On 20 April 2021, the French government launched a large public debate on the controversial notion of laïcité – the French model of secularism. This initiative, assembling a group of intellectuals to discuss the integration of secularist values into society, is heavily criticised by those denouncing it as a hypocritical communication campaign.
Proposing an open and peaceful discussion on secularism a few days after the passing of a bill to combat “Islamist separatism” can certainly sound insincere. The controversial bill, presented as a way to reinforce the principle of laïcité, would strengthen oversights of mosques, schools, and sports associations while risking stigmatising further Islam.
This piece of legislation is not a stand-alone measure. Over the past two decades, a series of politico-judicial decisions have also been criticised for discrediting the nation’s second religion. To cite a few, the burqa ban from public places, the dismissal of a pupil from school because she was wearing a “too religious” black skirt or the prohibition of the burkini show a growing intolerance towards Islam – all in the name of laïcité.
THE CONCEPT OF LAÏCITÉ: SECULARISM ++
Laïcité is the product of a long evolution of the relationship between the Church and the State, which necessitated early republicans to develop a form of anticlerical militantism. That militant tendency persevered over time, giving rise to “hard-line” secularism. Although it is supposed to incarnate the respect for all religions, in practice, laïcité is a concept imposing a form of commitment to non-religious commitment.
It is important to understand that laïcité in France goes further than the separation of the Church and the State in other countries. It is a foundational principle of a supra constitutional value and an inherent part of the national identity. The prevalence of the concept has even been validated by the European Court of Human Rights who accepted the argument of laïcité “as such” to restrict a civil servant’s right to manifest her religion at work.
In front of the recent rise of extremisms, and especially radical Islamism, the French Republic more than ever holds onto the self-explanatory concept of neutrality that is laïcité. But that is not without facing criticism from its liberal and libertarian citizens as well as the international community.
A NON-NEUTRAL CONCEPT
A criticism often made is that, under apparent neutrality, laïcité is intolerant towards non-Christian religions, and in particular towards Islam. Laws prohibiting religious attires at school or at work largely disadvantage Muslim women, who cannot wear a headscarf. The “same treatment for all” policy fails to recognise the difference between religions which require wearing certain symbols from religions that do not, bearing risks of indirect discrimination.
The association of secularism with the concept of “neutrality” has also been denounced by post-colonial theorists for being a modern way to differentiate Western-Christian culture from all other cultures and religions altogether. Without a doubt, threats to secularism and equality are more often detected in relation to religions unaffiliated to Christianism.
In this context, hostility towards certain religious attire or customs can also be thought of as a replicated colonial “othering” process. This process facilitates, by contrast, the denomination of national identity, but also, importantly, validates discriminatory practices.
A DISSONANT DISCOURSE
What perhaps is the most surprising about the use of laïcité as a defence to limit individual freedom is the elusiveness of its reasoning. Nowhere in the European Convention on Human Rights and its article 9 does neutrality appear as a valid justification for restricting freedom of religion. Yet, important jurisprudence seems to be satisfied by the notion of laïcité alone.
In the political discourse supporting legal decisions, there is a tendency to bring up policy considerations into the equation. At the end of the 20th century, pressure, proselytism, and propaganda were the concerns advanced by the Conseil d’État to justify the use of laïcité. Recently, it shifted to more pragmatic arguments. It invokes public order, public security or human dignity. The burkini was banned from swimming pools because of public morality and hygiene. The wearing of the hijab was deemed incompatible with “living together” or “contrary to the ideal of fraternity,” and unsuitable for social interactions.
Again here, the line of argument is elusive, and lacks evidence. In many other countries, living together does not preclude Muslim populations to wear religious clothing. Besides, if we accept that living together is about tolerance, constraining a minority to the view of the majority is unlikely to have positive results on social interactions. In the same vein, whether the ban of burkinis is necessary to ensure public order remains a moot point.
The government’s assertive position struggles to find a rationale for its decisions, causing its discourse to be dissonant. On the one hand, it ensures that there is nothing wrong with religious manifestation, while on the other hand, it finds justifications to prohibit it whenever it can based on an abstract notion or biased social factors.
France seems to refer to the notion of laïcité as a self-conviction that the tension between religion and democracy has been dealt with, but as a matter of fact, it fails to react proportionately and realistically to what is simply a change in religious demography.
Is laïcité an obsolete concept? Maybe not, but it is surely non-sustainable as a legal defence for restricting religious freedom in the long term.
Coralie is a former art director and a recent LLM graduate from University College London, dedicated to fight for the respect and protection of Human Rights.