Top court reignites debate over French secularism

On Tuesday, France's highest administrative court handed down a final ruling on five cases involving the public use of funds for religious purposes. Religious scholars say the place of Islam in French society is at stake.


In June 2007 an administrative court in western France blocked 380,000 euros the city of Le Mans wanted to use to set up a Halal slaughterhouse. The court ruled that the space was meant for religious practices and, according to France’s 1905 law on the separation of church and state, it could not be built with taxpayer money. Outraged, the city of Le Mans appealed the ruling to France’s highest administrative court, the Council of State, arguing that the slaughterhouse served local obligations to ensure public health and hygiene.

On Tuesday, the Council handed down a final ruling on the Le Mans slaughterhouse and four other cases. Each one involved the use of public funds for religious purposes, and was seen as a challenge to France’s strict secularism. But every decision turned out favourable to religious groups. The slaughterhouse project is back on track.

The rulings, which also considered disputes over the installation of an access elevator for a Catholic basilica, the restoration of a church organ and the use of public spaces for two different mosque projects, have gone mostly unnoticed. Even if some in France were quick to sound alarm bells.

“Statements about local interests are being used as an excuse to bypass the law,” raged Jean-Michel Baylet, president of the centre-left Radical Left Party (RPG) in a statement on Wednesday. “[The Council] has set a legal precedent that will gut the 1905 law of separation of church and state of its substance."

France’s Council of State (Conseil d’Etat) is a judicial and advisory body.

It is the supreme court for administrative justice, acting as the highest appeal court for such cases. It often rules on cases involving local elections, for example.

The Council of State also gives legal advice to the prime minister and other government ministers. It can review parliamentary bills to determine their legality. However, recommendations to the government are not made public.

The anti-immigration National Front (FN) party also slammed the Council's decision, saying it “shamelessly skirted” the law by invoking “local public interests”. The FN specifically took aim at one decision: to allow the southern city of Montpellier to provide one of its multipurpose rooms to a group of Moroccan Muslims to use for worship.

The Council of State is rarely asked to interpret the famous 1905 law, a text often cited in France whenever religion is seen as encroaching on the public sphere. Of the approximately 10,000 cases it looks at each year, ten at most are related to the subject. The rulings, however, have thrust the court into the center of the impassioned and ongoing debate on French laïcité.

Room to manoeuvre

According to Odon Vallet, a renowned French historian of religions, the legal decisions do not come as a surprise. “The Council of State has always been liberal in the application of the 1905 law. Soon after the law went into effect, it ruled against mayors who wanted to ban church bells from ringing,” Vallet explained.

The majority of French people have historically favoured a strict interpretation of the law, Vallet said, focusing on its second article, which plainly states "The Republic neither recognizes, nor salaries, nor subsidises any religion". To the historian, the Council’s latest rulings have pushed the law to its limits.

Other experts, such as Sorbonne scholar Jean Bauberot, hailed the decisions with no caveats. “It is a subtle and complex balance, in which each case has to be considered separately. That is what is good about this law. It allows a form of secularism that is not rigid,” said Bauberot, who holds the prestigious “History and Sociology of Laïcité” chair.

Bauberot said he thinks too many people misinterpret the 1905 law by choosing to gloss over its first article and what he considers its core tenet: “The Republic ensures freedom of conscience. It guarantees the free exercise of religious worship...” He was quick to point to certain conditions that the Council of State had imposed in its decisions.

The town of Trélazé can keep and use public funds to restore a church organ, the Council said, but the organ must be made available to non-members of the congregation for music classes and concerts. Muslims in Le Mans can have a slaughterhouse, but must share this space with non-Muslims who also want to use the premises.

“The Council of State is saying that the 1905 law is still legitimate if it is applied with flexibility, and that it does not need to be rewritten,” said Odon Vallet. “It is probably a way to avoid vivid conflicts that would arise if parliament had to overhaul the law. Especially before next year’s presidential elections.”

Legality or equality?

While Vallet and Bauberot did not receive the news of the decisions with the same measure of enthusiasm, they both agree that the rulings are helping address one of France’s most pressing challenges. That is, understanding the place of Islam in contemporary society.

France, like other European countries, is struggling to reconcile its traditions with those of its growing Muslim communities. This was not an issue when the 1905 law was passed, but it has framed all the most heated recent disputes about laïcité.

That has left experts wondering how much the decisions had to do with their legality, and how much with a search for equality.

“The Council of State had to show certain largesse toward Muslim communities, because it ruled favourably in the case of churches,” Vallet said. “Equality is also a consideration.”

Writing about this point in his blog, Bauberot chided readers who disagreed with the Council of State’s approval of a long-term lease that will enable the construction of a new mosque in the Parisian suburb of Montreuil. According to Bauberot, 450 Catholic churches received such assistance in the past, and none of those cases led to disputes.


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