wear fuller religious garments have come to be treated as the © Springer Nature Switzerland AG 2023 D. Koussens, Secularism(s) in Contemporary France, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies, https://doi.org/10.1007/978-3-031-18231-0_8

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quintessence of communitarianism, an ideal said to be encroaching ever more aggressively on French society and its values. Some of the most virulent debates of the 2010s have dealt with these garments: first the full-face veil, then the burkini. A parallel development has seen secularism moving onto new terrain from which it was formerly excluded, particularly in the private sector. Domestic and European courts alike have increasingly legitimized an obligation of visible neutrality falling on businesses, furthering eroding the individual rights that they are supposed to protect.

1 Burqa and Burkini; or, the Enemy Epitomized For many, the full-face veil is symbolically freighted with great violence, evoking images of Isis or the Taliban; more than any other religious symbol, it is said to epitomize an extreme and intolerable subjection of women. This identification of the practice with situations rooted in specific territories (Afghanistan, Syria, Iraq) spurs belief in the idea that a threat formerly confined to the Middle East has broken out of its confinement and reached the West. The rhetoric of several European right-wing populist parties, with its emphasis on national security, has drawn on these representations in painting the full-face veil, though still worn by a tiny minority, as a problem for Western societies (Koussens and Roy 2014; de Galembert 2014). The first debates in Europe, initiated by these parties, revolved around a 2005 initiative by the Dutch Party for Freedom (Partij voor de Vrijheid) (Overbeeke and Van Oojien 2014; Moors 2009) and another, in 2007, by the Italian People of Freedom (Popolo della Libertà) party (Calvi and Fadil 2011; Möschel 2014). In France, the controversy arose primarily from a court decision that received extensive coverage in the domestic and international media.

1.1 The Problem of the “Burqa”1: A Legal and Political Construction The decision in question was one by the Council of State on 27 June 2008 concerning the citizenship application of Ms. Machbour, who wore a full-face veil. It drew attention to this perceived new reality in Western societies and touched off extensive public debate, leading to the passage, on 11 October 2010, of a law banning the  The word “burqa” was far more prominent in the political and media debate than the terms “full-­ face veil” or “niqab.” The use of the term “burqa” drew its intense symbolic charge from the association of  this garment with  the  Taliban’s activities in  Afghanistan and  Pakistan. In  reality, the full-face veil worn in France is more often the niqab, a garment that also embodies a significant degree of violence against women but originates from the Arabian Peninsula. 1

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“concealment of the face in a public place.”2 This law was upheld by the European Court of Human Rights in S.A.S. v. France (1 July 2014).3 1.1.1 The Administrative Judge and the Full-Face Veil In this case, the Council of State rejected the citizenship application (déclaration acquisitive de nationalité)4 of Ms. Machbour, a Moroccan national married to a Frenchman and the mother of three children. It held that her radical religious practice is incompatible with the essential values of the French community, in particular the principle of equality between the sexes.5 Ms. Machbour had appealed to the Council to reverse a decision denying her French citizenship due to what the government called “failure to assimilate” as prescribed by Articles 21–24 of the Civil Code.6 The administrative jurisprudence, as traditionally interpreted, covers two types of situations: “the foreign national may … exhibit [such defect] in view of what may be called his ‘political activism’ or his personal manner of behaving according to customs or practices that are not compatible with the essential values of the French community” (Chrestia 2008: 2015). To reach such a finding, the Council of State “requires clearly detailed facts demonstrating without a doubt, and based on a body of evidence, that the interested party is radically hostile [to] essential [French] values” (Malaurie 2008: 35). It proceeds to review the facts, which must converge on a finding of failure to assimilate by the foreign national in question. The Government Commissioner began the decision of 27 June 2008 by recalling that the applicant was wearing “the garment of women of the Arabian Peninsula, the niqab,”7 not the burqa as was later reported in the media. She went on: although Ms. Machbour speaks fluent French, two of her children are attending the commune school, and she was attended by a male gynecologist during her pregnancies, it remains that … she leads a nearly reclusive life, cut off from French society: she receives no visitors at home; in the morning she takes care of the home, or goes for a stroll with her baby or the children; in the afternoon, she goes to visit her father or her father-in-law. For

 Loi no 2010–1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public, JORF, 12 October 2010, no. 0237, at 18344, online at https://www.legifrance.gouv.fr/loda/id/ JORFTEXT000022911670/ 3  ECtHR, Gr. Ch., S.A.S. v. France [1 July 2014] App. no. 43835/11. 4  The déclaration acquisitive de nationalité is one of the paths to French citizenship. It is “the judicial act whereby a foreign national (or stateless person) states before a judge or competent consular authority her or his desire to acquire French citizenship by reason of marriage and a period of common life with a French citizen for at least four years” (Chrestia 2008: 2014). 5  CE, 27 June 2008, Mme Machbour, no. 286798. 6  According to Articles 21–24 of the Civil Code, “the government may, by decree in the Council of State, object, on the grounds of indignity or failure to assimilate, other than failure to learn the language, to the acquisition of French citizenship by the foreign spouse.” 7  Conclusions of Commissioner of Government Emmanuelle Prada-Bordenave in CE, 27 June 2008, Madame Machbour, no. 286798, at 3. 2

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shopping, she says that she can go out shopping alone but admits that she most often goes to the supermarket with her husband.8

The Government Commissioner deduced from these facts “that Ms. Machbour has not assimilated the values of the Republic, and in particular that of equality between the sexes. She lives in total submission to the men of her family, as evidenced both by the wearing of her garment and the organization of her daily life.… She finds this normal, and the idea of challenging this submission does not even cross her mind.”9 The Government Commissioner held on these grounds that the application should be denied, and this proposal was accepted by the other judges. They wrote succinctly that Ms. Machbour had “adopted a radical religious practice that is incompatible with the essential values of the French community, in particular the principle of equality between the sexes.” This decision calls for three observations. The first is that just as the Act of 2004 did not mention any religious symbols by name, the Council of State carefully avoided naming the applicant’s religion and the symbol she was wearing. Yet the wording of the decision leaves no doubt in the reader’s mind that the niqab was central to the judges’ concerns. The second observation is that the decision incrementally widened the scope of the neutrality requirement. The Act of 2004 had begun this process, but here the Council went further. Its declaration of the applicant’s “radical practice” of religion as being incompatible with assimilation into the French community amounted to an incursion into the private realm, for the neutrality requirement was imposed here on someone who was not yet a French national. To give sufficient assurance of her eligibility for citizenship, she would have had to demonstrate some degree of emancipation from her religious convictions and would not have been allowed to practice her religion outside the norms tolerated by the majority; i.e., in a manner visibly associated with radicalism. With this reasoning, “there can be no doubt that the Council of State has, albeit indirectly, made itself the arbiter of the ‘normality’ of religious practices and derived direct legal consequences of the highest importance concerning the conditions of allegiance to the ‘national body’” (Zeghbib 2008: 1997). The third observation is that while the ruling avoids explicitly fixing the threshold of radicalism above which assimilation can be said to be absent, it does not avoid doing so implicitly. The Government Commissioner’s conclusions make clear that Ms. Machbour, who stated that she wore the niqab “more out of habit than conviction,”10 led a life rather comparable to that of many other women. The set of facts adduced—children in republican school, male gynecologist, occupation as a homemaker, shopping “most often” with her husband, etc.—can hardly be argued to converge toward a failure to assimilate meeting the criteria of Articles 21–24 of the

 Ibid. at 4.  Ibid. 10  Conclusions of Commissioner of Government Emmanuelle Prada-Bordenave in CE, 27 June 2008, Madame Machbour, no. 286798, at 3. 8 9

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Civil Code. What convinced the Council of State of the woman’s radicalism was clearly her wearing of the niqab. This stance on clothing and religious symbols represents a stunning reversal of the Council’s position after the opinion of 1989, in which it stated that “the wearing by students of symbols whereby they seek to manifest their affiliation with a religion is not in and of itself incompatible with the principle of secularism, to the extent that it constitutes the exercise of the freedom to express oneself and to manifest one’s religious beliefs.”11 The Council would henceforth focus on the nature of religious symbols or clothing in ruling on incompatibility with the “values of the French community.” And since only women wear the niqab, it “made a categorical, sex-specific, ethnicized assignment based on a religious distinction [that thereby becomes the source] of unequal treatment in the public sphere and of labeling as ‘deviant’ from republican norms” (Amiraux 2008: 46). This decision, following a long line of others on the assimilation of foreign nationals, doubles the burden of discrimination borne by women, in this case Muslim women. The Council of State has thus, in laying down a kind of republican orthopraxy, adopted a representation of French secularism descending in a direct line from the Act of 2004, an assimilationist-nationalist secularism that renders non-normalized expressions of faith invisible. A semantic shift indicative of the import of such a conception can be detected in this decision. Whereas in a previous decision of 1998,12 the Council had considered the degree of assimilation of an applicant into “French society,” it now wrote of the “French community.”13 Some observers approved of this semantic clarification. Philippe Chrestia wrote: “the ‘community’ implies assimilation (i.e., disappearance of differences), while ‘society’ allows for integration (i.e., recognition and acceptance of the other and his differences). It [was] absolutely necessary to reaffirm that assimilation can only occur within the host ‘community’” (Chrestia 2008: 2016). In the end, this decision amounts to judicial endorsement for a political conception of secularism. In the face of de facto pluralism and the danger it is said to pose for “narrative secularism,” the reaction is to “move from the sphere of ‘implicit norms,’ which need not be written down to be observed, to the sphere of positive law” (Ferrari 2009: 333).

 CE, ass., Intérieur, opinion on the question of whether the wearing of symbols of affiliation with a religious community is or is not compatible with the principle of secularism, 27 November 1989, no. 346893. 12  CE, 14 October 1998, Amiour, no. 175186, Leb. T. 898. 13  It will be noted, however, that the Council of State had issued rulings on the degree of assimilation “into the French community” prior to 1998; see, in particular, CE, 28 July 1989, Rec. CE. 1989, at 680. 11

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1.1.2 Parliament and the Full-Face Veil The Council of State decision of 2008 on one woman’s application for citizenship was to resonate throughout the media to such an extent that it became the source of a major national controversy surrounding the burqa. It was not long before Parliament felt pressure to join the debate on this issue. The first sign of its future position on the matter was a bill tabled in the National Assembly by Jacques Myard on 23 September 200814 whose stated purpose was to combat “attacks on women’s dignity resulting from certain religious practices.” The text of the bill explicitly revisited the question of the burqa and asserted that it justified new legislative action: “the wearing of the full-face veil constitutes the most extreme form of the drift into communitarianism and is a direct attack on living together within a diversified, democratic society based on equality between the sexes.”15 The bill prescribed a penalty of 2 months’ imprisonment and a €15,000 fine for anyone making a “cultural or religious prescription authorizing someone to veil her or his face in public; anyone moving about on the territory of the Republic must have her or his face uncovered so that she or he can be readily recognized or identified.”16 The HALDE, too, had occasion to rule on the matter, this time in a case involving access to mandatory language training for foreigners who have signed a hosting and integration agreement. It was asked by the National Immigration Agency (Agence nationale de l’accueil des étrangers et des migrants—ANAEM) for advice on the compatibility of a ban on wearing the burqa in this context with the principle of non-discrimination.17 In a deliberation of 15 September 200818 including an explicit reference to the Council of State decision of 27 June 2008, the HALDE stressed that “the purpose of the hosting and integration agreement is precisely to allow the foreigner to prepare for his republican integration into French society.… the wearing of the burqa could pose a difficulty in this regard.”19 However, it based its ruling that participants in the ANAEM course must remove their burqa not on strictly religious arguments—there was no invocation of “the radical practice of one’s religion” and its alleged incompatibility with “the essential values of the French community”—but on the principle

