A lingering controversy in search of a new focus

12This law appeased the controversies which resulted from the judicial regulation and the case-by-case analysis that had become the norm in the wake of the Council of State’s opinion published on 27 November 1989. [27] But it was far from putting a definitive end to the debate, as the veil was a recurring facet of the “Muslim problem”. Although the law made the hijab vanish from the public school system, it hindered neither the veil’s trajectory nor the fear and condemnation provoked by this item of clothing in France. [28] Marking a success for the prohibitionist cause, the law encouraged mobilisations in favour of extending the scope of the veil ban and new laws to regulate this. [29] Symmetrically, it also reinforced the logic of resistance to restricting how it could be worn. Such resistance was expressed mutedly via various “exit” strategies adopted by religious communities (the founding of denominational schools, a shift towards ethnicity-based entrepreneurship, community labour markets, and the domestic sphere) and/or the intensification of veiling practices and rhetoric magnifying the religious signification of the sacrifices that the veil required. [30] Acts of resistance were also visible in the proliferation of individual legal claims brought before courts. Such claims went hand-in-hand with the growth of mobilisations and the emergence of new collective actors engaged in the fight to protect the veil, including the Collectif contre l’Islamophobie en France (CCIF - Collective Against Islamophobia in France). Created in 2003, this organisation favoured recourse to the law among its arsenal of weapons and thus garnered significant media and political attention for its cause, both nationally and internationally.

13Micro-conflicts involving the veil also proliferated in more and more diverse arenas: for example, one bank refused to open its doors to a client who was wearing a veil, and other veiled women were prevented from participating in a naturalisation certificate ceremony. One school stopped veiled mothers from accompanying their children on school activities and field trips; the owner of a rural bed and breakfast barred access to its common spaces to women wearing the hijab; other veiled women were refused access to voting booths or immigration offices for the same reason, and so forth. These conflicts sometimes spilled over into the courtroom. The varying rulings handed down by the courts attest to the uncertain stability of the veil ban and its scope. The recommendations made by the French High Authority for the Fight against Discrimination and for Equality (HALDE - Haute autorité pour la lutte contre la discrimination et pour l’égalité), which was also solicited regarding a number of cases, reflect this process of legal trial and error. While a series of rulings published between 2005 and 2007 supported the women who felt they had been victims of discrimination, this support was in no way consistent; on the contrary, some recommendations supported restrictive measures regarding veil wearers. From 2004 to 2008, the issue of the veil thus remained a lingering public problem that the media regularly referred to following an incident or ruling, without, however, this media coverage leading to real politicisation of the issue.

The burqa debate, a new avatar for the veil

14It was only in 2008 that the issue of the veil, by transforming itself into the “burqa affair”, returned to the political and legislative agenda. Three particular events contributed to the resurgence of the problem, which, thanks to how it was framed by the media, established an equivalence between the full-face veils worn in France and those worn by Afghan women forcibly veiled by the Taliban. This connection was established despite the non-existence of the Afghan version of the full-face veil and the marginal nature of full-face veiling in France.

15It was following a ruling made by the Council of State in July 2008 [31] that the term “burqa” was first associated with events unfolding domestically. The ruling approved the refusal to grant naturalisation to a Muslim woman on account of her “radical” Islamism, which was “incompatible with the essential values of the French community”. The full-face veil worn by this woman was only one element among many invoked by the judge. However, both media and political figures highlighted this one criterion repeatedly. Fadéla Amara, the Minister for Urban Affairs, and Valérie Pécresse, the Minister for Research, made political use of the term burqa commonplace by explicitly referring to it when applauding the ruling. The burqa was back in the press only three months later, when a ruling passed by the HALDE confirmed a previous decision made by an administrative judge. [32] Once again media coverage and politicisation played off each other, while the HALDE’s recommendation provoked a large degree of unanimity within the political world. The problem returned in April 2009, when a Vénissieux family’s application for social housing was rejected because one of its members wore a full-face veil. The statements made by the parliamentary representative for the Rhône region, André Gérin, helped to push the affair into the media spotlight. The Communist representative stood apart from his political family as a result of his comments (on safety, the “Talibanisation of the suburbs” and the “oil slick of Islamism”) which garnered him popular support from the right and ostracised him from his own party. [33]

