At a time when the debates on the bill confirming the respect of the principles of the Republic began in the National Assembly, it seemed to us wise to think about ways to enrich and improve it, where we felt it could be. Far from being exhaustive and covering all aspects of a text that is intended to be major in the history of the Fifth Republic, we focused on the part of the text that reformed the 1905 law on the separation of churches and the state.

---

Frédéric-Jérôme Pansier, Professor in Law

Willy Fautré, Human Rights Without Frontiers

Massimo Introvigne, CESNUR, Center for Studies on New Religions

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Double Ph. D in Law and in English, Frédéric-Jérôme Pansier has been teaching Law since 1990. He is currently Lecturer with the University of Pantheon Sorbonne (Paris) and the Catholic University in Paris. He has published 52 books and more than 3,000 articles in specialised magazines. He is a contributor to la Revue de science criminelle et de droit pénal comparé since septembre 1990, and was Chief editor of the Cahiers Sociaux du Barreau de Paris, from June 1998 to March 2013.

 

Willy Fautré, former chargé de mission at the Cabinet of the Belgian Ministry of Education and at the Belgian Parliament, is the director of Human Rights Without Frontiers, an NGO based in Brussels that he founded in 1988. He has carried out fact-finding missions on human rights and religious freedom in more than 25 countries. He is a lecturer in universities in the fields of religious freedom and human rights. He has published many articles in academic journals about the relations between state and religions. He regularly organizes conferences at the European Parliament, including freedom of religion or belief. For years, he has developed religious freedom advocacy in European institutions, at the OSCE, and at the UN.

Massimo Introvigne is an Italian sociologist of religions. He is the founder and managing director of the Center for Studies on New Religions (CESNUR), an international network of scholars who study new religious movements. He is the author of more than 70 books and more than 100 articles in the field of sociology of religion. From January 5 to December 31, 2011, he has served as the "Representative on combating racism, xenophobia and discrimination, with a special focus on discrimination against Christians and members of other religions" of the Organization for Security and Co-operation in Europe (OSCE). From 2012 to 2015, he served as the chairperson of the Observatory of Religious Liberty, instituted by the Italian Ministry of Foreign Affairs.

 

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BILL TO STRENGTHEN COMPLIANCE WITH THE PRINCIPLES OF THE REPUBLIC

Secularism and ways to preserve it

TABLE OF CONTENTS

I. INTRODUCTION

II. SEPARATION, SECULARISM, WORSHIP AND RELIGION

A. Separation of churches and State
B. The law of December 9, 1905 is a very liberal regime
C. The Republic guarantees the free practice of worship
D. The Republic recognized no faiths

1. Recognized faiths and unregistered faiths
2. The negative neutrality
3. Positive neutrality and impartiality
4. Positive neutrality and respect for all beliefs and public order
5. No distinction between religions

III. DEFINITION ET IDENTIFICATION OF RELIGION

A. Religious pluralism
B. Statement of religion according to French and international law

IV. AUTONOMY OF RELIGIOUS COMMUNITIES, FREE ORGANIZATION OF WORSHIP AND FREE CHOICE OF STATUS OF RELIGIOUS PERSONNEL

A. Principle of autonomy in the choice of religious organization and its functioning
B. Refusal of the Church and vote of the law of January 2, 1907
C. Acceptance of diocesan associations of the law of 1905 without exercise of worship

V. THE ALLEGED RECOGNITION OF RELIGIONS THROUGH WORSHIP ASSOCIATIONS

A. Worship and religious association are not synonyms

1. Worship associations and a narrow definition of worship
2. Similarity of words worship and religion in French constitutional tradition

B. A narrow definition of the word worship involves freedom of religion and discrimination

VI. THE RELIGIOUS FACT IS A LEGAL FACT OF WHICH PROOF IS FREE

VII. CONCLUSION: APPLICATION TO THE BILL STRENGTHENING THE RESPECT OF THE PRINCIPLES OF THE REPUBLIC

I - INTRODUCTION [⬆︎]

At a time when the debates on the bill confirming the respect of the principles of the Republic began in the National Assembly, it seemed to us wise to think about ways to enrich and improve it, where we felt it could be. Far from being exhaustive and covering all aspects of a text that is intended to be major in the history of the Fifth Republic, we focused on the part of the text that reformed the 1905 law on the separation of churches and the state.

For our reflection, we had to look at what secularism really was, what it implied as much as what it meant, what were the foundations that presided over its birth and what it had meant in the decades since then. We have also explored parliamentary debates, doctrine, the interventions of government commissioners, jurisprudence related to secularism, sometimes extracting clear explanations, and sometimes fundamental contradictions.

It appeared to us that this bill represents a tremendous opportunity to modernize the 1905 law, so that it can both respond to a situation that has radically changed in the French religious landscape since 1905, but also that it can achieve the objectives that the present government has set for itself (but they are not the only ones to have set them), to integrate newly arrived religions on French territory, such as Islam, into its framework.

According to the Constitutional Council^[1], the components of the principle of changed are:

- The Republic does not recognize any faith;

- State neutrality;

- Respect for all beliefs;

- Equality of all citizens before the law regardless of religion;

- The Republic guarantees the free exercise of worship;

- The Republic does not subsidize any faith.

However, France has some contradictions in the application of these principles. In particular, it can be noted that if the Republic does not directly recognize any faith, it must nevertheless recognize it indirectly in any procedure that would imply an acceptance by the State of the granting of the benefits that result from the religious aspect of an association registered under the 1905 law. While the State may exclude from the scope of benefits the associations whose worship character does not seem to be established, it recognizes, in contrast, those of the faiths whose right to benefits has been recognized.

When questioned on 17 December by the Special Commission in charge of the bill, the Minister of Interior Gerald Darmanin, said of the bill:

We did not wish to put provisions there to organize the faiths in their place. It is up to them to organize themselves in accordance with the Republican principles, without us having to choose what a good minister of worship is or without us having to choose what is the proper functioning of a faith. The Minister of Interior is not supposed to write a certain number of religious speeches, at least since a long time it is no longer his function and he does not wish this happens again.

We subscribe to this vision: that we do not have to choose one religion over another, is the very essence of secularism and above all we have to respect the organizational autonomy of the various faiths, while guaranteeing them a non-discriminatory treatment.

However, the case-law on the subject has struggled to change, while the French religious landscape has changed considerably since the enactment of the 1905 law.

The government, wishing to strongly encourage associations of law 1901 (mainly Muslim, but not only) to join the regime of religious associations of law 1905, adopted an additional level in the state control of faiths. To do so, it enshrined in the bill the obligation for associations of religious nature of 1901 law (as permitted by the law of January 2, 1907), to submit themselves to certain constraints which, until then, only concerned the associations of the 1905 law, without being able to benefit from the advantages related to the recognition of their religious nature, according to the latter law.

Unfortunately, it is likely that this harmonization of constraints, regardless of the mode of exercise freely chosen, will not be enough to bring about a real paradigm shift and to encourage associations of law 1901 to join the regime of 1905 law. The reason is simple: the 1905 regime is based on an overly narrow and outdated definition of the exercise of worship, inherited from an opinion of the State Council, which reduces it to "the celebration of ceremonies organized by persons united by the same religious belief, to perform certain rites or certain practices."^[2]

This excessively restrictive definition, which is not, however, a necessary corollary of the law, neither in spirit nor in the letter, is captive to the societal context, strongly marked by traditional monotheistic religions, in which the opinion of the State Council intervened. But it de facto excludes associations whose religious practices are not limited to ceremonies alone, although their purpose is exclusively the exercise of worship.

Indeed, from the provisions of Article 18 of 1905 law, it derives that associations claiming religious status must "conduct activities exclusively for the purpose of worship, such as the acquisition, rental, construction, layout and maintenance of the buildings used for worship, as well as the maintenance and training of ministers and others involved in the exercise of worship."

The case-law states that "the continuation by an association of activities other than those recalled above – unless these activities are directly related to the exercise of worship and have a strictly incidental character" – are of a nature to "exclude it from the benefit of the status of religious association."^[3]

However, effective respect for the diversity of religions freely exercised on French territory prohibits limiting the practice of worship to the celebration of ceremonies, even including some practices of "strictly incidental" character. Would we not like an association whose object is the religious study of the Koran or the Thora to be able to register under the 1905 law? This is not about teaching religion in a university or school setting, but about the formation and education of the faithful and the religious personnel to the principles of their religion.

And what about a Buddhist association that would organize meditation practices without any particular celebration? And what about an association that gives religious education online?

We believe so, and we must seize the opportunity to modernize and to broaden the scope of the enforcement of 1905 law. The spirit of the law is to offer all faiths a similar framework to be able to practice, without interfering in their internal organization or, as the Minister of Interior said, without "choosing what is the proper functioning of a faith". This is the respect for the autonomy of faiths, also recognized by the European Court of Human Rights as a fundamental principle. It is also finally the current wish of the government and others to ensure that a maximum of associations might enter this framework, which certainly offers benefits, but also obligations that are the very essence of respect for secularism.

It is not, of course, a question of adding a definition of worship to the 1905 law. On the contrary, so far the legislator has cautiously refrained from doing so, in accordance with the principle of secularism. Moreover, the activities we have just mentioned are in fact either directly exercises of worship or props to the exercise of worship. But they are not celebrations or props to the celebration.

Moreover, with this bill, which requires the worship associations of 1901 law to comply with the obligations of several sections of the 1905 law, we are risking, without realizing it, that they will be allowed to exempt themselves from it, since their purpose is not exclusively "The celebration of ceremonies organized by people united by the same religious belief for the fulfillment of certain rites or practices."

It is therefore now a question for the legislator to ensure that the 1905 law allows as many associations as possible – as long as they are religious associations – to register within the framework of the 1905 law, while offering the judge clear fundamental principles that allow him to perform his office on the basis of objective criteria, not discriminatory, respectful of the autonomy of the faiths in terms of their internal organization and sufficiently inclusive to generalize the use of the associative regime of the 1905 law.

So that the law is in alignment with the pillars of secularism as they result from the French constitutional tradition and international law, and that it respects the wishes and objectives pursued by the Government, it is desirable to clearly include:

- The principle of the autonomy of religions which guarantees the free organization of religions according to their religious principles;

- The fact that the Republic, not recognizing any religion, gives no definition of it and that the law therefore applies to any identifiable religion;

- The fact that worship activities include any act relating to the exercise, support, financing as well as maintenance of the faith, its ministers and its religious personnel, places of worship, as well as any accessory activity connected to it by a sufficient link, to the exclusion of social, philanthropic, charitable or cultural activities.

II - SEPARATION, SECULARISM, WORSHIP AND RELIGION [⬆︎]

According to the Constitutional Council, the components of the principle of secularism are:

- The Republic recognizes no faiths;

- State neutrality;

- Respect for all beliefs;

- The equality of all citizens before the law without distinction of religion;

- The Republic guarantees the free exercise of worship;

- The Republic does not subsidize any religion.^[4]

Immediately, we see the almost total fusion between the rules of the 1905 law and the principle of French laïcité enunciated in the preamble to the constitution of 1946 and in the constitution of October 4, 1958.

A. SEPARATION OF CHURCHES AND STATE

Before the law of December 9, 1905, the Napoleonic Concordat had instituted a regime which was then qualified as "recognized faiths", which were considered as public establishments placed under the close control of the French government.