 Assemblée nationale, Proposition de loi visant à lutter contre les atteintes à la dignité de la femme résultant de certaines pratiques religieuses, 23 September 2008, online at www.assemblee-­ nationale.fr/13/propositions/pion1121.asp 15  Ibid. at 2. 16  Ibid. at 2–3. 17  The signing of such a contract has become mandatory, since an act of 24 July 2006 concerning immigration and integration, for “any foreigner admitted for the first time to France who wishes to stay there permanently.” It essentially consists of language training provided abroad by ANAEM, a public agency under the Ministry of Immigration. 18  HALDE, Délibération no 2008–193 du 15 septembre 2008, online at https://juridique. defenseurdesdroits.fr/doc_num.php?explnum_id=709 19  Ibid. at 7. 14

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of equality between the sexes. It found that “the burqa carries a connotation of women’s submission going beyond its religious dimension and could be considered to jeopardize the republican values attending the process of integration and organization of these training sessions, which are mandatory for foreigners permitted to stay in France for the first time.”20 As did the Council of State, the HALDE focused on the symbolism of the niqab or the burqa but issued no ruling on its religious dimension. This clothing, even if it were devoid of any such dimension, even if secularized, would, it found, continue to carry an implication of women’s submission. Just as the swastika sends a message of hatred beyond its religious dimension, the burqa is said to embody women’s domination irrespective of any religious symbolism with which it might be endowed by any given reading of Islam. While the Council of State had passed judgment on the normality of a religious practice, the HALDE exhibited greater prudence in upholding the ANAEM burqa ban; by referring to equality between the sexes, it avoided the pitfalls inherent in venturing onto the terrain of interpretation of religious practices. Further to a draft resolution of 9 June 2009, 58 members of the National Assembly called for the “creation of a commission of inquiry into the practice of wearing the burqa or the niqab on the nation’s territory.” This new commission was intended “to carry on the work of the ‘Stasi Commission,’ which, in 2003, took note of the threats looming over individual freedoms and the grave regression of the status of young women.”21 Referring to the Council of State decision and the HALDE report of September 2008, the members wrote that “these decisions [i.e., this legal secularism] are helpful but cannot suffice in the face of such practices … contrary to our principles of secularism and our values of freedom, equality, and human dignity.”22 The decisions could not, that is, ensure that a certain version of narrative secularism remained “a constituent part of our social organization and our collective history … one that forms the basis, beyond each person’s traditional community, of a community of destiny built on shared values, a will and a desire for living together.”23 This resolution gave rise to a parliamentary mission composed of 32 members and chaired by André Gérin that was tasked with deliberating on the wearing of the full-­ face veil in France. The sociologist Jean Baubérot has shown that the arguments put forward during the controversy were not based on any coherent reasoning and that the hearing given to academics was a pure formality, having no other purpose than to justify a legislative ban on the full-face veil (Baubérot 2014a). The opening lines of the Gérin report are a revealing illustration of this, demonstrating the lack of impartiality that was to characterize the mission’s work: “The wearing of the burqa, the niqab, or any  Ibid. at 8.  Assemblée nationale, Proposition de résolution tendant à la création d’une commission d’enquête sur la pratique du port de la burqa ou du niqab sur le territoire national, 9 June 2009, at 4, online at https://www.assemblee-nationale.fr/13/propositions/pion1725.asp 22  Ibid. at 4. 23  Ibid. at 2. 20 21

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other full-face veil is a heated subject, so much so that some people feared that addressing it in public would inflame passions, misunderstandings, and conflicts. But to allow this practice to develop in opposition to the values of the Republic, without daring to debate it, for the sake of intellectual comfort, or worse, out of fear: Would that not entail the risk of one day being overtaken by reality? To preserve the future; to allow each and every person, regardless of his background, convictions, or denomination, to live peacefully in our Republic: that is why we sought to confront this question with a desire to observe, understand, and recommend.”24 The remainder of the report says much about the development of a new secularism no longer confined to law and the principles of justice, but henceforth including other values that may ultimately win out over those principles. It admits that “the wearing of the full-face veil in the public sphere is not, legally speaking, in and of itself an attack on the principle of secularism. Adherence to this principle is incumbent on public collectivities and not on individuals, who are free to manifest their religious or spiritual convictions as long as they respect others and preserve the peace.”25 But the practice constitutes “an attack on secularism in the philosophical sense of the term,”26 and the republican triptych of “liberty, equality, and fraternity” is said to be a solid basis for a ban: “The provisions of the Act of 1905 are not violated as such by the full-face veil, but the spirit of the principle of secularism is patently abused. We must unquestionably rest even more solidly on the foundation of the classic republican triptych. We see that the practice of the full-face veil proves contrary to the three principles of our credo. It is not merely contrary to them: it bears within itself the embryo of a rejection of these principles.”27 In this nationalist version of narrative secularism, new fundamental values supplant the democratic principles of law. Consider “fraternity”: “Beyond the clearly normative legal principles of equality and liberty that are flouted by the practice of the full-face veil, the phenomenon jeopardizes the whole social bond, for the full-­ face veil questions the sentiment of fraternity and solidarity among citizens.”28 Secularism is conceived of as an organizing principle of the polity to which citizens have no choice but to adhere, at least in appearance. For the first time, an official report expressly proposed that an obligation of neutrality be imposed on the very people who were supposed to have been dispensed from it: citizens. Instead of the beneficiaries of an obligation falling upon the secular state, they become the holders of this very same obligation in the name of vague, ill-defined ideals. Prime Minister François Fillon, in calling on the Council of State for a legal opinion on the conditions for a ban on the full-face veil, used the language of the Gérin report (“This practice collides frontally with our republican conception of life  Assemblée nationale, Rapport d’information fait en application de l’article 145 du Règlement au nom de la Mission d’information sur la pratique du port du voile intégral sur le territoire national, 26 January 2010, online at http://www.assemblee-nationale.fr/13/rap-info/i2262.asp 25  Ibid. at 97. 26  Ibid. at 93. 27  Ibid. at 94–5. 28  Ibid. at 113. 24

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in society”).29 He asked the Council to study “those legal solutions making it possible to arrive at a prohibition on the wearing of the full-face veil … one that I would wish as broad and effective as possible.” The Council responded with an opinion of 25 March 2010 in which it reiterated the aims pursued by a secular state and rejected the Gérin mission’s arguments. In a very liberal opinion, it fully resumed its role as an arbiter, emphasizing the state’s obligation of neutrality with respect to religion: “there is no basis on which secularism can enact a general restriction on the expression of religious convictions in the public sphere … and it therefore cannot justify an absolute ban on the full-face veil throughout the public sphere. It applies mainly in the relationship between public collectivities and religions or the persons identifying with them. It is directly incumbent upon public institutions, justifying an obligation of neutrality for the representatives of public collectivities in the fulfilment of their missions. It can only, by contrast, be imposed directly on society or individuals by reason of the imperatives specific to certain public services (as in the case of schools).”30 This unfavourable legal opinion did not stop the ban on the full-face veil from being adopted by an act of 11 October 2010 (the “Act of 2010”)31 that had been vetted by the Constitutional Council on 7 October 2010.32 1.1.3 European Judges and the Veil The French controversy rapidly spread to European political debate, a development for which at least two reasons can be propounded. First, unlike the Dutch and Italian contexts, the French debates were not initiated by populist political parties; on the contrary, they were spurred on by politicians of all political stripes. Since these positions looked all the more acceptable for being predicated on virtuous premises and fundamental values, such as the principle of gender equality, proposals to ban the full-face veil from public view became more likely to find echo elsewhere in Europe. Second, immigration has confronted European societies today with the heightened visibility of religious diversity. Many in these secularized societies wonder what role religion should play; they worry that its presence will make “living together” more difficult. These societies are also situated within supranational normative systems; namely, European Union law and European human rights law,  Lettre de mission du Premier ministre au vice-président du conseil d’État, 29 January 2010.  Conseil d’État, Étude relative aux possibilités juridiques d’interdiction du port du voile intégral, report adopted by the General Assembly of the Council of State on Thursday, 25 March 2010, online at https://www.conseil-etat.fr/publications-colloques/etudes/etude-relative-auxpossibilites-juridiques-d-interdiction-du-port-du-voile-integral 31  Loi no 2010–1192 du 11 octobre 2010 interdisant la dissimulation du visage dans l’espace public, JORF no. 0237, 12 October 2010, at 18344. 32  Conseil constitutionnel, decision no. 2010–613  DC of 7 October 2010, JORF no. 0237, 12 October 2010, at 18345. 29 30

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which are presided over by the Court of Justice of the European Union and the European Court of Human Rights, respectively. According to Claire de Galembert and Matthias Koenig, these new forums in which citizens can assert their subjective rights have “the consequence of throwing into question the hitherto prevailing overlaps between individual rights, state affiliation, and national identity” (De Galembert and Koenig 2014: 634). European states must contend with these normative systems, even though a portion of their populations objects to such international jurisdiction, claiming that it overrides certain features of state sovereignty and is eating away at national identity (Sassen 2002: 287; Hunter-Henin 2012: 613). Such periods of religious controversy are conducive to the development of rhetoric that is highly convergent even where the respective national contexts in which it arises differ (Lettinga and Saharso 2012; Burchardt et al. 2014). Mobilizing new codes of allegiance in political debate, this rhetoric identifies values allegedly shared by the majority group and others allegedly shared by one or more minority groups, then asserts that the former are to proper to a national identity shared by all. While cultural narratives typically find themselves grappling with the register of rights in domestic controversies (Languille 2012), such arguments have also gained some favour with the European Court of Human Rights. In S.A.S. v. France, a decision of 1 July 2014, it was asked by a French national to rule on the conventionality of her country’s Act of 11 October 2010. She sought to exercise her freedom to express her religious convictions by wearing the full-face veil as a function of her “spiritual feelings” at any given moment.33 The Court expressed, in the first place, a clear concern as to the negative consequences of a ban on wearing the full-face veil in terms of the stigmatization of Muslims, with specific reference to the Islamophobic remarks that had punctuated the debate preceding the passage of the French statute.34 It recalled that “a State which entered into a legislative process of this kind ran the risk of contributing to the consolidation of the stereotypes which affected certain categories of the population and of encouraging the expression of intolerance, whereas it had a duty, on the contrary, to promote tolerance.”35 It proceeded to discuss the criteria for the compatibility of the ban on concealing the face with the stipulations of Articles 8 (right to privacy and family life), 9 (freedom of religion), and 14 (prohibition of discrimination) of the ECHR: “A general policy or measure that had disproportionately prejudicial effects on a particular group might be considered discriminatory even where it was not specifically aimed at that group and there was no discriminatory intent. This was only the case, however, if such policy or measure had no ‘objective and reasonable’ justification, that

 ECtHR, Gr. Ch., S.A.S. v. France [1 July 2014] App. no. 43835/11.  Ibid., ¶ 149. 35  Ibid. 33 34