16While Gérin recognised the illegality of denying social housing on account of full-face veil-wearing, [34] he condemned in alarmist terms a practice, which, according to him, revealed the growing Salafist influence in the suburbs. Embarking on a moral crusade, he called for “Republican resistance” and tried to engage the interest of parliament. He thus instigated a proposal for a commission of inquiry to take stock of the situation and identify the recommendations that would be likely to put an end to “community-based separatism that is contrary to our principle of secularism, our values of liberty, equality and human dignity”. The proposition received broad support, especially from the right: 58 members of parliament (3 from the Parti Communiste, 7 from the Parti Socialiste, 43 from the UMP, 2 from the Nouveau Centre (NC) and 3 from independents) supported the project: [35] in other words, almost one-tenth of the National Assembly. The signs of political support proliferated, on the right of course, but also among the Parti radical de gauche, while the PC and a number of PS leaders (such as Laurent Fabius, Martine Aubrey and Robert Badinter) expressed reservations, accusing the majority of confounding the issue and instrumentalising the debate for purely political ends.

17Immediately after being tabled, the resolution received support from the highest levels in the Republic. On 22 June 2009, the President, breaking with the previous strategy that had seemed to favour the status quo regarding the issue of the veil, resumed the attack. [36] The Congress of Versailles became a forum for condemning a practice that the President denied was “a religious problem”, calling it instead a “problem of liberty and women’s dignity”, a symbol of the “debasement and enslavement” of women. Solemnly declaring that the burqa “would not be welcome on French soil”, Nicolas Sarkozy confirmed that the matter should be referred to parliament and was heartily applauded by members of parliament from both the left and the right. This declaration, interpreted by the parliamentary majority as a green light from the President, opened a window of opportunity for those in parliament who advocated for new restrictions on veil wearing, especially full-face veils. On 23 June, the National Assembly’s presidential committee, while it deemed creating a new commission of inquiry too comminatory, decided to establish a parliamentary fact-finding mission on the wearing of the burqa. [37]

A parliamentary fact-finding mission dominated by legislative entrepreneurs

18While the president of the Assembly, Bernard Accoyer, was an advocate for moderation and consistently presented the mission as a site for dialogue and evaluation of the situation, it was almost instantaneously transformed into the vector of a prohibitionist endeavour against full-face veils. The fact-finding mission suffered the effects of political one-upmanship within the majority group of the Assembly, pitting those who supported the President against followers of Jean-François Copé, the president of the UMP group. The mission had scarcely been created when Copé established an UMP working group on the same subject, and, without even waiting for the mission to start its work, publicly expressed the group’s intention to propose a bill in the near future to ban and criminalise full-face veils. Moreover, although the fact-finding mission met the existing proportionality criteria in terms of political composition (17 UMP, 12 PS, 2 NC, 1 PC), it turned out to be made up of a coalition of MPs well known for their hostility towards the veil in all its guises. The mission was presided over by André Gérin, who helped to create it, while the strategic post of rapporteur was held by Éric Raoult; both men used populist and Islamophobic rhetoric. The mission also included three MPs who, since the passing of the 2004 law, had spearheaded a number of new legislative restrictions on veils. Françoise Hostalier (UMP), the secretary of the mission, was also the author of a bill tabled in 2008 [38] that sought to ban, among other things, the wearing of religious symbols by individuals who worked, directly or indirectly, in public service. No fewer than eight of the bill’s signatories followed Hostalier to the fact-finding mission. In 2009, Hostalier had also been at the source of a controversy regarding a young woman who wore a veil when visiting the National Assembly in the context of a school fieldtrip. [39] Another heavyweight on the fact-finding mission, Jean Galvany (PS), proposed a bill to promote secularism in the Republic which sought to grant business leaders the right to regulate, under certain conditions, dress codes and the wearing of religious symbols. [40] Seven of its cosignatories were also members of the fact-finding mission. Jacques Myard (UMP) was also a part of the mission, and had been behind the very first draft legislation recommending the criminalisation of full-face veils in public. [41] The mission also included François Baroin (UMP), in charge of the UMP working group and who, much like the group’s president, expressed his support for a general ban on full-face veils. Nicole Ameline (UMP), former deputy minister for Parity and Professional Equality under Prime Minster Raffarin, and Bérengère Poletti (UMP), a member of the National Assembly’s commission on women’s rights, rounded out this core group of actors determined to put an end to a practice they deemed unacceptable.

