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  • November 2016: The presence of Nativity scenes in public places at Christmas time

The question of whether Nativity scenes should be put up in public places, which crops up in the public debate every year around Christmas, seems to be on the verge of being settled: should they be banned in public places, in the name of the principle of secularism, because of their religious significance? This is what the Association of French Mayors (AMF), chaired by François Baroin (a member of the party Les Républicains), asserts in a series of recommendations on living together in society and secularism published in November 2015 for all French municipalities, in which the association urges mayors not to set up Nativity scenes in administrative buildings in the name of the “religious neutrality” of the State. Some, to the contrary, feel that it is above all a cultural practice connected with a highly secularised social practice, and is thus acceptable in a separation regime: to wit, in December 2014, a survey by the IFOP showed that 71% of the French were in favour of having Nativity scenes shown, more as a component of culture than as a Christian symbol (IFOP for France Ouest Dimanche, “Les Français et la polémique des crèches de Noël dans les collectivités locales” (“The French and the controversy over Nativity scenes in local municipalities”, December 2014). This duality of viewpoints is evident in the opposing decisions of two administrative tribunals on this issue. In 2014, the Administrative Court of Nantes had ordered the General Council of Vendée to remove the Christmas Nativity scene set up as every year in its entrance hall. This decision was overruled in October 2015 by the Nantes Court of Appeal. Also in 2015, the Paris Court of Appeal ruled in favour of an association that had refused to set up a Nativity scene in the town hall of Melun.

The Litigation Assembly of the Council of State (the highest administrative court in France) reviewed these two cases on 21 October 2016. The Council of State’s public Rapporteur, Aurélie Bretonneau, recommended that Christmas crèches be allowed in administrative buildings, subject to certain conditions. On the basis of the 1905 Law and the possibility of “exhibitions” in public places, the public rapporteur argued an authorisation in principle, provided that such exhibition is “temporary”, not accompanied by any display of “religious proselytism” and lastly, that it has the “character of a cultural or at least festive event”. This line of reasoning by the public rapporteur is significant. The final ruling of the Council of State of 9 November 2016 in the end specified the conditions for the legality of the temporary installation of Christmas crèches by public persons, deemed legal “if it presents a cultural, artistic or festive character, but not if it expresses the recognition of a confession or marks a religious preference”.

Sources: Le Monde, Le Parisien, La Croix.

Anne-Laure Zwilling
  • September 2016: Laïcité, once again

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
  • August 2016: The wearing of the burkini on French beaches

Debates and controversy about the wearing of the “burkini” (a swimsuit covering the whole body as well as the head) on French beaches arose in the national press in August, when it reported on a municipal decree adopted by the mayor of Cannes banning “access to beaches and bathing [...] to any person not having appropriate attire, respectful of good morals and secularism, respecting the rules of hygiene and safety of bathing adapted to the maritime public domain. ” (Le Monde, 11 August 2016). Nearly thirty cities will adopt similar enactments, including the municipality of Villeneuve-Loubet. The appeal filed against this municipal order gave rise to a judgement of the Administrative Court of Nice on 22 August 2016, which did not find any illegality. This ruling was appealed to the interim relief judge of the Council of State. In an order dated 26 August 2016, the High Administrative Court ruled in relation to this municipal order that “the investigation does not show that risks of disturbance to public order have resulted, on the beaches of the municipality of Villeneuve-Loubet, from the attire adopted for swimming by certain persons. The administrative judge appreciates the reality of the risks of disturbance to the public order with regard to which a mayor may use his police power. The measures taken in this case must be based on the “needs of public order alone, in and as they arise from the circumstances of time and place, and taking into account the requirements of good access to the shore, safety of bathing and hygiene and decency on the beach. It is not for the mayor to rely on other considerations, and the restrictions he places on freedoms must be justified by proven risks to the public order”. However, "in the absence of such risks, the emotion and concern resulting from the terrorist attacks, and in particular that committed in Nice on 14 July last, cannot suffice to legally justify the contested ban. ” Thus, the solution adopted by the Council of State is based on standard reasoning to conclude that the execution of the municipal decree should be suspended. It should be noted that it establishes a clear distance between the issue of the supervision of the wearing of religious signs in public space and the context of the fight against terrorism, just as it perpetuates the classic duality between political analysis and a legal approach to the issue of the wearing of religious signs in the public space.