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is, if it did not pursue a ‘legitimate aim’ or if there was not a ‘reasonable relationship of proportionality’ between the means employed and the aim sought to be realised.”36 And yet it refused to rule on the proportionality of the restriction of individual freedoms, hiding behind the margin of appreciation doctrine whereby the member states of the Council of Europe may decide on the suitability of limiting the exercise of certain fundamental rights vis-à-vis the national imperatives of “public interest,” “public order,” or “public morality.” The Court upheld the conventionality of the disputed statute on these grounds: “having regard in particular to the breadth of the margin of appreciation afforded to the respondent State in the present case, the Court finds that the ban imposed by the Law of 11 October 2010 can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others.’ The impugned limitation can thus be regarded as ‘necessary in a democratic society.’”37 With this decision, which was immediately critiqued in the doctrine (Bonnet 2014; Chassang 2014; Ruet 2014; Bribosia et al. 2014), the Court condoned state interference with the exercise of freedom of religion based on a highly subjective appraisal of the conditions of life in society. It could have held that the French law banning concealment of the face was discriminatory having regard to the freedom of religion, even if the text of the law had not directly targeted Muslims. The Court indeed devoted lengthy passages to this,38 stating that it was “aware of the fact that the impugned ban mainly affects Muslim women who wish to wear the full-face veil.”39 Yet it threw out this argument, holding that “the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face.”40 In short, the Court avoided ruling on the religious nature of the full-face veil, opting instead for a minimal ruling on whether the Act of 2010 infringed freedom of religion. The result—that the full-face veil was implicitly endowed with cultural or political meaning—might seem surprising in that recent research, some of it submitted to the Court, has shown that women who wear this article of clothing in the West very often assign religious meaning to it. Studies in France (Open Society Foundations 2011; Parvez 2011; Borghée 2012; De Féo 2010) and elsewhere in Europe (Brems 2014) have found many of its wearers stating that they did so out of a desire to be closer to God. For them, it is a symbol of their religiosity; it reflects “spiritual feelings,” as the applicant put it in S.A.S. v. France, a way of living her faith by seeking “inner peace” when the moment so demands.41

 Ibid., ¶ 161.  Ibid., ¶ 157–8. 38  ECtHR, Gr. Ch., S.A.S. v. France [1 July 2014] App. no. 43835/11, ¶ 137 et seq. 39  Ibid., ¶ 151. 40  Ibid. 41  S.A.S. v. France, ¶ 12. 36 37

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The voices of these women—the very women whom some claim to want to emancipate—have remained largely inaudible in the debate. Their words, too, must be heard; surely the sincerity of their beliefs ought to afford protection for their freedom of religion. Yet in S.A.S. v. France, the Court invoked the margin of appreciation doctrine and turned a deaf ear to their concerns. The same process followed in the Constitutional Council’s decision of 2010 served here to relegate freedom of religion to second-class status (El Berhoumi and Delgrange 2014). Even as it warned of the rise of Islamophobia, the Court handed down a decision indirectly endorsing assertions about the meaning of this garment that were cut from the same cloth as those that had been in vogue during the debates around the passage of the Act of 2010. Some of these were culturalist in nature (religious radicalism as an imported product), others simply based on stereotypes (the full-face veil as a symbol of women’s domination or their refusal to integrate). The Court helped validate these depictions of veiled women as “others” vis-à-vis a system of Western values whose singular feature today is its defensive posture against people perceived as foreigners. Ultimately, “the main analytical schema underlying the bans on the wearing of the veil and the ‘burqa’ … could be summarized as: ‘We stand by our values’ (Amiraux 2014: 22). Soon, with the first terrorist attacks in France, cases involving the burkini would add another slogan to this analytical schema: “We stand by our security.”

1.2 Secularism Goes to the Beach: The Threat of the Burkini Early 2015 saw the occurrence of horrendous terrorist attacks in France when individuals claiming links to Al-Qaeda attacked the offices of Charlie Hebdo magazine (7 January, 12 dead) and another attacked the Hyper cacher store (9 January, 4 dead). The headlines continued to be punctuated by new attacks, including 7 for 2015 and 35 for the period running from 2015 to 2020. The extent and horror of some of these attacks, and the importance of the symbols targeted, deeply scarred the public mind. The deadliest of these were the seven terrorist attacks of 13 November 2015 (131 dead, including 90 at the Bataclan concert hall in Paris). The two attacks of July 2016 in particular—one on the famous Promenade des Anglais in Nice on 14 July (86 dead), the other the assassination of Father Jacques Hamel as he said mass at the church of Saint-Étienne-du-Rouvray in Normandy on 26 July— had significant repercussions for French society. These attacks, targeting the expression of republican values (freedom of expression, freedom of religion, combating anti-Semitism), national symbols (the 14 July national holiday), representatives of the republican state (assassinations of police officers and soldiers), or even a notional French “art of living,” were interpreted as attacks on secularism. The perpetrators were young Muslims, many of them born in Europe or even in France, who had become radicalized by a combative form of political Islam. The threat quickly became embodied in individual figures whose incipient radicalization it became urgent to identify.

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In the summer of 2016, with its irruption of terrorism into a popular vacation spot, the burkini—a swimsuit covering the entire body—came to be seen as the epitome of the threat. A few dozen mayors issued decrees banning the wearing of this religious garment on the beaches under their jurisdiction, most often in municipalities where it had never been seen (Rosenblum 2020: 112). Speaking in support of these measures, Prime Minister Manuel Valls contended that the burkini reflects “a political, countersocietal agenda” and is “not compatible with the values of France and the Republic.” The decrees banning this garment made direct reference to the recent terrorist attacks and invoked the mayors’ municipal policing powers.42 These powers permit them to take measures restricting freedom where there is a proven risk to public order. But they also based their decisions on the principle of secularism. Some of the decrees banned swimming anywhere in the commune “for anyone not exhibiting proper attire that is respectful of good manners and the principle of secularism.” This was true of the decrees issued by the mayors of Cannes (28 July 2016) and Villeneuve-Loubet (5 August 2016). The legality of these measures was rapidly challenged before the administrative tribunals, and the tribunal of Nice issued provisional orders concerning the Cannes and Villeneuve-Loubet decrees.43 Although these two decrees were rapidly overturned on appeal, I will nonetheless revisit them here, since they point to significant lapses on the part of lower-court judges in their attempts to interpret the principles of secularism.44 The first order, issued by the administrative tribunal on 13 August 201645 in regard to the city of Cannes, is striking for how it strays from legal interpretation into an emotional tone and an endorsement of security-focused discourse. The tribunal referred to S.A.S. v. France in reinterpreting the scope of Article 1 of the Constitution (“France is a secular republic”) and extending the scope of the bans on the wearing of religious symbols to new public places (in this case the beach). It held that the state enjoys “a wide margin of appreciation to define the most appropriate measures, in view of [its] national traditions, in order to reconcile freedom of worship with the principle of secularism.” It added that “under these circumstances, there is compliance with the provisions of Article 1 of the Constitution according to which ‘France is a secular republic,’ these provisions prohibiting anyone from invoking his religious beliefs in exempting himself from the common rules governing relations between public collectivities and individuals.”

 Article L. 2212–2 of the Code général des collectivités territoriales gives them the power “to preserve public order, safety, security, and health.” 43  The référé-liberté procedure is an emergency procedure in which an administrative judge is asked to strike down an administrative measure amounting to a grave and illegal violation of a freedom. 44  Moreover, although the doctrinal debates over the court orders and decisions on the burkini mainly concerned the question of municipal policing powers (see in particular Wattier 2017), it seems also important to me to shift the analysis in order to observe what they tell us about the reconfigurations of secularism. 45  TA Nice, order, 13 August 2016, Ville de Cannes, no. 1603470. 42

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Second, the tribunal shielded itself behind the wording of the municipal decree, which did not mention the burkini but only banned bathing by “anyone not exhibiting proper attire that is respectful of good manners and the principle of secularism.” This wording, it held, was neutral and non-discriminatory. Third, the tribunal took further distance from the obligation of state neutrality that it had just articulated, indulging in a line of reasoning fraught with prejudice and confusion. While it politicized the burkini, finding it to be devoid of religious symbolism, it then proceeded to justify the ban on the grounds of its alleged status as an ostentatious religious symbol. In a time of tension, said the tribunal, the freedom to express one’s religious convictions must be exercised appropriately. It wrote: “In the context of the state of emergency caused by the recent Islamic fundamentalist attacks in Nice and elsewhere … the display of ostentatious religious symbols for which the applicants, manifestly of the Muslim religion, request approval … in the form of beachwear exhibiting their religion is such as to create or exacerbate tensions.” It added that “the wearing of distinctive attire other than typical bathing attire may be interpreted as not, in this context, being a mere sign of religiosity; while the possibility of appropriately expressing one’s religious convictions constitutes a fundamental freedom, this ostentatious display does not, in the present circumstances of place and time, possess … this appropriateness.” According to this order, it was up to the mayor, under the supervision of the judge, to assess the appropriateness of any given expression of beliefs on a case-by-­ case basis, with reference to the context. The mayor could even limit the exercise of this freedom if it had the potential to shock or disturb the majority (“the wearing of distinctive attire other than typical bathing attire”). This is a strikingly expansive interpretation of mayoral policing powers. It allows mayors to redefine secularism as a function of their own personal perceptions of religious symbols or clothing, but also of what the population of their municipalities may or may not tolerate. The second order of 22 August 2016, concerning the decree issued by the mayor of Villeneuve-Loubet,46 complemented the Nice tribunal’s reasoning by venturing an amateur theological interpretation of the burkini. “The possibility of appropriately expressing one’s religious convictions constitutes a fundamental freedom,” it wrote, and yet the practice in question could be construed as “beholden to religious fundamentalism.”47 It proceeded to reiterate the Council of State’s arguments on the full-face veil in Machbour, adding that such fundamentalism reflects “a radical practice of the religion that is incompatible with the essential values of the French community.” The tribunal then doubled down on contradiction and confusion, denouncing the very hodgepodge that it had just produced: the mayor of Villeneuve-­ Loubet’s decree was justified, it said, by the fact that some might “conflate religious extremism with the garment called the ‘  burkini  .’” With emotions running high  TA Nice, order, 22 August 2016, Ville de Villeneuve-Loubet, nos. 1603508 and 1603523.  While associating the burkini with religious fundamentalism might seem almost humorous, it being difficult to imagine Islamic fundamentalists condoning women going to the beach, whatever they might wear, it remains worrisome in that it reflects the power of Islamophobic prejudice within French jurisdictions. 46 47

