Alexis Artaud de La Ferrière is Senior Lecturer in Sociology at the University of Portsmouth and Associate Researcher at the Groupe Sociétés Religions Laïcités (EPHE/CNRS) in Paris

Blandine Chelini-Pont is a full Professor in Contemporary and International History at the School of Law and Political Sciences of Aix-Marseille University

The French Parliament is currently debating a bill tabled by the majority which threatens to fundamentally change the balance of Church-State relations in that country. The “bill to strengthen respect for the principles of the Republic” (widely known as the bill against separatism) is presented by the government as a key element of President Emmanuel Macron’s strategy to counter “the insidious but powerful communitarianism that is slowly eroding the foundations of French society”—namely, radical Islamism.

While some civil society actors have expressed their support for this bill, others warn that it will usher in unprecedented limits to the freedoms of association and religion. So, what should we make of this bill? If it is to pass (which is likely), will it strengthen the Republic against Islamist inspired “separatism”? Or does this legislative hammer risk breaking the common table of laïcité?

The Liberal Spirit of 1905

The gravitational center of Church-State relations in France is the Law of December 9, 1905, which guarantees freedom of conscience and the free exercise of religion (art. 1) and which codified the separation of Churches and the State (art. 2). Today, religious groups in France are free to organize themselves either as exclusively religious organizations under the Law of 1905 or as “mixed associations” (incorporating religious and non-religious activities) under the Law of July 1, 1901 [1].

Title II of the proposed bill would reform the status of both these categories of religious association. In itself, this is nothing new; the regime of laïcité is not fixed in stone, and numerous amendments and appendages to the 1905 law have previously been passed. However, over the past 115 years, these amendments, and their interpretation by the Council of State, have remained faithful to the principles of the freedom of conscience, of expression, of assembly, and of individual and collective religious practice.

However, the provisions within Title II of the bill currently set before Parliament break with the liberal spirit of 1905, raising troubling questions, in particular from the perspective of religious freedom. This is because the bill is first and foremost a securitizing move on behalf of the state, composed of some forty articles which aim to reinforce the surveillance of religious groups, restrict their scope of action, and strengthen the state’s control over expressions of religion and belief in public services, associations, educational settings, and places of worship.

With the exception of article 28 (which authorizes religious associations to own real estate to finance themselves and which enhances their tax exemptions), the main thrust of the bill is to impose a series of regulatory constraints on religious associations: increased scrutiny of their accounts requiring external certification, interference in their internal governance, increased penalties for offenses of sedition or hate-speech committed within places of religious worship, added controls on foreign finance, and accelerated procedures for the dissolution of associations and the closure of religious buildings by public authorities [2].

These measures restrict religious freedom and cast a cloud of suspicion over all religious groups, contrary to the spirit of the 1905 law which defines freedom as the principle and prohibition as the exception. The government appears to have forgotten the words of caution pronounced by Aristide Briand, one of the fathers of the 1905 law:

Whenever the public interest cannot be legitimately invoked in the silence of the texts or in the doubt of their exact application, it is the liberal solution that will be most in conformity with legislative thought.

For thirty years now, France has continuously strengthened its legal arsenal against terrorism. In what way would the undermining of the legal framework of associations contribute to reducing Islamist aberrations and terrorist acts, phenomena which reach far beyond legal places of worship and Muslim associations? In what way would making the certification of bank accounts mandatory, the onerous submission of new donor statements, or the introduction of a ceiling on foreign funding have an impact on insidious entryism? So far, the relevant relationship between the provisions of the bill and the targeted threat has not been made. On the other hand, this bill would place administrative and financial constraints upon religious associations such that many of these would no longer be viable and new ones would struggle to form.

Educational Freedom

This bill also announces a drastic restriction to the freedom of choice in education. Indeed, Article 21 of the bill would objectively put an end to elective home education (home-schooling) through a strategy of asphyxiating supervision. Although home-schooling is not widespread in France, the Republican tradition, dating back to the Ferry Law of March 28, 1882, has always been to make education compulsory, whilst recognizing the prerogative of parents to choose their children’s education. Until now, the State has recognized the right of parents to educate their children within the home, provided that they make a declaration to the town hall and that they present their teaching method to the inspectorate. This arrangement respects the universal right of the child to be educated, allowing the State to control the quality of education, whilst allowing families to exercise their freedom of conscience in education.

However, far from reinforcing the Republican principle of educational freedom, Article 21 would thwart it. Elective home education would be subject to the issuance of an authorization by the State and could only be justified on grounds based on the child’s situation and defined by law. In its original version, this article aimed to explicitly prohibit parents from invoking their “political, philosophical or religious convictions” as grounds for home-schooling. Although this was language eliminated, the prohibitive intent is retained in the text adopted by the National Assembly on February 12, 2021, which strictly limits home-schooling to the four following motives: the child’s health; an intensive program of sports or artistic practice; the family’s itinerancy within the country or their geographical distance from a public school; or an ambiguous category pertaining to “the existence of a situation particular to the child.” Although more subtle than the original wording, such restrictions testify to the contempt for freedom of conscience which runs throughout the entire bill, which views citizens’ convictions as wellsprings of sedition.

