The Act on the separation of Church and State set forth the basic tenets of French secularity: freedom of conscience and worship, free organization of churches (2), non-recognition of churches and their equality before the law, and freedom to express religious beliefs in public. The secular principle also applied to institutions, notably schools and freedom of education. On very many points, the degree of consensus was such that there was need only in exceptional circumstances for reference to the Act. On certain others, particularly some still very recent problems, secular legislation and case law were accompanied by a social debate.

The same may be said of the right to freedom of conscience. Culturally, this is understood as including the freedom of atheists, people indifferent to religion, those who combine a variety of beliefs and those espousing a formerly-recognized form of worship, etc. This right begins with freedom of conscience: no one should be obliged to express his religious or philosophical beliefs. Census forms may not therefore make reference to religious affiliation, and in troubled times (3) the Conseil d'Etat (4) has recalled that no one may require hotel guests to state their religion.

But while no one is obliged to express his beliefs, everyone must be able to do so freely without incurring any social penalty. The law affords particular protection to civil servants: no administrative document concerning them may mention their "religious or philosophical opinions or activities". Similarly, threatening someone (for example, by making him fear loss of employment) in order to encourage him "to practice or refrain from practising a religion, to belong or cease to belong to a cultural association (non-profit-making organization), to contribute or refrain from contributing to the expenses of a religious body" is an offence.

We see here that freedom of conscience is not reduced to freedom of individual belief. It very logically implies freedom of worship which is also carefully guaranteed, so that every weekend millions of people wishing to do so are able peacefully to take part in a religious service. Here again, in general, this freedom has become so much a part of the general culture that it would no longer occur to anyone to try and stop people from practising a religion. It can however happen, in the event of a conflict like the Gulf war of 1991, that the authorities may protect certain religious services as a preventive measure.

The churches’ freedom to organize, i.e. set up an administrative and functional structure, presents thornier problems, since that means reconciling an individual freedom and a collective freedom. The question arose when the Act on the separation of church and State was being drafted: who was to be assigned the use of religious buildings, which were public property? Following the example of legislation in certain states of the United States of America and that governing the Free Church of Scotland, it was decided that these assets should be assigned to associations "which complied with the general organizational rules of the religion they intended to administer" (article 4). This meant that a Catholic parish where a majority of the members no longer recognized the authority of their bishop would see the church handed over to the minority who remained faithful to him. At the time, this avoided any possibility of breaking up the Catholic church in France. In the long term, though, it proved necessary to ponder the consequences of applying such a principle. Thus, today, some churches are occupied by a "schismatic" traditionalist faction. The principle of non-recognition put an end to the situation prior to 1905 where, as we have seen, there were four recognized religions. If the churches exist as private-law bodies, there can be no public-law regime for any form of religious activity. This has two consequences, among others: abolition of the "public service" the churches were expected to provide, and the disappearance from the public services provided by the State of any religious dimension. The disappearance was sometimes quite slow: indeed, not until 1972 were jurors in assize courts relieved of the duty to take the oath "before God and before men".

This religious neutrality of the public domain implies that there should be no religious emblems on public buildings constructed after 1905. This restriction appears to be a mere rejection of iconoclasm, but in fact it goes much further. There may no longer be an official religion, but the traces left by the public role religion has historically played in France are still in place. This is particularly visible in the calendar, where the Third Republic even added Easter Monday and Whit Monday to the four "obligatory feast days" of the Catholic church - Christmas, Ascension, Assumption and All Saints, which were declared public holidays in 1802. France has not therefore cut herself off from her religious roots, but the holy days of other religions - such as Judaism, Islam or Buddhism - are recognized only in the granting of individual leave of absence for civil servants and school children.

This example shows the difficulty of fully realizing the ideal, after the end of the "officially recognized religions" system: that of establishing equality among all religions, from the majority religion to those with the smallest number of adherents. The founder of secular education, Jules Ferry, stated: "freedom of conscience issues are not a matter of quantity, they are a matter of principle". But it has to be recognized that while this principle of equality often works well, it does nevertheless have three limitations. First, it is not established everywhere: three departments in eastern France (5), which were German from 1871 to 1918, have kept the "officially recognized religions" regime. This local right is de facto an important departure from the law, even if it is not now the source of any major conflict. Secondly, in practice the authorities do indeed have to take account of the size of religious groups. For example, the religious broadcasting which public television is required to provide under the terms of its licence applies only to Catholicism, Protestantism, the Eastern Orthodox Church, Judaism, Islam and Buddhism. Obviously, access to this kind of broadcasting cannot be extended ad infinitum. Finally, the "exclusive purpose" of a religious non-profit-making organization must be "the practice of a religion". Even if case law has not placed a strict construction on "exclusive", this means that the organization of religious activities is not in itself sufficient to bring a group within the purview of the 1905 Act. Associations that engage in publishing and healing are not recognized by the Conseil d'Etat (4) as religious associations. In the eyes of public opinion, these are very often not "religions". Sometimes this means reopening the very debate on what may be legitimately regarded as religious which the secular principle of non-recognition rightly set out to avoid.

