L. Ali Khan, founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas, writes about the state of secularism in France and the controversies revolving around it...
French Muslims are in the process of reconciling with the Fifth Republic of France, established with the 1958 Constitution, which declares France to be a secular state. In the past thirty years, secular issues have fractured social order as Muslim women, born and raised in France, wish to wear the hijab (headscarf) in schools and the niqab (full-face veil) in public places. Starting in the late 1980s, women began to challenge the French laws against Islamic clothing in the European Court of Human Rights.
Just like some nations, some individuals resort to violence to assert the values they hold dear. Disrespecting the Prophet of Islam is inherently intolerable for Muslims. In 2015, two Muslim brothers entered the Paris office of the satirical newspaper, Charlie Hebdo, which published the Prophet Muhammad’s cartoons, and killed 12 people and injured 11. In 2020, a teenage Muslim beheaded a French teacher who shared the Prophet’s cartoons with his students. This heartless violence sparked protests across France.
President Emmanuel Macron contends that the violence demonstrates that “Islam is in crisis”, a statement that diverted the focus from flaws in individuals to flaws in Islam. Finding faults in a religion rather than the perpetrators of crimes frequently backfires. Muslims across the world condemned Macron’s statement. However, because of religion-related violence, the French resolve to protect secularism has strengthened.
French secularists would argue that a cartoonist living in a secular state has an inalienable right to offend more than a billion Muslims by disgracing their Prophet, and it is irrelevant whether the cartoonist is a white male (thus, rejecting the accusations of white supremacy or lingering colonialism discounting Muslim beliefs). French laws do not subordinate religious sensitivities to free speech; they downgrade religion in favor of secularism that supposedly invigorates “the soul of France.” This distinction is critical for understanding the French case against religion in general and Islam in particular.
Philosophically and legally, states may adopt one of the two types of secularism (an opaque word for the separation of church and state), secular neutralism or secular prejudicialism. In the West, the separation thesis arose as a counterweight to the claims of the Roman Catholic Church that the state ought to submit to the Church. After struggling for centuries, the European state separated from the church in its raison d’etre, social objectives, and legislative supremacy. Historically, France has been the most formidable advocate of rejecting the authority of religion over the state.
Secular neutralism assumes that religion is an authentic social reality worth protecting and that religions are diverse and even mutually incompatible as people subscribe to different denominations and creeds. Thus, a secular state would respect all religions but should not identify with any religion or denomination. Likewise, a secular state should not adopt the laws of any one religion and impose them on all people. The state laws may coincide with the laws of a religion but the rationale for adopting them is not religious. The principle of secular neutrality may vary from state to state, as some systems are stricter in separation than others.
The United States Constitution incorporates secular neutralism. The First Amendment lays out the separation thesis in the following words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The constitutional law over the decades has been highly protective of religious practices, undoing state restrictions placed on the free exercise of diverse faiths, including Islam, a relatively new religion of a significant population in the United States.
Secular prejudicialism is anti-religion, a view rooted in Godlessness, spiritual cynicism, and a Marxist view of history and sociology. It posits that religion is an unscientific social construct, and the secular state must do everything in its power to enlighten the people away from an unhealthy addiction of religiosity.
Even if a state did not historically struggle to separate from any religion, it may adopt secular prejudicialism as a core legal principle. As a rational entity, such a state repudiates the divine frame of values emanating from religion. Furthermore, the state may proactively oppose the demands of religion on individual and social behavior that contravene state laws and policies.
The Soviet Union advocated secular prejudicialism, though the successive Soviet Constitutions continued to pay lip service to the right to religion. The 1977 Soviet Constitution states: “Citizens of the USSR are guaranteed freedom of conscience, that is, the right to profess or not to profess any religion, and to conduct religious worship or atheistic propaganda. . . In the USSR, the church is separated from the state, and the school from the church.” The permission to conduct atheistic propaganda reaffirmed secular prejudicialism and was consistent with the Marxist view of religion as an unscientific social construct that confuses class struggle.
After the dissolution of the Soviet Union, Russia repudiated secular prejudicialism and the associated theory that religion is a barrier to development. The 1993 constitution protects the freedom of religion and Article 29 bans propaganda that incites religious hatred or hostility.