According to an old study on the origins of the fund for religions, the Concordat "aimed to restore the worship, to constitute it in the state of public service and to make the clergy an administrative body."^[5]

The French Government, without having consulted those concerned, added to the Concordat organic articles unilaterally adopted, inaugurating a real interference of the State in the internal organization of "recognized" faiths and allowing public authorities to meddle in questions of dogmas and religious morals. In fact, with regard to Catholic worship, no act originating from the Vatican could be received, published, printed, or carried out without the authorization of the French government, in accordance with article 1 of the organic articles. The French state had the power to determine the ecclesiastical districts and to take part in the appointment of religious authorities.

Synods organized by Protestant faiths were also subject to the authorization regime and their decisions had to be approved by the Government. However, the object of these synods was mainly religious.

By abrogating the authoritarian regime of "recognized" faiths, the law of December 9, 1905 put an end to the Concordat.

The law known as the Separation of Churches and State adopted a very liberal conception of the relationship between religions and public power and established a legal regime of religion which, today, is the basis of religious law.

B. THE LAW OF DECEMBER 9, 1905 IS A VERY LIBERAL REGIME

To summarize the situation before the opening of the debates on the 1905 law, one author writes "that from the day when Gambetta, Jules Ferry and their friends got their hands on the Government of France, the characteristic of the regime was war on Catholicism."^[6]

The Third Republic has indeed implemented a very anticlerical policy, essentially against the Catholic Church. Its paroxysm was reached under the government of Émile Combes, a former defrocked seminarist called "Little Father Combes" because of his fierce opposition to the Catholic Church.

However, in 1902, under the Combes government, it was the parliamentarians who initiated the Separation Law by tabling 8 bills.

In June 1903, a Parliamentary Commission was set up to examine these proposals with Mr. Aristide Briand as rapporteur, who would become famous for his role in the adoption of the law of 1905.

On July 30, 1904, Combes took the radical decision to sever diplomatic relations with Rome. However, he could not continue his anticlerical policy because he felt as a result of the scandal known as the "dossiers" established by the French army on soldiers suspected of Catholicism.

It is therefore the parliamentarians who played the most essential role in the adoption of the 1905 law, including its rapporteur Aristide Briand and Jean Jaurès, the socialist tribune.

The right, the monarchists and the Catholic Church wanted the status quo. Father Gayraud pleaded for "the union of civil society and religious society". On the one hand, they considered that "it is the project of destruction of the Church by the State"^[7] and, on the other hand, according to Aristide Briand, "the Napoleonic Concordat enabled the Church to reconstitute itself and acquire, during the 19^th century, a power equal to that which we had known a few years before the Revolution."^[8] It should not be forgotten either that the Concordat was a contract, while the Separation was a unilateral act binding on the Church.

The extreme left, of which one of the fiercest supporters was the deputy Maurice Allard, continued "the struggle against the Church which is a political danger and a social danger", considering Christianity as "a permanent obstacle to the social development of the Republic and any progress towards civilization". He campaigned for a "project to suppress the Church by the State."^[9]

Faced with these two extreme tendencies, a moderate party was formed, including in particular the rapporteur of the law Aristide Briand and the deputy Jean Jaurès as the main leaders.

The Briand Commission will accomplish a titanic work resulting in a well-argued parliamentary report as well as a preliminary draft which will be submitted to the vote of the Chamber of Deputies in the spring of 1905. A thousand pages make up the verbal processes of its debates.

Jaurès, a great supporter of the Separation, declares: "We are not doing a work of brutality; we are not doing a work of deviousness; we are doing a work of sincerity. This is the character of the Commission's work, and this is why I am joining it."^[10]

Socialist but believer, the deputy supports tooth and nail the Commission's project by opposing anything that "could resemble an attack on the free exercise of worship"^[11]: "France is not schismatic, it is revolutionary". In this famous formula, he states that the Republic is not in struggle against religions, it is oriented towards the progress of Man, which, according to him, requires a social and peaceful revolution.

Many parliamentarians from all parties subscribed to this perspective to the point that Marcel Sembat, member of the revolutionary group in the Chamber, declared: "I am so keen on this that I am resolved to vote for a liberal separation ... I do not consider separation to be an instrument of persecution."^[12]

But the main architect of the liberal tone of the law, it is above all Aristide Briand, and this can be deducted from the introduction of his report where he declares that his objective is a "loyal and complete separation of the Churches and the State" and where he specifies that "this regime is the only one which, in France, a country where beliefs are diverse, reserves and protects the rights of each person."^[13]

In the conclusion of the report, he evokes the liberalism of the new system by indicating to the deputies "that by voting, you will bring back the State to a more just appreciation of its role and its function" of which he previously summarized the content: "there is no longer anyone who can seriously dispute that state neutrality in religious matters is the ideal of all modern societies."

The Vice President of the State Council recently recalled it very clearly:

But the French construction of secularism, and in particular the law of December 9, 1905, is above all liberal. This is indeed the meaning of article 1 of this law, which proclaims: "The Republic ensures freedom of conscience. It guarantees the free exercise of worship under the sole restrictions enacted [...] in the interest of public order". Freedom is at its heart, that is to say at the same time freedom of conscience, but also the freedom to live one's religion in the private sphere as well as, however with certain restrictions, in the public sphere. The administrative judge also applies in this matter the system of public freedoms, according to which freedom is the rule and police restriction the exception.^[14]

This is also what the State Council already indicated in its 2004 report entitled "Un Siècle de laïcité":

The administrative judge, for his part, in the liberal interpretation of the law played a role in accordance with the wishes of the legislator ... If he could only take into account the rupture between the State and the Churches consecrated by the law of 1905 and draw the consequences, the State Council did so in the most liberal spirit, thus imposing an open conception of secularism.^[15]

C. THE REPUBLIC GUARANTEES THE FREE PRACTICE OF WORSHIP

The liberalism of the law of 1905 is affirmed from the outset by its article 1:

The Republic ensures freedom of conscience. It guarantees the free exercise of worship under the sole restrictions set out below in the interest of public order.

This "means that the State is bound to make this freedom effective and real". The principle is more than half a century ahead of the case-law of the European Court which "imposes positive obligations on signatory states to organize the exercise of this freedom."^[16]

The freedom of worship thus laid down by article 1 of the law of 1905 applies to individuals as well as to collectivities.^[17]

In administrative law, it has the character of a fundamental freedom^[18] and its constitutional value is widely recognized by the Constitutional Council.

D. THE REPUBLIC RECOGNIZES NO WORSHIP

Article 2 of the law of 1905 provides that:

The Republic shall not recognize, pay stipends to or subsidize any faith.

As the State Council reminds us, referring to Dean Jean Rivero, secularism in terms of neutrality has two aspects, one negative, the other positive:

Jean RIVERO insisted on the double aspect of the principle of secularism: a negative aspect, because if, "by affirming that the Republic does not recognize any religion, the law has not meant to say that the Republic refused to know their existence", it "eliminates the legal category of recognized faiths ... the secular state is that which is outside any religious obedience"; and a positive aspect, because "the secular State ensures (freedom of conscience), that is to say the personal freedom to believe or not to believe" and "recognizes the obligation to make possible the exercise of worship.^[19]

1. RECOGNIZED FAITHS AND UNREGISTERED FAITHS

The lack of recognition of worship is one of the most fundamental and least understood rules of the 1905 law and the law on religions.

To apprehend it, we must first compare the old system of worship to that of 1905. The Concordat, as it evolved over time, was based on the so-called "recognized" faiths whereas the text of 1905 abolished this system instituted by Napoleon Bonaparte.^[20]

As Rita Hermon Belot points out, the 1905 law "could just as well have said - that it no longer recognizes any."

The Concordat of July 15, 1801 concluded between the Vatican and the French Government, "recognizes that the Catholic, Apostolic and Roman religion is the religion of the great majority of French citizens", without this formula having been used for the others faiths which have never concluded a Concordat (Protestants, Jews).

Admittedly, it was foreseen that the Catholic religion "shall be freely exercised in France" but also that "its worship shall be public, by complying with the police regulations that the French Government deems necessary for public tranquility". Moreover, on April 8, 1802, the French Government unilaterally adopted organic articles, still refused by the Catholic Church, which governed "the Catholic Church in its general relations with the rights and the Police of the State", the "ministers" and their "salaries", the "worship", the "buildings" of worship. These articles also devoted developments to the three branches of Protestantism.

In fact, under Napoleon Bonaparte, the state had not recognized four exclusively Judeo-Christian faiths, but had simply authorized them, by instituting a recognition procedure which was only applied to the Catholic Church in the form of the Concordat. All unauthorized faiths constituted illicit associations (Islam, etc.).^[21]

Portalis's brief for the presentation of the Concordat, which took place before the Legislative Body, insisted at great length on the social utility of religion, "no society being able to subsist without morality" and "morality without religious dogma, would not be that justice without courts"; he maintained that the Fatherland had an interest in "protecting religion since it is above all through religion that so many men, destined to bear the weight of the day and the heat, can become fond of the homeland".^[22]

But, in 1850, the son of the famous jurisconsult, editor of the Dalloz repertoire, summed up Napoleon's intentions by indicating that by recognizing the majority faiths, whose ministers provide "the public service of worship" for "the great majority of the French people", the purpose of the system was "to put the State in a better position to exercise the right of surveillance which belongs to it over religious matters and the conduct of ministers of worship."^[23]

It was therefore both to ensure general peace and to provide a framework for worship, particularly the Catholic worship, that the Concordat was concluded.

In fact, the recognized faith term appeared for the first time in a law of March 25, 1822 relating to the repression and prosecution of offenses committed through the press or by any other means of publication, which made it possible to prosecute "anyone who has insulted or derided any other religion whose establishment is legally recognized in France". Here, the word religion was substituted to that of worship.^[24]

The Constitutional Charter of June 4, 1814, adopted after the collapse of the Empire, created a mixed system with a very liberal tendency since it provided that "everyone professes his religion with equal freedom and obtains the same protection for his religion" . But it also recognized that "the Catholic, Apostolic and Roman religion is the religion of the State."

The law of April 20, 1825 known as "of sacrilege" returned to the concept of recognized faiths by its provisions against sacrilegious theft and offenses committed in churches or on objects consecrated to religion, applied to all faiths "legally established in France."^[25]

Then, the Charter of 1830 provided that "the ministers, either of faiths currently recognized by law or of those which would be recognized in the future, have the right to receive a treatment by the State"; the system was pursued by the Constitution of the 2^nd Republic according to which "the ministers, either of religions currently recognized by law or of those which would be recognized in the future, have the right to receive a salary from the State" (Constitution of 1848).

The rules of the Concordat were thus maintained until the law of 1905.

In short, the Concordat was a game of fools, a game of chess between the Vatican and Napoleon. The latter, as he confessed when he was in Saint Helena, nourished the hope "of eventually having the leadership of this pope, and, therefore, an influence, a lever of opinion on the rest of the world!"^[26]

But the Catholic Church in fact obtains its recognition and a worship budget, as well as the designation of Bishops by the compulsory canonical institution, which gave it the last word.

Thus, in 1905, for the most part, the Catholic deputies were fiercely opposed to the abolition of the Concordat, the application of which had proved to be of great benefit to the Church.

