Last Updated on 17th May 2020
Asif Arif, Attorney at Law admitted to Paris Bar
Since the apparition of fundamental rights and the state of law in the Western world – mainly after the Second World War – various countries and political parties applied them differently according to their political agenda or their national cultures. This very observation shall raise substantial interrogations: are fundamental rights meant to be subject to political agendas or shall they transcend all aspects of political agendas and local cultures?
The question of the veil in French society is closely related to the history of France but also to the recent developments it is facing in the public debate. These recent developments toward, of course, a restriction of the freedom of conscience, began at the end of the 1980s. After a silent period (1990s up to 2003), the debate regarding the meaning and the importance of the headscarf in French society awakened again in early 2003, shortly after 9/11.
Since the end of Jacques Chirac’s presidential mandate, up to today, the veil held a substantial space in France’s media to the extent that Philippe Portier, a political secularism historian, talked about a “French obsession”. In order to understand the situation in France, we have to review the entire root of this sentiment throughout history and then understand the reality of the debates today.
The history of French “laicite”, or “political secularism”
French history has to be sliced for the comprehension of this article: pre 1905 and post 1905.
There are traces of the inception of a secular regime in the early middle ages, when King Henry IV wanted to put a term on the recurrent wars between Catholics and Protestants. He had promulgated the Edict of Nantes in order to recognise both religious movements.
Apart from a few exceptions, we find that France had very deep royalist roots and the French Revolution in 1789 changed that royalist tendency for good. Even though in 1815 the royalists resurfaced – and France faced two Napoleon periods – France turned its back to monarchies in general.
In the fundamental constitution of the kingdom, it was clearly stated that the king is a “good Christian” and he is the king of the Catholic people of France. There was no room for any secular view and the state was religiously oriented and defined. In order to understand the power of the church at that time, just before 1905, the church was the first landlord of France and the 1905 law was, initially, mainly to deal with the church properties. In fact, only four articles deal with the separation of the church and state and all the others are related to the management of church assets at that time.
The law of 9 December 1905
After long debates in the National Assembly, on 9 December 1905, the law separating the church and state had been adopted. This law detailed, in article 1, that the French Republic (abandoning the de facto term of “French Kingdom”) would ensure and recognise freedom of conscience. Article 2 stated that the state would neither finance nor help religious institutions.
We have to keep in mind that when article 1 of the law was being debated in the National Assembly, a member of parliament, Mr Allard asked Jean Jaures to write down, in the law, that France was an atheist republic. Jean Jaures didn’t attest, saying that there was a difference between atheism, which is a philosophy and ultimately an opinion, and the laïcité in which the state has no opinion whatsoever.
Jean Jaures played a crucial role during the adoption of this law. He was, himself, averse to religion and did not show any sympathy for religious groups. Despite these views, he was not influenced by the radical members of parliament like Mr Allard. Moreover, Jean Jaures made the following very important statement in the national assembly, “We have to close our differences with the church in order to focus our attention towards the social rights”. For him, the religious question was secondary and the primary political fight were social rights. Today, the debate is the exact opposite; in order to avoid social failures (unemployment, poverty and rights etc.) the mainstream media scapegoats Islam.
The recent debate in France and the polarisation of different institutions
In order to understand the actual debates in France, we must pass through all the debates that were raised in France regarding laïcité and Islam.
1989 Creil case and the position of France’s Supreme Court (Conseil d’Etat)
In 1989, two students attended a high school in France while wearing headscarves. The principal gave them a warning and said that they had to take their veils off in the premises of the school due to “laïcité”. When these cases came into the media, all political parties started to debate the issue and the government requested France’s Supreme Court to present advice on the application of the 1905 law to this particular case.
The Supreme Court’s advice is worth reading and very insightful. Judges said that if the students are wearing a religious sign but they are not proselyte (not forcing other people to join a specific religious group), the mere fact of wearing a religious sign is not considered a violation of the 1905 law, which is meant to give freedom of conscience.
This advice would then be followed by multiple judgements of the Supreme Court, who would adopt the same opinion in their ruling. In order to stop lower courts of appeal to apply this advice, the only way left was for the legislative power to adopt a law that would ban religious signs in schools.