19Thus, the fact-finding mission had barely been created before it became an investigative body working against full-face veils and exploring the possibilities of banning them as broadly as possible. [42] Among the more than 200 individuals who participated in the hearings, disagreements arose regarding whether it was necessary to ascertain if the practice was truly repressive for women and if a general ban was the best way to curb such a phenomenon. However, the practice was broadly condemned, including by Islamic representatives who viewed it as a form of religious deviance or a sectarian aberration. Buoyed by this moral consensus, the fact-finding mission – which chose to make its hearings public and thus received intense national and international media coverage – was where the image of the full-face veil was constructed and diffused as being fundamentally antithetical to the tripartite Republican motto. [43] As an impediment to the liberty of women to dress however they want, since they are required to conceal their faces, the practice was thus viewed as an attack on freedom in general. As a symbol of the inferiority of women and a form of “sexual apartheid”, the full-face veil violated the principle of gender equality. And since concealing one’s face was a way of exempting oneself from the bare minimum of civility, the reciprocal exchange of gazes, the veil also violated the principle of fraternity.

20The Republican framework allowed for several different interests to overlap: a consensus was easily forged that presented full-face veils as “rejecting the principles of the Republic” and thus demanded their prohibition. [44] But as this prohibition concerned fundamental freedoms (regarding religion, dress and unrestricted movement), it ultimately faced the problem of legal feasibility. The hearings of legal experts, requested by the Assembly’s team of administrators, who wanted to situate the mission’s reflections in the context of legal possibilities, illustrated the tension that existed between the Republican tradition, in the name of which a ban on full-face veils seemed logical, and the limits imposed by the rule of law.

A new institutional context

22The situation was entirely different when the issue of full-face veils was debated. The threat of the Strasbourg Court had become more predictable: whereas debates on the 2004 law had unfolded in an uncertain context with regard to the Court’s position, the doctrine of France’s national margin of appreciation that had since become the norm somewhat eased this worry, even if censure was in no way excluded from the realm of possibility. [46] Most importantly, censure was overshadowed by the new institutional context engendered by the 2008 reform that created the QPC mechanism (priority preliminary hearings on constitutionality), which entered into force in March 2010. The jurists who spoke before the fact-finding mission were careful to draw attention to this new element. Denys de Béchillon, a professor of public law, thus stated that:

The atmosphere of false legislative security that has existed in this country regarding a certain number of laws that were known to be bordering on unconstitutional – but for which there was a political consensus – no longer exists. (…) In three months time, any interested person who judges as unconstitutional a law prohibiting the burqa will have the right to expedite proceedings with the aim of having it deemed unconstitutional by the Constitutional Court. [47]

Parliamentarians grapple with constitutional experts over politics

23Overcoming the obstacle of unconstitutionality by downplaying and even neutralising that risk thus became an essential task in defending the pertinence of a general prohibitory law. This goal was all the more crucial because the law’s constitutionality put the risk of censure by the Strasbourg Court into perspective, without however automatically excluding the latter. Eight experts were called upon to undertake an investigation of the legal possibilities: one state councillor, four constitutional experts, [48] one lawyer specialised in the jurisprudence of the ECHR, [49] and two magistrates from the Court of Cassation. [50] This range of law professionals, chosen by the administrators in charge of the fact-finding mission’s secretariat, put at the disposal of the mission’s members the experience and skills of judges who had presided over supreme courts, both judicial and administrative, with expertise in both constitutional and European law, as well as different perspectives on the compatibility of a general ban on full-face veils with the requirements of the rule of law. [51]