2. THE NEGATIVE NEUTRALITY

The formula of article 2 is first of all negative: "does not recognize, pay or subsidize any religion". In this sense, it means first of all "the neutrality of the State in religious matters" which, in Briand's eyes, was "the ideal of all modern societies."^[27] In other words, the State has no religious ideology: "no consideration of religious convictions should intervene in public services and in particular in schools"^[28].

The State is independent of religions, in the sense of Separation. This results in the neutrality of public officials who cannot manifest their convictions in the exercise of their functions, as well as many other consequences.

3. POSITIVE NEUTRALITY AND IMPARTIALITY

Neutrality and impartiality go hand in hand because the State "must not favor one religious conviction over another."^[29]

In European law, this principle is cardinal. The European Court reiterates this in all its judgments delivered in application of Article 9 of the ECHR. Thus, in a remarkable summary judgment delivered by its Grand Chamber, the Court indicated that it "has often emphasized the role of the State as a neutral and impartial organizer of the exercise of religions, various faiths and beliefs, and indicated that this role contributed to ensuring public order, religious peace and tolerance in a democratic society.^[30]

As stated by President Jean-Marie Woehrling, also co-author of the treaty on religions, "it is the need to ensure a position of arbitration for the State in an increasingly multi-religious and multi-cultural society that imposes the idea of neutrality."

This mission implies, according to him, that the State "shows an equitable attitude with regard to these different beliefs."

The application of this rule has several legal consequences, since it results in the principle of the equality of religions before the law, the absence of discrimination on the grounds of religion and the fact that the State does not fight any religion.

4. POSITIVE NEUTRALITY AND RESPECT FOR ALL BELIEFS AND PUBLIC ORDER

In one of his speeches to the Chamber of Deputies, Aristide Briand declared:

And the law we made is ultimately, as a whole, a liberal law ... The law had to show respect for all beliefs and allow them the faculty of freely expressing themselves.^[31]

This is the exact opposite of the anti-religious thesis carried forward by Maurice Allard, who did not hesitate to argue before the Chamber of Deputies the following:

But we, free thinkers, what separation do we want? It can only be that which will bring about a decrease in the evil of the Church and religions .... I do not hide from you that all my counter-project tends to have religion become the abnormal thing and that religion – with a privative a –becomes the normal thing.^[32]

But it is the opposite principle which is now inscribed on the pediment of the French Constitution: the Republic respects all beliefs.

The Paris Court of Appeal applied this rule at the start of the 20^th century in a judgment which is still relevant today, being its formula so powerful:

All religious beliefs are essentially respectable, provided that "they are sincere and in good faith, and it is not for civilian judges, whatever their beliefs, to criticize or condemn them.^[33]

It is also an intangible principle of the case-law of the European Court:

The State's duty of neutrality and impartiality defined by the Court's case-law is incompatible with any power on the part of the State to assess the legitimacy of religious beliefs.^[34]

The case-law of the French administrative judge goes in the same direction. This is how the government commissioner, J. Arrighi de Casanova, stressed on the occasion of the recognition of the religious character of associations of Jehovah's Witnesses, that neither the judge nor the administration had to "venture into the appreciation of nature, and even less of the value of the dogma and the beliefs professed by the members of the association whose religious character is in question".^[35]

According to President Jean-Marie Woehrling, by adopting these conclusions, the State Council has "censured" the approach of the Minister of Finance who, "to refuse certain tax advantages to an association of Jehovah's Witnesses, had criticized some of the conceptions specific to this religion" and arguing "that only the effects on public order of the religious beliefs in question could be legitimately taken into consideration by the public authority. The State must not judge beliefs, even those which may appear unreasonable, it must only intervene on the behavior if this is harmful."^[36]

5. NO DISTINCTION BETWEEN RELIGIONS

French and international law makes no difference between religions and, moreover, does not give any definition.

According to the treaty about the law on religions:

It emerges from the preparatory work that the legislature of 1905 in no way intended to reserve it only for the religions known and practiced at the time: this legal form was also intended to accommodate future faiths. The Muslim and Buddhist religions have thus been able to organize themselves into religious associations.^[37]

This approach is supported by the international law.

This is the position of European Union law:

Under the non-discrimination guidelines, the characteristics expressly protected are: sex, race or ethnicity, age, disability, religion or belief, and sexual orientation... The term "religion" should be interpreted broadly and should not be understood as being limited to traditional organized or well-established religions.

The United Nations Human Rights Committee also agrees with the interpretation it gives to article 18 of the 1966 Covenant on Civil, Civic and Political Rights:

Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms belief and religion should be interpreted broadly.

The Committee is therefore concerned about any tendency to discriminate against any religion or belief for any reason, including because it is newly established or because it represents religious minorities, likely to face hostility from a dominant religious community.^[38]

The interpretation of the European Convention on Human Rights is in harmony with that of the Human Rights Committee:

The litigation is hardly important with the majority religions because the dogmas are known and the relations with the States are stabilized. On the other hand, the question is more delicate with the minority religions and the new religious groups which one sometimes calls "cults" at national level. However, it emerges from the current case-law of the Court that all religious groups and their followers enjoy an equal guarantee under the Convention.^[39]

In a recent Grand Chamber judgment, the European Court recalls that the refusal to grant legal personality to a religious organization and the refusal to recognize it as a religion are a serious interference with freedom of religion, it violates the principle of neutrality and impartiality and undermines the autonomy of worship, taking into account "the repercussions of these decisions on the pursuit of religious practices."

Thus, with regard to the Metropolitan Church of Bessarabia, a minority branch of the Orthodox Church:

... the Court noted that, not being recognized, the applicant Church could not develop its activities. In particular, its priests cannot officiate, its members cannot meet to practice their religion and, being devoid of legal personality, it cannot benefit from the legal protection of its patrimony.^[40]

The same is true of Jehovah's Witnesses in a case where "the Austrian authorities had refused to grant legal personality to Jehovah's Witnesses for almost 20 years". The European Court in this case based itself on the principle of "the autonomy of religious communities" which "is essential for pluralism in a democratic society."^[41]

Likewise, in three cases against France, the Court also recognized that measures taken by the French authorities (taxation of manual donations) targeting the practice and places of worship of the three religious organizations in question, amounted to interference in the exercise of the rights protected by Article 9 of the Convention.^[42]

III - DEFINITION AND IDENTIFICATION OF RELIGION [⬆︎]

Although neither French law nor international law gives a definition of worship or religion, they condemn any restrictive approach.

Thus, it is by relying on the case-law concerning Jehovah's Witnesses and the Church of Scientology, that the Grand Chamber censured Turkey's refusal to recognize the Alevi Muslim community, both as an interference in freedom of religion but also as discrimination:

The right enshrined in article 9 would prove to be eminently theoretical and illusory if the latitude granted to States allowed them to give the concept of worship a definition restrictive to the point of depriving of legal protection a non-traditional and minority form of religion.

In this case, the Turkish state had openly denied the worship character of the Alevie religion by classifying it among the "forbidden Sufi orders (tarikat)" and not among the recognized religions, which deprived its members and organs of many prerogatives and legal advantage.

To come to this classification, the Turkish State had retained a definition of the Alevie religion exclusively based on the opinion of experts appointed by itself and had paid no attention to the "Final report drawn up at the end of the Alevi workshops", which nevertheless described the specific characteristics of this religion. The European Court severely censured this approach, ruling that:

For this reason, the framework as well as the definition of the Alevie denomination are entirely and exclusively the responsibility of the Alevis.^[43]

La sentenza sostiene che lo Stato deve soprattutto tener conto del modo in cuiThe judgment holds that the State must above all take into account the way in which religion defines itself by adopting a flexible and broad legal definition of the term religion, which makes it possible to take into account all religious systems.

A. RELIGIOUS PLURALISM

We know to what extent European jurisprudence associates freedom of religion and pluralism which is "inseparable from a democratic society, so dearly acquired over the centuries."^[44]

However, respect for pluralism goes hand in hand with respect for the specificities of each religion, which the State must absolutely take into account. The principle is well established in the Court's case-law:

Furthermore, the Court considers that, when examining the conformity of a national measure with Article 9 § 2 of the Convention, it must take into account the historical context and the particularities of the religion in question, whether these are dogmatic, ritualistic, organizational or otherwise.^[45]

In the Alevis case, the European Court sanctioned Turkey for its assessment "which does not take into account the specificities of this community". The judgment strongly emphasizes pluralism as an essential value:

In the eyes of the Court, by disregarding the specific needs of the Alevi community, the respondent State has considerably restricted the field of pluralism, insofar as its attitude is hardly reconcilable with its mission to maintain, by remaining neutral and impartial on the basis of objective criteria, a genuine religious pluralism, characteristic of a democratic society. In this regard, the Court recalls that pluralism is also based on genuine recognition and respect for the diversity and dynamics of cultural traditions and identities and religious convictions.^[46]

By denying the quality of worship to the Alevie Muslim community, Turkey deprived the latter of all the advantages associated with this status, in defiance of the effective right to freedom of religion.^[47]

Moreover, according to the Venice Commission of the Council of Europe, "a common definitional error consists in requiring a belief in God to qualify an activity as religious in nature, whereas classical Buddhism and Hinduism, to cite only two obvious counter examples, are respectively non-theistic and polytheistic."^[48]

B. STATEMENT OF RELIGION ACCORDING TO FRENCH AND INTERNATIONAL LAW

The existence of a religion constitutes a legal fact. In international law, there is no definition of religion but clusters of clues which allow its identification on a case-by-case basis.

First of all, texts such as the European Convention on Human Rights and the 1966 Covenant on Civil, Civic and Political Rights, indicate in a concordant way, that freedom of religion implies "the freedom to manifest one's religion or one’s conviction individually or collectively, in public or in private, through worship, teaching, practices and performance of rites."

It follows that religion can have a private or public, individual or collective aspect, and that it manifests itself, among other things, through practices, teaching, worship and rites.

The first criterion is therefore the existence of CONVICTIONS which must reach "a sufficient degree of force, seriousness, consistency and importance", a point which is constant in case-law.^[49]

It must also be "a coherent vision on fundamental problems"^[50] or, as the Grand Chamber of the European Court held until recently, "religious and philosophical convictions (which) relate to the attitude of individuals towards the divine (Sinan Isrk, cited above, § 49, in which even subjective perceptions can be of importance, given that religions form a very large dogmatic and moral whole which has or may have answers to any question of a philosophical, cosmological or ethical nature."^[51]

The second criterion is that religion is IDENTIFIABLE. Dean Carbonnier has suggested it by indicating that French law must "record the presence of a religion", which supposes that it is identifiable by its tangible manifestations.

This criterion echoes the expression "determined religion" which appears in French legislation on press law. For example, article 32 of the law of 1881 punishes "defamation committed by the same means against a group of persons not designated by article 31 of this law, but who belong, by their origin, to a race or to a specific religion."

It is about recognizing the existence of the group of people united by religious convictions who, to be protected by law, must be identifiable. This results from the explanatory memorandum to the bill aimed at suppressing incitement to racist hatred and making the legislation on the repression of racist and anti-Semitic activities more effective. The rapporteur of the law indicates that:

This group is a simple assemblage of people with a single common character: racial character, insufficient on its own to create articulations and links between them, factors of the cohesion essential to make it an organism with its own personality.^[52]

The State Council shares the same approach:

Because if the Republic does not recognize any religion, the guarantee of their free exercise supposes that one is able to identify them in order to allow them to benefit from the advantages which are reserved to them and to impose on them the constraints required by the public order."^[53]

If the Republic does not recognize any religion, the application of the law therefore presupposes that it has to know some.