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after the terrorist attacks, the sight of this religious garment stood to provoke a disturbance of the peace. Lastly, the tribunal confounded the conditions for the collective expression of beliefs (freedom of worship) with the realm of individual expression. It turned municipal beaches into a new locus of secularism, stretching the scope of the neutrality requirement far beyond its traditional bounds: “beaches do not constitute a suitable place for the ostentatious expression of one’s religious convictions; in a secular state, they are not meant to be turned into places of worship and must remain, on the contrary, places of religious neutrality.” The appeal filed against this last order gave the Council of State an opportunity to issue a firm reminder of the principles applicable to any attempt to curtail freedoms in connection with the application of municipal policing powers. On 26 August 2016,48 it held that “any policing measures issued by the mayor of a coastal commune for the purpose of regulating access to the beach and the practice of bathing must be tailored, necessary, and proportional having regard to the sole dictates of public order… The mayor has no authority to invoke other considerations, and any restrictions that he may impose on freedoms must be justified by demonstrable risks to public order.” The Council was clearly seeking to calm a tense situation, to put an end to the debate by carefully clarifying the applicable law. In this effort, it avoided ruling on religious matters and secularism, limiting its decision to the rules governing municipal policing. Although it did mention the “serious and manifestly illegal” attack on freedom of conscience represented by the mayor of Villeneuve-­ Loubet’s decree, it refrained from mentioning the religious garment in question or revisiting the Nice tribunal’s dismaying interpretations of secularism. But since the Council’s order applied only to the city of Villeneuve-Loubet, it did not achieve its intended effect. Other municipal burkini bans were adopted and remained in force during the summer of 2016. What the order did do was prescribe the procedure to be followed by the administrative tribunals, thus averting future advances and retreats of jurisprudence in this area. It clearly established threats to public order as the threshold to be met by any limitation placed on the freedom of religion, in the absence of which such limitations would be overturned. The administrative tribunal of Toulon went on to apply this decision by overturning a 30 August 2016 burkini ban issued by the mayor of Fréjus that had invoked tensions around the construction of a local mosque.49 The obverse side of the Council of State’s position is, of course, that mayors can legitimately predicate their use of policing powers to ban the burkini on a demonstrable risk to public order. The administrative tribunal of Bastia, ruling on a dispute concerning the Corsican commune of Sisco, held that a burkini ban was justified on two grounds. One was that a “violent altercation had occurred between two groups of bathers further to the real or supposed presence on the beach of a woman bathing

 CE, order, 26 August 2016, Ligue des droits de l’homme et autres, no. 402742.  TA Toulon, order, 30 August 2016, Ville de Fréjus, no. 1602545. See also CE, order, 26 September 2016, Association des droits de l’homme–Collectif contre l’islamophobie en France, no. 403578. 48 49

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in clothing covering much of her body, during which several people were injured”; the other was that “the clashes had then moved to Bastia.”50 This decision might seem balanced, yet one cannot avoid noticing how the mere statement of the grounds for the ban (“real or supposed presence”) reflected the state of tension and fear, even paranoia, characteristic of French society in the summer of 2016. These strong ­emotions hit individual believers the hardest, and freedom of religion became ever more threatened. The “burkini cases” played on these fears and were instrumental in whipping up a furour among French secularists (Schlegel 2016).

2 Judges, Secularism, and Private Enterprise: Instructions for Discriminators The 2000s, with the public school controversies, had set the tone for the battle for secularism that would unfold in the following decade. As we saw in Chap. 5, the Act of 2004 paved the way for increasingly broad interpretations of the obligation of neutrality arising from the principle of secularism. This obligation was extended by the courts from civil servants to all public service users and, in certain contexts (the full-face veil), to all citizens. Numerous business owners followed suit by imposing neutrality requirements on their employees, and some of them even adopted “charters of secularism.” Little by little, secularism emerged from its confinement to the state and its institutions and began to invade the private sector.

2.1 The Baby Loup Case This development began in Chanteloup-les-Vignes, a lower-income multicultural commune in the suburbs of Paris, where the “Baby Loup” daycare centre was considered a model of integration. In concert with the social assistance department and other municipal departments, its director, Nathalie Baleato, had implemented an innovative collective childcare system operating round the clock to help disadvantaged women in the municipality return to the job market. The centre also held vocational training sessions for mothers (Rubio 2015: 37). An employee named Fatima Afif became an emblem of the business’s success: after taking the training sessions and obtaining her credentials, she was hired as assistant director of Baby Loup. Upon returning from maternity leave, Ms. Afif, who wore the veil in her private life, also began wearing it in the workplace. Her refusal to remove it led to conflict with the centre’s director and she was fired with reference to the centre’s bylaws,

 TA Bastia, order, 6 September 2016, Commune de Sisco, no. 1600975; CAA Marseille, 3 July 2017, Ligue des droits de l’homme, no. 17MA01337; CE, 14 February 2018, Ligue des droits de l’homme, no. 413982. 50

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which state that “the principle of freedom of conscience and religion of each staff member may not be set up against the principles of secularism and neutrality applicable in all the activities of Baby Loup, whether on the premises of the daycare centre and its annexes or while accompanying children outside of it.”51 Ms. Afif filed suit with the HALDE, claiming discrimination. The HALDE, in it decision of 1 March 2010, considered the lawfulness of Baby Loup’s bylaws. Its first consideration was that “where an association does not fulfil a mission of public service, the activity can only be of a private nature, and not all the rules governing public services (neutrality, continuity, etc.) can be applied to it.” It held that the centre’s activities are of a private nature and that the bylaws could not prescribe a total and absolute ban on freedom of conscience and religion. That made both the bylaws and Ms. Afif’s dismissal illegal.52 Ms. Afif then filed an application with the labour tribunal (conseil des prud’hommes) of Mantes-la-Jolie challenging her dismissal. The result was a sequence of judicial twists and turns whose effect was to amplify the controversy. On 13 December 2010, the labour tribunal contradicted the HALDE decision and ruled against Ms. Afif. It upheld the bylaws and hence the dismissal, finding that Ms. Afif had exhibited “blatant insubordination” by refusing to obey the rules.53 She next appealed to the court of appeal of Versailles, which, on 27 October 2011, upheld the lower court’s judgment. It based this ruling on Article L. 1121–1 of the Labour Code (Code du travail),54 holding that Ms. Afif’s job description was such as to impose an obligation of neutrality on her, thus justifying the restrictions imposed by her employer. Ms. Afif proceeded to appeal to the Social Chamber of the Cour de Cassation. In Mme Fatima X…, épouse Y… (19 March 2013), the high court struck down the decision, rejecting the application of the principle of secularism to the labour contract. In its words: “the principle of secularism instated by Article 1 of the Constitution is not applicable to the employees of private law employers who do not manage a public service; it flows … from the labour code that restrictions on religious freedom must be justified by the nature of the task to be accomplished and must answer to an essential and decisive occupational requirement that is proportional to the intended objective.”55 This high-profile decision moved intellectuals (e.g., the essayist Élisabeth Badinter) and politicians (e.g., Jeanette Bougrab, a minister under the Sarkozy government, and Manuel Valls, then prime minister) to speak out in favour of the battle against what they regarded as a threat to their preferred form of secularism (Hennette Vauchez and Valentin 2014: 15). Several bills were quickly tabled by members of  Conseil des Prud’hommes de Mantes-la-Jolie, Mme L. épouse A, 13 December 2010.  HALDE, deliberation no. 2010–82, 1 March 2010. 53  Conseil des Prud’hommes de Mantes-la-Jolie, Mme L. épouse A, 13 December 2010. 54  Article L. 1121–1 of the Code du travail (Labour Code) provides that “no one may apply restrictions to human rights or to individual and collective freedoms that are not justified by the nature of the task to be accomplished nor proportionate to the intended objective.” 55  Cass. soc., 19 March 2013, Mme Fatima X…, épouse Y…. 51 52

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the National Assembly in an effort to ban religious symbols in the private sector (ibid., 41). The furour gained new impetus from another judgment that came down in late 2013. When the Cour de Cassation strikes down a decision, it refers the case to another court of appeal for a retrial; here, the case was heard by the court of appeal of Paris.56 In a decision of 27 November 2013, the latter “rebelled” (ibid., 42), refusing to follow the reasoning of the Cour de Cassation. It wrote “that a legal person governed by private law and fulfilling a mission of general interest can, in certain circumstances, constitute an enterprise of conviction57 as defined in the jurisprudence of the European Court of Human Rights, and adopt statutes and bylaws imposing an obligation of neutrality on its staff in the exercise of their duties; that such an obligation entails, in particular, a ban on the wearing of all ostentatious religious symbols.”58 The court of appeal held that the Baby Loup bylaws were sufficiently precise to limit the expression of its employees’ religious convictions. Moreover, it held that the daycare centre indeed has a mission of general interest59 and that it is an enterprise of conviction: “having regard to the necessity … of protecting the freedom of thought, conscience, and religion that is to be constructed for each child, and to that of respecting the plurality of religious opinions among the women on behalf of whom a project of socio-vocational reintegration into the childcare sector has been implemented in a multi-denominational environment, such missions may be accomplished by an enterprise seeking to impose on its staff a principle of neutrality designed to transcend the multiculturalism of the persons to whom it is addressed.… Accordingly, Baby Loup may be considered an enterprise of conviction in a position to require the neutrality of its employees.” The court’s argument is subtle, since enterprises of conviction (or enterprises de tendance in French law) enjoy exemptions from labour law by virtue of their philosophical or religious object. A final appeal by Ms. Afif yielded a final judgment by the Cour de Cassation dated 25 June 2014.60 In this last decision, the court rejected Baby Loup’s designation as an enterprise of conviction. It held that “the convictions or tendencies of an enterprise flow from a philosophical, ideological, or religious choice and not from the obligation to adhere to legal norms or constraints attaching to the nature of the

 CA Paris, 27 November 2013, Madame Fatima L. épouse A.  An enterprise of conviction is an enterprise upholding moral, political, philosophical, or religious values; examples are a political association or a religious educational institution; see Delgrange 2021. 58  Ibid. 59  The court held that “according to its constitution, the object of the Baby Loup association is to carry on early childhood development activities in a disadvantaged district and to work for the social and occupational integration of women without distinction on the basis of political or denominational opinion; [and] whereas such missions are of general interest, to the point of being frequently carried out by the public service and in fact funded, without this being disputed, by subsidies paid by the state, the Île-de-France region, the department of Yvelines, the commune of Chanteloup-les-Vignes, and the Caisse d’allocations familiales…” 60  Cass. ass. plén., 25 June 2014, Mme X…, épouse Y… 56 57

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enterprise’s activities.” It further specified “that an enterprise cannot be turned into an ‘enterprise of conviction’ for the purposes of applying principles of neutrality— or secularism—that are only applicable to the state; that neither the principle of secularism established by Article 1 of the Constitution nor the principle of neutrality established by the Constitutional Council … are applicable to the employees of private law employers who do not manage a public service.” By this phrasing, the Court relegated secularism to its legal dimension. This legal (not philosophical or ideological) principle of secularism does not apply to private enterprise, nor can it be converted into a “value” of an enterprise that has the effect of imposing an obligation of neutrality on its employees. But the Cour de Cassation still found grounds—in labour law rather than secularism—on which to rule against Ms. Afif. Its reasoning was that the association’s bylaws were sufficiently precise to limit its employees’ expression of their religious convictions. Ms. Afif could be fired not because of the principle of secularism but because the social object of the daycare centre—childcare—permitted it to adopt bylaws that place restrictions on personal freedoms. What conclusions can be drawn from this judicial saga? While the judges may not have explicitly extended the scope of neutrality to the private sector, they did so implicitly by giving enterprises a tool that they can use (bylaws) to place limits on their employees. A number of parliamentarians seized this opportunity to demand that the government intervene to solidify this extension of neutrality to the private sector, especially in the case of daycare centres. The resulting reform of labour law led to the passage of an act on 8 August 2016 (the “Act of 2016”)61 providing that “bylaws may contain provisions enshrining the principles of neutrality and restricting the manifestation of convictions by employees where such restrictions are justified by the exercise of other fundamental rights and freedoms or by the dictates of ensuring the smooth operation of the enterprise and where they are proportionate to the intended goal.”62 The ultimate impact of Baby Loup and its legislative aftermath was to effect a major shift in secularism. The case remains emblematic today of a dual pattern observable throughout the 2010s: on the one hand, an extension of the scope of the neutrality requirement; on the other, an increasingly narrowed scope for individual rights, with freedom of religion taking the biggest hit.

