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Court cases: Secularism and Religious Freedom, March 2013

In two judgments rendered on March 19, 2013 , the Court of Cassation has just ruled on the principle of secularism and on the conditions for exercising religious freedom at work.

In both cases, it was an employee who challenged her dismissal, based on the refusal to remove, at her workplace, her Islamic headscarf, revealing her face but covering her hair. In one case, the employee worked in a private crèche, in the other for a health insurance fund. Thus, the private sector opposes the public sector, again dividing France in two and weakening the principle of secularism. The responsibility for such a principle, in a one and indivisible Republic, should it not be shared and assumed by all? In the case of the private nursery, the Court of Cassation recalls that the principle of secularism and neutrality established by the Constitution is not applicable to the employees of employers under private law who do not manage a public service. Despite its mission of general interest, a private crèche cannot be considered as managing a public service. Under these conditions, considers the Court, restrictions on religious freedom are only possible if they are justified by the nature of the task to be performed, meet an essential occupational requirement and are proportionate to the objective sought. This is not the case of a general secularism clause appearing in the rules of procedure of the crèche and applicable to all its jobs. Here, despite the prevailing legal separatism, the private company asked its employees to commit to secular Republican neutrality, going beyond the legitimate and legal domain of such a requirement. Undoubtedly, she wanted to be more royalist than the king, and the dismissal was reversed. On the other hand, in a public service, the principle of secularism prevails. Thus, in the case concerning the Primary Health Insurance Fund, the Court ruled that the principles of neutrality and secularism are applicable to all public services, even when they are managed by bodies governed by private law, as is the case with a primary social security fund. Consequently, its agents, even those who are not in contact with the users, are subject to specific constraints prohibiting them in particular from manifesting their religious convictions by external signs, in particular clothing. The dismissal was validated. If, in the first case, the highest Republican court seems to prohibit its citizens from being Republicans (a Republic against Republican secularism), the second tends to associate all social spaces, private or public, to this secular responsibility. However, because unity does not mean uniformity, it is important to take into account the specificity of each in order to adapt jointly around the same principle.

Private sector: Secularism in a private crèche

In a court case concerning the private sector, more specifically a private crèche, the principle of secularism was examined. The Court of Cassation clarified that the principle of secularism and neutrality, established by the Constitution, does not apply to employees of private employers who do not manage a public service. Although a private crèche may have a mission of general interest, it is not considered to be managing a public service. Therefore, restrictions on religious freedom can only be imposed if they are justified by the nature of the work, meet essential occupational requirements and are proportionate. The court struck down the dismissal in this case, highlighting the limits of secular requirements in private companies.

DAMY law firm