French Secularism (Le concept de laïcité en France)
France adopts a more complex form of secularism that tilts toward secular prejudicialism but not completely. For centuries, France struggled with the Roman Catholic Church. In the Schism of 1378, France installed its own Pope in Avignon, as a competitor to the Pope in Rome. In 1804, Napoleon invited the Roman Pope for his coronation but placed the crown on his head with his own hands, while the invited Pope stared at the rude Emperor. Humiliating the Pope in a public ceremony was designed to elevate the state over the church.
In 1757, France built its Pantheon in Paris to parallel the Pantheon in Rome. For decades, the Paris Pantheon alternated between being a Christian shrine and a secular crypt, thus vacillating between religion and secularism. Eventually, the secular Pantheon triumphed over the Christian shrine, as the French began to entomb famous intellectuals, including Victor Hugo (1802-1855), Emile Zola (1940-1902), Marie Curie (1867-1934), and others.
In 1905, France passed a non-recognition law to prohibit the Republic from recognizing, paying stipends, or subsidizing any “culte.” The 1905 Act does not use the word secularism (laïcité). The law enacts a financial separation of “des cultes” from the state and introduces the concept of non-recognition of any religion. Yet the 1905 Act stops short of advocating that “the cults” inhibit social development, even though by the early 20th century the Marxist critique of religion had penetrated the French intellectual culture.
The current Constitution of the Fifth Republic (1958) does use the word secular in its text and lays out the secular principle in the following words: “France shall be an indivisible, secular (laïque), democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.” Note that while the 1905 Act does not recognize any religion, the 1958 Constitution respects all beliefs. This change is a shift away from judicial prejudicialism if it were the subtext of the 1905 Act.
On its face, the 1958 Constitution seems to embrace secular neutralism. The clause that France shall respect all beliefs appears to be an acceptance of religious pluralism, though in 1958 the demographics of France were predominantly Catholic. France has never been a Godless state. In practice, however, French politicians and intellectuals consider religion as a negative force that hinders equality, liberty, and fraternity, the three maxims of the French self-concept.
In the past fifty years, the influx of Muslim immigrants and their children in millions has dramatically changed the demographics of France. Now, Islam is the second-largest religion in France. Most Muslims in France are Arabs from the French colonies in North Africa and the Middle East. Some are Turks. Racially, culturally, and religiously, the French Muslims constitute a distinct population. Given their commitment to Islam, the French Muslims do not accept secular prejudicialism, as they view Islam as a positive force for human development. Thus, the French secularism confronts an existential threat.
Battle Over Islamic Veils
The battle between French secularism and Islam is waged regarding the rights of women. The West erroneously believed that Muslim women would leave the “oppressive” Islamic way and welcome the liberties that Western women enjoy. However, Muslim women born and raised in Europe began to adopt the conservative values of Islam, including praying, fasting, not drinking alcohol, and wearing conservative clothing, including hijab and niqab, hiding their faces and bodies.
The surprised Western political and intellectual elites dubbed the Muslim women’s behavior as political Islamism, a pejorative term.
As noted above, Muslim women began to challenge legal restrictions on Islamic veils, in domestic courts as well as in the European Court of Human Rights. Several human rights organizations sided with Muslim women. The proponents of the veils asserted the right to religion, privacy, personal expression, and woman’s choice whereas the opponents identified the veils with Islamic radicalism, a challenge to secularism, and an affront to the principle of “living together.”
A decade ago, a few European countries, including France, banned Islamic veils as contrary to secularism, gender equality, and open communication in public places. National high courts reacted to the ban differently. The Belgian Constitutional Court upheld the ban on face concealment, while the Spanish Supreme Court held that law cannot presuppose that women wearing Islamic veils “did so under duress.” The Netherlands Council of State ruled that “a general ban on wearing clothing that covered the face did not meet a pressing social need and was not therefore, necessary in a democratic society.”
While crafting the anti-veil legislation, the French lawmakers relied on a report that had argued that the full-face concealment is incompatible with secularism, it is “an infringement of the principle of liberty, because it was a symbol of a form of subservience and, by its very existence, negated both the principle of gender equality and that of the equal dignity of human beings… the full-face veil represented a denial of fraternity, constituting the negation of contact with others and a flagrant infringement of the French principle of living together (le “vivre ensemble”).”
The law of 11 October 2010, passed in the National Assembly with an overwhelming majority (335 votes in favor, one against, and three abstentions) imposed a fine and required reeducation through “a citizenship course” of Muslim women who insist on wearing the full veil in public places (note that the West also criticizes China for placing Uighurs in “reeducation camps”). The French Constitutional Council upheld the law, stating that “women who concealed their face, voluntarily or otherwise, were placed in a situation of exclusion and inferiority.” However, the Constitutional Court did not elaborate that who in France would exclude and inferiorize Muslim women wearing Islamic veils.