 Loi no 2016–1088 du 8 août 2016 relative au travail, à la modernisation du dialogue social et à la sécurisation des parcours professionnels, online at https://www.legifrance.gouv.fr/loda/id/ JORFTEXT000032983213/ 62  Ibid., art. 2. 61

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2.2 “No Veil Next Time” French legislators lost no time in attempting to widen the breach opened up by Baby Loup, and yet the compatibility of the Act of 2016 with European anti-­discrimination law was far from assured (Desbarats 2017: 60). Faced with the increasingly “secular” aspirations of business leaders, European judges were soon called on to clarify the conditions under which beliefs may or may not be expressed in the private sector. This led to two important decisions by the Court of Justice of the European Union (CJEU) in 2017. In 2008, Ms. Bougnaoui, who wears the veil, was hired as a design engineer by a private company. During her hiring interview, she was told that her veil might bother certain customers and that she would probably not be able to wear it under all circumstances while on the job. Sure enough, less than a year into her employment, a customer indicated that several of his colleagues had been bothered by her veil and asked that there be “no veil next time.” She was fired in June 2009. After lengthy proceedings, the case reached the Cour de Cassation in 2015. Prior to rendering its own decision, it asked the CJEU for a preliminary interpretation of European law.63 It wanted to know in particular how to interpret a European directive of 27 November 2000 allowing member states, under certain conditions, to make exceptions to anti-discrimination rules by reason of the nature or practice of an occupational activity. The directive in question provides that such discrimination must be justified by a “genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate.” For example, being a member of a given sex could be a genuine and determining requirement when being chosen for a role in a play. At issue in Bougnaoui and ADDH was whether preferences expressed by a company’s customers could constitute a “genuine and determining occupational requirement” outweighing an employee’s right to freedom of religion. In a decision of 14 March 2017,64 the CJEU recalled that freedom of religion includes the right to express one’s religious convictions.65 It added that the threshold to be met by a “genuine and determining occupational requirement” is very high. Such a requirement must be “objective,” meaning “dictated by the nature of the occupational activities concerned or of the context in which they are carried out.”66 In particular, “the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement.”67 It might seem at first sight that this decision guarantees reassuring oversight over the claimed objectivity of any limitation on freedom of  Cass. soc., 9 April 2015, no. 13–19–855.  CJEU, Gr. Ch., 14 March 2017, Bougnaoui and ADDH, no. C–188/15. 65  Ibid., ¶ 29–30. 66  Ibid., ¶ 40. 67  Ibid., ¶ 41. 63 64

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religion. But the Court’s distinction between “subjective” and “objective” is, in reality, specious (Sabbagh 2019: 331), and one particular paragraph of the decision goes far in blurring the distinction between the two. To wit: “such a difference of treatment does not amount to indirect discrimination if it is objectively justified by a legitimate aim, such as the implementation, by [the company], of a policy of neutrality vis-à-vis its customers, and if the means of achieving that aim are appropriate and necessary.”68 The CJEU clarified its thinking in a second decision, G4S Secure Solutions, issued the same day in relation to a Belgian employee.69 Here the Court spelled out the procedure to be followed by companies wishing to avoid claims of religious discrimination. In this case, Ms. Achbita had been employed as a receptionist by the company G4S Secure Solutions since 2003. When, three years into her position, she informed her employers of her intention to wear the veil during working hours, they responded that this fell afoul of its unwritten rule against the wearing of any political, philosophical, or religious symbols; the wearing of the veil, it said, ran counter to its obligation of neutrality. Ms. Achbita refused to comply. The company officially amended its rules in June 2006 (“employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious convictions and/or from engaging in any observance of such beliefs”), then fired her. The CJEU held that the ban on wearing the veil was not direct discrimination because the company’s rules covered all employees identically, regardless of their political, philosophical, or religious convictions. It wrote: “the ban on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious symbol in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.”70 The Court’s reasoning in this second case takes it far from the concern for “objectivity” adduced in Bougnaoui and ADDH; it is all the more astounding in that the rules were amended with the explicit aim of making the employee remove her veil. And even if direct discrimination had been ruled out, it is hard to see how the Court could have failed to find that Ms. Achbita was the victim of indirect discrimination. Yet this is precisely what the CJEU, in a veritable tour de force, accomplished. The impact of its decision is to create an instruction manual of sorts for companies seeking to limit their employees’ religious freedoms. It held that “such an internal rule of a private undertaking may constitute indirect discrimination … if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical

 Ibid., ¶ 33.  CJEU, Gr. Ch., 14 March 2017, G4S Secure Solutions, no. C–157/15 70  Ibid., concluding paragraphs. 68 69

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and religious neutrality, and the means of achieving that aim are appropriate and necessary. …”71 The CJEU had gone much further than the Cour de Cassation in the Baby Loup case. What the French court had refused to do—distort neutrality by turning it into a tool for businesses to use in curtailing their employees’ religious freedoms—the CJEU did in its place. Neutrality became fair game for inclusion in companies’ bylaws.72 This rhetorical exercise shows how thoroughly the Court must have been swayed by the dominant narrative form of secularism and its increasingly vehement opposition to visible expressions of the Islamic faith. One can only concur with the jurist Géraud de la Pradelle when he reminds us that “judicial shaping [can give] the dominant ideology a foundation on which to erect a shaky set of arguments” (De la Pradelle 1979: 67). This is what the court did here, deciding on the chosen goal (limiting the expression of certain beliefs in workplaces) and reworking the legal reasoning in order to get there. One could argue that the CJEU attempted to offer the employee some accommodation by asking the company to try to find her an equivalent position that does not require contact with the public.73 Yet this proposal in itself only bolsters the idea that certain religious symbols are unacceptable and that the mere discomfort they arouse is sufficient reason to keep them out of the public eye.

2.3 A “New French Secularism”? With the multiple legislative interventions of recent years and the support afforded them by the courts, the law has become the vector of a form of secularism often termed “republican.” Numerous works, based on research in sociology (Baubérot 2014b; Hajjat and Mohammed 2013; Karimi 2021), political science (Portier 2011), social psychology (Nugier et al. 2016), and jurisprudence (Hennette Vauchez and Valentin 2014) have alluded to the advent of a “new secularism.” The important work by Stéphanie Hennette Vauchez and Vincent Valentin descries a “wide-ranging effort to redefine, unconsciously or unavowedly, a fundamental principle of the Republic and the state, which is given a notably restrictive new meaning from the standpoint of individual freedom” (Hennette Vauchez and Valentin 2014: 20). In the wake of the initial studies by Maurice Barbier (1993) and Jacques Robert (1994) of the development of the idea of secularism in the 1990s, Vincent Valentin observes two tendencies: “erasure,” which can be detected in the “disappearance of the material separation codified in law,” and “affirmation,” detectable as the “import or resurgence of a buried anti-religious culture” and  Ibid., ¶ 44.  After the Bougnaoui and Achbita decisions by the CJEU, the Cour de cassation went on to determine whether “neutrality clauses” were present in the association’s bylaws before ruling on the lawfulness of Ms. Bougnaoui’s dismissal; see Cass. soc., 22 November 2017, no. 2484. 73  Ibid., ¶ 45. 71 72

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characterized by the foregrounding of “specific features of the French conception of secularism, in a tendency that vehemently calls into question the liberal framework of 1905” (Valentin 2016). The author continues, “we are seeing the deployment of a paradoxical ‘conditional defence’ of religious freedom: on the one hand, as a recognized fundamental right, it must be effective and demands legitimate assistance from the public authorities; on the other, as a potential vector for fundamentalism, it needs to be watched and kept within acceptable bounds by the Republic” (ibid.). I fully concur with these analyses. However, it seems to me that while a new political-then-legal sequence for secularism began in 2003 (with the Stasi Commission report), it is a sequence whose originality should not be overemphasized, and from which general conclusions should not be derived. On the one hand, the work of Jean Baubérot (2015) and Philippe Portier (2016) reminds us that throughout the twentieth century, the French framework for secularism has fallen within a disestablishmentarian horizon inherited from the Third Republic and is not specifically new. But on the other, this legal framework has also opened up to, or even combined with, the reference frame of recognition. Together, they validate new forms of church-state collaboration and cooperation that now inhabit the recurrent discussions on the distinction between religion and culture (see, in particular, the debates around nativity scenes in Chap. 4). For purposes of analysis, the idea of a “new secularism” is relevant if it does not reduce the “novelty” of the social and political debates and the legal arrangements surrounding secularism to those measures relating to the wearing of religious symbols. Nor is it a matter of inferring that a new secular configuration is replacing the old, for French secularism continues to experiment by hybridizing them with the same “disestablishmentarian,” “liberal,” and “anti-religious/anti-clerical” positions strewn throughout its history. What we are witnessing is not a single “new secularism” but “new secularisms,” new secular arrangements that are increasingly demanding to be studied, analyzed, and dissected by researchers in order to better criticize them when they impinge on fundamental freedoms.

References Amiraux, Valérie. 2008. De l’Empire à la République: à propos de l’ “islam de France.” Cahiers de recherche sociologique 46: 45–60. ———. 2014. Le port de la “burqa” en Europe : comment la religion des uns est devenue l’affaire publique des autres. In Quand la burqa passe à l’Ouest. Enjeux éthiques, politiques et juridiques, Sciences des religions, ed. David Koussens and Olivier Roy, 15–37. Rennes: Presses Universitaires de Rennes. Barbier, Maurice. 1993. Esquisse d’une théorie de la laïcité. Le Débat 5 (77): 64–76. Baubérot, Jean. 2014a. Voile intégral et laïcité: La Mission d’information parlementaire sur le voile intégral. In Quand la burqa passe à l’Ouest: enjeux éthiques, politiques et juridiques, ed. David Koussens and Olivier Roy, 67–77. Rennes: Presses universitaires de Rennes. ———. 2014b. La laïcité falsifiée. Paris: La Découverte. ———. 2015. Les 7 laïcités françaises: le modèle français de laïcité n’existe pas. Paris: Maison des Sciences de l’Homme.

