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  • December 2020 : The Catholic Church, Religious Freedom and the Pandemic (continued)

On 16 November 2020, the representatives of the religious denominations met with Prime Minister Jean Castex and Interior Minister Gérald Darmanin to study possible changes in the modalities of religious practice in the context of the Covid-19 pandemic. Nevertheless, on 24 November, when President of the Republic Emmanuel Macron detailed the measures for easing the second containment that France has been undergoing since 29 October, he announced that attendance at religious services would be limited to 30 people. The leaders of the different religious groups expressed their surprise and their regret that they had not been given a better hearing, judging this limit to be unreasonable and inapplicable.
Because of the importance they attach to participation in mass, the Catholics in particular have strongly advocated for this. Launched during the first weekend of confinement, the petition had collected more than 100 000 signatures in one week. The demand came from the most traditionalist circles, and was finally supported by the French Bishops’ Conference, which on 27 November filed a reference to the Conseil d’Etat (Council of State), along with several other associations.
In its decision of 29 November 2020, the President of the Court ordered the government to modify this limit of 30 people within three days, by adapting it, for example, to the surface area of the establishments or to their capacity, so that it is strictly proportionate to the health risk. The Conseil d’État found that "the particular nature of religious ceremonies is not sufficient to justify the 30-person limit imposed on all religious establishments, regardless of their size", that this limit was disproportionate to the objective of preserving public health and that the government had seriously and manifestly unlawfully infringed the fundamental freedom of worship.
He called for consultation with the representatives of the principal religions.
On 2 December, in a press release, the Minister of the Interior, Mr. Darmanin, stated that in the context of the discussions with the representatives of the various religions, "a new presence gauge in the religious buildings has been established". Religious ceremonies are authorised on condition that two seats are left free between each person or family, as well as having only every second row occupied.
Discussions are to continue, in order to prepare the evolution of the containment measures expected by 15 December.

See Decree N 2020-1505 of 2 December 2020 modifying decrees n° 2020-1262 of 16 October 2020 and n° 2020-1310 of 29 October 2020 prescribing the general measures necessary to deal with the covid-19 epidemic in the context of a state of health emergency

Anne-Laure Zwilling
  • November 2020 : Laïcité, freedom of expression and freedom of religion

Debates on an issue that frequently arouses passions in France, religions and secularism, were again very lively in November. They are also complex and very intertwined, since they are intertwined with other debated elements of French social and political life, and because passions around personal convictions are strong. In addition, the confinement and restrictions due to the health crisis make the social climate particularly difficult.
The debate started with the issue of freedom of expression, at the very moment when the trial of the perpetrators of the attack on the editorial staff of Charlie Hebdo newspaper in 2015 is being held. It was amplified by several tragic events.
The first of these events was an attack on 25 September by a young Pakistani man who stabbed two people standing near the former premises of the satirical newspaper Charlie Hebdo.
This attack was followed on 16 October by the assassination of Samuel Paty, a history and geography teacher at the college in Conflans-Sainte-Honorine (Parisian greater suburb). A few days after a class on freedom of expression, during which the teacher allegedly showed the students various cartoons, including some about the Prophet Muhammad, Samuel Paty was killed and then beheaded on his way home from school by an individual who claimed to be acting in the name of the Prophet of Islam.
Very quickly, the public discussion soon turned into a debate between, to express it in a very simplified manner, supporters of freedom of expression whatever the circumstances and proponents of respect for religious beliefs.
Thus, the president of the French Council of the Muslim Faith (CFCM), Mohammed Moussaoui, stirred up controversy by calling for the use of cartoons of Mohammed in education to be "controlled". He will go back on his words a few days later, regretting what he called a clumsiness. Some Catholic bishops (e.g. Nicolas Brouwet, Bishop of Tarbes and Lourdes) made a similar speech, as did the High Representative for the Alliance of Civilizations of the United Nations, Spain’s Miguel Angel Moratinos, who called in a communiqué for "mutual respect of all religions and beliefs".
Generally speaking, the French position has been rather badly perceived abroad (see for instance Bulgaria), particularly in the United States, whose press has been strongly criticized in France for the way in which it has presented the situation. The New York Times shocked strongly when it entitled its article "French police shoot and kill a man after a murderous knife attack" (the title has since been changed) ; but Americans often find it difficult to understand the French situation.
President Macron, who defended the right to caricature at the national tribute to Samuel Paty on 26 October, has also sparked criticism and calls for boycott in many Muslim-majority countries. The President then went on to explain his position, defending freedom of expression, saying he understood that the cartoons might be offensive but reiterated that can never justify violence. The Ministry of Foreign Affairs, for its part, called for stopping these demonstrations, which come from a "radical minority".
Emmanuel Macron seems to reflect French people’s opinion on the right to caricature religious figures, which has evolved in recent years : 59% of French people believe that newspapers had " reason " to publish this type of caricatures " in the name of freedom of expression ", whereas only 38% were of this opinion in February 2006 (IFOP survey Les Français sont-ils encore Charlie ?).
On 29 October, a few days after the murder of Samuel Paty, a knife attack in a Nice basilica left three people dead.
These events triggered strong actions by the French state, measures that are part of what President Emmanuel Macron calls the fight against separatism which he outlined on 2 October in a speech on separatism and secularism.
As a result, more than fifty associative structures accused of links with Salafism or the Muslim Brotherhood, including the CCIF (Collectif contre l’islamophobie en France, an association aiming to combat Islamophobic acts), and the NGO Baraka City, have been dissolved, as well as about fifty associative structures. The mosque of Pantin, accused by the authorities of having relayed remarks that led to the assassination of Samuel Paty, has been closed for 6 months.
One element of Samuel Paty’s assassination is therefore taking a back seat, while raising equally important questions : the role of social networks. It was in fact following a denunciation that went viral on social networks, an accusation that proved to be false, that the teacher became a target.
The Minister of Justice, Eric Dupond-Moretti, submitted on Wednesday 18 November to the Council of State a new proposal aimed at more quickly repressing the dissemination of hate messages in the public space, particularly through social networks. Some see this proposal as yet another restriction of freedom of expression.
Freedom of expression and freedom of religion, the debates raised by these freedoms are not nearing their end.