According to President Woehrling, being neutral and impartial, "the State does not assess religious conceptions in themselves, but only takes into account, where appropriate, their concrete effects on collective life and on the areas of their resort."^[54]

This is the meaning of European case-law. For example, a claimant who was a prisoner claimed to belong to a Wica religion, but he "has not presented any evidence to establish the existence of a Wica religion."^[55]

Identification leads to the third criterion, which is the existence of a "religious community", a notion which is well known in law and appears in many texts. Thus, Article I-52 of the Charter of Fundamental Rights provides that:

The Union respects and does not prejudge the status enjoyed under national law of churches and religious associations or communities in the Member States.

French courts often refer to this notion in press law to identify the group defamed or insulted because of its membership in a specific religion:

The community of Catholics, united by their common faith and their belief in the dogmas and rules of their church, as expressed in particular by the Pope, constitutes a group sufficiently determined to be the victim of insults.^[56]

The religious community is therefore a social group united by common religious convictions, without necessarily forming a legal person.^[57]

The European Court assigns the utmost importance to this notion by linking it on the one hand to the autonomy of the churches because "religious communities traditionally exist in the form of organized structures" and, on the other hand, to the principle of the autonomy of worship characterized by "the right of a religious community to an independent existence (which) is at the very heart of the guarantees of Article 9 of the Convention."

In this sense, the community must be able to organize itself in the form of a legal person which is also protected, "article 9 of the Convention must be interpreted in the light of article 11, which protects associative life against any unjustified interference by the State."

This autonomous existence is also essential for pluralism in a democratic society. It is of direct interest not only for the organization of these communities as such, but also for the effective enjoyment of the right to freedom of religion by all of their members.

IV. AUTONOMY OF RELIGIOUS COMMUNITIES, FREE ORGANIZATION OF WORSHIP AND FREE CHOICE OF STATUS OF RELIGIOUS PERSONNEL [⬆︎]

A. PRINCIPLE OF AUTONOMY IN THE CHOICE OF RELIGIOUS ORGANIZATION AND ITS FUNCTIONING

When article 4 of the law of 1905 refers to "the rules of general organization of worship which they [religious associations] propose to guarantee", it enshrines the principle of autonomy and free organization of worship.

This principle was affirmed very early on by the Briand Commission in its report on the law of 1905:

...you will have granted the Church what it only has the right to demand, namely the full freedom to organize, to live, to develop according to its rules and by its own means, without any other restriction than the respect for the law and public order.^[58]

One of the actors of the formula adopted by the legislator was Jean Jaurès who was among the first ones to understand that Separation would not be possible without allowing the Catholic Church to organize itself according to its own principles.^[59] During the vote of the law, he declared that "it is by respecting the general organization of the Churches and not by organizing schisms that we will carry this country forward..."^[60]

The rapporteur of the law, Aristide Briand, has always considered that the free organization of worship is an essential rule and that it applies to all religions:

A law of separation of the Churches and the State can be truly equitable only on the condition of respecting the intimate constitution of all the Churches and of allowing them, after the abrogation of the budget for the cults, an organization such as they can gather the necessary resources for the continuation of their work. To break their ecclesiastical frameworks, to force them to adopt a regime contrary to their traditions and their needs would be a measure of oppression. It is therefore of the utmost importance to know the principles and the ecclesiastical form of each religious denomination.^[61]

The Briand report also devoted lengthy developments to the organization of each of the traditional faiths.

He reiterated the importance of the principle of free organization of worship many times during the debates, noting in particular that:

These Churches (Catholic, Apostolic and Roman; Israelite; Protestant) have constitutions that we cannot ignore; it is a state of affairs that is required.

... what we owe them [the churches] is the right to freely organize themselves.^[62]

These Churches have constitutions that we cannot ignore. It is a state of affairs which is imperative, and our first duty as legislators, at a time when we are called to regulate the fate of the Churches in the spirit of neutrality in which we conceive the reform, consists in doing nothing that might represent an attack on the free constitution of the Churches.^[63]

On April 22, 1905, the parliamentarians voted on the amendment to article 4 with an overwhelming majority of 482 votes to 52, and Jaurès, to mark the importance of this vote, cried: "Gentlemen, the Separation is done!"

In the Senate, there was also much debate on article 4. Clemenceau strongly opposed it because it constituted recognition of the internal organization of churches. But nothing helped, and the text was adopted, again by an overwhelming majority of 254 votes to 4.

The law of 1905 is therefore a text which allows each Church to organize itself according to its own canons, its own principles, its own rules of government.

According to the Treaty on the Law on Religions:

The principle of freedom of religion implies the right for all religious organizations to organize themselves as they see it fit, drawing on the existing legal arsenal to choose the legal forms or statutes for the representatives of worship ... we cannot therefore force a religious group to choose one legal form rather than another, or to renounce some of these forms ... the specificity of the situation of persons invested with religious missions implies that the law takes this into account, and, if necessary, assigns a specific legal framework for the representatives of a faith ... thus it is justified to legally recognize the faculty for a religious institution not to choose the framework of labor law for their activity to be considered a religious commitment.^[64]

B. REFUSAL OF THE CHURCH AND VOTE OF THE LAW OF JANUARY 2, 1907

Catholics were nevertheless the first to reject the religious associations of the 1905 law, this by two papal encyclicals in 1906, Vehementer nos and Gravissimo officii munere.

To partially remedy this situation, Aristide Briand, at that time Minister in charge of Religious Affairs, passed the law of January 2, 1907 on the public exercise of worship, one of the articles of which states:

Independently of the associations subject to the provisions of Title IV of the law of December 9, 1905, the public exercise of worship can be guaranteed both by means of associations governed by the law of July 1, 1901 (1, 2, 3, 4, 5, 6, 7, 8, 9, 12 and 17) and by way of meetings held on individual initiative under the law of June 30, 1881 and according to the prescriptions of article 25 of the law of December 9, 1905.

By thus allowing the free choice of a legal structure instead of imposing the model of religious association, the legislator reinforced and promoted the principle of the free organization of worship. Indeed, many religious communities refuse religious associations because of their too narrow object and the very complex and restrictive organizational rules.

But this did not immediately convince the Catholic Church, which demanded a special agreement with the French state.

C. ACCEPTANCE OF DIOCESAN ASSOCIATIONS WITHOUT EXERCISE OF WORSHIP OF 1905 LAW

In 1923, after a diplomatic rapprochement with the Government, several jurisconsults issued an opinion on the subject of the Catholic Church:

Article 2 [of the law of 1905], by saying that the Republic recognizes no faith, does not mean that faiths are abolished or that the law intends to ignore them, but simply that faiths, which were formerly called "recognized faiths" will now be autonomous and governed by their own rules, rules that the State, under the terms of article 4 of the law, undertakes to respect.^[65]

Statutes of a diocesan association then saw the light of day and were submitted to the Council of State, which admitted their compatibility with the law of 1905 and the respect due to the free organization of Catholic worship.^[66]

Since then, Catholic worship has been practiced outside the associations of the law of 1905, in canonical organizations, diocesan worship associations having the sole purpose of "providing for the costs and maintenance of Catholic worship."

It is therefore obvious that all other religions also have the right to respect for their organizational model and their canon law, otherwise their treatment would be discriminatory.

Moreover, this is what European case-law enshrines by making of the principle of the autonomy of religions a cardinal rule:

As religious communities traditionally exist in the form of organized structures, Article 9 must be interpreted in conjunction with Article 11 of the Convention which protects community life against unjustified interference by the state. Seen in this light, the right of believers to freedom of religion, which includes the right to express beliefs in groups, carries with it the hope for believers to be able to associate freely without arbitrary intervention by the State. In truth, the autonomous existence of religious communities is essential for the pluralism of a democratic society and therefore a question at the heart of the protection guaranteed by Article 9. The duty of neutrality and impartiality of the State defined by the case-law of the Court is incompatible with any power on the part of the State to assess the legitimacy of religious beliefs.^[67]

In this regard, the European Court has clearly imposed on States an obligation to respect all the specific and particular aspects of each religion, as already recalled.

It then arises the problem of the recognition of a religion and that of the advantages attributed to it by French law.

V. THE ALLEGED RECOGNITION OF RELIGIONS THROUGH WORSHIP ASSOCIATIONS [⬆︎]

Neutrality, equality of religions and pluralism go hand in hand, as the State Council ruled:

The constitutional principle of secularism implies state neutrality and equal treatment of different religions.^[68]

And it also recalled that secularism "at the very least must be broken down into three principles: those of state neutrality, religious freedom and respect for pluralism."^[69]

As since the law of 1907, the association of the law of 1905 is only one of the legal forms by which the public exercise of worship can take place, it is absurd to argue, as many do, that the recognition of a religion must go through the verification of the worship character of its associations through various mechanisms such as the prefectural rescript, exemption from property tax, acceptance of donations and bequests, etc., the absence of transfer rights for manual donations, etc.

This would amount to imposing on a religious movement an organizational model that does not comply with its canon law, and constraints that would prevent it from functioning in accordance with its internal rules.

Faiths must therefore choose the legal form that suits their religious model (for example religious associations or 1901 association with a religious object) without this choice penalizing them by depriving them of the religious status and its advantages.

All religions are equal and should enjoy the same advantages, which also implies adopting a pragmatic and open conception of the concept of the exclusive exercise of worship, as well as of activities incidental to this exercise.

The Judeo-Christian approach to the notion of worship must be abandoned in favor of an objective criterion which would make it possible to identify a religion.

A. FAITH AND RELIGIOUS ASSOCIATION ARE NOT SYNONYMS

1. WORSHIP ASSOCIATIONS AND A NARROW DEFINITION OF WORSHIP

Article 18 of the law of December 9, 1905 refers to "associations formed to meet the costs, maintenance and public exercise of worship" and article 19 specifies that "these associations must have the exclusive object of worship."

From these provisions follows the fact that associations claiming religious status must "carry out activities having as their sole object the exercise of worship, such as the acquisition, rental, construction, development and maintenance of buildings used for worship, as well as the maintenance and training of ministers and other persons contributing to the exercise of worship."

Case-law indicates that "the pursuit by an association of activities other than those recalled above, unless these activities are directly related to the exercise of worship and are of a strictly accessory nature" is enough to "exclude it from benefit of the status of religious association."^[70]

Government Commissioner Arrighi de Casanova specified in this regard that:

In our opinion, a reasonable application of this requirement can be accepted: since the object defined by the statutes relates exclusively to the exercise of worship, the circumstance that the association in fact exercises other activities than those listed in the 1989 opinion is not necessarily such as to make it lose its character, if at least it is established that these activities remain truly ancillary, which supposes:

- that their importance remains secondary;

- and above all that they are directly linked to the exercise of worship.

For example, the simple distribution of a parish information bulletin should not prevent an association from being recognized as religious, while conversely, the association which in fact ensures the permanent distribution and the sale of brochures in addition to its strictly religious activities cannot, whatever the stipulations of its statutes, benefit from this qualification.

So, ultimately, it is the object of associations exclusively limited to the exercise of worship that is the keystone of the system. Therefore, if we limit the definition of worship, we thereby limit that of the object of association, and therefore the definition of religion.