24Although soliciting such expertise stems from the growing judicialisation of legislative work, a trend that began in the 1970s, the position occupied by the four public law specialists reflects the success with which constitutional experts have managed to impose themselves as the specialists of reference. [52] This process can also be seen in the media appearances made by these experts throughout the course of the debate. [53] Whether experts were invited to discuss the debate or spontaneously expressed their opinion, the media coverage of their comments reflected and magnified the real effect of legal language’s hold on political realities. [54] Without speaking on behalf of the constitutional judges, the experts nonetheless contributed to expanding the latter’s jurisdiction over politics, while simultaneously establishing themselves as legitimate arbiters of constitutional law. These media interventions illustrated a relationship of competitive co-operation between the doctrine’s theoreticians and its practitioners, which – according to Bastien François [55] – in turn helped to disseminate and legitimise constitutional law.

25While the jurists consulted by the fact-finding mission willingly played the part of experts, they highlighted the conflict between the existing political will and the reality of the judicialisation of legislative work, which limited the number of viable possibilities. The reservations they expressed regarding the possibility of a general ban on full-face veils clearly attest to the law’s autonomy with regard to politics – especially as some jurists did not hide their support for such a legal measure. Furthermore, the public law professionals consulted more closely resembled royal advisors or “legists” than academics in their ivory tower, or cause lawyers active alongside social movements. [56]

26The councillor of state Rémy Schwartz, who participated in the hearings on account of his former position as rapporteur for the Stasi Commission, immediately expressed doubts concerning such a “terribly complicated” endeavour. [57] The conclusion arrived at by the second speaker, Denys de Béchillon, was final:

27

We have neither the tools nor the political culture necessary to prohibit the wearing of this item of clothing on French soil. [58]

28Anne Levade echoed the colleagues who preceded her. [59]

29It was thus in vain that various experts explored possible “avenues of legal qualification” [60] that might allow for the issue to be reimagined on the basis of different legal rules likely to open up broader possibilities for action. The experts were unanimous that the veil needed to be de-designated as a religious symbol, thus removing it from the highly protected realm of freedom of religion. Shifting the issue to another area of the law did not, however, offer any useful leeway for a law of general prohibition. For Rémy Schwartz, the constitutional principles of dignity and gender equality seemed like a possible avenue. The famous case in Commune de Morsang-sur-Orge which prohibited dwarf-tossing in order to preserve the latters’ dignity, also seemed like a fruitful line to follow. [61] In 1995, this ruling opened up the possibility of banning behaviours that were deemed contrary to human dignity, even despite the consent of the person(s) involved. But this possibility dried up as soon as Denys de Béchillon highlighted the flimsiness of the argument in light of the Strasbourg Court’s recent decisions.

30The imperative of preserving the public order was thus the only argument left. But even that argument had limits and seemed only to offer the possibility of a partial ban. Bertrand Mathieu, a constitutional expert, suggested broadening the scope of possibilities by presenting a ban as justifiable because of the need to be able to identify people in public dealings. However, he also warned against any general prohibitory law, suggesting instead a law that banned wearing a full-face veil in so many different situations that it became virtually impossible to wear one. To the members of parliament who clearly expressed their dissatisfaction with such an “a minima” law that seemed, to them, to be synonymous with defeat, Mathieu answered: “Whether you like it or not, today legislators are controlled by judges. I myself lament this imbalance in favour of judges, but it’s the reality”. [62]

31The fact-finding mission was thus the scene of frequent sparring between its most legislatively inclined members and the legal professionals standing in their way. Through these verbal skirmishes and sometimes unpleasant exchanges, politics and the law mutually tested each other, revealing the irreducible margin of autonomy of separate yet interdependent social universes. While the jurists argued for the exteriority or transcendence of the law to which objects are subject, the politicians tried to bend the law by expressing their scepticism regarding its objectivity and highlighting its contingent nature. The statements made to the jurists by the UMP representative Jacques Myard – one of the more fervent champions of a general ban on full-face veils – were emblematic of this stance.

