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France

  • September 2016

In a context of constant debate around the issue of secularity (laïcité), reignited this summer by court decisions on the wearing of the burkini (see debates of August 2016), the Observatoire de la laïcité (whose mission it is to “assist the Government in its work to ensure respect for the principle of laïcité in France”) has just published two documents.

The first, entitled Déclaration pour la laïcité [lit. declaration for secularity], is set out following the motto of the French Republic : liberty, fraternity and equality. It stresses that secularity must above all evoke freedom - freedom of conscience and of religious practice, even if its public manifestations take place within a legal framework. Laïcité makes it possible to ensure equality among citizens through the principle of separation of the State from religion. It also seeks to contribute to the ideal of fraternity.

The second, Libertés et interdits dans le cadre laïque [lit. freedoms and taboos within the secular context], sets out in a more detailed way how the principle of secularity implies taboos and limits, varying according to the place, but also guarantees rights and freedoms.

In 2014, the Observatoire had published a guidance note, which initially recalled the history of the construction of the principle of laïcité, then explained the legal meaning of laïcité as well as its repercussions for society, finally detailing the application of the principle of secularity to modern realities.

Anne-Laure Zwilling
  • 27 November 2013 : The Paris Court of Appeal announces its decision in the Baby Loup case

In its judgment of 27 November 2013, the Paris Court of Appeal added a new dimension to what has become known as the “Baby Loup case” ; it all started with the dismissal from the crèche of a female employee who wore the Islamic veil. The crèche’s house rules specified that “the principle of freedom of conscience and religion of each member of staff cannot hinder respect for the principles of secularity and neutrality that apply in performing all the activities undertaken by Baby Loup, no matter whether on crèche premises or in its annexes or else in providing external support for children in the nursery” and the crèche used these rules to oppose the religious beliefs defended by its employee. In its judgment of 19 March 2013, the Court of Cassation had considered that “the principle of secularity established by Article 1 of the Constitution does not apply to employees of private companies who do not manage a public service”, which is the case of the Baby Loup nursery, a private law association. Thereafter, the provisions of the labour code apply, which provide that “No-one shall restrict persons’ rights and individual and collective liberties which would not be justified by the nature of the task at hand nor proportionate to the desired objective” (Article L. 1121-1). The general clause on secularity and neutrality featuring in the house rules of the Baby Loup association was thus judged to be invalid and the dismissal of the employee was declared null and void.

The Paris Court of Appeal confirmed the legality of the dismissal, yet following different reasoning. As such, it held that the crèche could be regarded as an “organisation with an ethos based on belief within the meaning of the case law of the European Court of Human Rights”, which would allow it to impose the neutrality obligation on its employees, just like an organisation with an ethos based on religion that can require that its employees adhere to a line of thinking defined by a religious doctrine. This idea of an organisation with an ethos based on religion or belief, absent from the labour code, is however defined in European Union law (Directive 2000/78 of 27 November 2000, which recognises in these organisations the “right to require from individuals working for them an attitude of good faith and loyalty to the ethics of the organisation”), as well as in French case law. In this case, this requirement of religious neutrality would be required to “respect and protect the wakening awareness of children”. An alternative approach to secularity is thus being put forward, having it change from a legal principle - which applies to public authorities in their relations with religious institutions and activities - to becoming a “conviction”.

For further information :
- CA Paris, 27 Nov. 2013, Madame Fatima L. / Association Baby Loup (in French)

  • 16 October 2013 : Jehovah’s Witnesses chaplains must be approved for prisons

The Council of State was called upon to quash several legal disputes relating to refusals to accept representatives from the Jehovah’s Witnesses as prison chaplains. The prison administration based its refusal on the insufficient number of detainees claiming to belong to this confession. The administrative courts and administrative courts of appeal involved had already condemned this reasoning (see Current Debates, 30 May 2011).

The Council of State confirmed the solution adopted by the original trial judges. Indeed, it recalled that detainees’ freedom of opinion, conscience and religion is guaranteed and that they “may exercise the religion of their choice, in accordance with the suitable conditions for organising the premises, within solely the limits imposed by security and good order in the institution”. The provisions of the Code of Penal Procedure require that prison authorities, “insofar as premises allow and within solely the limits imposed by security and good order in the institution, allow for the organisation of worship in establishments ; that solely facilitating common law visits by representatives of the faith could not satisfy these obligations ; that Paragraph 2 of no. 29 of the European Prison Rules, of which the minister avails himself and which is, moreover, without real legal scope, simply recommends making the number of approved chaplains proportional to the number of faithful, but has neither as its aim nor as its result for refusals of approval to be justified by low numbers of worshippers”.

The Council of State has also stated that nothing stops a chaplain being appointed who agrees to carry out such activity on a voluntary basis.

