The following editorial by Pierre-Henri Prélot, of the Université de Cergy-Pontoise, appears in the latest Newsletter of ICLARS (the International Center for Law and Religion Studies) and is reproduced here with permission.
The French system of laïcité is often described as being quite intolerant towards religions and thereby reluctant to guarantee their freedom in the public sphere. It is quite a common criticism, and it is regularly expressed by (some) French religious authorities, as well as by foreign observers – who can hardly understand how freedom of religion can constitutionally be granted on the basis of what they consider to be the opposite principle.
The fact is that for the French Conseil constitutionnel, laïcité is one of the new “rights and freedoms guaranteed by the Constitution” (art.66-1, 2008): see Décision n° 2012-297 QPC du 21 février 2013, Association pour la promotion et l’expansion de la laïcité (Traitement des pasteurs des églises consistoriales dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle). As such, it has to ensure “freedom of conscience” and to guarantee “the free exercise of religion under the provisos enacted hereafter in the interest of public order”: Loi du 9 décembre 1905 concernant la séparation des Eglises et de l’Etat, art.1.
The terrorist attack against Charlie Hebdo in January 2015 has sometimes been interpreted as the direct result of this French national context: the prohibition of religious symbols in public schools (2004) and of the full veil in the public sphere (2010) being evidence of intolerance and discrimination against Muslim minorities. Since then, all democracies have, unfortunately, understood that they all are potential targets of Islamic terrorists.
Such a spread of terrorist violence in 2015 and 2016 led to the proclamation by the French Government of a State of Emergency a few days after the slaughter at the Bataclan in November 2015. Originally intended to be temporary for two months, the State of Emergency has been extended five times by the Parliament and is programmed to last until July 2017 – after the next presidential election. The effect of the Emergency is to strengthen the powers of police forces and to give public authorities powers that ordinarily belong to judges (such as searches, traffic ban, prohibition of stay).
The State of Emergency has no constitutional basis. It was created in 1955 by a single law of 3 April 1955 at the time of the war for independence in Algeria. The powers of public authorities under the State of Emergency were substantially strengthened in 2016 (21 July), in order to adapt the law to the present-day conditions of fight against terrorism. The new provisions of the law do not mention religions and, a fortiori, Islam or Islamic radicalism, though they had been enacted following attacks ordered by Daesh in the name of Islam. The only exception to the religious blindness of the law sits in article 8, which enables the Minister of Home Affairs and the Prefects – who are the agents of the State in the departments – to order the temporary closure of “any kind of meeting places, in particular places of worship in which statements constituting a provocation to hatred or violence, or a provocation to the commission of terrorist acts, or making the apology of such acts, are made”. In total, fewer than ten Salafist mosques were closed.
Parallel to the protection of public order, the French Government decided to strengthen its policy of integration of Muslim communities. A process of dialogue between the French Muslims and the Government, “Instance de dialogue entre l’Etat et l’Islam de France“, started in June 2015, consisting of three important meetings in the Ministry of Home Affairs (Place Beauvau) in June 2015, March and December 2016. Many questions have been discussed, such as the legal structures of Islam (Fondation pour les oeuvres de l’Islam, associations cultuelles…), financing of Islam (prohibition of foreign support, collections, public financing), the academic and theological formation of French imams, chaplaincies, prevention of religious radicalism, construction of mosques…
A couple of days after the attack in Nice, the Franch Conseil d’Etat had to decide about the prohibition of “burkinis” on the beaches of some coastal cities (Nice, Menton, Fréjus…). It cancelled the mayors’ decisions – see CE, ordonnance du 26 août 2016, Ligue des droits de l’homme et autres – association de défense des droits de l’homme collectif contre l’islamophobie en France – considering that public order did not require such prohibitions, which are contrary to freedom of religion, freedom of dress and individual liberty. As evidenced by the debates in the French Parliament in 1905, laïcité does not prohibit the public expression of religious opinions in the public sphere from the moment they do not infringe public order.
The public expression of their religious convictions by Muslims in a secularised country where citizens are not accustomed to expressing their religious convictions tends in return to provoke a reaffirmation of the Christian identity of the French nation, “eldest daughter of the Church”.
In recent years, Christian cribs have been exhibited in some city halls in the Christmas period, which heretofore was completely unusual. Article 28 of the Separation Act of 1905 prohibits the exhibition of any religious sign or emblem in the public sphere, in the name of neutrality of public authorities. In two important decisions of November 2016 – CE 9 novembre 2016, Fédération de la libre pensée de Vendée, n° 395223 and CE 9 novembre 2016, Fédération départementale des libres penseurs de Seine-et-Marne n° 395122 – the Conseil d’Etat stated that a Christmas crib had several meanings. It was a certainly a representation of Christian iconography but it was also a part of decorations and illuminations that accompany the end-of-year celebrations. Considering this plurality of significations, the Conseil stated that public exhibition of a crib was presumed legal unless it was exhibited for religious purposes – which the concrete modalities of its exposition would establish in case of dispute.
Laïcité was invented at the beginning of the 20th century to separate the Churches and the republican State that had always been associated over centuries. Since then, the principle of laïcité has often been understood as a kind of dogma containing invariable truths. In fact, its application has always been moving, as shown by the recent evolutions following the terrorist attacks since 2015. This shows that laïcité is nothing else than a living principle whose evolutions have always been customary.
Cite this article as: Pierre-Henri Prélot, “French laïcité and the terrorist attacks” in Law & Religion UK, 16 March 2017, https://www.lawandreligionuk.com/2017/03/16/french-laicite-and-the-terrorist-attacks/.