Vive la liberté? An Uncertain Future for Religious Liberty in FranceAlexis Artaud de La Ferrière January/February 2023
Once a centerpiece of the French liberal tradition, laïcité takes an intolerant turn.
French laïcité can be translated into English as “state secularism.” In line with this translation, laïcité is often seen as an official form of state hostility toward organized religion, banning displays of religiosity from public spaces. However, neither this translation nor this understanding fully reflect the legislative and jurisprudential history of laïcité in France. In fact, contrary to popular opinion—in France, as well as abroad—the history of laïcité actually constitutes a thoroughly liberal tradition, one that renowned French jurist Yves Gaudemet has described as “the French form of religious liberty.” Laïcité bears key similarities with—and was partly inspired by—the American principle of disestablishment.
It is all the more important to bear this history in mind given a series of reforms passed by successive French governments, starting in 2004, that have modified the regime of laïcité in a way that deviates from its liberal heritage.
Like many other contested concepts, the meaning of the term laïcité has evolved over time and continues to evolve. Nineteenth-century academic Ferdinand Buisson noted that the concept had emerged through “the slow labor of the centuries.” During the past 200 years this slow labor of definition has been torn between two competing tendencies.
On the one hand, there is a liberal tendency that favors state neutrality, freedom of conscience, and the autonomy of religious groups as a necessary dimension of individual liberty. This is a position largely inspired by the Lockean Anglo-American tradition.
On the other hand, there also exists a Jacobin/Bonapartist tendency that favors state regulation of religion and limitations on the autonomy of religious groups with regard to their internal organization and public activities. Although anti-clerical in spirit and associated with the irreligious libre pensée movement, its heritage is also to be found in the Gallican tradition of the Ancien Régime that existed until 1789.
The conflict between these two tendencies came to a head during the troubled years of the Third Republic, and in particular between the passage of the 1882 Ferry law—introducing free, mandatory, and secular education—and the adoption of the 1905 law on the separation of the churches and the state. The substance of both of these laws remain in force today. A key question at the time was whether France should retain its Concordat system or replace it with a new regime that was either more liberal in orientation or more anti-religious. Under the Concordat regime first established by Napoleon Bonaparte in 1801, there were three established religions—Catholic, Reformed, and Jewish. This provided state recognition and subsidies for the country’s three largest faiths, but it also gave the state powers of regulation over these groups.
Following decades of bitter dispute, it was the liberal tendency that emerged victorious. On December 9, 1905, France passed a law guaranteeing the liberty of conscience and the free exercise of religion (article 1) through the separation of the churches and the state (article 2). Indeed, the law went further than simply protecting individual liberty. In article 4 it also recognized the group autonomy of religious associations and their right to draft their own internal constitutions and bylaws—an article inspired, in part, by the study of several American state constitutions.
Robust Religious Liberty
Too often the transition from the Concordat regime to the laïcité regime in 1905 is described as a victory for secularism over religion. In fact, although the law did eliminate privileges afforded to Catholicism, and to a lesser extent to Reformed Protestantism and to Judaism, its main thrust was to protect these faiths from the regulation of the state. At the same time, it also protected the rights of all citizens to freely practice the religion of their choice or to abstain from practicing a religion altogether.
Thus the regime of laïcité ushered in by the 1905 law of separation guaranteed religious liberty for all, promoted equality between the majority and minority faith groups by abolishing established religions, and respected the beliefs of all citizens by obliging the state to adopt a position of religious neutrality. In 2004 France’s highest administrative tribunal, the Council of State, identified these three dimensions—liberty, equality, and neutrality—as constituting the substantive principle of laïcité.
The 1905 law on the separation of the churches and the state does not employ the term laïcité to describe the new regime that it ushered into history. It is only gradually that this term gained legal currency. Over time it came to describe the French republic’s commitment to the liberty of conscience and the free exercise of religion, and to the neutrality of the state and public servants with regard to all opinions and beliefs. It also embraced the state’s commitment to religious pluralism, where all religions have an equal right to expression and none may monopolize the state or undermine the fundamental principles on which it rests. This substantive principle of laïcité, which was most clearly expressed in the law of 1905, gained the ultimate legal consecration as a constitutional principle in article 1 of France’s 1946 constitution and again in article 1 of the current 1958 constitution.
Thus, throughout the twentieth century it was this liberal tradition that found expression in the legal regime of laïcité. Legislators adopted many measures providing accommodations for religious groups, and these measures were consistently supported and liberally interpreted by the Council of State. These included the law of 1907, which allows religious groups the free use of publicly owned religious buildings, the allocation of public funds in 1920 for the construction of the Grand Mosque of Paris, and a 1987 law that allows donors to deduct from their taxes a portion of the money given to the churches. To the chagrin of ardent secularists of the Jacobin/Bonapartist tendency, such accommodations have at times compromised a strict interpretation of separation of church and state. However, these accommodations found justification in their advancement of the free exercise of religion.
A Turning Point
This period of dominance for the liberal tendency came to a close in 2004. Prior to this date, public displays of religiosity had been regularly challenged; landmark cases centered on the right of churches to ring their bells or of Catholic priests to wear a cassock in public. Objections to both were based on the grounds that these acts constituted threats to public order. However, the courts had hitherto consistently ruled in favor of the free expression of religion, in keeping with the law’s original intent.