32

As is always the case when speaking to legal experts, one must recall the scene from La Guerre de Troie n’aura pas lieu (…) where the jurisconsult must give Hector a legal interpretation of the Greeks’ attitude. He starts by saying that since the Greeks arrived right on the coast, it was an act of war. And then, being threatened, he immediately finds another interpretation. [63]

33This tension could equally be felt when public law expert Anne Levade was criticised, at the end of her speech, for refusing to adopt a position on whether legislators should limit themselves to the legal status quo or not. Tension flared up again when Bertrand Mathieu took the floor: Jacques Myard described him as a “mechanic of a constrained and self-censoring form of law”. [64] And it rose to the surface once again when parliamentarian Pierre Forgues accused him of “thinking like a judge”:

34

“Professor, I understand that judges can be prisoners of the existing laws, but I have a hard time understanding how a professor and researcher can be. You start with the idea that wearing a full-face veil is a personal freedom, but as you yourself have said, this is a (legal) fiction. Legislators must not let themselves get trapped by fictions, their role is to make laws on behalf of and in the interest of the people. They must be law creators. Freedom itself must be organised, and it falls to legislators to protect citizens, even when this is in spite of themselves. (…) In your view, can the law evolve? If legal matters are immutable, if no break from tradition is possible, I wonder what we’re doing here…” [65]

A new constitutional possibility

35Ultimately, the members of parliament had Guy Carcassonne to thank for creating a new constitutional possibility. One of the last jurists to be heard, Carcassonne’s line of thinking diverged from that of his predecessors. He identified a narrow but useable avenue to shift the law towards a general ban on full-face veils. A left-wing constitutional expert well known to members of parliament, Carcassonne agreed with his colleagues when arguing that neither secularism (a principle, he added, “which was required of the Republic but not of its citizens”) nor dignity (which could be “invoked with regard to legislators, but that legislators could not impose on citizens”) constituted solid legal grounds. Like Bertrand Mathieu, he argued that the notion of public order offered the greatest resources for the law. He proposed a broader view, however, not merely limiting public order to material considerations like public safety, health and order, but encompassing an axiological dimension. According to Carcassonne, public order included social issues and questions of public morality that justified not just a partial, but a general ban. Public order is linked to “social codes” that are seen as constitutive elements forming a shared value base. [66] These social codes mean that “there are parts of our bodies that we conceal and others that we show. Maybe in a thousand years we’ll show our genitals and conceal our faces, but right now the reverse is unanimously accepted.” [67] Considered from this angle, concealing one’s face disrupts the rules of normal civility and can be seen both as harmful to society’s interests and to justify, under Article 5 of the Declaration of the Rights of Man and the Citizen, legislative intervention to limit personal freedom. It can moreover be interpreted as an assault on others, in the sense that hiding one’s face means considering that others are insufficiently “pure, respectable or worthy” of seeing it. In that regard, Carcassonne saw the legal grounds for a functional ban under Article 4 of the Declaration of the Rights of Man, according to which “liberty consists in the freedom to do everything which injures no one else”. These were the arguments that allowed the expert to challenge the reality of any chance of constitutional censure.

36However marginal this interpretation of the law might seem, it nonetheless assumed almost instant authority among the members of parliament listening to Guy Carcassonne. Such authority doubtless stemmed from the fact that the interpretation benefited the parliamentarians’ legal utilitarianism, allowing them to transpose into law their political desiderata. However, some of this authority also came from Carcassonne himself, who was not only a well-known constitutional expert in parliamentary circles, but also a fervent advocate for strengthening the parliament’s role. His intimate and practical knowledge of how political power was exercised set him apart from his academic colleagues, who were less used to the political reality. [68] His proximity to political practitioners, who regularly praised his legal inventiveness, [69] his mastery of intersecting law-making institutions, his familiarity with the parliamentary world (which was clearly evident in the friendly exchanges that took place during his hearing): these were some of the main reasons that made Carcassonne a virtuoso at the overlapping games played between politics and the law.

