Religious Symbols and the Law of 1905: Reflections on the Prohibition of the Full Veil in Light of the French Law on Religious Practices

Abstract

There is a recurrent debate in France on the conflict between the principle of secularism and the expression of religious convictions in public places. The liberal approach, which is open to all forms of public expression including the religious convictions of individuals, is opposed to a much more restrictive conception, which understands secularism as limiting religious convictions to the private sphere, with the corollary of the interdiction, or at least a strict restriction, of their public manifestation, whether they be individual or collective. In today’s highly secularized French society, which feels itself undermined by religious factors deriving from international conflicts and internal tensions, the sometimes radical affirmation of identities tends to weaken the liberal interpretation which is at the basis of the law of 1905, in favor of a much more restrictive vision of the principle of secularism. That is revealed by the law of October 11, 2010, on the prohibition of the covering of the face in public places, which falls within the very old royal tradition, derived from Gallicanism, of the public regulation of religious practices. Although it carefully avoids any reference to religious practices or convictions, the law of October 11, 2010 must be understood as a law implementing a religious policy.

Even though it is formulated in very broad terms, and never specifies its intent, the Law of October 11, 2010 prohibiting the covering of the face in public spaces raises the question of the social visibility of religions with an intensity not seen for a century. In the reflections that follow, this article proposes to analyze this law from the point of view of the legal regime pertaining to religious practices. This Article hypothesizes that, in spite of commonly held beliefs, (1) this law is in profound contradiction with the Law of 1905, and (2) stems from a longstanding tradition of public regulation of religious groups, with which the new regime of separation has never broken, to the point where it is often confused with secularism (la laïcité).

Keywords: France, French law, comparative law, religion, church and state, secularism, laïcité, freedom of religion, establishment of religion, Islam, headscarf, veil, burqa, niqab, Law of 9 December 1905, Council of State, Third Republic, Fifth Republic