In the aftermath of the three recent horrific attacks in France, the French government has decided to declare war on “political Islam.” As part of a broad clampdown on so-called “radical Islam” and “separatism,” modifications have been suggested for the Law of 1905 on the Separation of Churches and the State (Law of 1905). This law, which formed the foundation for the still-evolving concept of laïcité, would be amended to control foreign funding received by Muslim organizations, a reform which has caused controversies and legal issues.
The amendment of the Law of 1905 is one of the key elements of the Bill Strengthening Republican Principles, previously called in a first draft the Bill to Fight Separatism. The bill provides a new set of legal instruments that the government wishes the parliament to adopt in order to tackle religious radicalization, and more particularly, Islamist radicalization.
Once the bill is examined by the Council of State (France’s highest administrative court) and its non-binding opinion is released, the bill will be submitted to the Council of Ministers on December 9, 2020, the anniversary on which the Law of 1905 was enacted. This is certainly not a coincidence, as the Law of 1905 is the foundation of the management of state-religion relations. It has already been amended multiple times in the past century, but until now most of the amendments adopted by the parliament had the intent and effect of strengthening the free exercise of religion, which includes both the freedom of religious practice and the freedom of religious organizations. This broad definition is enshrined in the jurisprudence of the Council of State, as well as the Constitutional Council, which connected the free exercise of worship to the constitutional principle of laïcité.
With respect to the protection of religious freedom, the Bill Strengthening Republican Principles constitutes an unprecedented break with the traditional regime of separation of church and state. Under the Law of 1905, the free exercise of worship applies to organizations or “associations”—diocesan organizations, organizations under the status of the Non-Profit Organizations Law of 1901 (Law of 1901), and those under the status of the Law of 1905—which are all constituted by free declaration.
The Bill Strengthening Republican Principles constitutes an unprecedented break with the traditional regime of separation of church and state.
The bill plans to implement an obligation to obtain state authorization to create a religious organization that would replace the current regime of free declaration. Undermining the principle of free declaration will have a dramatic, negative impact on the current liberal status of religious non-profit organizations.
Indeed, the bill aims to establish a priori control by the state as the organization becomes legally established. It would oblige any religious organization to first have its religious framework evaluated by local state authorities, which amounts to giving public authorities the power to oppose the creation of a group. The refusal to recognize the religious character of an organization cannot be based on religion alone, but could be based on public order, a vague enough notion that will certainly lead to extensive litigation in the courts.
The bill, which will soon be debated before parliament, aims to strengthen the government's supervision of religion, without providing any specific guarantees that prevent abuse by public authorities. If this law is adopted the way the bill is drafted, it will break the spirit of the Law of 1905 and move us further from the balance that the Law of 1905 introduced in matters involving religious organizations. This law will implement severe religious freedom restrictions on security grounds that in no way could be justified by the fight against terrorism and radicalization. Indeed, this law at first aimed to target solely Muslim organizations, but it has been made broad enough to affect every single religious group without exception.
This law will implement severe religious freedom restrictions on security grounds that in no way could be justified by the fight against terrorism and radicalization.
The government also intends to oblige all religious organizations, as well as non-profit religious organizations covered under the Law of 1901, to declare all funding they receive from a foreign individual, state, or organization. Subsequently, public authorities will be granted the power to oppose such funding. One may wonder, with regard to EU law, whether this amendment respects European conditions for restricting the free movement of capital as enshrined in Article 65 of the Treaty on the Functioning of the European Union. On that matter, on March 14, 2000, the Court of Justice of the European Union (CJEU) in Association Église de Scientologie de Paris and Scientology International Reserves Trust v. The Prime Minister rejected France’s reasoning that such investments could be opposed on the grounds of “undermined public order,” a measure that was deemed “contrary to the principle of legal certainty” by the CJEU.
Religious freedom in France is in danger. The Bill Strengthening Republican Principles is a test of how far we are willing to allow state interference in religious affairs on the grounds of security. We cannot give up on the spirit of the Law of 1905, which has proven to be efficient and protective of state neutrality, religious freedom, and freedom of conscience for the last 115 years. The proposed legislation risks opening the window to state’s arbitrariness in matters of religious freedom and freedom of association.