In this 2023 school year, as at the start of the previous year, the question is once again raised of the attacks on secularism that would constitute the wearing of abayas for girls (traditional loose dresses covering the entire body), and of their male equivalent, qamis – attacks whose number is increasing: from 2167 to 4710 reports in one year.
Of course, it is appropriate to put the significance of such an increase into perspective: on the one hand, compared to the 12 students enrolled in schools in France, the proportion of cases remains very low; on the other hand, they are not necessarily univocal and their interpretation is difficult.
However, it remains that the visibility of the religious affiliation of students in a space whose secularism is a major organizing principle poses a problem for the institution that it finds all the more difficult to resolve as the solutions put forward struggle to achieve consensus. Let us look at the already long history – 35 years – of this problem and the political and moral dissensions that it has generated.
1989-2004: religious signs at school compatible with secularism?
The problem of students' free religious expression did not begin to be publicly raised until the start of the 1989 school year, when three young Muslim girls refused to remove the headscarf that their way of living their faith required them to wear. Since then, and until 2004, widely publicized "veil affairs" have periodically erupted, each time opposing supporters of a ban on religious symbols and supporters of open dialogue, even recognition of the right religious expression of students.
It should be noted that each of the two camps expressed itself (and still expresses itself today) in the name of secularism. Describing this opposition by speaking of defenders of secularism standing against those who would like to call it into question or weaken it is tendentious: it is to adopt the point of view of only one of the parties, the one who was in favor of the ban. . However, those who were not in favor of it did not in any way call into question the principle of secularism: they simply interpreted it differently by refusing public power the right to intervene in a private convictional choice and by emphasizing the diversity of interpretations to which the "Islamic headscarf" could be subject among the very people who claimed to wear it. So that the controversy which began in 1989 no longer opposed, as in the time of Jules Ferry, supporters and adversaries of secularism, but supporters... and supporters.
Secularism jointly becomes the object of an unprecedented consensus and an unprecedented dissensus: if the proclamation of attachment to the principle of secularism is now almost unanimous, the disagreements are great and lively on the way in which it is understood. What the “affairs of the veil” at school revealed, in short, is that secularism has become the subject of a conflict of interpretations.
The main lines of this conflict – which are still those which, today, structure the debate on secularism – can be schematized in the following way. On the one hand, a secularism which appears "republican" (and which is usually designated as such), exemplarily represented by philosophers like Catherine Kintzler et Henri Pena Ruiz, or even, more recently, by the Le Printemps republican movement, founded in 2016 by Laurent Bouvet and Gilles Clavreul. The ban on religious symbols in schools is then justified in the name of a secular and emancipatory universalism worried about the progression of communitarian demands, demanding the closure of the school to the "turmoil of the world" and the placing in parentheses, in within it, family particularities.
The opposite approach can be described as "liberal". No less, in fact, "republican" than the first, but differently from her, she insists on the freedoms guaranteed by the law of 1905 on the separation of Church and State and tends to see in the republicanism of the defenders of the ban on religious symbols in schools is not an updating of the principles of this law but on the contrary a diversion of its spirit, even, with the sociologist Jean Baubérot, a falsification. Besides J. Baubérot, sociologists and historians like Philippe Portier, Valentine Zuber or Patrick Weil and philosophers like Philippe Foray or Jean-Fabien Spitz share this liberal orientation.
However in 1989, and until 2004, it is this liberal interpretation which will officially prevail. Indeed, the Council of state, asked by the minister at the time, Lionel Jospin, for an opinion on the question, declared that the veil at school "is not in itself incompatible with the principle of secularism", since it is not accompanied by students' breaches of regular school order (refusal of teaching, proselytism, etc.).
This opinion will set a precedent during the multiple veil cases which broke out in the 1990s and which led to the exclusion of the incriminated students: the administrative courts only validated this exclusion when such breaches were proven (at the expense of the establishment school to provide proof) and required the reinstatement of students in all other cases.
The turning point of 2004
However, this did not prevent the quarrel, amplified by the media, from continuing to inflame the public debate. This did not promote serenity in middle and high schools either, by leading school heads to take decisions on a case-by-case basis which could deeply divide the teachers' rooms and in any case remained possibly subject to subsequent judgment by the courts. administrative. The case law arising from the opinion of the Council of State was thus poorly received by the teaching world and poorly understood by public opinion.
In July 2003, the President of the Republic Jacques Chirac set up a reflection committee on the application of the principle of secularism, chaired by Bernard Stasi, then Mediator of the Republic. The commission will rule in favor of banning the conspicuous display of religious symbols by students. Of the thirty recommendations made by the commissioners, this is the only one that the government retained, and the March 15, 2004 The law is passed which, "in application of the principle of secularism", prohibits "in public schools, colleges and high schools, the wearing of signs by which students ostensibly demonstrate religious affiliation".
The circular of May 18, 2004 will specify, by way of example, that signs such as “the Islamic veil […], the kippah or a cross of manifestly excessive size” fall within the scope of this ban.
An endless quarrel?
This law obviously makes previous “liberal” jurisprudence obsolete. However, has it resolved the problems it intended to resolve? We can discuss it. The provisions of the 2004 law continued to be criticized by proponents of a more "liberal" approach to the problem, notably, but not only, by Jean Baubérot, who was the only member of the Stasi commission not to have voted to ban conspicuous signs.
Philippe Portier does not hesitate to talk about "security turning point of secularism", a turning point accentuated by the attacks of January and November 2015 and the rise of radical Islamism. It can also be argued that the law was, in view of some of its stated intentions (push back the communitarian push of a certain part of the population), counterproductive and that it presents for students the disadvantage of giving them the image of a secularism based on prohibitions rather than on freedoms.
Abayas and qamis are thus the latest episodes of a crisis that the 2004 law wanted to put an end to… and which is still going on. Their ban by the new minister Gabriel Attal is undoubtedly founded in law, which has just been confirmed by the Council of state. It is only a particular case of the general prohibition formulated by the law of 2004, which in principle concerns any ostensible manifestation of religious affiliation, the veil, the yarmulke or the large cross being mentioned only as examples. Argue that this new fashion has a cultural and non-cult significance is difficult to sustain, as the “cultural” to which reference is made here is structured, or at least overdetermined, by the dominant religion of the countries where this “culture” was born.
Is it not illusory to think that such a ban will resolve once and for all a problem that previous bans have not prevented from arising again? Yesterday, the veil, today the abaya, and tomorrow? It might be time to replace these surges of concern, too easily exposed to political exploitation, with a serious, calm and reasoned debate. A debate during which the different approaches to secularism could explain their disagreements without anathema, and which could finally provide citizens with the necessary insights to better orient themselves in the legal, historical, sociological and philosophical complexity of these questions.