37In order to open up a possible path for legislation, however, this hearing was not sufficient to put an end to the legal controversy. The controversy quickly rebounded thanks to the effects of the political rivalry between supporters of the President and those of Jean-François Copé within the fact-finding mission.

The constitutional argument caught in the political game

39In response to Jean-François Copé’s announcement, socialist representatives not only boycotted the end of the fact-finding mission’s work, but also brandished the constitutional argument to justify their opposition to any bill proposing a general ban. In its official position paper, the PS thus emphasised the need “to give preference to public actions […] that are indisputable with respect to our constitutional order […], nearly all jurists, including those consulted by the mission, believe that a general and absolute ban on full-face veils could not be established on solid legal, and especially constitutional, grounds”. [71]

40This argument was also wielded by members of the executive branch, who looked askance at losing control of a process from which they had hoped to reap political benefits. Several active ministers who participated in the hearings [72] thus systematically mentioned the risk of constitutional censure to challenge the pertinence of a general ban. [73] The statements made by Nathalie Kosciusko-Morizet, minister and vice-president of the UMP, and by Bernard Accoyer, the president of the National Assembly, likewise urged legal caution. The Elysée’s Secretary-General, Claude Guéant, and in turn the President himself warned those within their camp against advocating for a general ban and called for a solution that would garner broader political support.

41Invoking the risk of constitutional censure was also a sort of hobbyhorse for Sarkozy supporters in the fact-finding mission, among whom its rapporteur, Éric Raoult, could be counted. The attempts by Copé’s supporters to include a general ban in the report’s recommendations were thwarted. The report’s third section, titled simply “Prohibition?”, was entirely devoted to outlining the doubts that remained regarding the risk of constitutional annulment or the ECHR’s condemnation. Instead of a general ban, which was deemed too uncertain, three measures were recommended: adopting a resolution solemnly condemning the wearing of full-face veils as inherently contradicting Republican values; strengthening awareness regarding mutual respect and diversity, as well as voting on a law that would “ensure the protection of women who were victims of duress, which would strengthen the position of public officials confronted with this phenomenon”; and finally, a referral to the Council of State to continue exploring legal solutions to limit as much as possible the legality of wearing full-face veils.

The Council of State versus the law

42It is possible that this referral to the Council of State stemmed from the desire of some parliamentarians and the executive branch to preserve the rule of law. In addition to the fact that the followers of a liberal-conservative approach within the majority (represented by Bernard Accoyer and François Fillon) expressed hesitation regarding a general ban, several high-ranking government officials echoed the uncertainty expressed by the experts heard during the fact-finding mission. [74] All in all, the referral was a useful card for the executive branch to play to buy more time and regain control over the law-making processes that were slipping out of its grasp.

43In fact, the government resumed its legislative initiatives without waiting for the results of the judges’ deliberations. Right on the heels of the UMP’s defeat in the March 2010 regional elections, which also demonstrated the rise of the Front national, the French President announced his decision to pass a bill “in compliance with the general principles of the law”. While the announcement remained rather vague regarding the scope of the ban intended, only a few weeks later specific details were supplied: the Minister of Justice was tasked with developing a bill for a general ban.

44This news sparked even more controversy since in the meantime, the Council of State had published its opinion, [75] concluding that a general ban would be exposed “to serious legal risks regarding the rights and freedoms that were conventionally and constitutionally guaranteed”. [76] The Council’s report barred the constitutional path previously opened up by Guy Carcassonne during the fact-finding mission’s hearings, [77] thus rejecting the “non-material” notion of public order defended by the constitutional expert. The report did admit that references to a shared base of demands and guarantees – which this vision of public order entailed – had occasionally been used on an ad hoc basis to limit the right to family reunification in cases of polygamy, or to prohibit the use of the Pacte civil de solidarité (PACS-Civil Solidarity Pact) to legitimise incest, without the opposition of the Constitutional Court. But although the report highlighted these situations, it did so precisely to emphasise that such a definition of public order, having never been enshrined in the law by the Council or the Strasbourg Court, did not offer any guarantees against their censure. Consequently, the judges of the Palais-Royal advised a “strategy of encirclement” designed to extend the legally justified possibilities of prohibition.