In its opinion of 24 October 1997, the State Council adopted a definition of worship inspired by that given by its Government Commissioner:

The celebration of ceremonies organized by people united by the same religious belief, for the performance of certain rites or certain practices.^[71]

The Commissioner wrote on this subject that:

The recognition of the existence of a worship thus supposes that there is a junction between a subjective element and an objective one:

- The first is constituted by a belief or a faith in a divinity;

- The second, which materializes the first, is the existence of a community meeting to practice this belief during ceremonies.

He justified his very restrictive definition by considering that the celebration of ceremonies was a " fundamental material element ... ", on the one hand "because it makes it possible to differentiate the notion of worship - which has a legal status - from that of religion - which lacks it" and , on the other hand, "because it clearly marks the limits of the exercise: it is only because the legislator has seen it fit to be interested in the material conditions in which such celebrations would be organized, and more particularly, in the status and the mode of management of the buildings which are devoted to it, that the administration and the judge have to wonder about the existence of a worship. And they only have to do so within the framework of the law of 1905, and with regard to the object of this text."^[72]

This analysis appears irreconcilable with the law of 1905 itself, since it establishes, by means of fiscal advantages, a restrictive recognition system which is expressly prohibited by the text, unless it equally benefits all religions.

In addition, international law requires a very broad approach to the concept of religion which is incompatible with a definition emphasizing the celebration of ceremonies. Religion can be exercised in many ways other than collective ceremonies. Religious expression can in no way be reduced to a limited group of practices and rites.

Finally, it should be borne in mind that in the French constitutional tradition, worship and religion are generally synonymous.

2. SIMILARITY OF WORDS WORSHIP AND RELIGION IN FRENCH CONSTITUTIONAL TRADITION

This narrow definition of worship is all the more illegitimate as it does not conform to the constitutional tradition of France since the revolution of 1789. Indeed, if we examine the texts, we often see that the terms religion and worship are interchangeable.

The Constitution of 1791 which places the Declaration of the Rights of Man and of the Citizen (DDHC) at the head of the text, only evokes opinions, even religious ones, guaranteeing that every citizen shall not be bothered for such opinions. Its preamble indicates that the law "no longer recognizes religious vows or any other commitment that would be contrary to natural rights or to the Constitution". No reference is made to worship.

The decree of November 2, 1789 of the Constituent Assembly voted for the nationalization of "ecclesiastical assets" which "are at the disposal of the Nation, with the charge of providing, in a suitable manner, at the worship’s expenses, at the maintenance of its ministers". But it also evokes "the maintenance of ministers of religion", making a synonym of minister of worship and minister of religion.

Also the Constitution of 1791 places a DDHC at its head at article 10, which returns to the formula of 1789: "no one should be bothered for his opinions, even religious ones"; the preamble to this constitution condemns "religious vows" which would be contrary to "natural rights or the Constitution". But, in its first title on the fundamental provisions on the natural and civil rights, it evokes the freedom of every man "to exercise the religious worship to which he belongs", "the goods intended for the expenses of the worship", the election and the choice of "ministers of their worship" and, in its title V, "the treatment of ministers of Catholic worship". Worship and religion are therefore still synonymous.

Also the Constitution of June 24, 1793 has a DDHC at article 7 which provides that "the free exercise of worship cannot be prohibited" and, in the part devoted to the guarantee of rights, an article 122 which provides that "the Constitution guarantees to all French people ... the free exercise of worship."

The decree of 3^rd Ventôse, Year III (January 21, 175) published under the Directory, is important because it is the first system of Separation of Churches and State which, moreover, seems to have served as a model for the law of 1905. This is what the deputy Plichon claims, for whom "Briand’s project reproduces in its spirit, sometimes even in its exact terms, the law of 3 Ventôse year III on the Separation of Churches and State".^[73]

It is true that the text provides that in accordance with article 7 of the DDHC and article 122 of the Constitution, the exercise of any worship cannot be disturbed", it then contains a series of articles very similar to the text of the law of 1905:

- Article 2: "The Republic does not pay any" (faiths).

- Article 3: "It does not provide any premises for the exercise of worship or for the accommodation of ministers."

- Article 4: "Ceremonies of any form of worship are prohibited outside the enclosures chosen for their exercise."

- Article 5: "The law does not recognize any minister of religion ..."

- Article 6: "Any gathering of citizens for the exercise of worship is subject to the supervision of the state authorities."

- Article 7: "No sign specific to a worship may be placed in a public place ..."

Although the decree mentions the exercise of worship and the ministers of worship, the deputy Chénier who was the rapporteur, meanwhile, spoke of the will to maintain "to each individual the complete freedom to follow and imagine any religion that "'he will please" and that it was understood that "each one will pay the worship that he wants and will not pay for others". Once again, worship and religion are synonymous, although this is a text which clearly served as inspiration for Aristide Briand.

The Constitution of 5^th Fructidor, Year III once again mixes worship and religion, terms used interchangeably.

Its article 12 lays down that "the exercise of the rights of citizens is lost ... by the affiliation to any foreign corporation which would suppose distinctions of birth, or which would require the vows of religion", while its article 352 indicates that "the law recognizes neither religious vows nor any commitment contrary to natural human rights". Yet article 354 provides that "No one may be prevented from exercising, by obeying the laws, the worship which he has chosen. No one can be forced to contribute to the expenses of worship. The Republic does not pay any of them."

At the same time, the Concordat concluded with the Vatican on July 15, 1801 provides that the "Government of the French Republic recognizes that the Catholic, Apostolic and Roman religion is the religion of the great majority of French people" and adds that "His Holiness also recognizes that this same religion has withdrawn and still awaits at this moment the greatest good and the greatest glory from the establishment of Catholic worship in France and from the particular profession made of it by the Consuls of the Republic."

Article 1 then states that "the Catholic, Apostolic and Roman religion shall be freely exercised in France. Its worship will be public, while conforming to the police regulations that the Government deems necessary for public tranquility". Then many other provisions evoke "worship". For example, those relating to the provision of certain buildings "necessary for worship", offenses committed "in the exercise of worship", attacks "on the public practice of worship", the fact that "Catholic worship will be exercised under the direction of the archbishops and bishops" and even the "other authorized worships". In short, there is reference to both the Catholic religion and the Catholic worship in a synonymous sense.

The Constitution of 22^nd Frimaire, Year VIII (Consulate) and that of 16th Therinidor, Year X (lifetime Consulate) do not contain any provision on worship or religion. But, that of 28^th Floral, year XII, in other words that of the Empire, provides for an oath in which the Emperor "swears to maintain the integrity of the territory of the Republic, to respect and to ensure respect for the laws of the Concordat and freedom of worship"

The act additional to the Constitutions of the Empire of April 22, 1815 also evokes worship by providing in its article 62 that "the freedom of worship is guaranteed to all" and by its article 67 that "the French people declare that, in the delegation he made of his powers, he did not intend and do not intend to give the right to propose ... nor the right to re-establish ... any privilege to any worship... "

The Constitutional Charter of June 4, 1814 returns to the mixture between worship and religion used in an equal way by providing, with regard to the foreigners, that "their worships are also protected by the law" and that "each professes his religion with equal freedom and obtains for his worship the same protection '(art.5), while stating that "however the Catholic, Apostolic and Roman religion is the religion of the State" (art.6) and that "the ministers of the Catholic, Apostolic and Roman religion, professed by the majority of French people and those of others Christian cults, receive salaries from the Public Treasury" (art.7).

The law of 25 March 1822 relating to the repression and prosecution of crimes committed through the press or by any other means of publication was then adopted to repress "anyone who has insulted or derided the religion of the State" and provided for the same penalties "against anyone who would have insulted or derided any other religion whose establishment is legally recognized in France."

The Constitutional Charter of August 14, 1830 abolished state religion and provided that "Everyone professes his religion with equal freedom and obtains the same protection for his worship" (art. 5) and that "ministers of the Catholic, Apostolic and Roman religion, professed by the majority of French people and those of other Christian cults, receive salaries from the Public Treasury" (art.6).

In the constitution of November 4, 1848 of the Second Republic, "The Republic must protect the citizen in his person, his family, his religion", an "each freely professes his religion, and receives from the State, for the exercise of his worship, equal protection. Ministers either of faiths currently recognized by law, or of those which would be recognized in the future, have the right to receive state salary."

The Constitution of January 14, 1852 of the Second Empire provides that the Senate opposes the promulgation of laws that would be contrary to "religion, freedom of worship, individual freedom ...", while article 26 of the deliberation of the senate of March 14, 1867 reiterates the same provision.

The constitutional laws of 1875 concerning the Third Republic do not contain any provisions on religion or worship, but these provisions appear in the law of December 9, 1905 and in that of January 2, 1907.

It is certain, on reading the report of the Briand Commission, that worship and religion were used synonymously, as in the examples below:

- This famous decree, after noting that the Catholic worship was reestablished where it had been suppressed and after having recognized the clergy all of their former assets and rights, ensured legality to the reformed religion.^[74]

- The ministers of religion did not have any administrative authority.

Or:

This organization of Israelite worship was the work of Napoleon. It came, after the Concordat and the organic laws of Year X, to complete the body of legislation governing the exercise of the three religions recognized by the State.^[75]

- One would look in vain for the slightest trace of an ulterior motive of persecution against the Catholic religion. The worship trios recognized in France receive equal treatment there.^[76]

We could therefore easily replace the word worship in the law of 1905 with that of religion and write that the Republic "guarantees the free exercise of religions under the sole restrictions enacted below in the interest of public order" (art. 1), that it "does not recognize, pay or subsidize any religion" (article 2), and also evoke "the general organization of religion" (art.4), the designation of worship associations as "religious associations" whose "exclusive object" would be "to provide for the costs, maintenance and the exercise of religion '(art. 18), while designating the "ministers of worship" as "the ministers of religion" (art. 14, 24 etc.). This would be entirely possible and in accordance with the French constitutional tradition.

Especially because since the Constitution of 1946 for the Fourth Republic, it is no longer a question of worship, but of religion, religious opinions or beliefs. The Preamble to the latter states that:

... the French people proclaim once again that every human being, without distinction of race, religion or belief, has inalienable and sacred rights. He solemnly reaffirms the rights and freedoms of man and of the citizen enshrined in the Declaration of the Rights of 1789 and the fundamental principles recognized by the laws of the Republic.

France forms a union with the peoples of overseas based on equal rights and duties, without distinction of race and religion.

The Preamble to the Constitution of November 4, 1958 refers to "Human Rights and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and completed by the preamble to the Constitution of 1946", and its article 1 provides that:

France is an indivisible, secular, democratic and social Republic. It ensures equality before the law of all citizens without distinction of origin, race or religion. It respects all beliefs.

Thus, the thesis, sometimes taken up by the best authors, according to which "the expression [worship] makes it possible to encompass all the religions present but also to claim to know religion only in its visible, social and purely external aspect", does not correspond to French constitutional history. Indeed, the various constitutional texts have sometimes used the term "religion", sometimes that of "worship", and often both at the same time, synonymously and interchangeably.

Moreover, if the State does not have to know dogmas, beliefs or religious opinions because freedom of conscience is absolute, and it is only concerned with their external manifestations, worship in the narrow sense, that is to say the ceremonies, this is not the only external manifestation which would allow to identify a religion in order to apply to it the system of worship relating to taxes, buildings of worship etc., and to make it respect public order.

