Université François Rabelais de Tours
M1 – Juriste européen
Since a few years the administrative French justice was asked about the question of creche, that mean representation of nativity scene, in city hall but also in all public space. This question is very important and take a important part of political debate before Christmas.
But first, why this problem with creche ? In a lot of country there is a lot of Christmas decoration and there is no problem with that. And in France there is a lot of decoration on street or in public place like Christmas wreath or Christmas lights and nobody was against that. But In France there is a big principle which is very important because of the History and because it’s one of the symbol of France : the « laïcité ».
The « laïcité » is the principle which separate religion and state. That mean, in France, for the law, the religion don’t exist at all. This vert important principle come from a law of 1905 name, due of it’s importance, « The law of 1905 » like if there is juste one law this years. So to explain this principle, since 1905, the state of France do not recognize any religion, do not finance any religion and there is no rules about religion because for them, the religion do not exist. So in principle the state has a whole indifference for the religion, that mean for it, a t-shirt, a cassock, a burka is the same thing, a cloth, just a clothes.
There is of course big controversy about this law and it’s principle of « laïcité » in a period where France is concern by islamist terrorism, in a period where the extreme political party, The Front National, is growing. For exemple in August 2016 the Prime Minister, Manuel Valls, take a decree to forbid the « burkini » in french beach.
Now, after this short introduction where we saw what is the principle of « laïcité » and why it’s important in France we can see in detail the main problem of creche.
So the creche is a representation of the nativity, it’s so a representation of a religion celebration of Christianity. In some city of France (we except, in all this article the question of Alsace-Lorraine, a part of France which, because of first World War, has not the same rules about separation of Church and State) some mayor take the decision to place some creche on their city hall. The defendant of a strict conception of « laïcité » contest this decision and say that a representation with a religion connotation is forbidden on the city hall. A another part of the population say it’s not really a religion representation but more a part of Christmas folklore that now is taller a popular celebration than a religion celebration. Because of it’s opposition, the 9th November of 2016, the Conseil d’État, the most important jurisdiction of administrative branch in France give a case about this question.
It was a important question because of the context of the country and also about the main importance of « laïcité » in France. Because of the controversy about the burkini, because of the discrimination against muslim always more important, this question take also a big importance because there is also the question of Christianity’ privilege compared to other religion because of the History of France.
So the Conseil d’État know that this decision was very important and in his case it give a casuistic approach. First it say that the creche has a religious connotation because of it’s story but for it the creche is also a part of the typical decoration of Christmas and of the end of the years. After that, because of it’s double signification, the creche can’t be place in a public space except if the creche have a « cultural, artistic or festive characteristic ». The « cultural, artistic or festive characteristic » must be appreciate in the light of the local custom and also about the place, context and condition of its installation. At the end, for the application of this solution the Conseil d’État tell the difference between the place of the creche. In a city hall or in a administrative place like a school, the creche is not compatible with the principle of « laïcité » except special circonstances. But in the others public place, like street or square, the installation of creche is licit because of its festive character except if it’s for claim a religious affiliation.
We can say it’s a case of compromise and in reality the solution is not really clear. The Conseil d’État do not really answer to the question and prefer give a sort of « manual » for lower administrative court to establish, case by case, if the creche is forbidden or not. For conclusion, all public law student, all public law professor, all defendant of principle of « laïcité » was waiting a important case of the Conseil d’État on this question, but finally we are waiting for answer, and we will just have some new question.