Berna Zengin Arslan
June 4, 2021
Considered in France by many to be the cornerstone of Republican universalism, laïcité—France’s unique take on the separation of church and state—has been deeply distorted and weaponized, going so far as to become an argument used to justify repressive, discriminatory, and identitarian policies, in particular toward to Muslims. Whether intended or not, the journey of laïcité from a tool to protect religious communities to one that marginalizes has hardened the French social landscape, and that has ramifications for its future citizens.
Both laïcité and Anglo-American multiculturalism, in very different ways, seek to bring a mode of social organization to manage the question of difference and equality. While Anglo-American multiculturalism encourages the recognition of plural identities, French laïcité asserts the principle of indifference and the neutrality of the state vis-à-vis differences. Laïcité and the 1905 Law on the Separation of Churches and State are supposed to represent a liberal ideal of strict separation between religion and state affairs. In order to accomplish this, the Law of 1905 imposes a strict neutrality on the state and its public servants, ostensibly to protect freedom of conscience and religious freedom. Laïcité was intended to manage relations between the state and religion by being a sine qua non condition to protect and implement liberty, equality, and fraternity.
Laïcité was intended to manage relations between the state and religion by being a sine qua non condition to protect and implement liberty, equality, and fraternity.
From a legal perspective, the Council of State, France’s highest administrative supreme court and councilor to the government, has so far been able to contain state interference in religious affairs. For instance, in 1989 the Council of State embraced a liberal interpretation 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 laïcité, unless it was shown to be a threat to public order. In 2010, the Council expressed its opposition to a total ban of the wearing of the full-face covering, and it raised serious concerns about the compatibility of a total ban with domestic and international anti-discrimination legislation. In its role as administrative judge, the Council overturned a series of burkini bans in 2016 on the grounds that “an alleged disturbance of public order was not proven, and that basic liberties protected by the French constitution [...] were seriously infringed.” In a February 10, 2016 decision, the Council judged that even though a prison is not required to provide inmates with menus that conform to their religious diet, it should help those without resources to obtain them through the canteen.
These decisions are in the original, liberal spirit of the Law of 1905, which was never aimed to erase religion from public visibility. However, since the 1990s and accelerating into the mid-2000s, the interpretation of laïcité has shifted to a stricter and more illiberal interpretation that has been used by both left-wing neo-republicans and right-wing conservatives to justify policies targeting Muslim visibility. These groups collectively adopted a combative attitude toward Muslims by telling them to erase public expressions of faith and relegate them to the private sphere in the name of assimilation and national identity. This modern interpretation of laïcité stigmatizes some French citizens because of their religion—it is no longer the neutrality of the state that is centered but the neutrality of some of its citizens.
This modern interpretation of laïcité stigmatizes some French citizens because of their religion—it is no longer the neutrality of the state that is centered but the neutrality of some of its citizens.
This shift in the definition of laïcité tracks with the rise of identitarianism in national identity movements. To these groups, French identity and particularly its Christian and/or Judeo-Christian heritage has gradually become a rallying cry for the right and the far-right, who use it to make the case that Muslims do not belong in France. Likewise, on the European level, we are witnessing a shift from the secular definition of the European project toward an identity and civilizational definition in order to frame Western values in a way that de facto would exclude Muslims. Cultural insecurity as expressed through a fear of “Islamization of France and Europe” has led far-right movements, as well as a fringe of the hardliner secular left and the conservative right, to renewed popularity by misappropriating secular and egalitarian values against Islam. As a consequence, the far-right no longer has a monopoly of this discourse because it has moved from the sidelines to the heart of political discourse. It is by introducing anti-Muslim policies into their agenda that these neo-populist movements whip up attention and support.
The mere visibility of Islam provokes a kneejerk defense of “Republican values” and “French traditions,” even though neither these values nor traditions are explicitly defined. In response to this identity crisis, successive governments have attempted to design a “French Islam” that could mollify its critics, and have implemented regulation in pursuit of this. For example, the government proposed the implementation of a Charter of Islam in 2021 and introduced before Parliament the Bill Consolidating Republican Values, both of which are in support of a more securitized interpretation of laïcité.
The mere visibility of Islam provokes a kneejerk defense of 'Republican values' and 'French traditions,' even though neither these values nor traditions are explicitly defined.
As a result, we are witnessing a rise in prohibitions and a decrease in protection of civil liberties, as illustrated by the Senate’s adoption of a series of amendments to the Bill Consolidating Republican Principles, prohibiting the wearing of religious signs by minors in the public space and by parents accompanying students on school trips, as well as the wearing of burkinis in public swimming pools.
The regime of this new version of laïcité is a threat to human rights. Its modern interpretation is at odds with the spirit of the Law of 1905 as it imposes a unilateral view of nationhood and Republican identity that justifies the adoption of restrictions on the expression of religious beliefs. Ultimately, this modern form of laïcité has been intentionally designed to discriminate against Muslims, particularly Muslim women. Because of the shift from a human rights-compatible laïcité in which all individuals are equal regardless of their religion to a regime in which laïcité became the weapon of choice to defend a particular cultural and political identity, laïcité as we have come to see it today is fundamentally incompatible with international human rights.
A truly laïque state should be guaranteed based on its neutrality and not on the neutrality—and invisibility—of its citizens.
These are testing times. Over the last decade in liberal democracies, there has been an overall reduction in the tolerance shown toward other beliefs and practices in the face of an increasingly visible religious minority. On the political front, while much effort has gone into protecting ethnic and religious minorities through a framework that the philosopher Isaiah Berlin called “freedom from” (freedom from discrimination, for example) and “freedom to” (freedom to wear the veil, for example), this work has been progressively eroded and even criminalized at times. Islam is increasingly perceived as a religion foreign to Europe, a religion that must be contained and tamed. However, the visibility of Islam in the public sphere should be seen as a reflection of integration and citizenship, and not as separatism. It is this process of visibility that disturbs.
At the same time, this visibility is a testament that French Muslims are fully exercising their French citizenship. First-generation immigrants were discreet about their religious expression and kept to themselves, while the new generation is more comfortable in manifesting their French-Muslim identity publicly. The public square is the place where people should feel free to express both differences and similarities, exchange points of view, and appreciate each other’s unique contributions. A truly laïque state should be guaranteed based on its neutrality and not on the neutrality—and invisibility—of its citizens.
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