In this regard, in international texts, worship, in the narrow sense of the term, is only one of the manifestations of religion: "the freedom to manifest one's religion or belief individually or collectively, in public or in private, through worship, teaching, practices and the performance of rites."

The State can therefore identify a religion through its manifestations, both private and public, as well as individual or collective, through practices, rites or teachings, in addition to worship.

Therefore, there is no justification for adopting a narrow definition of the word worship under the 1905 law on the pretext that ceremonies are the only means of identifying a faith by its external manifestations.

B. A NARROW DEFINITION OF THE WORD WORSHIP INVOLVES FREEDOM OF RELIGION AND DISCRIMINATION

By limiting worship to public ceremonies only, the State Council adopted a restrictive definition of religion and opened the door to discrimination for all religions that do not wish to organize themselves into associations under the law of 1905, or who can't.

However, it is far from certain that such a definition is the only one compatible with a religious association, as can be seen with the various French constitutions.

Whatever may be said, the French system conditions the recognition of a religion on a passage through religious association and, in so doing, it deprives some religions of the considerable tax advantages linked to the religious status.

A narrow definition of religion is however incompatible with Article 9 of the European Convention and with international law in general, since the refusal of religious recognition seriously impacts the exercise of religion, and it is opposed to the principle of the organizational autonomy of religions.

In addition, the system generates discrimination between new religions and Judeo-Christian or Eastern faiths in which worship ceremonies are predominant.

However, France was condemned for discrimination in the so-called Union of Atheists case, for depriving this association of the tax advantages linked to the regime of religious associations. The State Council ruled that this association could not be regarded as a religious association since it brought together those who regard God as a myth.^[77]

Professor Rolland underlines that "the judge thus indirectly indicates that the notion of worship is linked to that of God. Moreover, that atheism does not really develop ritual activitie.s"

Applied to distinguish a philosophical association from a religious association, this is quite legitimate. But the criterion becomes discriminatory as soon as it distinguishes between religions, especially since Buddhists are constituted in associations under the law of 1905 when it is a non-theistic religion.

We know, however, that "the government commissioner concluded on this point that it was necessary to stick to a strict meaning of the notion of worship, which the Larousse dictionary defines as "homage paid to a deity or to a holy personage."

The European Commission of Human Rights, however, rejected this discriminatory conception. After having analyzed the French system at length, it decided that:

… The Government has not provided any justification for the difference in treatment operated by French legislation in terms of donations between religious associations on the one hand and other associations on the other. The Commission, for its part, sees no objective and reasonable justification for maintaining a system which disadvantages non-religious associations to such a degree.

The Commission notes that the applicant's objective is to bring together all those who regard God as a myth. It admits that such an attitude does not seem, at first glance, likely to qualify it as a religious association. However, the applicant is just expressing a certain metaphysical conception of man, which conditions his perception of the world and justifies his action. Thus, for the Commission, the philosophical tenor, although fundamentally different in both cases, does not seem a sufficient argument to distinguish atheism from a religious worship in the classical sense and to serve also as the basis for a different legal status.^[78]

France was therefore condemned for discrimination under article 14 of the Convention together with article 11, because there was inequality between the associations according to the beliefs, religious or not, professed by them.

Following this condemnation, the French Government considered in its response to the Committee of Ministers that the law of 1987 on the development of patronage, gave to this type of non-religious associations financial capacities identical to those of associations of the law of 1905: the right to receive gifts and in particular manual donations.^[79]

Then, the law of August 1, 2003 made further disappear certain differences between associations of 1901 and religious associations with regard to donations since, henceforth, the organizations of general interest referred to by article 200 of the general tax code (CGI) also benefit of the advantages of article 757 of the CGI.

 

Manual donations made to associations of general interest, open the right to a reduction in income tax equal to 60% of the amount of donations made within the limit of 20% of taxable income for individuals, and to a reduction of income tax or corporate tax equal to 60% of the amount of donations made within the limit of 5% of their turnover, for companies.

This legislative change to harmonize the status of religious associations with that of associations of general interest, including those of a philosophical nature, proves that the French state is aware of its obligation to ensure similar benefits in similar situations.

It must therefore justify by totally objective considerations a difference in tax treatment, especially if the latter has a significant impact on the free exercise of worship.

However, how to justify a distinction of tax system as unfavorable as that which exists today between religious associations of law 1905 and religious associations of law 1901, when it was considered discriminatory for a philosophical association, and whereas the law of 1907 had precisely been passed to allow worship to be exercised in the form of associations of 1901?

From the moment when the definition of worship is exclusively restricted to public ceremonies and to religious associations that do not admit any other activity, except strictly incidental, it is a direct infringement of the freedom of religions whose system of beliefs and organization is not focused on religious ceremonies.

However, the principle of autonomy and the free exercise of worship is so important that in "certain circumstances, the absence of differential treatment with regard to persons placed in significantly different situations, may constitute a violation of this provision."^[80]

Moreover, the entire French history of faiths is only a struggle for each religion to adopt a model in accordance with its constitution by ensuring that the legislator complies with it, as the Catholic Church did with diocesan associations, or with the social status of its ministers of religion, or as the majority Protestant religion which does not affiliate its ministers to the religious fund but to the general regime.

Minority religions must be able to adapt the legal system to their own organization and enjoy the same advantages of the traditional faiths.

In the current system, such religions are deprived of the fiscal advantages of a religious association and above all of "recognition", which results in the insidiously re-establishment of the system of recognized religions, depriving new religions of the benefits of the legislation on religions.

Professor Patrice Rolland opens the door to a solution in these terms:

The definition of worship given in 1997 does not avoid the reference to religion. It will therefore eventually be necessary for the French judge to give a definition of religion. The possibility is not abstract: among the new religious movements, not all clearly refer to God or to a Supreme Being; some are even qualified as atheists or as religions without God. The developments of the twentieth century have erased old cultural or philosophical evidence.

From a secular point of view, that is to say one which takes into account only freedom of conscience, the appropriate category is rather that of conviction. It allows all beliefs to be included without having to qualify them as religious or not. The notion of conviction can be characterized in a formal way without having to analyze its content. Freedom is for all beliefs.

The problem is that the legislator of 1905 did not want to stick to the common law of convictions and maintained a notion of worship which can hardly do without religious reference.

This implies belief in God or in a transcendent reference.

Finally, it refers to the approach of the European judge who sticks to the notion of religion which must be "identifiable" and represent "views reaching a certain degree of force, seriousness, coherence and importance" bearing "on fundamental problems". This criterion, he writes, is "quite formal and covers a wide field of convictions beyond religions in strict sense which refer to transcendence. It makes it possible to integrate many convictions into those which are entitled to the protection of article 9, in particular among the "new religious movements"^[81]

This approach is far from being ignored in administrative law. Government Commissioner André Bonnet wondered about this and answered it in an article entitled "What is a building used for worship?"

As far as it is concerned, the judge must exercise control "over the content and reality of the worship invoked before him", otherwise anyone could enjoy the tax advantages without being a religion. Also, he wonders: "what is, in the end, the legal justification for an exemption regime reserved only for religious associations?"

According to him, "there is necessarily a basis for the "discrimination" operated by the law of 1905, and it is this basis which deprives it, precisely, of its apparently arbitrary character. The whole difficulty is to identify it". In the end, he concludes, "this foundation can only be that of the recognition by the State itself, of the religious fact, in the strict sense of the term."

The expression "religious fact" is not synonymous with worship as defined by the State Council in its opinion of October 1997. It is closer to the identification criteria established by the European Court, which mainly concern religious beliefs.

M. Bonnet also refers to "the plausibility of a communication between the natural and the supernatural, between the human and the supernatural, between the human and the divine, whatever the term we decide to use to designate it as broadly as possible."

He indicates that "the forms can therefore be different: but, to be legally recognized, the religious fact must want to be such and be supported by an explicit doctrine in this sense. On the other hand, a simple wisdom or a "worship" claiming to be a denial of the principle of the transcendent fact, cannot be recognized as a religion."

It is necessary that "the very doctrine which underlies this worship or this rite, such as they appear, make explicit reference to a link in action between two deeply different realities, but which the religious fact has the precise effect of placing in relation, in accordance with the etymology of the term."

Ultimately, the State is entitled to grant advantages and "to initiate legal recognition only after the necessary precautions have been taken in this regard: without however ruling on the merits of a genuine religion, as we understand it here, it is up to it to ensure its sustainability and its representativeness". This recognition of the religious fact "unlike secularism, which by definition denies any religious fact and which tends to erase any manifestation of this type from the public sphere", is in accordance with the principle of secularism which "recognizes the possibility of such fact: it simply requires the state to stand back and not privilege any religion over others."^[82]

We therefore come back to the idea that a system of "recognition" must stick to objective criteria for identifying a religion, without interfering in its doctrine or in its beliefs, while preserving the religious diversity.

VI. THE RELIGIOUS FACT IS A LEGAL FACT OF WHICH PROOF IS FREE [⬆︎]

The religious fact in the sociological sense of the term "aims to grasp religious phenomena as a historical fact on the one hand, as a social fact on the other."^[83] In law, it constitutes a legal fact. The existence of a religion, since the law gives it no binding definition, is indeed "an event to which the law applies legal effects" within the meaning of article 1100-2 of the civil code.

Therefore, its proof is free and can be established by any means.

If the Republic does not recognize any faith, it cannot ignore them. "Neutrality cannot be indifference. Religious reality is part of the state's field of action just like other social facts."^[84]

What the law of 1905 formally forbids, is the return to the system of recognized faiths, that is to say the Concordat which is, precisely, a procedure of recognition by means of an international convention. It also prohibits a system such as that of organic articles where the State regulated the internal organization of worship, even of its dogmas, in defiance of Separation.

Therefore, since 1905, the Republic has been neutral: it does not combat any religion or promote any one through an official recognition procedure. All religions are equal in its eyes, "which means that it knows them all on an equal basis with each other and on the same level as all other components of civil society."^[85]

Therefore, the French system is not that of recognition but that of the identification of the religious fact. The Republic must know the religions, and not recognize them, because their existence entails legal consequences on very many levels. The relevant question is therefore posed by the author: "How does the secular state know about religions?"

In the first place, it must avoid the pitfall of making a value judgment on religious doctrines: "with the law of 1905, the distinction between recognized and unrecognized faiths completely disappears, the State declaring itself incompetent to determine what "is a good or true religion and what is not". France is a secular republic. It respects all beliefs.

In the second place, "the State does not intervene in the internal organization of each faith, nor in its beliefs, nor in its liturgy, nor in its ecclesiology" by virtue of article 4 of the law of 1905 which refers to "the rules of general organization of worship which they intend to exercise."

Third, the religious fact must be understood by states by means of a definition or non-restrictive criteria. According to international law, a recognition system could exist but it must be fair and non-discriminatory.

Fourth, the way in which a religion defines itself and the taking into account of its specificities constitute obligations for public institutions which cannot ignore them and cannot substitute their own conceptions for them.

Fifth, the equality of religions implies that the Republic "knows them all, without any privilege, nor any discrimination, on an equal level. The only restrictions on religious freedom are to be enacted by law, "in the interest of public order" (Article 1 of the 1905 law)."

