Dr Bénédicte Sage-Fuller, School of Law, UCC
On 29th March 2021, the French highest administrative court, Conseil d’État, ruled that the curfew restrictions did not constitute a grave and manifestly illegal breach of the freedom of worship, even during the Easter Triduum. The applicants had sought injunctive relief to obtain the lifting of the curfew for the Easter ceremonies, particularly the Easter Vigil, which is traditionally held at night.
This is the fourth time that the Conseil d’État was called to rule on the matter of freedom of religion and freedom of worship since last year. Twice, the Court ruled in favour of the applicants, and twice it maintained the restrictions that were contested. At this time of utter confusion in Ireland as to the constitutionality, and even the very existence, of legal restrictions to freedom of religion and freedom of worship, it is interesting to look at the situation in France.
The procedure used to obtain a court hearing is called the “référé liberté”, instituted in 2000 to allow a fast and effective remedy to protect fundamental rights and freedoms. It is in article L521-2 of the Code de la Justice Administrative and requires three conditions to be met. First, there must be urgency: a freedom is allegedly violated, depriving the public to enjoy it, and the court is asked to intervene swiftly. Generally, the Conseil d’Etat rules within 1-3 days of being seized. Second, the contested measure must be a necessary to achieve an objective. Third, it must be proportional to the objective sought.
The référé liberté has been used extensively since the beginning of this public health crisis, to defend several freedoms and rights. In some cases, the Court rejected the applicants’ pleas. For example, in September 2020, the Conseil d’État heard appeals from several local Administrative Courts (Tribunaux Administratifs), which had adjudicated on the legality of imposing the wearing of masks in city centres (freedom to come and go). In November 2020, it heard an application from a collective of restaurant and hotel owners, seeking the right to reopen their businesses (freedom of enterprise and freedom of trade and industry). In December 2020, and again in February 2021, a group of well-known artists argued before the court that cinemas and artistic venues should reopen (freedom of expression, free communication of ideas, freedom of enterprise, freedom of trade and industry, free exercise of a profession, equality).
In other cases, the Conseil d’État agreed with the applicants and granted them their requests. In February this year, the Conseil d’État ruled that the State could no longer impose a blanket ban on rights of external visits for nursing home residents (freedom to come and go). In March, a group of several hundred lawyers successfully argued that they should be allowed to meet their clients face to face after curfew hours (right of effective access to justice and right of defence, freedom of enterprise, right to private life, right to family life, freedom of enterprise). And of course, the subject of this blog, religious freedom has been argued successfully too.
As time goes on, the arguments made before the French courts are more pressing, and there is often a link made, and accepted by the court, with people’s physical and mental health, as it is adversely affected by Covid-19 restrictions. Public freedoms and human rights are there to protect the reality of human existence. When they are violated, there is a direct physical and psychological health impact for people.
In the case of freedom of religion, including freedom of worship, the Conseil d’État has now a well-established attitude to recall its tenet. The freedom is found in article 10 of the 1789 Declaration of Human Rights and of the Citizen, in article 9 of the European Convention on Human Rights, and in article 1 of the Law of 1905 on the separation of Church and State. The legal regime guarantees this fundamental freedom, subject only to conditions of public order. More particularly, the Conseil d’Etat has explicated the contents of that freedom, in the light of ECHR case-law: it is not limited to the right of individuals to express publicly their religious convictions. Indeed, the Conseil d’État reiterates in every decision that freedom of religion, according to French Law and ECHR Law, includes as an essential component the right to participate collectively to public ceremonies, particularly in places of worship, having respect to public order.
The Conseil d’État has also held, in its 3rd decision on the matter, that freedom of religion could not be compared to other freedoms, and that therefore restrictions to religious ceremonies could not simply be aligned with restrictions to other types of activities (para. 19).
The proportionality test that the Conseil d’État carries out every time concerns of course the objective of public health in the context of the Covid 19 crisis. As such, it only allowed the French Government’s measures to entirely ban public worship on one occasion, and that was at the beginning of the second lock-down, in November 2020. Its reasons for doing so at the time were that the total ban was going to be revised less than two weeks later. The court also noted that health protocols in churches needed to be updated, that in any event that churches were remaining open, and that ministers were allowed to receive the faithful individually in places of worship and in their homes.
At the end of November 2020, public worship was re-authorised by decree, but limited to 30 people per building, regardless of the size of the building. The Conseil d’État was seized again, following the same procedure of “référé liberté”, and quashed that limit, as it considered it to be a grave and manifestly illegal violation of freedom of religion.
The most recent decision was an attempt to obtain more favourable conditions during Easter, and it failed. But the bottom line is that freedom of religion, including its element of freedom of worship, has been upheld in court, throughout different kinds of sanitary conditions. France is now entering into a lockdown, and it continues to stand.
At a time of public health crisis, when extraordinary powers are exercised by the State, it is absolutely essential to be reminded of our public liberties and human rights. Twelve months into this crisis, voices are beginning to ring alarm bells about the severe impact of lock-downs and restrictions on people’s physical and mental health, the elderly in particular. So far, neither here in Ireland nor in France, has an outbreak of Covid-19 in a place of worship ever been reported. On the other hand, it is acknowledged that attending religious services is an important part of maintaining people’s morale.
Public worship is protected throughout France, a country more known for its aggressive secularism than for its benevolence to religions. Separation of Church and State, like the separation of powers, is a fundamental principle of society. It precisely relies on freedom of religion, including freedom of worship. What we have seen in the last 12 months, is that when the French Government forgot this basic truth, the courts of law, seized by engaged citizens, were there to remind them of it.