Menorah Lighting Triggers Debate Over Secularism In France

The Forward (Dec. 11) reports that a new controversy over the meaning of secularism is raging since last week in France:

The scene of the figurative bonfire was, remarkably, the official home of the president, the Elysée Palace.... [Emmanuel] Macron was awarded the Lord Jacobovits Prize, an award ... to honor individuals who have distinguished themselves in the combat against antisemitism and the defense of the freedom to practice the Jewish faith.

Thursday also happened to be the first night of Hanukkah.... Haim Korsia, the chief rabbi of France, decided to mark the holiday. While Macron, hands clasped in front, stood to one side, Korsia lit both the shamash and first candle while intoning the blessings. Macron also lit a candle, though not for festival of light but instead for the memory of the millions who died in the Shoah.

... [L]ater that evening, Mendel Samama, one of the rabbis who attended the ceremony, released a video of the lighting, which he hailed as “Historique!”

... For the first time since 1905 and the promulgation of the law separating the French state and church — one that affirmed the strict neutrality of the former in religions affairs and relegated the latter to the private sphere — a religious ceremony was held inside the presidential palace. As a result, what was kept alive on that first night was not the miracle of the Jewish holiday, but the meaning of French laicity. The event was, as one commentator declared, “without precedent.”

Almost immediately, the festival of lights was overtaken by critics lighting into Macron for desecrating the secular purity of the French republic.

France's Conseil D'Etat Upholds Ban on Wearing Abayas in Schools

On Thursday, France's Council of State upheld the government's ban Muslim girls wearing the abaya at school.   France 24 explains:

President Emmanuel Macron's government announced last month it was banning the abaya in schools, saying it broke the rules on secularism in education that have already seen Muslim headscarves banned on the grounds that they constitute a display of religious affiliation. 

But an association representing Muslims filed a motion with the State Council, France's highest court for complaints against state authorities, for an injunction against the ban on the abaya and the qamis, its equivalent dress for men.

The association argued the ban was discriminatory and could incite hatred against Muslims, as well as racial profiling.

The court's decision, available in French (Association Action Droits des Musulman, (Conseil D'Etat, Sept. 7, 2023) (full text), is summarized by Daily News:

Wearing the abaya "is part of a logic of religious affirmation", estimated the judge in summary proceedings....

Accordingly, its prohibition "does not constitute a serious and manifestly unlawful interference with the right to respect for private life, freedom of worship, the right to education and respect for the best interests of the child or principle of non-discrimination,” he said.

India's Supreme Court Rejects Petition on Renaming of Historical Cultural Religious Places

In Upadhyay v. Union of India, (Sup. Ct. India, Feb. 27, 2023), the Supreme Court of India dismissed a petition brought by a leader of a Hindu nationalist party seeking to require the government to research and publish the "original names of ‘ancient historical cultural religious places’, named after barbaric foreign invaders." According to the court:

[Petitioner] invokes the right to dignity as flowing from Article 21 of the Constitution of India. He further submits that there is his fundamental right to culture which is protected in Articles 19 and 29. Again, he refers to Article 25 as the source of his right to religion and in regard to his fundamental right to know, he leans on Article 19(1)(a). He also has brought up the concept of ‘sovereignty’ being compromised by the continuous use of the names of the ‘brutal invaders’....

Rejecting petitioner's contention, the court said in part:

India, that is ‘Bharat’ in terms of the preamble, is a secular country....

The present and future of a country cannot remain a prisoner of the past. The governance of Bharat must conform to Rule of law, secularism, constitutionalism of which Article 14 stands out as the guarantee of both equality and fairness in the State’s action....

VOA has a lengthy background article discussing the case, explaining in part:

Beginning in the 12th century, a succession of Muslim empires — most notably the Delhi sultanate and the Mughal empire — dominated the Indian subcontinent for almost seven centuries. During Muslim rule, the growth of trade and commerce was accompanied by the brisk growth of towns and cities across the country.

The Muslim rulers established many towns, naming them after themselves or their ancestors....

In the last few years, several places with Muslim-sounding names have been renamed by BJP governments....

With the rise of Prime Minister Narendra Modi, the Hindutva — nationalist groups — have increased demands for renaming many Muslim-sounding locations.