Anne Fornerod
  • June 2016: Private schools and home schooling

Education Minister Najat Vallaud-Belkacem reported on 9 June that the government intends to change the rules for opening private non-contractual educational institutions. For historical reasons, as education was long the privilege of the Church, the debate on freedom of education is closely linked in France to questions of religion. This debate was reignited in April by the bill to strengthen the supervision of public schools outside the contractual framework proposed by the Republican MP Eric Ciotti. There are three types of educational establishments in France: public schools, private institutions ‘under contract’, and those ‘outside contract’ (see School and religion in France). Public schools make up the majority of these institutions. More than 90% of private institutions have a contract with the State, through which they receive subsidies from the State or regional authorities, the State then being responsible for pedagogical supervision. In addition, although it is compulsory in France to educate children, it is not compulsory for this to be done in school; under certain conditions, this education can be provided in the family. In recent years, the number of pupils in private non-contractual and home-based education has been on the rise.
Private non-contractual schools account for only 0.5% of all students. They are free to choose their teaching curriculum, but remain subject to State supervision, particularly with regard to health and safety issues. An inspection of several of these institutions in December 2015 had revealed abuses in some of them. Citing the fight against radicalisation, the Government wants to step up inspections on home schooling or non-contractual establishments, and secondly, to modify the rules for opening a public school. A draft decree submitted on 9 June to the Higher Council for Education, and changes to the Educational Code, aim in particular to make the creation of any new public school conditional on prior authorisation from the public authorities, whereas currently a declaration of intent suffices. This information has revived a debate that has been very lively in the past, between those who see these controls as an infringement on freedoms (e.g. here or here), and those who see education outside public schools as a threat to societal living.

See also Le Monde, L’observateur, La Croix.

Anne-Laure Zwilling
  • April 2016: The Catholic church and the affairs of sexual assaults on children

A case of child abuse sparked significant media agitation recently in France. Beyond the legitimate outrage provoked by this information, this case raises the question of the responsibility of the hierarchy of the Church.
Bernard P., a priest who admitted committing sexual assaults between 1986 and 1991, was indicted in January 2016; the judges ruled that these acts were not prescribed. A victims association has filed a complaint, saying that Mgr Barbarin, appointed in 2002 Cardinal Archbishop of Lyon, had known of the pedophile actions committed by the priest of his diocese without reporting it to justice, and even allowed the priest to continue to work in contact with children. Cardinal Barbarin was also said to have been aware of similar acts committed by another priest, Jerome B., between 2007 and 2009. He is, therefore, within the scope of a legal investigation for failing to report sexual abuse of a minor (see Le Monde and Libération).
Since then, other cases of clergymen accused of sexual assault have surfaced again in the diocese of Lyon. The media agitation was increased by the statements of Prime Minister Manuel Valls calling the archbishop of Lyon to "take responsibility", and of the Minister of Education Najat Vallaud-Belkacem. Cardinal Philippe Barbarin said in response that he had "never covered any act of paedophilia."
This controversy affects the image of the Catholic Church, especially by revealing defensive mechanisms still at work, which can sometimes lead to give precedence to the protection of the institution over the consideration of victims. However, failure to report such facts incurs a penalty of three years in prison. In 2001, the bishop of a priest convicted for rape and assault of minors has been given a three-month suspended prison sentence for failing to report the crime of sexual molestation. The Bishops’ Conference of France recalled in 2003 the obligation for all, including Church leaders, to denounce a fact of sexual assault to their knowledge (see La lutte contre la pédophilie republished in 2010). Progress is still needed, obviously, and the Permanent Council of the Bishops’ Conference of France has taken up the issue. They announced in April a set of dispositions destined to prevent child abuses in the Catholic Church and to improve the management of these facts. A national expert committee against paedophilia (Commission nationale d’expertise contre la pédophilie) is also set up by the Catholic Church.

On this question, read an article of Stéphane Joulain, "La pédophilie dans l’Eglise catholique: un point de vue interne", Esprit, October 2011, p. 28-39.

Anne-Laure Zwilling
  • January 2016: Ritual slaughter

The concern to take into account animal suffering frequently raises questions about the practice of ritual slaughter, where the animal’s throat is slit without its being first stunned; several associations and movements advocate against this practice (see for example On 24 November, the President of the French Veterinary Council stated at a conference held in the Senate that “any slaughtered animal must be effectively rendered unconscious, prior to bleeding and until the end of the slaughter”, prompting indignation from Haïm Korsia, the Chief Rabbi of France.
The Ministry of Agriculture, in its response of 5 January to a written parliamentary question from the Socialist MP Hervé Féron (Question No. 90855) calling into question exemptions to the obligation to stun animals, recalled that ritual slaughter, carried out without prior stunning of the animal, “falling within the free exercise of worship”, is governed by French and European law and that this derogation to the law “does not infringe on the principle of secularism” (on the legal framework of ritual slaughter, see the chapter on the legal status of religions, and the other specific provisions).
Indicating that the issue remains topical, a working group on ritual slaughter in France has been set up. It is facilitated by the Ministry of the Interior’s Office of Worship and had been planned since the first meeting of the dialogue body with the Muslim faith on 15 June 2015. It plans to publish a practical guide on the subject in March.
The practitioners assert the need for this method of slaughter in the name of their religious precepts; between supporters of religious freedom who deem it necessary that this method of slaughter exists, and supporters of the protection of animals who deem that it causes unnecessary suffering to the animals slaughtered, the debate remains lively.

Anne-Laure Zwilling

D 12 December 2016    AAnne Fornerod AAnne-Laure Zwilling

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