Is Laïcité Fair?
By: The Legal Sentry
Tags: Inequality, Current Events, Justice, Law, Legal

Laïcité — an introduction

Laïcité translates to secularism, though the term refers more to the concept of “religious neutrality”. The struggle to separate church and state has long been part of French history, culminating in a 1905 law limiting the church’s influence. Religion, thus removed from the public sphere, was rendered a private matter.

Laïcité has become a contentious topic, with some arguing it is an essential part of the French identity, while others claim it causes its problems. The growing influence of forces such as religious fundamentalism and right-wing factions have boosted its prominence. The latter in particular has framed laïcité as a defense against terrorism, a tactic used by Marine Le Pen in her 2017 election campaign.

As such, it seems sensible to examine laïcité’s development in French law and how it has led to present-day debate. This article aims to outline the history of laïcité, its impact in France through case studies, and its relationship with Islamophobia, to decide whether laïcité is a fair law.

2. A look at Baby Loup and other cases

North Africa achieved independence from France during the postwar economic boom of the 1950s: immigration coincided with a demand for labor. The emergence of a new generation of French Muslims as a result prompted renewed discussion on religious expression within society. Conversations on Muslim girls’ headscarves eventually led to a ban on “ostentatious religious symbols” in public schools in 2004. A further law prohibited face coverings in public areas in 2010.

The wording of the 2004 law is unhelpful: what is considered “ostentatious”, and what constitutes a “religious symbol”? A student’s expulsion for wearing a bandanna was upheld in court under this (Ghazal v France, 2008). While the court acknowledged that the bandanna was not a religious symbol, the student’s refusal to remove it allowed its interpretation as one. The use of the bandanna in this case to cover hair for religious reasons thus provided it with religious significance. As such, the conspicuous manifestation of her religious beliefs in this case made it necessary for the law to intervene, for the sake of preserving public harmony. This proves that the actions of Muslim girls may invoke laïcité as well, strengthening evidence of intolerance towards the Muslim community.

The restrictions further point towards the ways laïcité affects French Muslims. Face coverings would almost exclusively affect Muslim women, for example. Over 1,000 niqab-wearing women have been fined under this. The disproportionate impact on French Muslims is thus clear.

Laïcité certainly isn’t limited to Muslim suppression. Nativity scenes have been banned in town halls since 2016, and crosses cannot be displayed in public. Compared to the extent of legal action pursued against the Muslim community, however, the enforcement of religious neutrality seems markedly skewed. Laïcité in those cases target an individual’s right to religious freedom, rather than a cohesive public religious neutrality.

One of the most prominent cases that has become associated with laïcité is the Baby Loup affair, where an employee in a private nursery was fired for violating company policy and wearing a hijab, and France’s highest court ultimately upheld her termination of employment. Hijab removal should not technically be required by a private nursery, yet it was sought to bring it under public law. It received subsidies from local government, suggesting that the nursery acted in public interests, so the case ought to fall under public law. However, this would allow laïcité to intrude on the private sector, creating a legal basis for employers to terminate employees for religious expression.

At the same time, with a private nursery being claimed in the public sector, the opposite could also be true. With the higher level of accountability demanded by the latter, it could lead to a greater adherence to higher standards of human rights in the private domain. Nevertheless, the ruling being struck down by the Cour de Cassation limits how far this can be applied in practice.

It was also claimed that, since a hijab is something imposed on women by religious authority, it clashes with the notion of gender equality to be instilled in children. Religious neutrality thus is painted as an essential part of child protection. Yet this assumes that children will be harmed greatly upon becoming aware of this as an abstract concept. There was no concrete evidence to suggest they were in any way disturbed by the hijab. Even if this harm were real, the limited interactions with the children should not justify the total ban on religious headwear. This demonstrates the pervasion of laïcité in cases pertaining to Muslim women: the total number of cases litigated where the law was invoked regarding a student’s use of religious symbols, for instance, includes 37 Muslim females — where one case had 17 claimants — out of 41 cases. It is thus clear what the impact of laïcité is on French Muslims, and particularly Muslim women.

3. Conclusion

Laïcité has increasingly become intertwined with the French identity, and its conflict with its Muslim population only exemplifies this. Ultimately, laïcité has only come to reinforce discrimination, however indirectly. For the “national identity” to exclude some 10% of its population renders it a very real, and ultimately fundamentally flawed aspect of French law.

Citations

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