Anne-Laure Zwilling
  • February 2020, the "Mila Affair"

At the beginning of the year 2020, an incident occurred on social networks, sparking a short but intense national debate.
It started with the words of a teenage girl, Mila, against Islam and Muslims. The girl, who poses as a lesbian, rejects the advances of another teenager in an exchange on her Instagram account. He then insults her in a racist and homophobic manner. As the threats have taken a religious turn, Mila publishes a message affirming her rejection of all religions. This prompted a wave of messages from Internet users furious at this "insult to religion". Mila then posted a video online in which, in very crude terms, she affirmed her rejection and contempt for Islam.
As a result, the teenager received a barrage of insults and threats, including death threats, from thousands of users of Instagram, Twitter, and Snapchat. Her personal details, name, address and phone number, were made public. Her high school officials said that it would be better, under these conditions and for her safety, if Mila did not attend her school in the following days. Mila will later have to find another high school to attend.

Abdallah Zekri, the delegate general of the French Muslim Council (CFCM), made a statement on Sud Radio that provoked strong disapproval, saying "He who sows the wind reaps the storm". Shortly afterwards, CFCM president Mohammed Moussaoui eased tensions by tweeting that "nothing can justify death threats against a person, no matter how serious the remarks made. It is the justice system that must pronounce the sanctions provided for by law if there is provocation and incitement to hatred." He will add in a press release : "We must accept that Islam be criticized even in its principles and foundations. [...] Freedom of expression is fundamental. It is a source of enrichment and progress through the dissemination of ideas and opinions that it allows. It is the foundation of our democracy and the bulwark against all forms of alienation."
Several political figures expressed themselves on this subject. Justice minister Nicole Belloubet attempted to support Mila, saying death threats are unacceptable in a democracy, but had the awkwardness to say that, "insulting religion is obviously an attack on freedom of conscience". This is contrary to French law, as lawyer Richard Malka will point out : "the basis of freedom of conscience is not to prohibit criticism or even insult but to protect freedom of expression".

The President of the Republic Emmanuel Macron will in turn reaffirm the right to blasphemy and to criticize religions (see for example Le Monde).