French Constitutional Tribunal Upholds Regulation Of Religious Associations

France's Constitutional Council last month in Union of Diocesan Associations of France and others  (Conseil constitutionnel, July 22, 2022) upheld the constitutionality of several provisions of law governing religious institutions in France. It upheld the requirement that a religious organization must register with a government official in order to enjoy benefits available specifically to a religious association.  It found that this did not infringe freedom of association, and also concluded in part:

[The provisions] have neither the purpose nor the effect of carrying the recognition of a religion by the Republic or of hindering the free exercise of religion.... Accordingly, the contested provisions, which do not deprive the free exercise of worship of legal guarantees, do not infringe the principle of secularism.

The court also rejected an equal protection challenge to a provision limiting religious organizations to realizing no more than 50% of their revenues from apartment buildings they own. Finally it upheld provisions allowing the state to require a religious association to conform its stated purposes to its actual activities and requirements; for reporting of a religious association's places of worship; and, when requested, to provide a government official with financial information including amounts used for religious activities and amounts of foreign financing. However, the court cautioned:

While such obligations are necessary and suited to the objective pursued by the legislator, it will nevertheless be up to the regulatory power to ensure, by setting the specific methods for implementing these obligations, that the constitutional principles of freedom of action are respected.

The court issued a press release announcing the decision.  Law & Religion UK also reports on the decision.

French High Court Says City Must Ban Burkinis In Municipal Pools

 CNN reports that on Tuesday, France's highest administrative court, the Council of State, held that the city of Grenoble cannot permit Muslim women to wear the full-length "burkini" bathing suit in its municipal swimming pools. The court said that doing so would compromise principles of religious neutrality and "the equal treatment of users." The court went on to say that the city's initial decision to permit burkinis did so to satisfy religious demands. A French anti-separatism law passed last year prohibits actions whose "manifest objective is to give in to sectarian demands with religious aims."

UPDATE: Here is the full text of the Council of State's opinion in the case.

Plaintiffs Lack Standing To Challenge "Black Lives Matter" Mural As Establishment Clause Violation

In Penkoski v. Bowser, (D DC, July 12, 2021), the D.C. federal district court held that a Black Lives Matter mural painted on DC streets was government speech, rejecting plaintiffs' claim of content discrimination in a public forum.  The court also dismissed on standing grounds plaintiffs' claim that the mural violates the Establishment Clause by promoting the religion of Secular Humanism.

Canadian Trial Court Upholds Most Applications of Quebec's Ban On Officials Wearing Religious Symbols

In Hak v. Attorney General of Quebec, (Que. Super. Ct., April 20, 2021), a Quebec (Canada) Superior Court judge in a 240-page opinion upheld, with two important exceptions, Bill 21 which prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) Here is CBC News' summary of the decision:

Quebec's secularism law violates the basic rights of religious minorities in the province, but those violations are permissible because of the Constitution's notwithstanding clause, a Superior Court judge ruled on Tuesday.

But the ruling by Justice Marc-André Blanchard also declared that the most contentious parts of the law — the religious symbols ban for many government employees — can't be applied to English schools.

The desire of English school boards to foster diversity by choosing who they hire is protected by the minority-language education rights in the Charter of Rights and Freedoms, Blanchard said in his decision.

Crucially, that section of the charter (23) is not covered by the notwithstanding clause....

Blanchard also ruled that members of the province's National Assembly can't be forced to provide services to the public with their faces uncovered.

In other words, MNAs are allowed to wear religious symbols that cover their faces, such as a niqab, in accordance with the section of the charter that guarantees every citizen the right to be eligible to vote and be a member of the legislature.

Quebec's Justice Minister says that an appeal is planned. Montreal Gazette and the New York Times also analyze the decision.

Suit Against Alabama Is Dropped After Voter Registration Form Is Amended

Last October, the Freedom From Religion Foundation sued Alabama's Secretary of State challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." (See prior posting.) Yesterday, FFRF announced that it is voluntarily dismissing the suit because Alabama has amended the form to allow voters to opt out of that language. The new mail-in form allows a voter to check a box that says, "OPTIONAL: Because of a sincerely held belief, I decline to include the final four words of the oath above." The online form has also been changed.