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Bonnet, Baptiste. 2014. La Cour EDH et l’interdiction de la dissimulation du visage dans l’espace public. La Semaine Juridique – Édition générale 29 (July): 1425–1428. Borghée, Maryam. 2012. Voile intégral en France: sociologie d’un paradoxe. Paris: Michalon. Brems, Eva, ed. 2014. The Experiences of Face Veil Wearers in Europe and the Law. Cambridge: Cambridge University Press. Bribosia, Emmanuelle, Gabrielle Caceres, and Isabelle Rorive. 2014. Les signes religieux au cœur d’un bras de fer entre Genève et Paris: la saga Singh. Revue trimestrielle des droits de l’homme 25: 495–513. Burchardt, Marian, Griera Mar, and Gloria García-Romeral. 2014. Narrating Liberal Rights and Culture: Muslim Face Veiling, Urban Coexistence and Contention in Spain. Journal of Ethnic and Migration Studies 41 (7): 1068–1087. Calvi, Giulia, and Nadia Fadil. 2011. Politics of Diversity: Sexual and Religious Self-fashioning in Contemporary and Historical Contexts. EUI Working Paper 1: 1–5. Chassang, Céline. 2014. La CEDH et la loi du 11 octobre 2010: une validation en demi-teinte de la loi prohibant la dissimulation du visage dans l’espace public. Recueil Dalloz (September): 1701–1707. Chrestia, Pierre. 2008. La burqa est incompatible avec la nationalité française. Actualité juridique— Droit administratif 36: 2013–2017. De Féo, Agnès. 2010. Sous la burqa. Paris: Sasana Productions. De Galembert, Claire. 2014. Forcer le droit à parler contre la burqa: une judicial politics à la française? Revue française de science politique 64: 647–668. De Galembert, Claire, and Matthias Koenig. 2014. Gouverner le religieux avec les juges: introduction. Revue française de science politique 64 (4): 631–645. De la Pradelle, Géraud. 1979. L’homme juridique: essai critique de droit privé. Grenoble: Presses universitaires de Grenoble. Delgrange, Xavier. 2021. La laïcité à cheval sur le public et le privé. Revue interdisciplinaire d’études juridiques 86 (1): 217–233. Desbarats, Isabelle. 2017. Entre laïcité et neutralité : quelles frontières en droit du travail ? Revue du droit des religions 4: 51–67. El Berhoumi, Mathias, and Xavier Delgrange. 2014. Pour vivre ensemble, vivons dévisagés: le voile intégral sous le regard des juges constitutionnels belge et français. Revue trimestrielle des droits de l’homme 3 (9): 639–645. Ferrari, Alessandro. 2009. De la politique à la technique : laïcité narrative et laïcité du droit. Pour une comparaison France/Italie. In Le droit ecclésiastique de la fin du xviiie au milieu du xxe siècle en Europe, ed. Brigitte Basdevant-Gaudemet and François Jankowiak, 333–345. Leuven: Peeters. Hajjat, Abdellali, and Marwan Mohammed. 2013. Islamophobie: Comment les élites françaises fabriquent le “problème musulman”? Paris: La Découverte. Hennette Vauchez, Stéphanie, and Vincent Valentin. 2014. L’affaire Baby Loup, ou, La nouvelle laïcité. Issy-les-Moulineaux: LGDJ. Hunter-Henin, Myriam. 2012. Why the French Don’t Like the Burqa: Laïcité, National Identity and Religious Freedom. International and Comparative Law Quarterly 6: 613–639. Karimi, Hanane. 2021. De l’application à l’extension de la nouvelle laïcité : le cas des mères accompagnatrices. Mouvements 3 (107): 104–112. Koussens, David, and Olivier Roy. 2014. Quand la burqa passe à l’Ouest: enjeux éthiques, politiques et juridiques. Rennes: Presses universitaires de Rennes. Languille Constantin. 2012. Logique juridique, logique politique: le cas de la burqa. Le Débat 5 (172): 87–97. Lettinga, Doutje, and Saharso Sawitri. 2012. The political debates on the veil in France and the Netherlands: Reflecting national integration models? Comparative European Politcs 10 (3): 319–336.

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Malaurie, Philippe. 2008. Une pratique radicale de la religion peut fonder une opposition gouvernementale à l’acquisition par mariage de la nationalité française. La Semaine juridique – Édition générale 38 (September): 34–36. Moors, Annelies. 2009. The Dutch and the Face-Veil: The Politics of Discomfort. Social Anthropology 17 (4): 393–408. Möschel, Mathias. 2014. La burqa en Italie : d’une politique locale à une législation nationale. In Quand la burqa passe à l’Ouest. Enjeux éthiques, politiques et juridiques, Sciences des religions, ed. David Koussens and Olivier Roy, 237–250. Rennes: Presses Universitaires de Rennes. Nugier, Armelle et al. 2016. Nouvelle laïcité en France et pression normative envers les minorités musulmanes. International Review of Social Psychology 29 (1): 15–30. Open Society Foundation. 2011. Un voile sur les réalités: 32 musulmanes de France expliquent pourquoi elles portent le voile intégral. www.soros.org/initiatives/home. Accessed 21 Mar 2022. Overbeeke, Adriaan, and Hannah Van Oojien. 2014. Les politiques relatives au port de la burqa aux Pays-Bas. Tomber de rideau sur une tradition pluraliste? In Quand la burqa passe à l’Ouest. Enjeux éthiques, politiques et juridiques, Sciences des religions, ed. David Koussens and Olivier Roy, 251–267. Rennes: Presses Universitaires de Rennes. Parvez, Farren Z. 2011. Debating the Burqa in France: The Antipolitics of Islamic Revival. Qualitative Sociology 34 (201): 287–312. Portier, Philippe. 2011. Nouvelle modernité, nouvelle laïcité: la République française face au religieux (1880–2009). Estudos de Religião 25 (41): 43–56. Robert, Jacques. 1994. La liberté religieuse. Revue internationale de droit comparé 46 (2): 629–644. Rosenblum, Darren. 2020. Les quotas de femmes pour les entreprises et l’interdiction du burkini. Revue générale de droit 50: 7–115. Rubio, Marie-Nicole. 2015. Baby-Loup, un cas d’école. La Pensée 3 (383): 37–40. Ruet, Céline. 2014. L’interdiction du voile intégral dans l’espace public devant la Cour européenne: la voie étroite d’un équilibre. Revue des droits de l’homme (August): 1–14. Sabbagh, Daniel. 2019. La discrimination sur le lieu de travail: éléments pour une comparaison transatlantique. Droit et Société 2 (102): 319–332. Sassen, Saskia. 2002. Towards Post-National and Denationalized Citizenship. In Handbook of Citizenship Studies, ed. Egin S. Isin and Bryan F. Turner, 277–291. London: Sage. Schlegel, Jean-Louis. 2016. Le burkini affole la laïcité française. Esprit 10: 7–10. Valentin, Vincent. 2016. Remarques sur les mutations de la laïcité: mythes et dérives de la “séparation.” Revue des droits et libertés fondamentaux 14: 1–6. Wattier, Stéphanie. 2017. Le Conseil d’Etat français suspend l’interdiction du port du “burkini.” Revue trimestrielle des droits de l’homme 7 (410): 407–419. Zeghbib, Habib. 2008. La loi, le juge et les pratiques religieuses. Actualité juridique—Droit administratif 36: 1997–2002.

Chapter 9

Conclusion: The Roots and the Sap

Abstract  In contemporary debate and policy, there is an observable nationalization of secularism that is being deployed within what may seem, at first sight, like a paradoxical dialectic between two poles. This new secularism is, in the first place, of the republican nationalist variety. It draws on Enlightenment rationalism and conveys numerous age-old values—humanism, liberty, emancipation, progress— inherent in the construction of the French Republic. In making membership in the polity conditional upon prior suspension of particular allegiances, at the risk of infringing certain freedoms—particularly the expression of religious rights—this secularism invokes the universality of French citizenship. It is profoundly assimilationist. Contemporary French secularism is also civilizationist-nationalist in character. It reinserts religion within a French national imaginary and anchors citizenship within a Christian identity said to have been handed down to and shared by all. The numerous speeches given by presidential candidates during the 2022 electoral campaign have given ample evidence of this. This secularism would thus appear to run counter to the universalist republican ideal, since it tends to particularize the French national identity. It is profoundly differentialist.

I know that Europe’s Christian roots have been debated as if it were a question of the sex of the angels. And that this denomination has been pushed aside by the European parliamentarians. But, after all, historical evidence sometimes dispenses with such symbols. And it is not these roots that matters, for they might as well be dead. What is important is the lifeblood, the sap. I am convinced that the Catholic lifeblood must still and always contribute to bringing life to our country.1 President Emmanuel Macron Collège des Bernardins, 9 April 2018

 Discours du Président de la République, Emmanuel Macron, à la Conférence des évêques de France au Collège des Bernardins, 9 April 2028, online at https://www.elysee.fr/emmanuelmacron/2018/04/09/discours-du-president-de-la-republique-emmanuel-macron-a-la-conferencedes-eveques-de-france-au-college-des-bernardins 1

© Springer Nature Switzerland AG 2023 D. Koussens, Secularism(s) in Contemporary France, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies, https://doi.org/10.1007/978-3-031-18231-0_9

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It was not by chance that evening that the terrorist killed a teacher, because he wanted to kill the values of the Republic, the Enlightenment, the possibility of making our children free citizens, wherever they come from, whatever they believe in, whether they believe or not, whatever their religion. This battle is ours and it is existential.… They will not pass. The concomitant obscurantism and violence will not win. They will not divide us.… I call on all of our compatriots, in this moment, to unite, without any distinction whatsoever. For we are first and foremost citizens united by shared values, by a history and a destiny.2 President Emmanuel Macron Conflans-Sainte-Honorine, 16 October 2020

Not much given to long speeches, President Emmanuel Macron has regularly dwelled in recent years on church-state relations; the place of religions in society; guarantees of the freedoms of religion, worship and expression; the fight against “separatism” or communitarianism, and secularism more broadly.3 Two of these speeches, given in very different settings—guided in one case by considerations of electioneering and in the other by astonishment and emotion—quite peculiarly and paradigmatically illustrate, I think, how French secularism has progressively been recast over the last three decades. The first, of which an excerpt is cited in the epigraph to this conclusion, was given on 9 April 2018 in Paris within the velveted halls of the Collège cistercien des Bernardins before an audience of bishops and other French Catholic figures. Revisiting the recent terrorist assassinations of two citizens belonging to the Catholic faith, Father Jacques Hamel (26 July 2016) and Lt. Colonel Arnaud Beltrame (23 March 2018), the president stressed the importance of “Catholic engagement,” which, he argued, had “fortified” France. Such engagement, he said, like that of the Catholic Church, had helped define the French national identity: “the nation has most often grown in stature by the wisdom of the Church.” Macron called for a renewal of dialogue between state and church in order to improve the collaboration between them. To this end, he hoped to “repair” the bond that had been “damaged” by (secular) debates over the redefinition of civil marriage or around ethical issues such as medically assisted procreation. The second speech, also excerpted in the epigraph, corresponds to a statement given outside a college in the Paris suburbs on 16 October 2020, which received heavy media coverage. A professor of history and geography, Samuel Paty, had just been savagely assassinated by an Islamic fundamentalist terrorist for having shown caricatures of the Prophet Muhammad to his students. The President positioned himself as a warrior defending a Republic whose values and identity were under attack. On the threshold of what he termed “an existential battle,” he exhorted French citizens, “united by shared values, a history, a destiny,” to “unite” to protect

2  Déclaration du Président de la République suite à l’attentat de Conflans-Sainte-Honorine, 16 October 2020, online at https://it.ambafrance.org/Declaration-du-President-de-la-Republiquesuite-a-l-attentat-de-Conflans-Sainte 3  In addition to the two speeches quoted above, other speeches were given at Mulhouse on 18 February 2020 and Mureaux on 2 October 2020.