For further information :
- CE, 16 Oct. 2013, Garde des Sceaux, ministre de la justice et des libertés c/ m. n…et autres (in French)

  • 15 October 2013 : the Observatory of Secularity adopts two opinions on the application of the principle of secularity

The first opinion adopted by the Observatory follows up on the debates generated by the Baby Loup judgment of 19 March 2013. The Court of Cassation (see article below) addressed “the definition and structuring of religion in organisations dedicated to welcoming children”.

The Observatory of Secularity notes that extending the principle of neutrality beyond the public sphere, public services and their agents would risk violating a fundamental right and thus be subject to condemnation by the European Court of Human Rights - or even censure by the Constitutional Council for interfering with the freedom of religion of private individuals engaging in private activity. Justifying this extension of the principle of neutrality to childcare organisations on the grounds of the “vulnerability” of the children also encounters the difficulty - even impossibility - of precisely defining the concept. The Observatory also recalls that “secularity is not an opinion or a belief, but a common value” and that the notion of “organisation with a secular ethos” cannot be used.

The Observatory suggested the Baby Loup crèche “modify its house rules to clarify the means for meeting the self-assigned objectives of equality of all children and parents and refusing any distinction - political or denominational - by implementing restrictions to freedom of religious expression that are justified by aims specific to its activity and proportionate to these objectives”. It could also opt for a plan to delegate the public service that would involve applying the principle of neutrality of public services to its agents.

More generally, the Observatory recommends that the French Government on the one hand enacts an inter-ministerial circular as a reminder of the law in force on the matter and, on the other, re-disseminates the Charter of Secularity in Public Services originally published on 13 April 2007 within the entire public administration.

In its second opinion, the Observatory of Secularity sets out a “reminder of the law” on the content and boundaries of the principle of secularity : the responsibility of public authorities in the promotion and application of this principle, what secularity guarantees and what it prohibits.

For further information :
- Opinion of the Observatory of Secularity on the definition and management of the religious in bodies that provide childcare (in French)
- Reminder of the law on secularity and religion (in French)

  • 9 September 2013 : presentation of the Charter of Secularity in Schools

On 9 September 2013, the Minister of National Education, Vincent Peillon, presented the "Charter of Secularity in Schools" which was henceforth to be displayed conspicuously in all state educational institutions of primary and secondary level. Composed of 15 articles, the Charter recalls the fundamental principles of the French Republic and highlights secularity in schools. It mentions the secular nature of lessons – their being open to scientific questioning, the strict neutrality of the personnel, the ban on wearing religious symbols, students’ freedom of expression and the rejection of any discrimination. This Charter must be brought promptly to the attention of students and the educational community and attached, to the greatest extent possible, to the house rules of each school.

On this occasion, the minister wished that the Declaration of the Rights of Man and the Citizen of 1789 and the motto of the Republic “Liberté, Egalité, Fraternité” be displayed inside schools and that the French Tricolour and the European flag be displayed on the façade of establishments in application of Article L.111-1-1 of the Education Code created by Act no. 2013-595 of 8 July 2013.

This law also added to the second paragraph of Article L.111-1 of the Education Code one sentence stating that “the public service of education enables all students to acquire respect for the equal dignity of human beings, freedom of conscience and secularity”.

For more information, see the Charter of Secularity in Schools (in French) on the website of the Ministry of National Education.

  • 19 March 2013 : Wearing the veil and principle of secularity

The Social Chamber of the Court of Cassation has detailed the boundaries of the principle of secularity in two cases where an employee was dismissed on the grounds that she was wearing an Islamic veil.

In the first case, involving a primary insurance fund, the Court of Cassation held, for the first time, that the principles of neutrality and secularity were applicable to all public services, including when these are undertaken by private law bodies, as in the case in point. Employees are here participating in a public service role and cannot therefore express their religious beliefs using external symbols, in particular clothing. The dismissal of the employee was therefore declared to be founded.

On the other hand, the second case involving the Baby Loup crèche relates to a private association which cannot be considered to be managing a public service. The Court of Cassation issued a reminder that the principle of secularity established by Article 1 of the Constitution does not apply to employees of this crèche. Therefore, this principle cannot be invoked to deprive these employees of the protection that the provisions of the Labour Code afford them. These provide that restrictions to religious freedom must be justified by the nature of the task to be accomplished, respond to an essential and crucial professional requirement and be proportionate to the desired objective. The general clause of secularity and neutrality featuring in the house rules of the Baby Loup association is thus judged to be invalid and the dismissal of the employee was declared null and void.

This decision aroused many reactions among political actors ; the government spokesman said that the principle of secularity “must not stop at the door of crèches” and that the government did not rule out legislating on the subject.

For further information (in French) :
- Cass. soc., 19 March 2013, no. 11-28.845, Baby Loup
- Cass. Soc., 19 March 2013, no. 12-11.690, Caisse primaire d’assurance maladie de Seine-Saint-Denis

  • 5 March 2013 : Full veil and the ban on concealing one’s face in public

The Criminal Chamber of the Court of Cassation ruled for the first time, in two cases, on Law no. 2010-1192 of 11 October 2010, forbidding the concealment of the face in public.