Humanist Organization Lacks Standing To Challenge Texas Ban On Secular Marriage Celebrants

 In Center for Inquiry, Inc. v. Warren, (5th Cir., Feb. 10, 2021), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a suit by a secular humanist organization challenging as an Establishment Clause violation Texas law that refuses to allow secular celebrants to conduct marriage ceremonies. The court held that plaintiffs are asking for relief that does not remedy their injury in full, explaining:

The appellants are seeking relief that would essentially compel ... [the] Dallas County Clerk, to record marriages conducted by secular celebrants such as themselves. However, even if such relief were hypothetically granted, it would not fully redress the injuries for which the appellants bring suit. Here, the appellants’ injuries relate to the barrier to legally solemnize marriages. But even if they prevail in this litigation, relief would be incomplete because the appellants would still be subject to criminal prosecution. In other words, the barrier to legally solemnizing marriages would nevertheless remain.

Secular Elected Officials Form New Organization

A press release issued earlier this week announced the formation of a new organization, the Association of Secular Elected Officials.  According to the release, "the non-religious are seriously underrepresented in public office." The group has been formed to

provide support, information and a sounding board for non-religious elected officials at a time when a growing number of people choose not to affiliate with a religion.

Its goals are described by the group's founder:

“For too long the non-religious have been excluded from being open about their constitutional right to be non-religious,” Presberg said. “As the need for science-based policy is paramount, we have a vocal minority pushing for special rights for their religious beliefs. Now, more than ever, we need to support and educate our non-theistic elected colleagues as they work to make our country and their community better for everyone.”

The organization also has a goal of presenting an alternative to the political power of white Christian nationalists.

The organization has a website and a Facebook page.

Suit In Nigeria Challenges Arabic On Currency As Violating Secular Status of Country

This Day reports on a suit heard yesterday by Nigeria's Federal High Court challenging Arabic inscriptions on Nigerian currency. Plaintiff in the suit claims that the inscriptions portray Nigeria as an Islamic state, violating its secular constitutional status. Defending the use of Arabic script, the Central Bank of Nigeria argued that it is not a symbol of Islam, but is merely used to aid non-English speakers who are literate in Arabic and use it in trade.

Michigan Will Allow Secular Marriage Celebrants

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

New Report On State Laws Impacting Church-State Separation and Religious Equality

Last week, American Atheists released its report: 2019 State of the Secular States.  The introduction to the 45-page report says in part:

In 2019 we saw a heightened awareness about the importance of the separation of religion and government, due in part to the increasing efforts to undermine this bedrock protection for religious freedom. At the federal level, the Trump Administration has stepped up its attempts to enshrine one particular religious viewpoint into the law by finalizing regulations promoting denial of health care by religious health care providers and by proposing rules which would prioritize religious beliefs over civil rights protections.

At the same time, Christian nationalists have continued to push forward Project Blitz, a well-organized and well-funded campaign designed to undermine religious equality around the country by using legislation at the state level to promote a distorted vision of religious freedom.... At www.BlitzWatch.orghttps://www.blitzwatch.org/, we provide tools to oppose this secretive campaign, and we closely track these negative bills....

In this second edition of the State of the Secular States report, we expand the number of evaluated law and policy measures. For every state, as well as the District of Columbia and Puerto Rico, we have assessed over 40 statewide law and policy measures, both positive and negative, pertaining to religious equality and the separation of religion and government.

Appeals Court Refuses Temporary Injunction Against Quebec's Secularism Act

In Hak v. Attorney General of Quebec, (Quebec Ct. App., Dec. 12, 2019) (full text of opinion in French), the Quebec Court of Appeal, by a 2-1 vote, upheld a trial court's refusal to issue a temporary injunction against the enforcement of two provisions of the Secularism Act (Bill 21). The sections at issue bar teachers, as well as various other public employees and officials, from wearing religious symbols in carrying out their official duties, and prohibit various public employees from carrying out their functions with their face covered. The individual plaintiff in the case who is about to graduate as a teacher wants to wear her hijab while teaching French in an English elementary or high school.