The uncertain harnessing of constitutional law

45That which, a few weeks earlier, had been a political resource to regain control over the legislative process thus became a constraint that needed to be neutralised: which the executive branch sought to do by countering the law’s resistance with the political need for action. When the Council of State reiterated its reservations during the review customary for all legislative bills, it incurred the government’s wrath. The Prime Minister argued that it was the government’s responsibility to “force changes in the case law of the Constitutional Court and the European Court of Human Rights in order to address a new problem that did not exist twenty years ago”. [78] The President then used his authority to join the fray and attempt to influence the law. Insisting on his “political and moral responsibility”, the President did not hesitate to defy legal spokespersons by referencing the Canal, Robin & Godot case. The president of the UMP group also downplayed the scope of the report, which he saw as incapable of binding the government. While the issue was submitted to the law commission and then the plenary assembly, the Minister of Justice and the majority MPs tried in turn to clear the constitutional path that had been obstructed by the judges’ arguments. In this vein, the law commission’s report endeavoured to demonstrate the legal soundness of a law that had been presented as embodying consensus. A lengthy passage titled “A clear constitutional basis: public order” was devoted to reversing the Council of State’s argument regarding the immaterial public order. As an argument in favour of the law, the outline drawn up in the Council’s opinion to illustrate where this notion of public order had been more or less explicitly mobilised was reused. The argument’s logic was thus reversed to highlight what had been downplayed as ad hoc interpretations. The commission’s report not only confirmed that the immaterial public order “was (…) deeply rooted in our legal tradition and embedded in our constitutional framework”, but also that it “is the legislator’s job to define its contours by establishing the limits of the few rules without which social life is impossible”. [79] The report justified the democratic legitimacy of this situation by emphasising the “broad Republican support” enjoyed by the parliamentary resolution that had been adopted a few weeks earlier.

46The opposition leaders, on the other hand, were quick to frame the Council of State’s recommendations as confirming the political relevancy of their position in favour of a partial ban. Despite having voted for the resolution on the attachment to the respect of Republican values (11 May 2010), the socialists continually warned of the threat of constitutional rebuttal. As the leader of the parliamentary opposition to the bill, Jean Galvany condemned what he saw as “a legally weak and thus politically dangerous path”, [80] raising the spectre of “fundamentalist jurists” ready to exploit any legal loopholes.

47This controversy entailed new attention to jurisprudence, attested to by both the importance of the legal debates and the vast mobilisation of new legal consultations by the actors involved. If the debate surrounding the law grew so much in scope during the parliamentary trajectory of the government-proposed bill, this was in reality because its outcome was not just a numbers game. Thanks to the vote on a resolution, the parliamentary majority managed to forestall the risk of an a priori referral to a judicial authority. [81] The opposition’s resistance was thus limited to abstention. Nevertheless, the threat of an a posteriori review still loomed, likely to occur in the short term. Regardless of the political work needed to make the proposed bill legally viable in the political debate – and of the overwhelming majority that ended up supporting it [82] – nothing was guaranteed regarding the ensuing law’s ability to survive constitutional review. This was about a different type of political engagement: not only the engagement of constitutional law, expressed via authorised spokespersons, but the direct participation of the Constitutional Court, without which there was likely to be a political fiasco for the politicians who had drafted the bill.

A political coup: the presidents of the Assembly refer the issue to the Constitutional Court

49The extraordinary conditions under which the law regarding the concealment of one’s face was referred to the Constitutional Court warrants more analysis from this perspective. During the Assembly’s debate, shortly before reviewing the proposed amendments, Jean-François Copé recommended this measure:

50

“So that no ambiguity exists, and because some representatives have expressed doubts that the vote, regardless of how broad the consensus, could not appease, I wish for the law to be submitted to the Constitutional Court before its enactment, so that its implementation cannot be challenged […]). In my opinion, this will be a good way to put a definitive end to the polemic and not give any fodder to the extremists, who would be all too happy to claim victory.” [86]

51In accordance with this announcement, once the bill was voted through in the Senate, the presidents of both houses referred it to the Constitutional Council.

