The French Council of State on the Burkini – Part 2: Upholding Religious Freedom
In its ordinance of 26 August 2016 entitled Ligue des droits de l’homme et autres the Council of State — France’s highest administrative court —declared that the order of the mayor of Villeneuve-Loubet to ban burkinis had “seriously infringed, in a manner that was clearly illegal, fundamental liberties such as … religious freedom and individual freedom”. In other words, the Council of State ruled that the Constitution’s framework of human rights precludes such a ban. This is the second post on the Council’s judgment: for a fuller account of the facts and legal context of the judgment please see part 1.
Historically, the Council of State has played a key role in the shaping of an open and liberal meaning of secularism and laïcité (a concept which implies a strict religious neutrality of state institutions). The period following the adoption of the Act of 9 December 1905 on the separation of church and state was marked by landmark decisions in which the Council of State sought to confine laïcité to an anti-clerical meaning in order to limit its impact on individual religious freedom. In this sense, throughout the twentieth century, laïcité has been legally defined and applied as generating religious neutrality obligations for civil servants working in public services, and guaranteeing for private persons, freedom of conscience and worship.
As stated by article 1 of the Act of 1905, “the Republic ensures freedom of conscience. It guarantees the free exercise of religion subject to the sole restrictions enacted hereafter in the interest of public order.” Hence, in its ordinance the Council of State reminds us that laïcité does not apply within public space and one can ostentatiously express their religious affiliations as long as public order is not disturbed. At stake is not only the definition of religious freedom in France, guaranteed in article 10 of the Declaration of the Rights of Man and of the Citizen, but also in article 9 of the European Convention of Human Rights. The freedom to express one’s beliefs in public space and the wearing of certain types of garments (to use two central aspects of the debate on the burkini) are undoubtedly protected both by French constitutional law and European human rights law.
In the aftermath of this ordinance, some have called for a national burkini ban and also for a prohibition of all religious signs within the public space. Yet national cohesion necessitates the freedoms and beliefs of others to be respected. If a legislative ban of the burkini was to be supported , the legislature would most likely not rely on the human dignity argument which has been rejected by the Council of State (‘Study of Possible Legal Grounds for Banning the Full Veil) and by the ECtHR (S.A.S v. France). Arguments surrounding security and ‘living together” may be relied on, but the legislator would have to provide substantial evidence that a loose wetsuit with a hood is a threat to public order, national security, social cohesion, or is predictive of religious extremism. Absent such evidence, it is highly likely that the Constitutional Council would deem such bans unconstitutional and it is a virtual certainty that the ECtHRwould find such a ban to be in breach of the Convention.
In addition, there are practical problems with how such a ban could be implemented. Would women wearing a regular scuba diving wetsuit be prevented from accessing a beach? What about women covering for non-religious reasons? This kind of ban would not only be discriminatory, but would also be very difficult, if not impossible, to implement. Finally, it does not seem appropriate to expect the legislature to become a sort of fashion police by unilaterally deciding what particular clothing is deemed acceptable and to interfere with people’s privacy.
If public authorities are to dictate how one should behave and dress, the very notion of freedom is compromised. The recent ruling of the Council of State constitutes a sorely needed dose of sanity in the midst of rising anti-Muslim frenzy, which has been escalated by France’s upcoming presidential elections.