The affair has been widely covered by the media. Numerous Internet users have also expressed their views on the issue, some condemning Mila’s comments with the keyword #JeNeSuisPasMila (I am not Mila), others declaring their support for him with #JeSuisMila.
In this, they illustrate the results of a survey by the IFOP institute, The French, the Mila Affair and the right to blasphemy, which reveals a country split in two on the possibility of criticizing religions : 50% of the interviewees said they were in favour of the right to criticize religion without limits, the other half were opposed to it. (See FranceTv info.)
Two variables are of particular importance : age and religion. Thus, 59% of 18-24 year olds and 51% of 25-34 year olds believe that insulting religion is an infringement of freedom of conscience, while this opinion is in the minority among those over 35 years of age. 68% of Muslims equate insulting a religion with an infringement of freedom of conscience, of which 46% "strongly agree".
Opposition to criticism of beliefs and dogmas is strongest among 18-24 year olds : only 41% defend "blasphemy" (compared to 31% in other age groups). This can be seen as an influence of the American way of looking at things ; the importance of young people in Muslim religious affiliation probably also plays a role.
According to the IFOP survey, 30% of French people would agree with Abdallah Zekri’s statement ("He who sows the wind reaps the storm"), 44% with the Minister of Justice ("insulting religion is obviously an attack on freedom of conscience").

As a result of this case, two investigations have been opened : one against Mila, for hate speech, will be closed without follow-up. According to the public prosecutor, the remarks broadcast expressed a personal opinion about a religion, but without any intention of inciting hatred or violence. The other complaint, for calling for murder, is pending.

The substantive issue raised by the Mila case, as did the cartoons of Mohammed and the terrorist attack on the newspaper Charlie Hebdo (as well as other older and perhaps less high-profile cases, such as a 1998 Volkswagen advertisement for the Golf by the DDB Paris agency, or the Benetton advertisement showing two male religious leaders kissing on the mouth), is that of what is called the right to blasphemy. The term is improper, since in fact only believers can evoke blasphemy, and also because this notion no longer exists in French law. It is the right to criticize religions, their symbols or beliefs, even in an extreme and shocking manner. It would appear that in France there is far from unanimity on this issue.

To be consulted on this subject :
- newspaper articles : Francetv info, Marianne, 20 minutes, Le Monde.
- The IFOP survey, February 2020, Les Français, l’affaire Mila et le droit au blasphème (The French, the Mila Affair and the right to blasphemy).
- A book : #JeSuisMila #JeSuisCharlie #NousSommesLaRépublique, 50 personnalités s’expriment sur la laïcité et la liberté d’expression, Seramis, 2020

Anne-Laure Zwilling
  • 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
  • 22 July 2014 : injunction to serve halal meals in prison overturned

By its ruling of 22 July 2014, the Administrative Court of Appeal of Lyon overturned the judgement of the Administrative Court of Grenoble of 7 November 2013 that ordered Saint-Quentin-Fallavier prison (in the French département of Isère) to offer halal meals to Muslim prisoners (see the ’current debate’ section for March 2014 below).
The court took the view that the various menus on offer ensure that prisoners are not obliged to eat food prohibited by the rules of the religion, that prisoners can furthermore request the supply of appropriate menus for religious holidays and have the option of buying halal meat through the ’canteen’. Therefore, a fair balance is maintained between the necessities of public service and prisoners’ religious rights.

For further information see the press release issued by the Administrative Court of Appeal of Lyon.

  • 22 July 2014 : injunction to serve halal meals in prison overturned

By its ruling of 22 July 2014, the Administrative Court of Appeal of Lyon overturned the judgement of the Administrative Court of Grenoble of 7 November 2013 that ordered Saint-Quentin-Fallavier prison (in the French département of Isère) to offer halal meals to Muslim prisoners (see the ’current debate’ section for March 2014 below).
The court took the view that the various menus on offer ensure that prisoners are not obliged to eat food prohibited by the rules of the religion, that prisoners can furthermore request the supply of appropriate menus for religious holidays and have the option of buying halal meat through the ’canteen’. Therefore, a fair balance is maintained between the necessities of public service and prisoners’ religious rights.

For further information see the press release issued by the Administrative Court of Appeal of Lyon.

  • 1 July 2014 : European Court of Human Rights rules on SAS v France

On 1 July 2014, the Grand Chamber of the European Court of Human Rights ruled on the SAS v France case. The applicant held that the law of 11 October 2010 prohibiting any person from concealing their face in public infringed upon her right to a private life (Article 8 of the European Convention) and essentially, her freedom of religion (Article 9). Finally, she argued that this law was discriminatory as it is aimed at Muslim women. The Court ruled that Article 9 concerning freedom of religion had not been infringed, thus giving discharge to the law, although it expressed numerous and serious reservations with respect to this law.

Based on the Court’s standard method of reasoning, it successively examined the interference in freedom of religion invoked in this particular case, the existence of legitimate goal(s) pursued by the restriction imposed on this freedom and, finally, the relationship of proportionality between the goal pursued and the prohibition or restriction.

