Rim-Sarah Alouane is a French legal scholar and commentator. As a Ph.D. candidate in comparative law at the University Toulouse-Capitole in France, her research focuses on religious freedom, civil liberties, constitutional law, and human rights in France, Europe, and North America. Her work has been published by leading outlets including the Atlantic Council, Brookings Institution, and Foreign Policy.
What began as a legal measure to keep religion out of state affairs has metastasized into open religious bigotry against Muslims.
In the wake of the 2016 “burkini affair” in France, former Minister of the Interior Jean-Pierre Chevènement addressed French Muslims rattled by the rise of local legislation banning modest swimwear. Chevènement, who was on the short list to lead the Foundation for Islam in France, declared that Muslims in France “must be able to practice their faith freely [but with] discretion within the public space.” While trying to negotiate the space between “freely” and “with discretion,” French Muslims find themselves rendered invisible in certain public spaces in order to exist within French society.
Not a day goes by in France without a new case concerning the treatment of French Muslims. As a recent example, in September 2020, Imane Boun, a young student who runs the popular “Recettes Echelon 7” Instagram account, was targeted by a Le Figaro journalist who tweeted “September 11” in response to one of her videos, apparently a reference to her Islamic faith and hijab. As a result, Boun had to deactivate her Twitter account in the wake of multiple threats. This attempt to connect the hijab to the tragic events of 9/11, and the lack of accountability for the ensuing harm to ordinary Muslims, reveals the extent to which anti-Muslim sentiment in France is normalized.
France is a secular (laïque) country that constitutionally recognizes and guarantees freedom of religion and conscience, which must coexist with the principle of neutrality enshrined in Article 1 of the Constitution and in the 1905 Law on Separation of the Churches and State. Laïcité intends for the state to not interfere with religious matters and vice versa. As a consequence, religious neutrality is imposed upon any person directly or indirectly working for the state. In the modern era, laïcité has come to represent the cornerstone of a national identity based on French values—even though these values have not been specifically defined. In the absence of such a definition, “various cultural and political influences have taken control of this definition to the detriment of minorities, including and especially Muslims.” In recent years, both the right and the left wing have expressed support for the implementation of a more restrictive and narrow understanding of laïcité. The debate surrounding the prohibition of religious signs reached its peak in summer 2016 with the adoption of various bylaws by several cities across France to specifically ban the wearing of burkinis, a type of modest swimwear popular with Muslims in the West.
The changing interpretation of laïcité—which was first intended to guarantee a strict state neutrality and religious freedom—has led to a toughening of the legislative narrative on the visibility of religious signs. Most political parties have joined forces to essentially make Muslims, especially Muslim women, disappear from public spaces. This transformation and manipulation of laïcité into an illiberal legal tool to restrict religious freedom has allowed elite public discourse to constantly question Muslim loyalty to France and debate whether or not Muslims can be good French citizens.
Headscarves in Public Schools
In 1989, there was a series of so-called “headscarf affairs” where several Muslim girls in the city of Creil wearing the Islamic headscarf were expelled on the grounds that they violated laïcité and school neutrality. These cases led to the development of a discourse justifying the dismissal of these girls based on the crucial role of public schools in training future citizens. Upon government request, the Council of State released a nonbinding opinion on the issue and embraced a liberal interpretation of the principle of laïcité by finding that the wearing of headscarves by Muslim schoolgirls as a symbol of religious expression in public schools was not incompatible with the principle unless it was shown to be a threat to public order. Despite that relatively broad interpretation, state officials proceeded to undermine the opinion, and ministerial directives gave carte blanche to teachers to decide to ban the headscarf. Disputed bans that were brought before the Council of State were largely overturned and relative peace was reinstated. However, in 2003 the issue rose again, and the government appointed the Stasi Commission to review the application of laïcité in the country.
The Stasi Commission's report called for the prohibition of religious signs in public schools. It has been strongly criticized by human rights activists and legal scholars for lacking evidence that wearing a religious sign constitutes a threat to public order, for not engaging those who will directly be affected by such a ban, and for failing to demonstrate any positive effect from a such a ban. On March 15, 2004 the French parliament adopted a new law prohibiting the wearing of any religious symbols or garments in public schools that ostentatiously exhibit religious affiliation on the grounds of the principle of laïcité. The symbols prohibited include the Islamic hijab, Jewish kippa, Sikh turbans, and large Christian crosses. In practice, however, the law was primarily aimed at Muslim students wearing hijabs.
The 2004 law thus extended to students in public schools the obligation of neutrality, formerly only applied to civil servants. It deeply affected Muslim girls and was complicated by a lack of clear definition as to what constitutes a religious sign, a definition the law has deliberately omitted. So, the Council of State upheld the expulsion of a female Muslim student wearing a bandana in 2007 and, in 2015, another Muslim student was barred from attending class because her long skirt was deemed too religious. Although the law seems to be based on the prohibitions of blatant visible religious symbols, it in reality tends to focus more on the supposed behavior of female Muslim students.
Muslims in the Public Square
The most striking example is the ban on face concealment in public spaces, intended to target the wearing of full-face coverings such as the burqa and niqab. Even though the phenomenon is marginal in France, where only 2,000 women are estimated to wear the niqab, and the potential threat to public order is negligible, a parliamentary commission released a report in January 2010 stating the issue was an emergency. The report provoked the adoption of a parliamentary resolution highlighting the need to respect “republican values” allegedly put in jeopardy by the development of “radical practices” such as the wearing of full-face coverings. At the request of Prime Minister François Fillon, the Council of State released a report expressing its opposition to a total ban of full-face coverings. According to the Council, all possible legal grounds that would justify the adoption of such a law were not enough to legitimize a total ban. The Council of State also raised serious concerns about the compatibility of a total ban with domestic and international anti-discrimination legislation. The bill was referred to the Constitutional Council, which upheld the ban.
The bill was ultimately submitted to parliament, which adopted it by an overwhelming majority. This law used the ambiguous notion of human dignity as a component of public order to justify the ban, despite legal concerns from the Council of State. The law was subsequently challenged before the European Court of Human Rights (ECtHR), and in the S.A.S v. France decision the ECtHR upheld the ban, opening the door to other European countries to follow the French.
In a similar situation, the mayor of Cannes introduced a municipal bylaw in July 2016 preventing “access to beaches and for swimming…to anyone not wearing appropriate clothing, respectful of moral standards and laïcité,” to de facto target Muslim women wearing a burkini. Thirty-one municipalities immediately passed similar bylaws. Those on both sides of the political spectrum started a heated debate on the place of Islam in France. The administrative court of Nice initially upheld the burkini ban, which was immediately challenged before the Council of State. The latter deemed such a ban illegal and ruled that the alleged disturbance of public order was not proven and that religious freedom was infringed.