Judge Belanger refused to grant the temporary injunction, saying in part:

What the Attorney General invokes in this case and with reason, that is the presumption that the legislation addresses the common good . At this stage of the proceedings, the Court must assume that the Act serves a valid public purpose. Unless it is clear that the law enacted is not intended to serve a public purpose, the courts must take it for granted.

It follows from this principle that the courts will not suspend legislation passed by a legislature without having made a full constitutional review. Accordingly, suspension orders are only issued in clear cases.

We must recognize that we are not in a clear case where we can say right now that the Act is unconstitutional, despite the presence of serious issues.

Judge Mainville would likewise refuse a temporary injunction, saying in part:

[W]hen, as here, questions arise about the relationship between the state and religions, on which deep differences may reasonably exist within a free and democratic society, there is a need for courts to act with caution and circumspection because of the diversity of approaches to these issues and the difficulty of forming a uniform understanding of the meaning of religion in society. The role and impact of religion in society, as well as the forms of public expression of religious belief, are not the same in different times and contexts. They vary according to changing sociological and ideological factors, national traditions and demands imposed by the protection of the rights and freedoms of others and the maintenance of public order in a given society. The conception of the religious symbolism and its place in the public space are not perceived in the same way by each society.The State Secularism Act is a striking example in Canada.

It should therefore be noted that many of the issues relating to the wearing of religious symbols by police officers, teachers, principals and judicial personnel in Quebec - including the legal issues that arise - are complex and do not lend themselves to summary analyzes on the basis of piecemeal evidence, as the appellants ask us to do in this case.....

At this stage of the judicial proceedings, a suspension of sections 6 and 8 of the State Secularity Act can not be contemplated since the Court must presume that the public interest is served by the maintenance in force of these provisions given the presumption of constitutional validity. 

Chief Justice Hesler would have granted a temporary injunction, saying in part:

To sum up, it appears at this stage that the risk of suffering irreparable harm has materialized for certain teachers, all of whom are women, who aspired to a career in teaching. The prejudice will remain for the others who, not wishing to abandon the wearing of a religious sign, will have to give up their choice of career, or even move out of Quebec....

Without prejudging the fate of the appeal, which will be heard in October 2020, it is better to uphold respect for fundamental rights during the proceedings, considering the obligation on the courts to enforce these rights, rather than to deprive people of their fundamental rights, even for a limited time. [All English translations are via Google Translate].

Montreal Gazette reports on the decision.

Suit Filed Against Quebec's Ban On Public Employees Wearing Religious Symbols

AP reported yesterday that in the Canadian province of Quebec, another lawsuit has been filed challenging Bill 21. The law, passed earlier this year, prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. (See prior posting.) This suit was brought by Fédération Autonome de l'Enseignement, a union representing 45,000 teachers.  Challengers claim the law not only violates freedom of religion, but also equality rights because its main impact is on teachers, 75% of whom are women.

Quebec Court Refuses To Enjoin Law Barring Officials From Wearing Religious Symbols

In Hak v. National Council of Canadian Muslims, (Quebec Super. Ct.., July 9, 2019) [opinion in French], a Quebec trial court refused to issue a temporary injunction against enforcement of the province's new law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. (See prior posting.) According to CBC News:

The government hoped to shield the law from constitutional challenges by invoking the notwithstanding clause; meaning critics can't appeal to the fundamental freedoms section of the Charter of Rights and Freedoms to get it struck down....

At several points in his decision, [Judge] Yergeau said the injunction request had a steeper hill to climb because the civil society groups couldn't argue the law violated fundamental freedoms protected by the charter.

"The plaintiffs had no other choice for success than to base themselves on purely constitutional arguments, as opposed to Charter arguments, whose validity remains uncertain," the decision reads....

He noted, in particular, the arguments that the law trampled on federal jurisdiction and violated minority rights had enough merit to warrant further consideration by the courts.

But he also said claims that the law had caused irreparable harm were "purely hypothetical and often speculative" given the motion filed so quickly after it was passed.

