The Headscarf Affair: The Conseil d'Etat On the Role of Religion and Culture in French Society

I. INTRODUCTION

On February 10, 2004, the French National Assembly voted 494 to 36 to pass legislation that would ban the wearing of an Islamic headscarf, or any other conspicuous religious symbol, within French public schools.1 The bill passed the French Senate by a similar margin, 276 to 20, on March 3, 2004.2 The text of the law is extremely terse, stipulating only: "In public schools, the wearing of symbols or clothing by which students conspicuously [ostensiblement] manifest a religious appearance is forbidden. Internal regulations state that the initiation of disciplinary proceedings must be preceded by a dialogue with the student."3

The headscarf legislation of 2004 emerged as a direct response to the recommendations of a commission appointed in 2003 by French President Jacques Chirac. Chirac charged the Stasi Commission, composed of prominent politicians, scholars, and others, with examining the issue of laicite, or secularism.4 On December 11, 2003, the commission issued its recommendations, among them a ban on wearing the headscarf in public schools. One week later, with strong public opinion behind him,5 Chirac came out in favor of legislation to put such a ban into effect.6 The Commission's report provides a sweeping historical and philosophical overview of the principle of laicite. While denying that laicite mandates "a militant atheism"7 or that laicite is incompatible with Islam,8 the report states that just as the state must abandon all authority within matters of personal conscience and spirituality, so must religion "renounce [its] political dimension. Laicite is incompatible with any conception of religion that hopes to rule over . . . the social system or the political order."9 This separation is mutually beneficial to both religion and the state,10 as well as providing an equal footing to all individual citizens." While addressing numerous other applications of the principle of laicite, the Commission spends a particularly significant portion of its report discussing the reasoning behind its recommendation to ban the headscarf in public schools.12

The international attention that the report's release and then the law's passage have attracted serves as the latest demonstration of the power of the headscarf to crystallize the controversies over Islam, immigration, and national identity that have emerged in France and, in various other guises, other Western democracies.13 This particular variation of the struggle to define French identity did not, however, burst forth suddenly, nor was it precipitated solely by wariness of fundamentalist Islam in the wake of the terrorist attacks of September 11, 2001. Understanding the origins of the headscarf issue in France is essential to the task of decoding the significance of the actions of the French executive and legislature in late 2003 and early 2004. Examining those origins-the subject of this article-is essential not only to a factual understanding of the context of the Stasi report and resultant law, but even more to a grasp of the light that these events shed on the functioning and structure of the entire French governmental and legal apparatus.

The issue of the headscarf first erupted onto the French political scene in October 1989, when the principal of a majority-Muslim middle school in the Parisian suburb of Creil suspended three Muslim girls for wearing their headscarves in the public school classroom. France found itself deeply divided by the principal's action, but, as in 2003 and 2004, the fault lines this rift revealed were not those between a clearly defined Right and Left, or feminist and anti-feminist camps, or even pro- and anti-immigration factions. Indeed, each of these opposing groups were as likely to disagree as to agree amongst themselves about whether the girls should be allowed to wear their scarves. Some avatars of the traditional political left, for example, supported the girls' self-expression in the face of government coercion, while others insisted that allowing Muslims too much sway would dilute and perhaps ultimately undermine France's secular and liberal political heritage.14

An appeal by a government minister to the Conseil d'Etat (Council of State), France's highest administrative tribunal, provisionally resolved the controversy. Serving as the body responsible for holding the state to account-and therefore performing some functions of the U.S. Supreme Court but not others-the Conseil d'Etat seems a curious institution to the American eye. It polices the vast French bureaucracy, yet it is of the bureaucracy in the most profound way. Its members, culled from the top of the class at the school that prepares the nation's elite civil servants, generally have no specific legal training.

To better understand the Conseil d'Etat's role in French governance and the significance of the structure of which it is a part, this article will explore the Conseil d'Etafs ruling in the case of the excluded girls, the circumsta...

If you are already a vLex customer, Access Here