Ultimately, "there are many ... areas where the State knows about religions."^[86]

By virtue of its obligation to apply the law, the State, through its administration and its judicial system, is confronted with the religious fact in its many legal manifestations.

"In addition to the system of worship governed by the law of 1905, as well as the legislation of public chaplaincy services in high schools, colleges, schools, hospices, asylums and prisons" (article 2, paragraph 2 of the law of 1905) and , for a long time, in the armies (law of July 8, 1880), many legal texts refer to religion, to worship, to their external manifestations, and to their ministers, both in private and public law, as well as to freedom of conscience.

Judges are faced with it in particular when they have to apply criminal legislation on discrimination "on the grounds of belonging to a "determined religion" (225-1 of the penal code), to offenses or insult or defamation against a person or a group of people by reason of their true or supposed affiliation to a "determined religion" (art 32 and 33, law of 1881), to the offense of provocation to discrimination, to hatred, to violence towards a group of persons by reason of their belonging to a "specific religion" (art. 24 law of 1881), etc.

The Education Code which codified the Debré law of 1959 on relations between the State and private establishments provides that "the State takes all the necessary measures to ensure the freedom of worship for students in public education and religious education", while private schools under contract must "provide this education with full respect for freedom of conscience."

Under Article 60 of the Civil Code, there is a legitimate interest in changing the first name of a Muslim woman who "is certainly not prevented from practicing her religion by bearing her first name Charlyne" but may "justify a legitimate interest in being able to use Aïcha as a first name in order to harmonize with her identity, that of her children and her new religious condition ..."^[87]

There are many examples in the right of persons, as well as in labor law. Article L.1132-1 of the labor code prohibits discrimination in hiring, in remuneration, and more generally in the career of employees by referring to the definition given in Article 1 of the law n. 2008-496 of May 27, 2008 that adapted the community law. This text aims "the belonging or not belonging, true or supposed, to a specific religion."

Private law offers many cases which oblige the judge to decide disputes relating to freedom of conscience and religion.^[88]

Articles L. 381-12 and following of the social security code concern the social system of "ministers of worship", "members of congregations and religious communities" and their case-law application has given rise to a definition of the religious community which characterizes a member by "the religious commitment manifested by the concerned person, in particular, by a way of life in community and by an activity mainly carried out in the service of her religion."

The fields are too numerous to name.

If the proof in the matter is free, then all the objective elements which tend to identify a religion are admissible: opinion of religious institutions and their members. This criterion is fundamental and obligatory in an identification search. Analysis of the social purpose of a religious legal person, existence of a community of the faithful, historical, public and social recognition; decisions of the French and foreign administration and courts, opinions of sociologists, historians, anthropologists, legal specialists, etc.

Many objective means allow the judge to identify a religion and apply the system of worship to it, as well as any other specific legislation.

***

The legislator must be careful not to sink body and soul into reacting to current events.

On the contrary, the debate must rise up, like in the case of the law of 1905, in order to craft lasting legislation that will gain support.

The law that will intervene must preserve the freedom of conscience and the free exercise of worship, strengthen the equality of religions while taking into account their diversity, ensure a broad and inclusive conception of the concept of religion and the public exercise of worship, reaffirm the principle of free organization of religions, while preserving public order in a proportionate manner.

It is only in this way that the legislator will preserve the achievements of the law of 1905 by adapting it to contemporary society.

VII. CONCLUSION: APPLICATION TO THE BILL STRENGTHENING THE RESPECT OF THE PRINCIPLES OF THE REPUBLIC [⬆︎]

The bill, in Title II, seeks first and foremost to simplify access to the worship association of the law of 1905, as announced in the explanatory memorandum. Then it intends to impose

also to religious associations to provide operating rules guaranteeing a better control by their members on important decisions taken by the association, by submitting to the decision of a deliberating body the acceptance of new members, of statutory modifications, of property transfers and, unless this does not fall within the competence of the association, of the recruitment of ministers of religion.

The objective of this provision is "to better fight against attempts to take control by radical groups or against abuses that may lead to the appropriation of the functioning of associations by certain individuals."

Then it amended the law of 1907, in order "to subject associations which are simply declared having a whole or partial object of worship, known as "mixed" associations, to the essential obligations imposed on worship associations." It was understood from the statements of the government that the objective is to encourage religious or mixed associations (mainly Muslim, but not only) which until then had chosen to be formed on the basis of the law of 1901, to enter within the framework of the law of 1905 which offers at the same time unmistakable tax advantages, but which also contains its share of constraints that the associations of law 1901 do not have to bear.

The following provisions, taken as a whole, tend to strengthen the state control of religions (see in this connection the power of the representative of the State who may, within two months following the mandatory declaration, deny the benefit of the advantages of the law for a reason of public order, or if he finds that the association does not meet or does not meet anymore the conditions foreseen by articles 18 and 19 of the law). It is easy to understand, in the current context, what pushes the government to want to strengthen this control. However, there are several pitfalls to be avoided, and the text as it is conceived in the version sent to Parliament does not seem to us to be successful in this regard.

First of all, the principle of autonomy and free organization of each religion according to its own internal constitution, and subject only to respect for public order, implies that all associations with a religious object should enjoy the same advantages. There cannot be a sub-category of associations of the law of 1901 with a religious object which have only the disadvantages and not the advantages of the worship association, without infringing the aforementioned principle and the principle of non-discrimination.

Then, we must avoid the contradiction which would mean that on the one hand, religious associations are encouraged to place themselves within the framework of the 1905 law and that, on the other, we discourage it by an arbitrary or too broad application of the notion of public order, but also by reference to "the celebration of organized ceremonies…", de facto excluding associations whose internal constitution and the means of accomplishing rites do not fall within the framework of this narrow vision.

As we have seen, the law of 1905, of liberal inspiration, intended to put all faiths, that is to say all religions, on an equal level, and to respect free organization of worship and respect for public order. If we can understand that the Government as the legislator wish to strengthen the state control of religions, a good reform should enshrine in the law the fact that respect for public order should not serve directly or indirectly to limit religious diversity and to break the equality of all religions.

During the procedure by which the Prefect verifies the religious character of the association and in the event that he refuses the benefit of the law of 1905 for reasons of public order, the disorder mentioned should be current, proven, and sufficiently serious to justify depriving an association of the advantages of religious status.

The law should also reaffirm the conceptual and organizational autonomy of faiths, to move away from the now outdated definition of worship given by the State Council.

The law should also include the principle of a broad conception of what is meant by "exclusively religious activities". Indeed, it is essential, in order to adapt oneself to the evolution of the French religious landscape as it appears today, to take into account the fact that many religious associations have worship activities centered on teaching, or on individual or collective practices that go beyond the framework of the celebration of "organized ceremonies…". In addition, the law should specify that are understood as exclusively religious activities any ancillary activity connected to it by a sufficient link, to the exclusion of social, philanthropic, charitable, or cultural activities.

It should also include the principle of the autonomy of faiths, which guarantees the free organization of religions according to their religious principles.

This law offers a unique opportunity to combine a strengthening of the state control of faiths with a reinforcement of the freedom provided for by the 1905 law and of an equal treatment between the different faiths, but it also allows to modernize the law so that its initial spirit be respected, but that its application corresponds to the current religious reality of France.

As the State Council says in its opinion on the bill, "the appearance and the rise of faiths which did not have the same position at the time of the separation, Islam in particular but also the new Christian expressions or oriental faiths, have raised new questions. In most cases, these religions have been reluctant to form worship associations …"

It is up to the legislator to ensure that the law makes it possible to alleviate this difficulty, by ensuring that access to the status of religious association of law 1905 is facilitated, and desirable.

To put it simply, the strengthening of state control is justified only as long as it relates to its capability of fighting against the terrorist threat, whether for example by controlling funding from abroad in order to prohibit them "when the actions of the beneficiary association or of one of its officers or directors establish the existence of a real, current and sufficiently serious threat affecting a fundamental interest of the society" (article 35, III of the bill), or by temporarily closing places of worship "in which the words which are said, the ideas or theories which are disseminated or the activities which take place cause hatred or violence towards a person or a group of persons or tend to justify or encourage this hatred or violence" (article 44 paragraph 2 of the bill).

But to ensure that the reform can achieve its goals, it is necessary to ensure that the spirit of freedom of the law of 1905 is preserved, and that the great majority of faiths which do not represent a terrorist threat, do not provoke to hatred or violence, can not only have access to the advantages of the status of religious association, but also that this access is facilitated, encouraged and desirable.

---

Notes

[1] ⬆︎ Constitutional Council, Decision No. 2012 297 QPC of February 21, 2013, Association for the Promotion and Expansion of Secularism [Treatment of the Pastors of Consistory Churches in the Departments of lower Rhine, Upper Rhine and Moselle]].

[2] ⬆︎ EC, Ass., notice of 24 October 1997, "Local Association for the faith of Jehovah's Witnesses of Riom".

[3] ⬆︎ idem

[4] ⬆︎ Constitutional Council, decision N° 2012 297 QPC of February 21, 2013, Association for the promotion and expansion of secularism [Treatment of pastors of Consistorial Churches in the departments of Bas Rhine, Haut Rhine and Moselle].

[5] ⬆︎ Léouzon Le Duc, "The origins of the religious fund", Annals of the free school of political sciences, Volume IV, p.291-293).

[6] ⬆︎ M. de Marcère, "Vision d'un siècle", 1914, p. 290, Quoted by DIMENSIONS ANTICLERICALES DE LA CULTURE REPUBLICAINE (1870 1914), by Jacqueline Lalouette, in Persée, 1991, p. 127.

[7] ⬆︎ M. Le comte de Boni de Castellane, Deliberations on the project of Separation of Churches and State, 3^rd session of the Chamber of March 27, 1905, p.16.

[8] ⬆︎ Aristide BRIAND, "Report of the Commission on the Separation of Churches and State, 8th legislator, session of 1905", p. 4.

[9] ⬆︎ Chamber of Deputies, Order of the Day. Session of April 20, 1905. 10 J. JAURES, parliamentary debates, Chamber of Deputies Order of the Day, 2nd session, of April 21, 1905.

[10] ⬆︎ J. JAURES, parliamentary debates, Chamber of Deputies, 2^nd session of April 21, 1905.

[11] ⬆︎ Jean BAUBEROT, "Jean JAURES and secularism of 1905", blog: secularism and a critical view of society, on Mediapart.

[12] ⬆︎ Minutes of deliberations of the law of 1905, 2^nd session of March 23, 1905, p.52.

[13] ⬆︎ Aristide BRIAND, "Report on behalf of the Commission relating to the Separation of Churches and the State and the exposition of the concordat responsible for examining the bill and the various bills concerning the Separation of Churches and the Status", p.3.

[14] ⬆︎ Intervention by JEAN MARC SAUVE, vice president of the Council of State: "France is a secular Republic ...", Annual dinner of the Grande Loge de France, Saturday September 21, 2013, p.3 4.

[15] ⬆︎ State Council, public report 2004: "A century of secularism", p.264 265.

[16] ⬆︎ Elsa FOREY, "State and religious institutions", Presses universitaire de Strasbourg, 2019, p.329.

[17] ⬆︎ EC, Opinion of 25 October 2005, N° 190699.

[18] ⬆︎ EC, ord. ref., 25 August 2005, Municipality of Massat, AJDA 2006, p. 91.