In case of S.A.S. v. France, a young Muslim woman in her 20s, born and raised in France, who wished to voluntarily wear the full-face veil in public places challenged the law of 11 October 2010. After exhausting all domestic remedies, she appealed to the European Court of Human Rights. She was willing to show her face at airports and other security-sensitive places. She only wished to exercise the choice of wearing a niqab in public places where there is no security threat.
The (unnamed) Muslim woman lost the case but what is most intriguing are the secularism arguments that France made to defend its legislation and that the Grand Chamber consisting of 17 judges could not fully endorse.
In examining the French contentions of secularism and the associated gender equality, the Grand Chamber observed that a blanket ban on full-face veiling would force Muslim women to stay home, not acquire education or other skills available in public sectors. Thus, the ban, instead of liberating Muslim women, forces them to shun the marketplace of financial and educational opportunities. The law is self-defeating, a point that the Parliamentary Assembly of the Council of Europe and the Commissioner of Human Rights for the Council of Europe had made in their findings, and that the Grand Chamber cited copiously.
The Grand Chamber also took notice of Islamophobic comments that the French parliamentarians made during the legislation. Yet, the Chamber upheld the French law under “the margin of appreciation,” that is, “in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight.”
Secularism, though part of some constitutions, is not a universal value, a point I explain at length in A Theory of Universal Democracy. No regional or global human rights treaty incorporates secularism as a fundamental value, but all treaties and national constitutions protect the free exercise of religion. In most legal systems, the protection of religion is a value superior to the protection of abstract secularism.
Unfortunately, the Grand Chamber of the European Court of Human Rights avoided an opportunity to rule consistent with its unassailable critique of French law (women are tired of being told what to wear).
Living Together (le Vivre Ensemble)
The concept of living together is an indisputably elegant principle that all social systems, not just secular France, champion as the foundation of society. There are many ways for a population to live together. Even the caste system builds on the principle of living together.
The French concept of living together forces religious minorities to assimilate into senescent secularism. The imposition of an abstract concept of secularism shortchanges the fine detail of social life, a point that the two women Justices, Angelika Nussberger from Germany and Helena Jäderblom from Sweden, highlighted in their dissenting opinion in S.A.S. v. France.
In common law countries, such as England, Canada, the United States, and in many other legal systems, the principle of living together does not force Muslim women to relinquish their Islamic clothing to claim equal citizenship. The U.S. public schools furnish prayer rooms for Muslim students and extend respect to female students wearing Islamic clothing. Some non-Muslim American women wear hijab to show sisterhood solidarity. Even face- concealment in public places is permitted provided there is no security threat.
Living together in a homogeneous society is easier than living together in a nation of diverse communities. France must recognize that it is no longer a homogeneous society if it ever were. The five million Muslims have changed historical France forever unless France expels them en mass. Concepts must evolve to catch up with reality, France knows it better than many nations.
If living together is indeed a French value, the French laws must respect the core beliefs of nearly five million Muslims and the second-largest religion in the country. In any event, the principle of living together would not allow an individual, a newspaper, or a teacher to engage in unnecessary and intentional behavior that inflicts pain and emotional suffering on a significant part of the population. Moreover, inflammatory conduct such as publishing the Prophet’s cartoons invites violence and social disharmony.
France cannot arbitrarily oscillate between individual freedom and the principle of living together, in each case targeting Muslims. Defending individual artistry of making fun of the Prophet of Islam but punishing individual style of wearing Muslim clothing demonstrates that the French secularists swallow contradictions quite well.
François-Marie Arouet (Voltaire), buried in the Paris Pantheon, remarked: “God gave us the gift of life; it is up to us to give ourselves the gift of living well.” Voltaire, invoking his chronic sense of absurdity, would be smirking at the new social harmony in France as hardcore French secularists and Muslim women in public places conceal their faces (noses, mouths, and eyes) to protect themselves from Covid-19.
L. Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on international law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at firstname.lastname@example.org
Suggested citation: L. Ali Khan, French Secularism in Crisis, JURIST – Academic Commentary, January 1, 2021 https://www.jurist.org/commentary/2021/01/l-ali-khan-french-secularism/.
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at email@example.com
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