Can Secularism in France Truly Be Democratic?

Woman wearing a hijab made of the French flag. Image reflects the national motto of France: liberté, égalité, fraternité. Photo by Aurélien Dumont.

Contrary to the First Amendment in the United States Constitution, France embraces a different theory when it comes to maintaining one’s religious rights. Under Article 1 of France’s 1958 Constitution, the nation announced their commitment to upholding an “indivisible, secular, democratic and social Republic” that guarantees equality for citizens regardless of their religious beliefs. French law establishes a separation between church and state, where religion remains in the public sphere while maintaining state secularism in the public sphere. By emphasizing this divide, the nation claims to be protecting democracy. A French citizen is ultimately able to function in a political capacity regardless of their ethnic and religious identity. Secularism (or la laïcité in French) is meant to protect France’s liberal democracy from other religious organizations that might oppose the nation’s political agenda. However, that does not mean that religion cannot exist freely in a secular system. Instead, the two spheres are irrespective of one another.  

In France, religious freedoms’ role as a core human right gives it the unique protection of the European Court of Human Rights. The Court functions as a pan-European movement that creates a universal standard for the protection of its citizens. The European Court of Human Rights delicately balances upholding fundamental human rights, while preserving a country’s cultural and religious values. Under Article 9 of the European Convention on Human Rights (ECHR 1950), religious freedom is an absolute right entitled to all of its citizens, however its public manifestation is subject to proportionate limitations. In the interest of protecting a democracy’s public safety, public order, health, morals, and the rights of others, the freedom to outwardly express religion can be restricted by the law. 

Under the second clause of ECHR, Article 9, the French legislature passed a ban on wearing religious face coverings in public places. Given that full face covering refers inexplicably to the burqa, a garb worn by Muslim women to express piety and modesty, this ban directly targets a minority group If a citizen is caught violating the law, offenders are charged with a fee of €150, or may be required to take compulsory citizenship classes. In accordance with French principles of secularism, this law was preceded by the 2004 ban on religious symbols in school. According to Cécile Laborde, a professor of public policy at the University of Oxford, in a legal context, any space outside the home can be categorized as a public one. Therefore, the ban of face coverings in public places is almost entirely absolute, except in the privacy of one’s home. If a burqa aims to protect its wearer’s modesty from the outside world, this ruling seems entirely contradictory. 

In the famous 2010 case, S.A.S. v. France, an anonymous Muslim applicant sued the French government for banning her from wearing her burqa and niqab in accordance with her faith. She presented the claim, citing ECHR Article 8 and 14, that the ban was both inherently discriminatory and violated her right to privacy. Despite the controversial case’s advance to the Court, it was ultimately dismissed. Under ECHR Article 9’s second clause, the ability to outwardly express one’s religious beliefs can be restricted if it presents a public safety concern. France stated that the inability to identify a citizen’s face posed such a threat. While the case did not succeed, S.A.S. v. France begs the question: is secularism and neutrality so important to protecting a democratic institution that it infringes on a person’s right to privacy and self-expression? While France prioritizes that its citizens function as political beings first, leaving behind other personal values, this prioritization begs the question: why should one’s religious identity come second? This fundamental question about society’s role in individual expression echoes a universal struggle present across all contemporary nations. 

Although the French government claims that the veil represents gender dynamics and a divide between men and women, it should not override personal autonomy. This theme persists in France’s ban of burkinis in public pools and beaches. In August of 2016, fifteen coastal French towns motioned to prohibit burkinis, a swimsuit fashioned in the style of a burqa—a garment that covers the whole body excluding the face. That same month, when a woman in her burkini was found lying on the beach in the French city of Nice, police confronted her and forced her to remove her burkini. French news agency AFP reported that she was ticketed for failing to wear “an outfit [that] respect[ed] good morals and secularism.” While the woman wearing the burqa did violate the law, the police’s decision to forcibly ask her to remove the burkini in public violated ECHR’s Article 8, which stipulates the right to privacy. Then, in May 2022, the French municipal government of Grenoble attempted to repeal the ban by allowing women to wear burkinis in public swimming pools. However, the prefect, or the upper sector of the government, blocked this decision, stating that it countered the French tenet of secularism. 

It seems ironic that while government officials claim that a veil represents gender dynamics, a majority male populated government body is allegedly qualified to better dictate how women should clothe themselves. Even though ECHR Article 8 protects privacy to the extent that it can fit within democracy, what is democracy without freedom of expression? If an individual cannot outwardly express their religious identity, has democracy in its idealized form ultimately been compromised?

Lili Samii is a Staff Writer for CPR, and plans to study a joint degree between Economics and Political Science.