[19] ⬆︎ State Council, public report 2004: "A century of secularism", p.277-278.

[20] ⬆︎ Article 44 of the law: "all provisions relating to the public organization of religions previously recognized by the State are and remain abrogated".

[21] ⬆︎ Dalloz, "General case-law, General case-law. Methodical and alphabetical repertoire of legislation, doctrine and jurisprudence, Associations illicites", T.V, 1846, "associations Illicites", p. 279-310.

[22] ⬆︎ Deliberations on the bill and the bills concerning the separation of the Churches and the State, 4^th session of March 28, 1905, intervention of the deputy Plichon, p.24 and 2.

[23] ⬆︎ Portalis, Dalloz, "General case-law, Methodical and alphabetical repertory of legislation, doctrine and jurisprudence, Faith", T. XIV, p. 758.

[24] ⬆︎ RITA HERMON-BELOT, "The genesis of the system of recognized faiths: the origins of the French notion of Recognition", Archives de sciences sociales des religions, N° 129 January - March 2005, p.8.

[25] ⬆︎ M. Dalloz anziano, "General case-law. Methodical and alphabetical directory of legislation, doctrine and jurisprudence", t. XIV, Paris, Dalloz, 1853, p. 743.

[26] ⬆︎ Deliberations on the bill and the bills concerning the separation of Churches and State, 4^th session of March 28, 1905, intervention by deputy Louis Barthou, p.64.

[27] ⬆︎ Aristide Briand, "Report on behalf of the Commission relating to the Separation of Churches and the State and the declaration of the concordat responsible for examining the bill and the various bills concerning the Separation of Churches and the Status", p.123.

[28] ⬆︎ Jean-Marie Woehrling, "Reflections on the principle of State neutrality in religious matters and its implementation in French law", Archives de sciences sociales des religions, 1998, 101, p.40.

[29] ⬆︎ Supra, p.48

[30] ⬆︎ ECHR, Grand Chamber, Izzetin and Doga and others v. Turkey, N° 62649 / 10, April 26, 2016, § 114.

[31] ⬆︎ Aristide Briand, "Speech of July 3, 1905 on the Separation of Church and State".

[32] ⬆︎ ANNALS OF THE CHAMBER OF DEPUTIES, April 10, 1905, p.1623 and 162.

[33] ⬆︎ CofA Paris, December 4, 1912, DP, 1914, II, p. 213.

[34] ⬆︎ ECHR, Metropolitan Church of Bessarabia, p. 118 and 123, and Hasan and Chaush v. Bulgaria [GC].

[35] ⬆︎ Conclusions on CE, Ass., October 24, 1997 (opinion), Local Association for the worship of Jehovah's Witnesses in Riom, RFDA 1998, p. 68.

[36] ⬆︎ Jean-Marie Woehrling, "The principle of confessional neutrality of the State", CNRS, Editions Société, droit et religion, 2011/1 Number 1, p.70.

[37] ⬆︎ Treaty on the Law of Religions, Jurisclasseur, 2003, 2156.

[38] ⬆︎ "General Comment N° 22: Article 18 (Freedom of thought, conscience and religion)".

[39] ⬆︎ Council of Europe / European Court of Human Rights, Overview of the Court's case-law on freedom of religion, January 2011, N° 10;

[40] ⬆︎ ECHR, Metropolitan Church of Bessarabia and others v. Moldova, N° 45701 / 99, § 105, ECHR 2001, XII; ECHR, Grand Chamber, Izzetin and Doga and others v. Turkey, N° 62649 / 10, April 26, 2016, § 94.

[41] ⬆︎ ECHR, Grand Chamber, Izzetin and Doga and others v. Turkey, N° 62649 / 10, April 26, 2016, § 94.

[42] ⬆︎ ECHR, Association Les Témoins de Jehovah v. France, no.8916 / 05, §.53, June 30, 2011; Religious Association of the Pyramid Temple c. France, N° 50471 / 07, §§.3435, January 31, 2013; Association of the Knights of the Golden Lotus c. France, N° 50615 / 07, §§.33 34, January 31, 2013.

[43] ⬆︎ Supra, 53 e 114.

[44] ⬆︎ ECHR, Church of Scientology Moscow v. Russia, N° 18147 / 02, §§.71 72; ECHR, Metropolitan Church of Bessarabia et alia v. Moldova, N° 45701/99, § 114, ECHR 2001 XII.

[45] ⬆︎ ECHR, Mirolubovs and others v. Latvia, N° 798/05, September 15, 2009 §, Error! Main document only.

[46] ⬆︎ ECHR, Grand Chamber, Izzetin and Doga and others v. Turkey, N° 62649/10, April 26, 2016, § 178.

[47] ⬆︎ ECHR, Grand Chamber, Izzetin and Doga and others v. Turkey, no.62649 /10, April 26, 2016, § 114; Kimlya and others v. Russia, N° 76836/01 and 32782/03, § 86.

[48] ⬆︎ The European Commission for Democracy through Law, "Guidelines for reviewing laws relating to religion or religious beliefs" cited § 40 of ECHR, Grand Chamber, Izzetin and Doga and others v. Turkey, N° 62649 /10, April 26, 2016, § 114; Kimlya and others v. Russia, N° 76836/01 and 32782/03.

[49] ⬆︎ EU Court HR, February 25, 1982, Campbell and Cosans v. United Kingdom, Series A n. 48 § 36, Cah. Dr. Eur. 1986 p. 230 observations G. Cohen-Jonathan, Journal of International Law 1985 p. 191 observations P. Rolland and P. Tavernier.

[50] ⬆︎ Eu Comm. HR December 1, 1981, X c / RFA, DR 24/141. Cf also: P. Rolland, Public order and religious practices, in J.F. Flauss (ed), La protection internationale de la liberté Religieuse / International protection of religious freedom, Op. Cit., P. 231f., Especially p. 245.

[51] ⬆︎ ECHR, Grand Chamber, Izzetin and Doga and others v. Turkey, N° 62649 /10, April 26, 2016, § 107; Mansur Yalcin and others v. Turkey, N° 21163/11 of September 16, 2014, § 70.

[52] ⬆︎ National Assembly, Session of October 3, 1968, appendix 313, p.95.

[53] ⬆︎ State Council, public report 2004: "A century of secularism", p.284.

[54] ⬆︎ Jean-Marie Woehrling, "The Principle of Confessional Neutrality of the State" C.N.R.S. Editions "Société, droit et religion", 2011/1 Number 1, p.70.

[55] ⬆︎ Eu Com. HR, October 4, 1977, X v / United Kingdom, D 11/55. If the mention of the religion of detainee in the prison registers is accompanied by the granting of certain facilities, it must, at least in one particular case, be an identifiable religion.

[56] ⬆︎ CA Toulouse, January 12, 2005, N° 04100563.

[57] ⬆︎ ECHR, Kymlia and others v. Russia, N^os 576836/01 and 32782 / O3, § 85, ECHR 2009; ECHR, Grand Chamber, Izzetin and Doga and others v. Turkey, no.62649 / 10, April 26, 2016, § 94.

[58] ⬆︎ Supra, p.123 e 126.

[59] ⬆︎ Louise-Violette Méjan, "The Separation of Churches and State. The work of Louis Méjan", Paris, PUF, 1959, p. 176-177; Jean-Marie Mayeur, "The Separation of Churches and State", Paris, Editions Quvfiefes, 1991, p. 51.

[60] ⬆︎ Gérard Unger, "The parliamentary debates during the law of 1905", Matériaux pour l'histoire de nos temps, N° 78, 2005, p. 13.

[61] ⬆︎ Aristide Briand, "Report on the Separation of Churches and State, 8^th, Legislature, session of 1905", p.103.

[62] ⬆︎ Quoted by Christophe Bellon, "Socialist parliamentarians and the law of 1905", L'Harmattan in "Parlement [s], Revue d'histoire politique", 2005/1, N° 3, pages 122 and 124.

[63] ⬆︎ Chamber of Deputies, Session of April 20, 1905.

[64] ⬆︎ Jurisclasseur, "Treaty on the Law of Religions", 2003, N° 2156.

[65] ⬆︎ Opinion of December 8, 1923, quoted by J. P. Durand, "Common law regime for the separation of religions and the State", in Canon Law, p. 548-549, n. 831.

[66] ⬆︎ State Council, notice N° 185707 of December 13, 1923.

[67] ⬆︎ ECHR, Church of Scientology Moscow v. Russia, N° 18147/02, § 72.

[68] ⬆︎ State Council, March 22, 2000, Miss Marteaux; CE, March 16, 2005, Miss Marteaux; CE, March 16, 2005, Minister of Overseas Territories, AJDA, 2005, p.1463).

[69] ⬆︎ Public report 2004, "A century of secularism", EDCE N° 55, La Documentation française, 2004.

[70] ⬆︎ State Council, Ass., Opinion of October 24, 1997, Local association for the worship of Jehovah's Witnesses of Riom".

[71] ⬆︎ Supra.

[72] ⬆︎ Arrighi de Casanova, conclusions in 1997 brought under State Council. Ass., October 24, 1997, Local assembly for the worship of Jehovah's Witnesses of Riom, Revue français de droit administratif, 1998, p.61-69, note G. Gonzalez.

[73] ⬆︎ Deliberations on the bill for the separation of churches and state, 4^th session of March 28, 1905, p.10.

[74] ⬆︎ Aristide BRIAND, "Report made on the Separation of Churches and State, 8^th, Legislature, session of 1905", p.23.

[75] ⬆︎ Supra, p.114.

[76] ⬆︎ Supra, p.125.

[77] ⬆︎ State Council, Union of Atheists, June 17, 1988, No. 63912.

[78] ⬆︎ European Com. HR, Application N314635 / 89, Union des Atheists against France, "REPORT OF THE COMMISSION adopted on 6 July 1994", §.§78-79.

[79] ⬆︎ Committee of Ministers, appendix to the final resolution adopted on 26 February 2001.

[80] ⬆︎ Mirolubovs and others v. Latvia, n’798/05, September 15, 2009, § Error! Main document only. referring to ECHR, Thlimmenos v. Greece [GC], no.34369 / 97, § 44, ECHR 2000-IV.

[81] ⬆︎ Supra, p.9.

[82] ⬆︎ André Bonnet, Government Commissioner, "What is a building used for worship?" AJDA 2004 p.271.

[83] ⬆︎ Jean Paul WILLAIME, "What is a religious fact?", introduction to the Debray report -2002 on the teaching of religion in the secular schools, website hggc.fr.

[84] ⬆︎ Jean-Marie WOEHRLING, "The principle of confessional neutrality of the State", C.N.R.S. Edition Societè, droit et religion, 2011/1 Issue 1, p.70.

[85] ⬆︎ Jean-Claude GROSHENS, "The law of 1905 and the regime of worship today", Protestant Institute of Theology "Theological and Religious Studies", 2007/1 Volume 82, p. 86.

[86] ⬆︎ Alain BOYER, "How does the secular state know about religions?", Archives de sciences sociales des religions, 129 | January March 2005, The Republic does not recognize any cult.

[87] ⬆︎ Court of Appeal of Rennes, ch. 6, April 5, 2011: Juris Data, N° 2011 018012.

[88] ⬆︎ Isabelle RIASSETTO, Private Law of Religion, in Society, Law and Religion, 2013, 1 (Number 3), p.261-282.

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