However, in March 2004, following an intense national debate centered on cases of schoolgirls wearing an Islamic head scarf, the National Assembly adopted a law prohibiting the wearing of conspicuous religious symbols in public schools.
The adoption of this law marked the moment when the Jacobin/Bonapartist tendency began to steadily make headway in the legal realm. A series of measures that limit individual religious liberties and the group autonomy of religious organizations have since been passed. These laws have also increasingly displaced the burden of neutrality from the state to individuals.
These measures include the 2010 ban on the “dissimulation,” or concealment, of the face in public spaces, which indirectly targeted the full-face Islamic veil. Later, a 2016 labor law empowered employers to designate the workplace as a religiously neutral space and to restrict the religious expression of employees.
This striking deviation from the liberal heritage of laïcité has led some commentators to coin the phrase “nouvelle laïcité”—or new laïcité. As Stéphanie Hennette-Vauchez and Vincent Valentin have argued, this “nouvelle laïcité” impedes “the freedom to manifest one’s religious beliefs in a public place or in certain private structures [and] is not congruent with the meaning of the legal principle of laïcité as it was forged throughout the twentieth century. On the contrary, it attempts to subvert it: from a principle guaranteeing freedom of worship, it derives the basis of restrictions on religious freedom.”
In other words, this notion of laïcité, which was developed and codified over the past century as a liberal solution to protect religious liberty through the formal separation of churches and state, has now been appropriated by proponents of the Jacobin/Bonapartist tendency. It now serves to undermine the very principles of state neutrality, religious liberty, and religious pluralism that the arrangement of separation was designed to uphold.
In 1905 and the decades following, France had rejected the restrictive secularist position once embodied by socialist firebrands such as Maurice Allard and Edouard Vaillant. Today this notion has resurfaced and currently sets the tone for church-state relations in France. Although the Jacobin/Bonapartist tendency surged under the center-right presidency of Jacques Chirac in 2004, it now cuts across party lines and has continued its advance under successive governments, conservative, socialist, and centrist.
The latest and most radical move in this direction has been under the presidency of Emmanuel Macron, with the passage of a 2021 law “Reinforcing the Principles of the Republic.” This massive legislative package identifies religious groups and individuals as potential threats to national cohesion. In order to counter this supposed threat, the bill restricts freedoms of association and religion through a wide-ranging array of new surveillance measures, sanctions, and bureaucratic obligations.
Several of these measures are worth mentioning to illustrate its thrust. First, the bill makes it more difficult and costly to create religious associations, and it restricts the internal autonomy of religious associations (articles 69, 74). Second, it increases legal penalties for crimes committed by ministers of religion or within a religious association or by individual members of a religious association (articles 80-87). Third, the bill increases the regulatory obligations imposed on private schools, most of which are faith-based (article 55). Fourth, it restricts parents’ right to choose their children’s education by banning home education, except subject to derogation, which can only be accorded on the basis of very narrow criteria (article 49). Finally, it aims to coopt civil society and sporting associations in the active promotion of what the state identifies as Republican values, notably by obliging such associations to sign a “contract of republican commitment” (article 12).
Proponents of the Jacobin/Bonapartist tendency argue that such new restrictions are necessary because of the dangers posed by groups of religious individuals who refuse to accept a secular state and who, in some instances, use religious networks to foment acts of terrorism. And indeed, the reality of religiously inspired violence and civil dissent are keenly felt in France. According to a recent study by the Fondation pour l’innovation politique, there have been 50 Islamist terrorist attacks on French soil since 2001, claiming 280 lives.
However, in the rush to defeat this hydra, successive governments have treated civil liberties, and religious liberty especially, as an adjustment variable rather than a fundamental principle to be preserved. Moreover, legitimate concerns regarding public order and security are often instrumentalized. They are invoked to justify restrictive measures that are actually motivated by social anxieties about the visibility of religious minorities and demographic changes. When some say they want to prevent religious extremism and promote civil fraternity, what they are actually expressing is a discomfort not only with public expressions of Islam but also of Evangelical Protestantism, and in some cases even of Catholicism.
A Return to Liberalism?
As religious liberty recedes and France finds itself gripped by heightened social and political polarization, the liberal history of laïcité and the specific moment of 1905 offer both perspective and hope. In the run-up to the adoption of the law on the separation of the churches and the state, France was in a terribly fragile state. It had been beleaguered by revolutions and coups since 1789, embittered by its defeat to Prussia in 1870, unable to establish a popular consensus over a stable form of government, and enmeshed in a web of dangerous international alliances and rivalries.
In this context the question of the place of religion in society created deep rifts and ferocious disputes. Yet within that crucible, political leaders were able to forge a regime that was both firm in its substantive principles and flexible enough to gradually gain the adherence of believers of all faiths and of nonbelievers. In its best expression laïcité is not state secularism; rather it is the guarantee of religious liberty, which ensures equality between religions through the neutrality of the state.
Article Author: Alexis Artaud de La Ferrière
Alexis Artaud de La Ferrière, PhD, is a lecturer in sociology at Royal Holloway College University of London, and an associate researcher at the Groupe Sociétés Religions Laïcités (EPHE/CNRS) in Paris. He is president of the Association Française de Sciences Sociales des Religions and sits on the editorial board of the peer-reviewed journal Social Sciences and Missions. His research focuses on the relationship between religion, politics, and society. Follow him on Twitter, @ArtaudDe.