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the threatened Republic. Drawing on a vocabulary evocative of resistance to an invader, he adopted a warlike tone in declaring: “They will not pass.” These two speeches attest, each in its fashion, to increasingly reactionary reconfigurations of French secularism. Indeed, nearly the entirety of the new secular arrangements are being organized today in reaction to a form of Islam said to be not normalized within the cultural system of the nation; that is, a form of Islam external or alien to it, or even pitted against it. Whether one considers the governance of associations of worship, the changes made to the rules governing religious buildings, policies on chaplaincies in public institutions, legislation and jurisprudence concerning the wearing of religious symbols, or other matters, all these new measures aim at better regulation, supervision, and often limitation of the expression of one’s faith in Islam in French society, which is often perceived as a threat to French national identity. Few are the secular regulations that have not been directly undertaken in reaction to this religion, a reality amplified by the political debates and by media coverage increasingly laser-focused on Islam. Some of the measures that have largely flown under the radar in the last two decades worth of debate over secularism are the adoption of the Civil Solidarity Pact (Pacte civil de solidarité, fall 1999), the recognition of same-sex civil marriage (spring 2013), the legalization of medically assisted procreation (fall 2021), and the debates around extending the permissible period for voluntary interruption of pregnancy (fall 2021). These policies effectuate a strict separation of religious and civil normativities on major societal issues, yet they are not often perceived as secularism laws and constitute veritable “thoughts unthought” in contemporary French secularism. Christian normativities are still today so integral to the French ethos that they continue to mask numerous genuine issues of secularization. And this is probably one of the reasons that led President Macron to opine that such policies (separation of religious and civil normativities) had “damaged” the age-old bond between the Catholic Church and a vision of France that has long been depicted as its “elder sister.” The secularism taking shape in contemporary France is thus reactionary to its core. Its liberal dimension as protector of rights and freedoms (particularly those of minorities) is increasingly being put in abeyance. Secularism is no longer a mere political and legal arrangement designed to regulate religious diversity. It is becoming a conception of the good said to outweigh the principles of justice. Fundamental rights have not, of course, vanished from the secular repertoire. What has happened is that this repertoire has had to make more room for other ethical, philosophical, political, and cultural repertoires directly associated with the history of French nation-building. Secularism finds itself recast as a battlement perceived as far more effective than the logic of fundamental rights alone in protecting the cultural, social, and emotional cohesion of a national community increasingly presented as being under threat. In contemporary debate and policy, there is an observable nationalization of secularism that is being deployed within what may seem, at first sight, like a paradoxical dialectic between two poles.

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This new secularism is, in the first place, of the republican nationalist variety. It draws on Enlightenment rationalism and conveys numerous age-old values— humanism, liberty, emancipation, progress— inherent in the construction of the French Republic. In making membership in the polity conditional upon prior suspension of particular allegiances, at the risk of infringing certain freedoms—particularly the expression of religious rights—this secularism invokes the universality of French citizenship. It is profoundly assimilationist. Contemporary French secularism is also civilizationist-nationalist in character. It reinserts religion within a French national imaginary and anchors citizenship within a Christian identity said to have been handed down to and shared by all. The numerous speeches given by presidential candidates during the 2022 electoral campaign have given ample evidence of this. This secularism would thus appear to run counter to the universalist republican ideal, since it tends to particularize the French national identity. It is profoundly differentialist. The improbable coexistence of these republican-nationalist and civilizationist-­ nationalist secularisms in contemporary public governance derives its sole justification from just one factor: the Muslim fact, which has been progressively, over the past 20  years, constructed as a “problem.” It has now become the principal lens through which the issues of secularism are redefined. This Muslim “problem” becomes the glue holding together the two (albeit contradictory) poles of nationalist secularism. By virtue of a reinterpretation of traditional schemes of republican universalism, secularism becomes a central component of a republican identity and a Christian culture specific to the French nation. This nation is perhaps re-ethnicized in its Christianity, but this ethnicity is ultimately considered to be universalizable. Henceforth, these nationalist conceptions of secularism become the principal interpretative framework for all contemporary secular deployments. As this book has shown, few are the public policies or judicial decisions not guided, directly or indirectly, by reaction to the Muslim fact; few are those that do not include elements of these nationalist conceptions of secularism in their reasoning or goals. This is true of the legislative and jurisprudential configurations of secularism that have progressively imposed an obligation of religious invisibility in certain public and even private institutional spaces as a gage of neutrality. In all the debates and measures adopted, the Enlightenment and republican universalism have been constantly invoked and pitted against the rise of a version of political Islam said to be embodied by the visibility of Islamic religious dress such as the headscarf, the full-­ face veil, and the burkini. While the controversy surrounding “cults” constituted an important anti-­religious moment for contemporary secularism in the 1990s, it was soon compounded by the Muslim “problem.” The debates around the wearing of the veil by public school students were greatly influenced by a set of arguments about the importance of the emancipatory role of the secular state. It was said to be incumbent upon the state to liberate and emancipate the individual minds of citizens a priori in order to better guarantee more “enlightened” freedom of conscience a posteriori. Also observable in reaction to the visibility of Islam was a reaffirmation of Christian religious symbols in public institutions, often aided by ambiguous

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jurisprudence handed down by administrative judges. A number of heads of state, notably Nicolas Sarkozy and Emmanuel Macron, no longer hesitated to assert the importance of the spiritual and religious past as a resource, for citizens but also for politicians, in a nonetheless secularized society. So many of their remarks sounded a kind of reminder, in an ever more plural and diversified society, of the indelibility of Christian meaning as a component of French national identity. And even when the policies adopted formally tend toward greater equality, toward recognition or inclusivity, they are often guided by a preventive thrust and take the form of indirect control over legitimate religious speech and the conditions for the practice of worship. Illustrations of this are the adaptation of the legal apparatus relaxing the conditions under which leases in perpetuity can be granted by municipalities to Muslim associations of worship, and the greater openness of the chaplaincies of public institutions to Muslim chaplains. These measures also gesture toward a form of secular Gallicanism reflected in various official interpretations of religion aimed at distinguishing acceptable from unacceptable expressions thereof. French jurists long lived by the celebrated remarks of Jean Rivero, who wrote that although “the word ‘secularism’ smells of gunpowder,” although it “arouses contradictory emotional resonances,… once the threshold of law is crossed, the arguments subside.” He added: “for jurists, the definition of secularism is relatively unproblematic; quite different conceptions have been developed by statesmen … but only one has found a place in the official documents; the legislative texts, the parliamentary reports commenting on them, the circulars accompanying their application, have always construed secularism in one and only one way: as state neutrality” (Rivero, 1949: 137). It would be quite difficult to agree that this remark remains valid today. The legislative and regulatory texts, the parliamentary documents, and the government reports increasingly attest to the entrenchment of a nationalist conception of secularism that cannot be squared with a principle of neutrality, as much as the latter is invoked. Quite the contrary, this form of secularism is often presented as a weapon in an artificially constructed—but rapidly-turned-performative—clash between Islam, its values and believers and, on the other side, that which is said to constitute the basis of French national identity. Slowly but surely, contemporary French secularism has become cut off from its liberal roots. The roots are not dead, but they are increasingly withered. And though the sap still rises, and keeps on rising, it is now leaving a bitter taste in the mouths of religious minorities and anyone who still cares about rights and freedoms.

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Index

A Abbé Bouteyre, 115 Abortion, 12, 21 Achbita, Samira, 151, 152 Act of 17 May 2013, 5 Act of 1905 (Church-State Separation Act of 9 December 1905), 3, 7, 11, 13, 16, 18, 19, 21, 22, 25–27, 34, 35, 38, 40–42, 52–54, 56–58, 66–69, 71, 79, 80, 82–84, 98, 115, 120, 138 Act of 2001, 64, 65 Act of 2004 (Act respecting the Wearing of Religious Symbols in Schools), 3, 15, 36, 40, 102, 103, 105, 106, 108–110, 120, 127, 134, 135, 146 Act of 2010 (Act prohibiting the Concealment of the Face in Public Places), 3, 36, 46, 133, 139, 141, 142 Act of 2016, 149, 150 Act of 2021 (Act reaffirming the Principles of the Republic), 3, 26, 35, 36, 59, 60, 83, 119, 122 Act respecting the Laicity of the State, 4, 129 Afif, Fatima, 146–149 Algeria, 35 Alliot-Marie, Michèle, 85 Alsace-Moselle, 5, 35, 37–39, 42 Associations of worship, 3, 5, 35, 45, 52–60, 73, 78–83, 87, 101, 159, 161 Atheism, 58 Atheists’ Union, 53 B Baby Loup, 146–150, 152

Badinter, Élisabeth, 147 Baleato, Nathalie, 146 Barbier, Maurice, 17, 152 Baroin, François, 100 Baubérot, Jean, 17–19, 24, 27, 75, 137, 152, 153 Baudis, Dominique, 121 Bayrou, François, 104 Beaman, Lori, 71 Beltrame, Arnaud, 158 Blancarte, Roberto, 16 Boissard, Sophie, 54 Bouchard-Taylor Commission, 20 Bougnaoui and ADDH, 151, 152 Bougrab, Jeanette, 147 Boyer, Alain, 72 Brard, Jean-Pierre, 64 Buffet, Marie-George, 104 Buisson, Ferdinand, 17 Burkini, 1, 90, 131–146 Burqa, 131–146 Bussereau, Dominique, 65 C Canadian Charter of Rights and Freedoms, 16 Casanova, Jacques Arrighi de, 54 Casanova, José, 23 Catholic Church in France, 66, 158, 159 in Mexico, 16 in Quebec, 12 relations with the state, 5, 11, 24, 52, 73 and religious buildings, 79, 80 sexual abuse scandals in, 57 in Spain, 16

© Springer Nature Switzerland AG 2023 D. Koussens, Secularism(s) in Contemporary France, Boundaries of Religious Freedom: Regulating Religion in Diverse Societies, https://doi.org/10.1007/978-3-031-18231-0

173

174 Catholicism, 27, 52, 66 Champion, Françoise, 11, 12 Chanteloup-les-Vignes, 146, 148 Chaplaincy, 5, 78, 84, 85, 87, 116, 159 in the army, 85, 86 Catholic, 85 in hospitals, 84 Muslim, 85, 86, 88–90, 161 in prisons, 84, 86–88 in schools, 84 Charter of Fundamental Rights of the European Union, 45 “Charter of Secularism in the Public Service”, 126 Chatel, Luc, 121 Chirac, Jacques, 100 Chrestia, Philippe, 133, 135 Church of Scientology, 62 Church-state separation, principle of, 12, 21, 26, 28, 33, 35, 40, 42, 87, 105 in Japan, 12 Civil marriage, 5, 12, 16, 158, 159 Civil Solidarity Pact, 159 Clément, Pascal, 104 Clericalism and anti-clericalism, 3, 11, 12, 52, 65 Coalition Avenir Québec, 129 Communauté Sant’Egidio, 73 Communitarianism, 7, 35, 40, 99, 100, 102, 103, 119, 120, 123, 127, 132, 136, 158 Concordat of 1801, 25, 51, 52 Concordatory regime, 7, 25, 26, 35 Constitutional convention, 38 Constitutional Council, 28, 38–42, 139, 142 Constitution of 1793, 36 Constitution of 1946, 17, 22, 37, 39, 41, 115 Constitution of 1958, 28, 37, 41, 44, 98 Coq, Guy, 15 Costa, Jean-Paul, 98 Council of State, 33, 38, 43, 46 on associations of worship, 53–56, 59 on chaplaincies, 84, 87 on cults, 62 on funding of religious events, 73 on nativity scenes, 69, 70 on neutrality as a constitutional principle, 41 on neutrality in the public service, 114–118, 120, 121 on places of worship, 80–83 on radical practice of religion, 134, 136, 144