Firstly, the existence of interference was not disputed in this specific case. Secondly, the Court conceded that the French legislator was indeed pursuing the legitimate goal of “responding to issues of ’public order’ or ’public safety’”, although one may “question whether the legislator gave significant weight to such concerns”. As regards the second legitimate goal, the French government argued that it sought to “respect minimum requirements for the values of a democratic and open society”. These requirements related to three values : “respect for gender equality, respect for individuals’ dignity and respect for the minimum requirements of life in society”. Having noted that only goals expressly set out in the Convention can be taken into consideration, the Strasbourg judges decided to examine this second goal from the perspective of protecting others’ rights and freedoms.

With regard to the principle of gender equality, the Court considered that this could not be invoked “in order to ban a practice that is defended by women such as the appellant within the scope of exercising rights” recognised by the Convention. It also did not accept the grounds of respecting individual dignity, while in contrast linking the legislator’s will to ensure that people continue to live together harmoniously with the legitimate aim of protecting others’ rights and freedoms. However, the “flexibility of the notion of ‘living together’ and the risk of excesses arising from this obliged the Court to perform” an in-depth examination of proportionality.
Within the scope of this examination of proportionality, the Court checked whether interference in freedom of religion is necessary in a democratic society or for protecting others’ rights and freedoms.

In this specific case, the general ban on people concealing their faces in public, “considering its impact on the rights of women who wish to wear the full-face veil for religious reasons” was deemed disproportionate to the aim of preventing detriment to the safety of individuals and property. The Court also took the view that the “contested ban may be deemed justified in principle solely insofar as it aims to safeguard conditions for ’living together”. However, the contested ban only just meets the requirements of proportionality with respect to this legitimate goal. Indeed, the Court highlighted the disproportion between the small number of women concerned and the enforcement of a law instituting a general ban, as well as the “strong negative impact on the circumstances of women who, like the applicant, have chosen to wear a full-face veil for reasons related to their beliefs”. It furthermore stated that it was “very concerned” by the Islamophobic comments that accompanied the legislative process and “noted that comments constituting a general and vehement attack against a group identified by a religion or ethnic origins are incompatible with the values of tolerance, social peace and non-discrimination that underpin the Convention”.

In contrast, the Strasbourg judges took the view that the ban was aimed at the fact that the veil conceals people’s faces rather than at its religious meaning, which distinguishes this case from the case of Ahmet Arslan and others versus Turkey, which related to a ban on religious dress in public. The mild nature of the penalties incurred was also highlighted. Finally and most importantly, the Court deferred to France’s large margin of discretion in this specific case, since : “the issue of whether or not to allow people to wear a full-face veil in public constitutes a choice for society” ; “public policy issues” were involved ; and the law of 11 October 2010 was the result of “arbitration performed in accordance with democratic procedures in the society in question”. The Court therefore ruled by fifteen votes to two that the applicant’s freedom of religion had not been infringed and the opposing opinion of the two judges was appended to the ruling.

Anne Fornerod
  • 25 June 2014 : The Court of Cassation upholds the dismissal of an employee of the Baby Loup nursery

By its ruling of 25 June 2014, the French Court of Cassation sitting in plenary session brought the ’Baby Loup’ case to a close by rejecting the nursery employee’s appeal against the Court of Appeal of Paris ruling of 27 November 2013 (see Current debates 2013). The Court of Cassation confirmed that her dismissal by her employer following her refusal to remove her veil was justified, hence approving the court of appeal ruling that the restriction on freedom of religious expression laid down in the nursery’s internal rules was not general in nature, and was sufficiently specific, justified by the nature of tasks to be carried out and proportionate to the goal pursued. The Court specified that the principle of secularism is nevertheless not applicable to employees of private companies that do not manage a public service. It furthermore noted that the Baby Loup Association cannot be classified as an ’entreprise de conviction’ [special French status for companies espousing specific religious, political or philosophical beliefs] and therefore its purpose is not to promote or defend religious, political or philosophical beliefs.

For further information :
Cass. plen. sess., 25 June 2014, n° 13-28.369, L. v Assoc. Baby-Loup.

