In recent years, while approaching Christmas, controversies about secularism were raised in some European countries. In Belgium, for example, the Nativity scene was removed from the Holsbeek Town hall (a small town near Brussels) under the pressure of lay activists in 2016. In 2017, some schools decided to remove the cross on the mitre of Saint Nicholas who is celebrated on December 6 as patron saint of schoolchildren. In France, where secularism is embedded in the Constitution, the debate was even deeper and the question of whether Nativity scenes should be prohibited in public spaces was brought to the courts. The two decisions issued by the French Council of State on November 9, 2016 did not close the debate but have been crucial in the determination of ‘legal’ and ‘illegal’ Nativity scenes.
This subject opposes lay activists, who are strongly against all kind of religious signs in public places, to people pretending to defend the Christian traditions of Europe, leading to passionate debates. In the meantime, in many Central and Eastern European countries, religion and national identity are closely entwined and we assist to a kind of ‘religious revival’. This contribution attempts to bring serenity and a juridical point of view to this debate. I will first map out the situations that led to the decisions of the French Council of State and their consequences. Secondly, I will analyse the issue from a European perspective by examining the European Court of Human Rights’ (ECHR) case-law.
2. The value of French secularism and the decisions of the Council of State.
Already in 2010 the Administrative Court of Amiens stated that the Nativity scene on a public square to be illegal arguing that it depicted Mary and Joseph in a first set-up and Jesus after December 25.
The litigation that went to the Council of State started in December 2012 when two free-thought federations sent letters to the Mayor of Melun and the President of the General Council of Vendée, to ask them not to install Nativity scenes in their buildings. These authorities did not reply to the request and the federations decided to bring these cases to court.
While the Administrative Court of Melun considered that the Nativity scene is not religious but later was criticised by the Administrative Court of Appeal of Paris, the Administrative Court of Nantes, where the Nativity scene was considered as having a religious meaning, was also censored by the Administrative Court of Appeal of Nantes. Thus, two similar cases led to two contradictory decisions.
In its two decisions on November 9, 2016 the Council of State starts by reminding the terms of the First Article of the Constitution: “France shall be an indivisible, secular, democratic and social republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.”
It mentions the Articles 1 and 2 of the 1905 French law on the Separation of the Churches and State that impose the obligation on Public authorities to ensure the freedom of conscience and religion. These articles also set the principles of non-subsidisation of any cult and neutrality of public agents and public services. The Council also cited Article 28 of the above law which reads: “It is forbidden, in the future, to erect or to put up any religious sign or symbol on public buildings or in any public place, except on buildings used as places of worship, on burial grounds in cemeteries, on funeral monuments and on museums or exhibition halls.”
Then the Council reminds that all these Articles aim to ensure the neutrality of public authorities by forbidding the installation of signs or items that could express the recognition of a single religion, except for exhibitions.
Here it is important to mention that “the notion of neutrality is an offshoot of juridical doctrine and by no means a raw legal given.”
After reminding of the constitutional principles, the Council of State analysed in depth the nature and the specificities of the Nativity scene. Although being part of the Christian iconography, this symbol could have become a traditional decorative element of the festive season, stated the Council. In other words, it distinguishes between the cultural and the worship character of the Nativity scene, exhibition of which is possible only regarding the cultural part.
Furthermore, the Council elaborates the conditions that allow for the practical distinguishing between cultural and thus legal or instead worship and thus illegal character of a Nativity scene installation. These conditions are: the context, the installation circumstances, the existing local customs and the location of this instalment.
Consequently, two principles have been established. A Nativity scene should not be installed in a public building, seat of a public authority, except if there are specific circumstances that can give a cultural character to it. On the contrary, a Nativity scene can be installed in other public places as long as there is no sign of proselytising or claiming of religious opinions in the behaviour of public authorities.