Quebec Enacts Ban On Public Employees Wearing Religious Symbols

On June 16 in Canada, Quebec's Parliament passed and the Lieutenant Governor signed (legislative history) Bill 21 (full text as introduced; adopted amendments), a controversial law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. However it prohibits any other accommodations from being granted under the law. The new law also requires an extensive list of public employees to carry out their functions with their face uncovered. It also requires persons who seek public services to present themselves with their face uncovered if necessary for identification or security. Parliament invoked the "notwithstanding clause" of the Canadian Constitution to prevent constitutional challenges.

The new law additionally sets out broader principles of secularism for the province:

CHAPTER I: AFFIRMATION OF THE LAICITY OF THE STATE

1. The State of Québec is a lay State.

2. The laicity of the State is based on the following principles: (1) the separation of State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion.

The new law also amends Sec. 9.1 of Quebec's Charter of Human Rights and Freedoms to  to add "State laicity" as one of the permissible factors to consider in limiting freedoms.  Montreal Gazette reports on the legislation. Chatelaine summarizes the new law and its enactment:

After a long debate, the bill was passed at 10:30 p.m. on June 16 with support from the Parti Québécois. The Quebec Liberal Party and Québec Solidaire voted against the bill. Bill 21 formally bans teachers, police officers, judges and many others from wearing items like hijabs, turbans, kippas, and crucifixes in the course of their duties. It also doubles down on pre-existing legislation that requires citizens to uncover their faces when accessing public services like municipal transit and the legal system.

One day after the law was enacted, the National Council of Canadian Muslims and the Canadian Civil Liberties Union filed suit to declare the law invalid and to obtain an interim order staying its operation while the litigation is pending.  The complaint (full text) in Hak v. Attorney General of Quebec, (Quebec Super. Ct., file 6/17/2019), contends that the law exceeds the powers of the province, is impermissibly vague and contravenes the "internal architecture" of the Canadian Constitution. CTV News reports on the lawsuit.

Suit Seeks Recognition of Non-Religious Wedding Officiants

A suit was filed last week by Center for Inquiry, a secular humanist organization, challenging the limits in Michigan law that prevent secular celebrants from officiating at weddings in the state.  CFI among other things trains individuals how to solemnize marriage ceremonies consistent with secular principles.  The complaint (full text) in Center for Inquiry, Inc. v. Lyons, (WD MI, filed 5/31/2018) contends:

Michigan law, Mich. Comp. Laws § 551.7, which allows people to be married by the religious leaders of their choice, while denying these opportunities to plaintiffs, creates a preference for religion over non-religion in violation of the Establishment Clause of the First Amendment of the United States Constitution....

The complaint also alleges equal protection violations.  CFI issued a press release announcing the filing of the lawsuit.

French Mayor Bans Muslim Burkinis On Beach [UPDATED]

In an order issued on July 28, but first publicized last week, the mayor of the seaside French city of Cannes has banned swimwear that does not reflect "good morals and secularism."  The order, which is effective through August, is aimed at preventing Muslim women from wearing burkinis-- full-body swimsuits.  According to NBC News, the mayor said that after last month's terrorist attack in nearby Nice killing 80 people and the subsequent attack on a church:

Beachwear manifesting religious affiliation in an ostentatious way, while France and its religious sites are currently the target of terrorist attacks, could create the risk of disturbances to public order.

UPDATE: Qantara reports that  an Aug. 13 court decision upheld the Cannes ban:

Three women backed by the Collective Against Islamophobia in France (CCIF) challenged the Cannes decision.... But a court in Nice rejected the request, saying the move was legal under French law forbidding people from "invoking their religious beliefs to skirt common rules regulating relations between public authorities and private individuals".

Meanwhile the resort of Villeneuve-Loubet imposed a similar ban.

French Court Says Local Council's Nativity Scene Violates Principle of Secularism

On Tuesday in France, the Nantes administrative court ruled that the traditional nativity scene that for years has been placed at the entrance to the Vendee government's council building in La Roche-sur-Yon must be removed. As reported by The Local, the court held that the display is inconsistent with the principle of secularism (laicitie) embodied in France's 1905 Law on Separation of Churches and State. The ruling came in a case filed by the local Free Thinking Association, and shortly after a Belgian activist group tore down a nativity scene in Brussels.