Index on religious symbols affixed to monuments, 66 on secularism, 36 on wearing of religious symbols in schools, 96–98, 100, 106, 107 Cour de Cassation, 122, 147–150, 152 Court of Justice of the European Union, 45, 140, 150 Creil controversy, 96–98 Cults, 5, 55, 58, 61–65, 95, 160 Culture, 67 D Darmanin, Gérald, 77 Debray, Régis, 13, 15 Debré, Jean-Louis, 102 Declaration of the Rights of Man and of the Citizen, 36, 37, 41, 114–116 De Galembert, Claire, 132, 140 De la Pradelle, Géraud, 152 Delarue, Jean-Marie, 88 Dogru v. France, 33 Dord, Olivier, 35, 42 Dosière, René, 104 E Enlightenment, 2, 15, 64, 158, 160 Enterprise of conviction, 148, 149 Equality between the sexes, 36, 96, 103, 104, 133, 134, 136, 137 Equality, principle of, 14–16, 20, 21, 25, 28, 33, 39–42, 46, 63, 74, 82, 83, 100, 117 European Convention on Human Rights, 45, 46 European Court of Human Rights, 33, 45, 46, 108, 133, 140, 148 F Ferrari, Alessandro, 17, 23 Fillon, François, 138 Fourth Republic, 17 Freedom of conscience and religion, 1, 3, 18 CJEU on, 150, 152 and cults, 62–65 in different models of secularism, 27, 28 in European Union and international law, 44–46, 140 in French law and jurisprudence, 7, 33, 35, 40–42, 46, 51, 52, 55, 58, 59, 82–87,

Index 96, 116, 132, 133, 136, 140, 141, 144, 146, 148, 150–153, 158 in the French public service, 116–122, 128 in French schools, 84, 96–98, 103, 107, 108 in Japan, 12 limitations placed on, 3, 101, 141, 145, 150 and nationalist secularism, 14–16, 100–102, 159–161 and societal secularization, 16–21, 25 and wearing of the veil, 46, 138–140, 142, 143, 146, 151 “Freedom to think”, 18–19, 65, 108 French Council of Jewish Institutions, 73 “French exception”, 13, 16, 23, 33 Fundamental principle recognized by the laws of the Republic, 37, 39, 41, 152 Funerary monument, 66, 67 G Gauchet, Marcel, 15 Geneva, 4 Genuine and determining occupational requirement, 150 Gérin, André, 137–139 Gest, Alain, 62 Gonzalez, Gérard, 42 Government Commissioner, 54 “Great replacement”, 1 G4S Secure Solutions, 151 Guyane, 26 Guyard, Jacques, 62 H Haarscher, Guy, 11, 20 Halal meals, 85, 88–89 HALDE, 43, 109 on chaplaincy accreditation, 87 on wearing of religious symbols, 106, 120, 123, 127 Hamel, Jacques, 142, 158 Helbronner, Jacques, 115 Hennette Vauchez, Stéphanie, 147 High Council on Integration, 80, 108, 109, 123, 125, 126 Hijab, 1, see Veil I Interministerial Observatory on Cults, 62–63 International Covenant on Civil and Political Rights, 44 Islamophobia, 75, 140, 142

175 J Jardé, Olivier, 104 Jehovah’s Witnesses, 54, 55, 86–88 John Paul II, 67 Jospin, Lionel, 73, 96, 117 Joxe, Pierre, 85 Jules Ferry Laws, 34, 66 K Kaltenbach, Jeanne-Hélène, 56 Kervanci v. France, 33 Keshi, 106 Kessler, David, 97 Kherouaa decision, 97 Kintzler, Catherine, 15–16 Kippa, 101, 104, 106 Koenig, Matthias, 140 L “La Manif pour Tous”, 5 Lamine, Anne-Sophie, 25, 74 Langlois, Claude, 17 Lease in perpetuity, 81–83, 101, 161 Lectorium Rosicrucianum de Rennes, 57 Le Pen, Jean-Marie, 99, 100 Ligue de l’enseignement, 98 “Living together”, 6, 71, 74, 104, 136, 137, 139, 141 Lochak, Danièle, 46 Locke, John, 18, 65 Luca, Nathalie, 63 M Machbour, Faiza, 132–134, 144 Machelon Commission, 57, 58, 80, 82 Macron, Emmanuel, 3, 35, 158, 159, 161 Margin of appreciation doctrine, 46, 108, 141–143 Marseille Espérance, 73 Massignon, Bérengère, 21 Mauroy, Pierre, 61 Mayotte, 26, 36 Medical assistance in dying, 21 Medically assisted procreation, 158, 159 MILS, 63, 64 MIVILUDES, 63, 88 Mosques, 1, 4, 24, 57, 58, 60 closing of, 59 construction of, 77, 80, 145 Muzeau, Rémi, 78 Myard, Jacques, 136

176 N Napoleon Bonaparte (First Consul), 7, 25, 51, 52, 79 National Council on AIDS and Viral Hepatitis, 72 National Council on Ethics, 72 National Immigration Agency, 136 Nativity scenes, 2, 4, 24, 27, 68–71 Neo-republicanism, 13, 15, 16, 20 Neutrality, principle of, 1, 33, 40–42, 46, 52, 58, 73, 83, 105, 161 extended to individuals, 27, 100, 120–122, 132, 139, 149 extended to private enterprise, 122, 123, 146–153, 160 extended to private sphere, 135 in France, 17 in Italy, 17 maximalist conception of, 100, 125, 127 negative, 42 in the public service, 114–117, 119, 120, 128 in Quebec, 16, 21, 128, 129 in Spain, 16 state takes distance from, 101 theorized, 20 Niqab, 132–135, 137 Nouvelle-Calédonie, 26 O Observatory on Secularism, 123, 127 Ombudsman, 43, 109, 123, 127 Order of the Solar Temple, 55, 61 P Paty, Samuel, 35, 123, 158 Pécresse, Valérie, 78 Pemezec, Philippe, 78 Pena-Ruiz, Henri, 14, 15, 108 Picard, Catherine, 65 Pius VII (Pope), 51 Places of worship, 1 Christian, 79, 80 construction of, 101 public buildings interpreted as, 67 restoration of, 73 state regulation of, 73, 78, 79, 82, 159 state subsidization of, 5, 53, 55, 79–83 See also Mosques Polynésie française, 26 Popular sovereignty, 16, 19, 21

Index Portier, Philippe, 152, 153 Poulat, Émile, 17, 19 Practice of worship, 53–56, 59 Prélot, Pierre-Henri, 40 Priority question of constitutionality, 38, 39, 43 Proselytism, 7, 15, 65, 70, 78, 85, 101, 103, 107, 117, 126, 128 Public religious establishment, 52, 79, 80 R Radicalization, 7, 24, 59, 88–90, 142 Raffarin, Jean-Pierre, 73, 100, 103 Reform Laws of 1859–1860 (Mexico), 11, 16 Religious symbols bandannas interpreted as, 106, 107 Christian, 71, 160 conspicuous, 101, 104, 106, 107, 109 crucifix, 4, 14, 66, 68 displayed in cemeteries, 66, 67 displayed in public buildings, 2, 66–71, 73 interpreted by mayors, 144 Islamic, 7, 71 wearing of by civil servants, 4, 24, 117–122 wearing of in schools, 23, 44, 95–99, 101, 102, 104, 117, 120, 121 René Goblet Law, 34 Republic minority, 132, 140 third, 3, 134, 153 Republican baptism, 84 Rivero, Jean, 161 Robert, Jacques, 53, 54, 152 Rolland, Patrice, 56 Rossinot report, 123–126 S Saint-Pierre-et-Miquelon, 26 Salles, Rudy, 65 Sarkozy, Nicolas, 57, 74, 147, 161 S.A.S. v. France, 46, 133, 140–142 School Wars, 11 Schwartz, Rémy, 55, 118 Secular pact, 18, 19, 81 Secularism, 1–5, 7, 158 anti-clerical, 5, 11, 27, 65, 75, 153, 160 in Belgium, 11, 13, 17 as constitutional principle, 37, 38 in contemporary societies, 12, 19 civic faith, 75, 124–126

Index collaborative, 27, 58, 72–74, 153 concordatory, 28 and cults, 62, 64 defined, 40 disestablishmentarian, 5, 20, 27, 46, 126, 153 extended to private sphere, 110, 135 in the French public service, 113–115, 118, 119, 122–129 Gallican, 27, 60, 65, 90, 161 identitarian, 6, 27, 36, 101, 105 and Islam, 6 in Italy, 14, 17 in Japan, 12, 17 legal, 17, 19, 22–24, 28, 33–44, 51, 81, 85, 102–110, 125–127, 149, 161 meaning of, 1, 7, 17, 40, 42, 46, 96, 98, 99 in Mexico, 11, 16 multivalence of, 5, 6, 13, 17, 19, 21–28, 46, 47, 74, 81 narrative, 23, 24, 28, 58, 65, 99–105, 109, 110, 123–126, 128 nationalist, 6, 13–16, 71, 101, 105, 110, 138, 159–161 new, 99–104, 125, 138, 142, 143, 145, 152–153, 160 open, 27, 86, 88, 89, 98, 99, 128, 159 in Quebec, 4, 12–14, 16, 20, 21, 24, 128, 129 of recognition, 27, 101 republican, 75, 98–102, 110, 123 in Spain, 16 in Switzerland, 24 theory of, 4, 5, 11, 12, 14, 15, 17–20, 22, 23 in Turkey, 12 under the Third Republic, 3 and wearing of religious symbols, 7, 95–98, 108, 120–122, 129, 143, 153 Stasi, Bernard, 100 Stasi Commission, 85, 102, 123, 137, 153 Street prayer, 1, 26, 77, 78

177 T Temple of God, 61 Terrorist attack bataclan, 142 Charlie Hebdo, 142 Hyper cacher, 142 of mid-1990s, 99 Nice, 6, 7, 24, 58, 59, 75, 89, 90, 142, 144, 145, 158 Third Republic, 11, 153 Treaty of Amsterdam, 45 Treaty of Lisbon, 46 Treaty on European Union, 45 Tribalat, Michèle, 56 “Two Frances”, 3, 11, 18, 66 U Union pour un Mouvement Populaire, 100 United Nations Human Rights Committee, 44 Universal Declaration of Human Rights, 44 Universal Declaration on Secularism in the 21st Century, 20 V Valentin, Vincent, 147, 152, 153 Vallaud-Belkacem, Najat, 121 Valls, Manuel, 143, 147 Van Drooghenbroeck, Sébastien, 119, 128, 129 Veil, 27, 46, 70, 90, 96, 98, 101, 103, 104, 106, 109, 120, 121 Vendée, 67, 68 Vivien, Alain, 61 Voltaire, 18, 65 Vuilque, Philippe, 63, 65 W Wallis-et-Futuna, 26 Willaime, Jean-Paul, 20, 21 Woehrling, Jean-Marie, 46, 56