Following the principles shown, the Council of State cancelled the decision of the Administrative Court of Appeal of Paris and declared the Nativity scene in Melun illegal. In the other case it cancelled the previous decision but redirected the case to the Administrative Court of Appeal of Nantes that finally confirmed the legality of the installation, the Council of State concluded the inadmissibility of the appeal against this last decision in February 2018.
These Council’s judgements of November 2016 were enforced by several other Administrative courts since then.
Some authors from the non-clerical community have been very critical about these decisions. These observers assert that the judgements met the terms of Article 28 of the 1905 French law on the Separation of the Churches and State head-on by arguing that only the legislator can change the terms of a text and certainly not the judges, which is a well-established principle of Civil Law countries such as France.
However, even in Civil Law countries the power to interpret the law belongs to the judges and that is exactly what the Council did in adequacy with its traditional guidelines which are, according to Pr. Jean RIVERO (1910-2001), “the adherence to liberalism and the sense of reality.”
Other observers argued likewise for a long time, that a negative and rigid conception of the constitutional principles of neutrality is not necessary in view of the French Constitution.
3. Nativity scenes in view of the European Court of Human Rights.
The European Convention on Human Rights does not prohibit religious signs in public places but two articles can be linked to this issue. Article 9 imposes a duty of neutrality and impartiality and states that:
„1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 14 - which cannot be applied independently and must be combined with other articles - states that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Thus, it is through the case-law of the ECHR that we will be able to extract the applicable law in this area at European level.
Even though the issue of Nativity scenes in public places was never brought before the ECHR, it is possible to imagine the position that the Court would have taken towards it from the renowned ECHR, Lautsi v. Italy 2011 case which was about hanging crucifixes on walls in public schools.
In this case the Grand Chamber - contradicting the Second Section - stated that at point 72 that: “Furthermore, a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality. It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.”
It is possible to argue that, as to Nativity scenes, there is no doubt that it is a passive symbol as well and it could not imply any form of proselytising.
The Court went further and stated that the decision whether or not to perpetuate a tradition falls within the national margin of appreciation, emphasising the great diversity between the States among Europe on this topic. However, of course, the reference to a tradition does not relieve a Contracting State of its obligations to respect the rights enshrined in the Convention. The Court finally concluded that the lack of European consensus on the question of the presence of religious symbol in State schools justifies the large margin of appreciation let to the State.
The eventual Court’s position on the question of the presence of religious symbols in public places should not easily differ.
On this point the judge Bonello expressed a strong view in his concurring opinion:
“A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that ‘customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals’ (Justin Marozzi, The Man who Invented History, John Murray, 2009, p. 97)”
One could argue that it would be arduous to determine when a religious symbol turns into a cultural one and above all how and who decides that.It is then up to the national legislators and courts to pass laws regulating the use of Nativity scenes in public spaces and to interpret them. That is in substance what the French Council of State did in the decisions examined above.
The conclusions of the ECHR’s Grand Chamber decision in the Lautsi v. Italy case must be combined with the ones from the French Council of State to decide upon the legality of Nativity scenes in public places.
First, as stated by the Council of State, the Nativity scene can inherit a cultural character overtaking its religious origin. In this regard, the criteria that the Council established (the context, the installation circumstances, the existing local customs and the location of this installation) are fundamental to distinguish between Nativity scenes raised for political purpose and the ones that reflect national or local traditions, the ECHR taking wisely refuge in the national margin of appreciation on this subject.
Then, the essentially passive nature of the Nativity scene as stated by the ECHR regarding the hanging of crucifixes has to be taken into consideration, as well. In fact, the secular State is essential in granting freedom of thought and religion and avoiding any kind of State proselytising. This, however, does not mean that each national or local tradition has to be invalidated because of their religious origin.
Finally, there is no peremptory answer as to the legality of Nativity scenes in public places and it is a matter of facts that, as long as there is no sign of proselytising or claiming of religious opinions in the behaviour of public authorities, there should be no reason to forbid them in public places.
By Lucas Pinelli
This article was originally published in issue 6.2 of the magazine, which can be accessed here. All references used can be found at the end of that issue.