On June 27, 2008, the Council of State (Conseil d’Etat), the French Supreme Administrative Court, upheld a Prime Minister’s decree refusing citizenship to a Moroccan woman who was married to a French national and had two French children. The Council’s decision was based on the grounds that the woman lacked assimilation to French society because of her radical practice of religion, deemed incompatible with the essential values of the French community, in particular equality of the genders. These findings were supported by elements in the court file that the Moroccan woman was a Salafist Muslim and wore the Burqa.
Citizenship is not a guaranteed right for foreign spouses under French law and the authorities can deny it under the control of administrative courts for reasons of lack of assimilation. However, this does not mean that the State can discriminate and deny citizenship because of the practice of a religion. In this case, the Council of State did not base its decision on motives of public order, such as membership in extremist groups like it has done in the past, or because of problems of identification because the Burqa covered the woman’s whole face, but has ruled for the first time on the basis of the domestic practice of a religion, thereby entering the sphere of private life and beliefs. Such a decision contravenes international human rights standards.
This is a potentially dangerous trend which could lead to further discriminatory evaluations in the area of private religious practice. However, the case law of the Council of State has not followed such a trend in the past. On the contrary, for years it has played a neutral role concerning the wearing of the Muslim veil.
This decision must be understood in the context of French history, where longstanding conflicts have opposed the partisans of moderate secularism and those who wanted to eradicate the manifestation of religious beliefs from the public place under a radical interpretation—or extrapolation—of secularism.
The same argument—prevention of proselytizing—used by these radicals to claim the prohibition of the clerical robe during the debates for the vote of the 1905 law on separation of Churches and State has been used to enact the 2004 law prohibiting wearing conspicuous religious signs in public schools. This latter law was passed in order to reverse the jurisprudence of the Council of State, which used to be neutral and respectful of international human rights norms by defining secularism as neutrality of teachers and programs along with freedom of conscience of the pupils, including their right to express their religious beliefs.
After the vote of the 2004 law, the Council of State’s case law has been totally re-oriented, considering prohibitions against "the insignias and attire, including the Islamic veil, the Jewish kippa, or big crosses, the wearing of which by itself expresses conspicuously a religious adherence." With these grounds, it has upheld expulsions from public schools, sanctioning wearing any version of the Islamic veil and the Sikh Keshi (under turban).
Certainly, the law on religious insignias violates international human rights norms. The United Nations Human Rights Committee, as part of its periodic review of the Member States compliance with the International Covenant on Civil and Political Rights has excoriated the law in its Concluding Observations of July 22, 2008 by finding that "respect for a public culture of secularism would not seem to require forbidding wearing such common religious symbols [as] a skullcap or kippa [or] a headscarf or hijab." The Human Rights Committee recommended that France review its law, which infringes on Article 18 of the Covenant.
The Council of State’s jurisprudence has followed a similar trend concerning accession to citizenship. Under laws passed in 2003 and 2006 promoting "selected immigration," the construction of "lack of assimilation" has been extended to include the June 27, 2008 decision, allowing assessment by authorities and Courts of religious practices to determine if they conflict with French Republic values. Not to mention the fact that the finding by the Council of State that Salafism is a "radical practice" of Islam amounts to deciding an internal conflict within Islamology.
Such an evaluation contravenes the European Court of Human Rights case law as well as international human rights standards. The European Human Rights Court has consistently ruled that the States have a duty of neutrality and impartiality and that "the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate."
It remains to be seen to see if an application is filed with the Human Rights Court to challenge the decision of the Council of State and, if so, what the outcome will be.
Patricia Duval is a contributor to the Cutting Edge News and a member of the Paris Bar.