Secular neutrality, the principle of official non-recognition of any religion, means that no stipend or direct subsidy may be paid to any church. However, this principle goes hand in hand with the existence of chaplaincies subsidized by the State, very flexible rules concerning bequests, the possibility of tax relief for donations, and upkeep of the religious real estate made available to the churches in 1905. Indeed recently the authorities have been finding solutions which reconcile the principle of non-recognition with that of the freedom of religion to promote the building of mosques.

The free public demonstration of religious beliefs does not in general present any particular problem. It takes place as part of the freedom of opinion, which enjoys powerful protection. For example, in summer 1997, young Catholics surrounded Paris with a symbolic chain of friendship during the JMJ (Journées Mondiales de la Jeunesse - World Youth Days). Other religions regularly hold large gatherings, like the one at Le Bourget organized every year by Muslim groups. Contacts between the representatives of religious communities and the authorities, and meetings between the communities themselves contribute to the peaceful nature of religious demonstrations.

Better known, the so-called "headscarf" (hijab) affairs have led to debate on the secular principle in schools. Those opposed to girls wearing headscarves have stressed the need for a distinction between belief and knowledge, and the danger that the headscarf, a ritual garment specific to women, could symbolize a rejection of gender equality. The partisans of tolerance have urged that the transmission of knowledge can aim at the universal without denying the existence of the particular, and pointed out the many different symbolic meanings of the headscarf. Beyond the passions it may have aroused, the debate has brought out into the open some essential problems facing a democratic society. The Conseil d'Etat (4) has ruled: the wearing of religious symbols at school is not, in itself, contrary to the secular principle. It becomes so if it is ostentatious, a factor in school absenteeism, proselytism and disorder. So the problem has to be dealt with case by case.

Freedom of education - which has always been guaranteed by law - has sparked another debate: should it include the grant of public funds to private schools? After much to-ing and fro-ing, the Debré Act (1959) became the common rule for all private educational establishments: very substantial financial support is given to those which sign a contract with the State. This contract allows them to have their "own character", a specific educational aim, on condition that the curricula prepared by the Ministry of National Education are respected and freedom of conscience ensured. Although the fundamental principles have thus been laid down, education remains the area where in practice there are differences of interpretation. This is logical, for while the secular principle implies respect for freedom of conscience in the broad sense (including freedom to practice a religion and the free expression of religious beliefs), it also implies freedom to think, i.e. equality of rights as between commitment to a religion and the absence of such commitment, and access to the instruments of a critical approach to any dogmatic or synthetic (in the philosophical sense) system. Primary, secondary and higher education are the guarantor of this freedom to think, and that is why the provision of "free and secular public education", in France, is a constitutional duty of the State.

So secularity cannot be reduced to a legal system, it is also a culture, an ethos, an emancipation from all "clericalism" understood as control of the mind by an established discourse rejecting all debate. Professor Claude Nicolet has perfectly captured this essential aspect (and one that does not lend itself to codification in law) of the secular principle, in her historical account of the triumph over attempts at clerical domination: that triumph is one which every human being, every citizen must achieve "at almost every moment, within his own heart. In every one of us, always ready to awake, sleeps the little "king", the little "priest", the little "important person", the little "expert" who will seek to impose himself on others or on himself by force, specious argument, or quite simply laziness and stupidity". And secularity is "a difficult but daily effort to preserve oneself from them (…) It seeks maximum freedom through maximum intellectual and moral rigour (…); it demands free thought, and what is more difficult than real thought and real freedom?" (6)

Bibliography

Barbier M., La laïcité (The secular principle), Paris, L'Harmattan, 1995.
Baubérot J. (ed.), La laïcité, évolution et enjeux (Secularity, evolution and issues), Paris, La Documentation française, 1996.
Baubérot J., Histoire de la laïcité française (History of the secular principle in France), Paris, PUF ("Que sais-je ?"), 2000.
Boussinescq J., La laïcité française (The secular principle in France), Paris, Le Seuil, 1994.
Costa-Lascoux J., Les trois âges de la laïcité (The three ages of secularity), Paris, Hachette, 1996.
Durand-Prinborgne C., La laïcité (The secular principle), Paris, Dalloz, 1996.
Haarscher G., La laïcité (The secular principle), Paris, PUF ("Que sais-je ?"), 1996.

(1) These measures, taken in the revolutionary movement of 1792, have remained in force, distinguishing France from other European countries.
(2) "Church" is used here as a generic term, synonymous with "worship" or "religion".
(3) During the Second World War, when there was a frenzy of discriminatory legislation against the Jews.
(4) France's supreme administrative court and national body advising the government on legislation.
(5) The Upper Rhine, the Lower Rhine (= Alsace) and Moselle (= part of Lorraine).
(6) C. Nicolet, La République en France (The Republic in France), Paris, Le Seuil, 1992./.