On July 22, the Constitutional Council rendered its decision: the “separatism” law is not considered contrary to the freedom of religious associations.
Reputed to be untouchable, the famous law of Separation of Church and State of December 9, 1905 has nevertheless been modified about twenty times. But none of the changes have been as significant as those made by Law No. 2021-1109 confirming the principles of the Republic of August 24, 2021, known as the “separatism” law.
The latter is indeed a marker of a significant evolution of religious freedom in France. While the religious freedom of individuals continues to be strengthened in all areas, sometimes going so far as to call into question the best established principles or practices (flexible interpretation of the prohibition imposed on public figures from financing religious activities, existence of substitute menus in the canteens of schools or prisons, etc.), the collective exercise of religious freedom continues to be more supervised and contained.
While the freedom of individuals is better protected, that of religious communities and associations is much more closely monitored and limited. The border is obviously difficult to draw, it being understood that most freedoms only have meaning if they are exercised collectively, but it is indeed the general movement that has taken shape in recent years.
Certainly, since the Revolution of 1789, the French tradition has been individualistic: it grants rights to individuals, but obstinately refuses them to any intermediary body. The deputy Sanislas de Clermont-Tonnerre said thus, in a speech to the Assembly of December 23, 1789: “everything must be refused to the Jews as a nation and everything granted to the Jews as an individual”. Since then, great latitude has been granted to individuals in religious matters, but the rights granted to religious communities are strictly tolerated.[Nearly 70 readers trust The Conversation newsletter to better understand the world's major issues. Subscribe today.]
But in addition to this initial logic, new constraints are now piling up on religious associations, placed under ever-increasing surveillance by the public authorities. Islamist terrorism, radicalization and separatism, of which the public authorities are logically concerned, are at the origin of this movement to tighten the constraints weighing on the Churches and religious communities. And since the law cannot specifically target one religion rather than another without disregarding the principles of secularism and equality proclaimed by Article 1er of the Constitution, the regulations in force obviously apply to all religions.
However, in his decision of July 22, 2022, the Constitutional Council was called upon to rule on two control mechanisms instituted by this “separatism” law.
The recognition of the religious quality of an association is an important issue, because it allows the association to benefit from certain advantages, in particular fiscal and financial.
However, until 2021, “cult associations” did not have to take any particular steps to obtain this quality and benefit from these advantages. The members of the association could themselves give this qualification to their association. It was only in a second time that an administrative control intervened.
But since the “separatism” law, associations wishing to benefit from the quality of religious association must declare this quality to the prefect, representative of the State. And the prefect can now, within two months of the declaration, oppose the association benefiting from the advantages resulting from this quality if he finds that the association does not meet the conditions provided for by the law of 1905. or for reasons of public order.
In addition, the association must henceforth renew its declaration of existence to the prefect every five years. In other words, the advantages that the quality of “religious association” confers on an association are only valid for a renewable period of five years.
These new procedures were contested by the applicant associations, which were unsuccessful. The first question was whether this intervention by the prefect did not lead the administration to “recognize” the existence of a cult, a recognition which would be contrary to the principle of secularism (article 2 of the law of 1905).
The constitutional judge considers firstly that this procedure only imposes an obligation of declaration on religious associations: it therefore in no way entails the public recognition of a cult (§12). He also observes that the decision of the prefect is accompanied by a guarantee: the association which would be deprived of the quality of “cultual association” has the right to be heard (§13). Therefore, the contested legislative provisions do not disregard the principle of secularism (§14).
Secondly, judging that this declaratory procedure is "not intended to regulate the conditions under which they [associations] are formed and exercise their activity", the Council admits that it does not infringe the freedom of 'association. On this point, we can only deplore the weak motivation of the decision, the abrupt conclusion certainly deserving of support to explain how these unprecedented procedures leave freedom of association intact.
On the other hand, the constitutional judge prohibits that the withdrawal of the quality of “cultual association” by the prefect leads “to the restitution of advantages which the association benefited from before the loss of its religious quality”. The withdrawal of the status of “cult association” cannot therefore have a retroactive effect. Without limiting State control, the Council intends to grant some guarantees to associations.
In addition to “cultual associations” (law of 1905), other forms of associations (associations law of 1901) can assume religious missions. However, the “separatism” law of 2021 wanted to harmonize their legal regime with that of worship, so as to encourage Muslims, who have often used this form of association, to transform their current associations into worship.
Until 2021, their legal regime was governed by the (liberal) law of 1er July 1901. No specific legislative text had supplemented this law to specifically regulate associations with a religious vocation. Their creation and organization were therefore very free.
The 2021 law puts an end to this relatively liberal regime. On the contrary, it intends to bring their legal system fairly broadly closer to that of “cult associations”, in order to strengthen the control exercised over them by the administrative authorities. The law of 2021 subjects them to a certain number of the provisions of the law of 1905: they must declare their resources coming from abroad, they must draw up a list of the places in which the public exercise of worship is organized, etc.
Seized of these legislative provisions, the Constitutional Council deemed them to be in conformity with the Constitution. He considers that they are justified by the need to ensure the “transparency of the activity and financing of associations ensuring the public exercise of a religion”, which makes it possible to ensure public order. Here again, the objective pursued by the legislator (increasing the surveillance of religious associations and their places of worship) is accepted by the judge.
The latter nevertheless specifies that, if the law is in conformity with the Constitution, the government must ensure, when it publishes the implementing decrees of the law, that the implementation of these provisions respects "the constitutional principles of the freedom of association and the free exercise of worship”. There is reason to be surprised at such precision. In addition to stating a truism, this precision induces that the provisions in question can potentially give rise to applications contrary to the Constitution; but in this case, it is surprising that the Constitutional Council did not intend to sanction the legislator for the lack of guarantee provided or that it did not specify itself (as it often does) the interpretation that it was necessary to give of these legislative provisions so that they are applied in a constitutional way.
A curious paradox
The Constitutional Council did not come to the aid of the freedom of religious associations in its decision of July 22. The “separatism” law is constitutional. But its appropriateness can nevertheless be questioned. Not so much because it reinforces state control, but because it raises a curious paradox.
Indeed, this law reinforces the controls on religious groups who have adopted an associative form and who have therefore respected the law in force to organize themselves; conversely, the de facto groups, "which tend to escape the institutional frameworks intended to organize them by staying away from them or bypassing them", to use the words of the Council of State, are in principle exempt from these restrictions.
The paradox is therefore that the strengthening of these constraints does not encourage the formation of religious associations, but on the contrary encourages these de facto groups, which nevertheless present the most danger for public order, to remain on the margins of the law. to escape these multiple constraints. Is it really proper to fight against separatism?
Henry Bouillon, Lecturer in public law, associate researcher at the Legal Research Center of the University of Franche-Comté (CRJFC), University of Franche-Comté - UBFC
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