Bureaucratic and Legislative Passion

The bolstering of administrative control which this law would introduce betrays a number of peremptory tendencies of contemporary governance which weigh on France (and, to a certain degree, on other Western democracies as well). This has little to do with the fight against radical religious entryism. First, bureaucratic inflation. Max Weber had already seen in bureaucracies the sign of the inevitable process of rationalization of social relations and social action, by which the modern subjects are imprisoned in an iron cage. More recently, the American anthropologist David Graeber described the spread of bureaucratic constraints in everyday life as a source of numbing of mind and democratization of despotism. The accumulated articles of this bill foreshadow a heavy burden of administrative constraints imposed on religious associations groups which, if passed, will limit their capacity to act positively for their members and for society and ultimately reduce their number.

The other peremptory tendency manifested by this bill is the inappropriate use of the law as a regalian response to the pressure of public opinion. The continuous production of law, as a demonstration of political efficiency, blurs the separation of powers, which has never been very clear in France. Governing is not quite the same as legislating. And yet, France suffers from an unrelenting inflation in the number of its legislative texts (currently more than 11,000 laws, plus eleven times as many regulatory decrees) and a disproportionate increase in their size (the volume of the Official Gazette has practically doubled in thirty years). This inflation, motivated by various reasons, including political or ideological instrumentalization, renders with well-known consequences: illegibility, low normativity, hyper-technicality, de facto inapplicability, or wide-spread ignorance… The Council of State in two public reports strongly critical of the parliament (1991[3] and 2006), and the Constitutional Council in a few severe decisions (such as that of April 21, 2005) have already expressed their alarm regarding this tendency. To no avail.

Centering the Target

It would be irresponsible not to recognize the deleterious role of the Islamist ideology in the terrorist metastases that have followed one another in France for thirty years. The sordid events of Autumn 2020 (at the time of the trial of the Charlie Hebdo and HyperCacher attacks of 2015) were yet one more confirmation of this menace to public order. The grievousness of these attacks has, moreover, been overshadowed in the international public sphere by shouts of indignation directed against Emmanuel Macron’s October speech on Islamist separatism at Les Mureaux. The indignation in question showed a congruence “of atmosphere,” to use the expression of Gilles Kepel, between the networks denouncing state Islamophobia and practicing agitation and ad hominem denunciation in France and the new “Brother-Shiite” alliance that is taking shape in the eastern Mediterranean.

But the choice to respond to Islamist terrorism and to this “atmosphere,” which provokes the growth of an accusatory, even hateful and seditious dissidence vis-à-vis the Republic, does not require a securitizing reform of religious association, nor the disappearance of elective home education. Other societies (such as the United Kingdom and Germany) confronted with the same phenomena are seeking to respond to these cross-border phenomena with more targeted policing, economic, and/or cultural measures, without having recourse to a disruption of their established settlement of Church-State relations.

In a context of social fragmentation and accumulating stigmatizations, the very tabling of this bill contributes to a generalized mood of suspicion. Provoked by the struggle against radical Islamism, the government had slid towards the a priori surveillance and control of all groups of all religions. Its intention to modifying the balance of laïcité risks undermining the spirit of the 1905 law and discriminating against all religious associations.

Along with this bill, we have also seen the creation of a new Charter of principles for an “Islam for France,” presented as a demand by the Executive and signed to this day by five of the nine associations composing the French Council of the Muslim Faith. This Charter has no legal value, but it is intended to proffer a symbol (perhaps praiseworthy and pacifying) of Islam’s compatibility with Republican laws and values. Instead, it crystallizes the current fractures which run through French society. Reacting to the refusal of certain groups to sign this Charter, the Interior Minister, Gerald Darmanin, declared that the State can no longer have discussions with those who refuse to “write on a piece of paper” that the law of the Republic is superior to the law of God, recalling a bygone and somber era of French history.

The principles of the Republic find their ultimate expression in the laws of the Republic. Those who disregard them, those who push others to disregard them, are outside of the law and should be treated accordingly. It is for this reason that these laws must be beyond reproach. For the rest, including how believers prioritize their inner allegiances, the fundamental principle must remain that of freedom.

[1] Catholic dioceses are organized under a distinct regime following the 1924 Poincaré-Cerretti Accords between the French state and the Holy See. Residential religious communities (Catholic monasteries, but also some Orthodox, Protestant, Buddhist, and Hindu communities) are organized under yet another regime: the Law of April 8, 1942 passed under the Vichy government, but only applied from 1970 under President Georges Pompidou.

[2] More symbolic, but no less deleterious, Article 6 of the bill would oblige all associations (religious or no) receiving public funds to sign a “contract” of Republican commitment, the scope and legal validity of which are as-yet undetermined.

[4] Conseil d’État, Rapport public 1991 – De la sécurité juridique, La Documentation française.