The French Council of State and nurseries in public places: depending on whether they are religious or cultural

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The Council of State issued a judgment on November 9 authorizing Christmas cribs in public places, on condition. The highest administrative court was seized of appeal in cassation against two judgments of administrative courts of appeal in two similar cases, and had to answer the question of whether a Christmas crib was or not a religious symbol, the principle of secularism to the French prohibiting the expression of worship by public services.

Dince two years, the tension has been particularly exacerbated around the issue of Christmas cribs in public buildings, town halls or departmental council hotels. The feeling of being faced with a denial of the history of France is added to that of an injustice when criticisms of these representations are less heard about the Night of Ramadan organized by the municipality of Paris for 15 years, an evening with buffet and concert taking place just before Eid al-Fitr, the official end of the month of Muslim fasting. Two cases were recently presented to the Council of State, one relating to a crèche in the town of Melun, the other relating to one in the public premises of the department of Vendée; in both cases, associations of free thinkers opposed the representations of the Nativity in the public domain. Upstream, the Administrative Court of Appeal of Paris had ruled that the installation of the crèche in the building of the town hall of Melun violated the law of December 9, 1905 on the separation of Church and State; that of Nantes had rendered a judgment stating that the crèche, as installed in Vendée, complied with the same law. In an apparently antithetical approach, the High Administrative Court quashed the two contradictory judgments to build a coherent case law.

It became urgent for the Palais-Royal to give a guideline

The Council of State has ruled in the form of the litigation assembly, that pronouncing on the most sensitive questions and requiring to firmly establish the law. Seventeen magistrates had to rule on two important cases not only for the cultural life around Christmas, but also to mark a step in the jurisprudence. As the number of cases brought to justice is increasing, it was essential for the Palais-Royal to give a guideline to the question of the legal nature of nurseries. The two judgments handed down by the final administrative judge testify to a casuistic approach to the law of 1905 which he summarized in a press release published on the day of the judgment.

The crèche on a case-by-case basis: casuistic jurisprudence

Article 28 of this law provides :

"It is forbidden, in the future, to erect or affix any religious sign or emblem on public monuments or in any public place whatsoever, with the exception of buildings used for worship, burial grounds in cemeteries, funeral monuments, as well as museums or exhibitions. "

Theoretically, therefore, there could be no cribs exhibited in public places, except places of worship belonging to public authorities, as well as squares where dead bodies lie, and places of culture: thus a cross exposed in a public museum n 'would not have the same meaning as another cross in a municipal room not assigned to worship. This is the whole question of the cultural or religious nature of the object. This is the distinction that serves as a benchmark for the Council of State.

The context of the installation of the crèche must therefore, according to the Council of State, be "devoid of any element of proselytism"

The principle of secularism, notes the High Court, obliges public persons, they must present a neutral face. This is what we call the laws of Rolland, which explain the impartiality of public services and specify that any distinction based on any religious or religious affiliation whatsoever cannot be expressed. The aim is to assure public service users as much as possible that they will not be disadvantaged according to their convictions since communities or public establishments have no official religious or philosophical preferences. It is the question of the necessary appearance of impartiality of the actors of the public service. However, any “temporary installation [of a crèche] at the initiative of a public person, in a public location, is legal if it has a cultural, artistic or festive character, but not if it expresses the recognition of a cult or religious preference ”. The setting up of the crèche must therefore, according to the Council of State, be "devoid of any element of proselytism".

However, it is not enough that the manger does not display a religious character.

However, it is not enough, specify the judgments, that the crèche does not display a religious character, it is also necessary that its installation be in line with local customs, that the place chosen is adequate, and it is necessary to retain the special installation conditions. Therefore, if there is no crèche tradition, it cannot emerge in public buildings; a crèche should not be installed in “public buildings, headquarters of a public authority or of a public service”, except in special circumstances to be considered on a case-by-case basis; finally, concerning the last conditions, the nursery must be located in an artistic, cultural or festive environment, which was not the case in Melun.

In this case, the mayor of Melun had installed a crèche within the confines of a public building without anything showing that it was part of a cultural, artistic or festive environment. The Council of State overturns the decision of the Paris Court of Appeal according to which the law of 1905 prohibits any installation of crèche; but he finds the commune of Seine-et-Marne wrong because the installation is at odds with the points of law he has just specified. On the other hand, the High Court also quashed the decision of the Court of Appeal of Nantes, concerning the department of Vendée but because it did not investigate whether local customs and particular circumstances justified the installation of the crèche whose legality she confirmed by reversing a judgment of the Nantes administrative court which had ruled in favor of the free thinkers.

In both cases, therefore, the Council of State quashes the judgments of the lower courts whose decisions were opposed to each other, that of Nantes authorizing the crèche, that of Paris prohibiting it, without however the High Court giving reason. fundamentally to communities. They are above all decisions of principle, more than of species, from where the judgment in assembly of the litigation. Thus, the judge makes it possible to maintain a tradition, however local and no longer national, and anchors in the secular Republic a certain process of patrimonialization of the religious while depriving the communities where there is no more usual local use to find it. .

Hans-Søren Dag


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