Both cases involved a woman wearing a full veil. The first - very succinct - decision (no. 12-82.852), condemned a misinterpretation by the previous judge of the notion of public space as it follows in law. Indeed, the initial judges had decided that the person be discharged on the grounds that she had been stopped outside the police station and that “it is only at the initiative of the police officers that she entered this public institution, clothed in her veil”. However, as the Court of Cassation recalls, the wearing of the full veil is also to be challenged on public streets.

The interest of the second decision (no. 12-80.891) lies in what it says about the compatibility of the Law of 2010 with the European Convention on Human Rights and, in particular, Article 9 relating to freedom of religion. This time it involved a woman who, face hidden by a veil, had been stopped “in the vicinity of the Élysée Palace, where she had headed in the company of others wearing masks and with journalists”. The Court of Cassation based its decision on Article 9, section 2 which authorises states to apply restrictions on rights and freedoms protected by the Convention for reasons linked to public order, health or public morality, for example. However, according to the High Court, “such is the case of the law prohibiting full concealment of the face in public space in that it seeks to protect public order and safety by requiring that any person moving around in public show their face”.

It should be noted that the Court of Cassation refers in this decision to the classical components of tangible public order that are security and public order, while the debates preceding the adoption of the Law of 11 October 2010 had included the notion of intangible public order, presented in the report of the Council of State of March 2010 and the Decision by the Constitutional Council of 7 October 2010 (no. 2010-613 DC), which referred to minimum core requirements for life in society.

For further information (in French) :
- Cass. crim., 5 March 2013, no. 12-82.852
- Cass. crim., 5 March 2013, no. 12-80.891.

  • 21 February 2013 : The law on faiths in Alsace-Moselle is backed by the Constitutional Council

A lay association “APPEL” (Association for the Promotion and Expansion of Secularity) filed a priority question of constitutionality (QPC) relating to the remuneration of pastors in Alsace-Moselle, considering that this was contrary to the constitutional principle of secularity. The Constitutional Council acknowledged in its ruling that the French State could continue to pay ministers of worship : as the drafters of the constitutions of 1946 and 1958 did not call into question the provisions on applicable faiths in these départements, the latter are consistent with the Constitution. “The exception from the Concordat” is here upheld and strengthened.

For further information, see La Croix (in French).

  • 31 May 2011 : Passing a parliamentary resolution on the principles of secularity and religious freedom

The debate on secularity and Islam launched by the UMP (the party of the presidential majority) ended with the adoption of resolution passed by the National Assembly on 31 May, a text expressing intention, but not-legally binding, seeking to reaffirm "the commitment to respecting the principles of secularity and religious freedom". The text was voted on only by members of the majority, with opposition MPs challenging it on several points.
This resolution provides for the development of a code of secularity and religious freedom, comprising all the applicable legal texts and to be established by the government. It also wishes for the principle of secularity to be extended to all private bodies in the social, medical-social or nursery-care sectors entrusted with missions of public service or of general interest, as well as to everyone working in collaboration with a public service. The latter is mainly aimed at mothers wearing veils who accompany school trips, and an inter-ministerial group will shortly make proposals on the matter. It also expresses the wish for a certain neutrality in religious matters to be imposed in private companies.

  • 5 April 2011 : UMP convention on secularity

After several weeks of controversy, the UMP - party of the presidential majority - gave up on the idea of a broad national debate and, on 5 April 2011, held a simple convention on "Secularity for a better coexistence" in order to address particularly the issue of Islam and its compatibility with the laws of the Republic.

Representatives from the six main religions (Catholic, Orthodox, Muslim, Protestant, Jewish, Buddhist) united within the Conference of Religious Leaders in France (CRCF) expressed in a public forum their reservations about the desirability of such a debate and the "harmful confusion" between political agenda and electoral appointments that it could cause (the next presidential elections are scheduled for 2012).

At the end of its convention, the UMP presented "26 proposals for a better coexistence", including notably the creation of a "Code of secularity and religious freedom", containing all the legislative and regulatory texts and case law on the principle of secularity ; the desire to extend the requirements of neutrality and secularity to private social or medical-social bodies, as well as to casual public service employees ; or even encouraging the development of the creation of denominational squares in cemeteries.

  • May 2007 : HALDE reminder about the conditions for applying the principle of secularity

Xavier Darcos, Minister for Education, has brought to mind that "the process of selecting parents who are to be asked to accompany school trips, should take place without discrimination".
This statement came after deliberations by the High Authority for the Struggle Against Discrimination and for Equality (HALDE) on 14th May 2007 that considered that "a refusal in principle to allow students’ mothers who wear a headscarf" to participate in school trips is "contrary to provisions prohibiting religious discrimination."
The HALDE recalls that the law of 15th March 2004 on wearing religious symbols in schools does not apply to parents and that "religious freedom cannot be restricted in ways not prescribed by the law ... " in accordance with Article 9 of the European Convention on Human Rights.

See the text of the HALDE resolution.