  • 24 June 2014 : the ECHR suspends the Conseil d’Etat ruling whereby the medical decision to end Mr Vincent Lambert’s treatment is considered legal

Since a road accident in 2008 left Mr Vincent Lambert paralysed, he has been fed and hydrated artificially and is entirely dependent.
Following the consultation procedure provided for by the Leonetti Act of 22 April 2005 regarding patient rights and the end of life, the physician responsible for Mr Vincent Lambert took a decision on 11 January 2014 to stop feeding and hydrating the patient. Members of the family then brought the matter before the administrative court in Châlons-en-Champagne which, in its judgement of 16 January 2014, suspended the enforcement of the physician’s decision.
On 31 January 2014, Vincent Lambert’s wife and one of his nephews filed an appeal against this decision to the Council of State, which requested a medical assessment by a panel of three physicians. On 24 June 2014, the Conseil d’État disputes assembly ruled that the decision taken by the physician responsible for Mr Vincent Lambert to stop artificially feeding and hydrating him was legal, notably in view of the medical assessment that found that Mr Lambert’s state of consciousness had deteriorated and in light of the fact that Mr Lambert had expressed a desire prior to the accident not to be artificially kept alive if he was in a state of considerable dependence.
On 23 June 2014, the initial applicants referred the matter to the European Court of Human Rights for an interim measure. On 24 June 2014, the chamber to which the case was assigned decided to suspend enforcement of the ruling issued by the Conseil d’État for the duration of proceedings before the ECHR, which is now responsible for examining the admissibility and merits of the application.

Sources : press release by the Conseil d’Etat, 24 June 2014 and press release by the European Court of Human Rights, 25 June 2014.
Read also the article by Lucie Guichon « Fin de vie, soins palliatifs et euthanasie : les réactions des organisations religieuses à l’affaire Vincent Lambert » (pdf).

  • 4 June 2014 : the French Council of the Muslim Faith issues a reminder of fundamental principles

On 4 June 2014, the French Council of the Muslim Faith (CFCM) decided to publish a “Civic agreement for French Muslims promoting integration”. This publication has come at a turbulent time with the topic of religious radicalism back on the agenda. In it, the CFCM lists the fundamental principles of Islam in 19 points and emphasises their compatibility with secularism and French society.

For further information : Le Monde and le Figaro.

  • March 2014 : a prison obliged to provide halal meals to Muslim prisoners

On 20 March 2014, the Administrative Court of Appeal of Lyon refused to suspend the enforcement of a ruling issued by the Administrative Court of Grenoble, which, on 7 November 2013, obliged the prison administration of Saint-Quentin-Fallavier (in the French département of Isère) to regularly provide halal meals to Muslim prisoners on the grounds of freedom of religious practice. This decision was to be enforced within three months, which expired on 7 February.
The Ministry of Justice then appealed and requested that enforcement of the ruling be suspended on the grounds of “disruption to the prison service”, the complexity of certifying halal products and the fact that religious freedom was already upheld since vegetarian or pork-free menus were offered. The judgement of 20 March held that there was no “prohibitive additional expense for the prison” nor “any particular technical difficulty”. Halal meals are already provided for prisoners during major religious festivals. They can also purchase halal food at the canteen.

The chief inspector of custodial facilities took the view that providing faith-based meals (halal or kosher) in prisons does not infringe the principle of secularism (see his 2013 annual report, Section 8 : ’Feedback on the issue of secularism in custodial facilities’). He states that it is difficult to refuse this freedom insofar as “the law of 1905 authorises chaplaincy services and funds allocated to expenditure for solely religious purposes”. He believes that in view of the principle of secularism, there is no difference between not serving pork and serving meals that are compliant with religious rituals.
In her comment* regarding the judgement delivered by the Administrative Court of Grenoble, Florence Nicoud takes the opposite view. She claims that by enforcing the compulsory provision of halal meals, the judgement reinterprets the principle of secularism as defined by the law of 1905 and challenges the neutrality of public service by responding to demands that appear to be community-based. She believes that this judgement creates a difficult situation, since as long as the public authorities fail to take a stance on this issue, an increasing number of disparate situations will emerge. This may spread to other public services such as hospitals, the armed forces or school dinners.
A ruling on the merits of the case is expected by the end of the year.

* Florence Nicoud : "Laïcité et restauration collective : du nouveau dans les prisons" [Secularism and catering : new developments in prisons], Grenoble Administrative Court, 7 Nov 2013, no. 13-02502, JCPA, no 15, 14 April 2014.

For further information : Revue générale du droit, Le Monde, le Figaro.

  • 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.

D 23 novembre 2020    AAnne Fornerod AAnne-Laure Zwilling

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