January 13th 2021 | PierLuigi Zoccatelli | Bitterwinter

A new “White Paper” by Frédéric-Jérôme Pansier, Willy Fautré, and Massimo Introvigne, asks to use the law to modernize the French definition of religion. The White Paper, free download (in French) here.

Old, democratic states know that changing the laws on religion is a delicate and dangerous exercise. They do not do it very often. This is why the French bill on “Consolidating Respect for the Principles of the Republic” (formerly known as the law against “separatism”) generated so much emotion, not only in France.

The stated aim of the law was to fight a radical Islamic “separatist” culture, which may become a fertile ground for extremism and terrorism. Since a law targeting a single religion would be obviously unconstitutional, the text included general provisions for all religious organizations.

Some of them—substantially banning homeschooling, giving to administrative authorities additional powers of surveillance and control of religions, and introducing provisions for the swift dissolution of “undesirable” religious organizations—were dangerous for religious liberty. Massimo Introvigne, who serves as editor-in-chief of Bitter Winter, French legal scholar Frédéric-Jérôme Pansier and scholar of religions Bernadette Rigal-Cellard (also French), London-based human rights attorney Alessandro Amicarelli, and Willy Fautré, from the Belgian NGO Human Rights Without Frontiers, published a “White Paper” evidencing these problems. Similar remarks were made by the French Council of State, and the French government agreed to amend the law, withdrawing some of the most controversial provisions.

The draft law is now been examined by a special committee of the French National Assembly. They interviewed representatives of the main religious bodies active in France, and others, who expressed the concern that the text, although improved after the intervention by the Council of State, still bears the imprint of an approach aimed at defending the country “against” religion.

Time and again, the risks of the law have been emphasized. Today, a new “White Paper” by three of the authors of the first one—Pansier, Fautré, and Introvigne—takes a different approach. On the one hand, it is important that provisions that can negatively affect religious liberty are not “smuggled” into the text, and this was the aim of the first “White Paper.” In the second “White Paper” launched today with the title “Laïcité, How to Preserve It,” the authors note that the law may be an historical opportunity, not to be wasted, to reform what is old and dusty in the 1905 French Law on the Separation of the Churches and the State.

How the law, crucial for the French notion of laïcité, was prepared and approved is reconstructed by the authors in meticulous, yet fascinating pages. The “White Paper” offers a detailed historical account of the political situation and the parliamentary debates of 1905. In the imaginary of many, the law was a product of the anticlerical government of French President Émile Combes (1835–1925), a sworn enemy of the Roman Catholic Church.

However, the authors note, the law was largely a parliamentary rather than a governmental production. They focus on the figure of the Rapporteur of the law, future Prime Minister and Nobel Peace Prize laureate, Aristide Briand (1862–1932) and on his collaboration with Socialist leader, Jean Jaurès (1859–1914).

While the Catholic right wanted to maintain the status quo, dating back to the Napoleonic Concordat of 1801 (also discussed in the “White Paper”), and the extreme left and those most loyal to Combes called for a war against Catholicism, Briand wanted a text that could one day accommodate the Catholics as well.

He knew that the immediate Catholic reaction would be negative. In fact, Pope Pius X (1835-1914) condemned the law with the 1906 encyclical “Vehementer nos,” and ordered in the same year with another encyclical, “Gravissimo officii munere,” that Catholics should refuse to form the “religious associations” (associations cultuelles) created by the Separation statute.

However, the authors argue, there were in the 1905 law the seeds for a future agreement with the Catholic Church, when the most heated emotions of the anticlerical struggles will subside. This happened in 1924, with the creation of the “diocesan associations” (associations diocésaines).

But something was missing in the law, or rather in the application of the law, the authors claim, i.e., the possibility of including among the “religious associations” those coming from outside Christianity or Judaism. The case law related to the law of 1905, in fact, defined a “religious” association as one organizing public religious ceremonies. The definition was perhaps already Eurocentric and questionable in 1905, but is clearly outdated today. There is no reason not to consider “religious” a Buddhist center proposing meditation only and not organizing “public religious ceremonies,” and this is just one among many possible examples.

Groups that do not have the option to be recognized as a religious association under the definition of the law of 1905 may incorporate as an association under the law of 1901. However, there are several advantages in the regime of 1905 compared to the one of 1901, and these are unfairly denied to groups that does not correspond to the outdated 1905 definition of religion.

For the authors, “The government, by wishing to strongly encourage associations of law 1901 (mainly Muslim, but not only) to join the regime of religious associations of law 1905, crosses an additional level in the state control of religions (…) Unfortunately, it is a safe bet that this harmonization of constraints, whatever the mode of exercise freely chosen, will not be enough to cause a real change of paradigm and to encourage associations under the 1901 law to join the regime of the 1905 law.”

The authors do not suggest that France walks out of its century-old system of laïcité. Their proposal, to revise the way religions are identified and harmonize it with both the case law of the European Court of Human Rights and United Nations documents, preserves the spirit of the 1905 law, while modernizing it to adapt it to the current religious reality in France.

The document concludes that, “In order for the reform to 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 religions which do not represent a terrorist threat, do not provoke 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 made attractive.”