2004 law about religious signs in school
In 2003, the Education Minister, Francois Bayrou, adopted a circular precising that all the students in pre-school, high school and all other schools up to university would be subject to the ban of religious signs when they were in the premises of the school. This circular was fundamentally against the Supreme Court’s advice of 1989, but political parties, at that time, had another agenda.
In 2002 another important event occurred that might justify the very existence of that circular. In 2002, Jean-Marie Le Pen, representant of the far-right in France, for the first time, came second in the presidential election tour. The theme of Le Pen’s campaign was all based on immigration, Islam and secularism (although they keep calling for Christians to take back their power in France).
In the second tour, Jacques Chirac was elected and in order to respond to the public opinion that voted for Le Pen’s programme, he decided to nominate Nicolas Sarkozy as the interior minister. During the same time, Jacques Chirac installed the Stasi Commission that would be responsible for producing an opinion on the sensitive question of the wearing of headscarves in public schools.
This political game led to the adoption of a law in 2004 (now codified in the French Education Code), banning religious signs in every school apart from universities, private schools and other superior educational schools. The vacuum left by this law regarding universities justified why today, in France, we still have some politicians that call for banning headscarves in universities as well.
Even the socialist former prime minister (who left France for Spain) was a fervent lobbyist for the ban in university in order to counter the terrorism and the rampant Islamism in French society. This is indeed a strange statement implying that any person wearing a headscarf is a terrorist or contributing to Islamism.
2010 law about the burqa ban
In 2010, while Nicolas Sarkozy was the French president and was facing substantial strikes in the country due to his economic policy, he decided to talk about (you guessed it) Islam. Therefore, the proposal of a law banning the burqa was put into motion in the National Assembly.
Before doing do, a very important debate started emerging in the National Assembly. The question asked was “on which legal basis would this law be adopted?” Sarkozy’s political party was chanting “laicité, laicité”. It is interesting to note that this law was in debate shortly after the subprime crisis of 2008. Often, in France, when a law related to religious signs is put into motion there is a social background to it, for example, strikes economic issues etc.
To be sure, president Sarkozy decided to request the Supreme Court to provide legal advice on the matter and, in fact, the Supreme Court rendered a very interesting advice. Judges found no legal basis in secularism, nor in woman dignity, nor in equal protection of all subjects. The Supreme Court denied all these options as the ban would limit a fundamental right; freedom of religion.
Although the Supreme Court judges did not shatter all hopes. They proposed the legal basis of the “imperious necessity for any police authority to recognise the identity” of a person, and the burqa was construed as a violation of that imperious necessity as the face was totally dissimulated.
This law would be challenged in front of the European Court of Human Rights that ruled in favour of France’s policy (ECHR, Grand Chamber, Case of SAS vs France) against multiple opinions that were arguing the contrary. The ECHR based its decision on the necessity to live together in a society and the importance for any authority to know the identity of any individual.
Recent developments including burkini and parents during field trips
Recent developments in public debates demonstrate no changes in the way France sees Muslims on its soil. France has the most important Muslim community in the European Union and is still considering widespread bans on different areas of a Muslim’s life. For example, in 2016, the prime minister called to ban burkinis on public beaches. Regarding that ban as utterly illegal, some Muslim women decided to file a lawsuit against the state. When that case was heard by the Supreme Court, judges decided that the ban was illegal because it was violating freedom of religion and freedom of expression. (French Supreme Court, Order, 26 August 2016, Human Rights Associations)
Parents accompanying children in field trips are also subject to recent restrictions. While parents cannot be considered bound by the ban on religious signs (they are not students), far right and right-wing parties decided to call for a debate to suggest a ban. While nothing came out in a legislative shape, so-called experts occupied all the media space in order to advocate for such a ban.
On this matter too, multiple lower administrative courts have held contradictory judgements. (Lower administrative court in Nice ruled in favour of the headscarf, while the lower court of Montreuil ruled the opposite.)
One case, in appeal, has been referred to the Lyon administrative court of appeal that ruled in favour of a ban as the parents accompanying the children are in a situation where they might influence children. (Lyon Administrative Court of Appeal, 23 July 2019)
Some city councils already mentioned that if a general ban is adopted, children are facing the risk that all the field trips will be cancelled as the only parents volunteering for the field trips are Muslim women wearing the veil.
For these reasons, Philippe Portier was right when he talks about the “French obsession”.