52Several gains ensued from this political “coup”. First of all, this procedural technique which sought to avoid a QPC was a move towards reconciliation with the opposition: one of its members, Jean Galvany, had called for this in the law commission. Though it was not sufficient to rally members from the opposition, most of whom refused to take part in the vote, the measure stripped the debate of all meaning, as it had until then focused on the constitutional argument.

53Second, this unusual procedure heightened the drama: the simultaneous referral to the Court by both presidents of the Assembly was in fact a new phenomenon. This extraordinary “blank” referral [87] was not without a certain solemnity, which, since it attested to a particular attachment to the Court’s role, accentuated its political responsibility. As a public staging of political power’s subordination to the law and its reverence regarding constitutional principles, this approach increasingly externalised the potential failure of the law onto the Court.

54However, several factors increased in advance the political illegitimacy of a potential censure. On the one hand, advocates for the bill were using this technique to try the Constitutional Court in the court of public opinion, which was largely favourable to a ban on full-face veils, if we refer to the polls published on the subject. On the other hand, the text, which was voted through by a large majority (and with no votes against it) ultimately did not provoke any real political opposition, or any visible social protests, and it benefited from the indirect legitimacy conferred by the unanimous parliamentary resolution condemning the wearing of full-face veils. Finally, the intense media coverage that the fact-finding mission received worked as a sort of echo chamber for the full-face veil phenomenon (which was otherwise quite marginal) and its representation as an act of incivility that broke the social pact, enslaved women and menaced society as a whole. [88] The reappearance of the terrorist threat in reaction to the legislative proposal [89] was the final element in the perfect storm in which constitutional review sought to intervene.

Approving the law without constitutionalising immaterial public order

55If we approach this situation from the perspective of game theory, approval of the law seemed evident, and the errors in its legal grammaticality spotted by commentators well-versed in constitutional case law were a small price to pay. In fact, most commentators saw the ruling as opportunistic, as trying to obscure the legal grounds for a decision while simultaneously approving it.

56Although clearing political actors of any future blame, the Court in fact strove to minimise the legal scope of its own ruling. Established as a one-off, unable to serve as precedent in the future, the ruling was moreover elaborated a minima. As Stéphanie Hennette-Vauchez observes, doing so meant “making its discourse not only elusive, but also tamper-proof […], a text that left no room for discussion, and even less for criticism”. [90]

57If such was the case, the entire point of this minimal control was to avoid explicitly recognising the notion of immaterial public order, lest it open a breach in the protection of individual freedoms. The constitutional arguments used to justify the Court’s decision, however, were the same as those put forth by Guy Carcassonne during his hearing before the fact-finding mission, and as those contained in the law commission’s report. The peremptory equating of facial concealment with a “practice breaching the requirements of life in society”, as well as a practice excluding women and making them inferior, were the main justifications given by the judges of the Constitutional Court. The latter also confirmed that legislators could set out a general ban on a practice as long as the practice concerned constituted “an action that is harmful to society” pursuant to Article 5 of the Declaration of the Rights of Man; such a tactic, however, would reverse the liberal logic behind Article 5, paragraph 2, which states that nothing may be prevented which is not forbidden by law.

The Republican conception of public order and the decline of liberal secularism

58Nevertheless, by confirming that the law could intervene in order to limit individual freedoms in the name of shared values, the constitutional review implicitly endorsed a societal concept of public order. This entails considering as acceptable general and permanent bans on certain practices in the name of allegedly shared values: in other words, this marks a significant departure from the past. Moreover, redefining the concept of public order – done explicitly by legislators and implicitly by constitutional judges – goes hand-in-hand with extending its scope, thus blurring the traditional boundary between public and private space, since public roadways and spaces open to the public are henceforth affected.

59By contributing a decisive argumentative link to the legal justifications for banning full-face veils, this new vision of public order governed by Republican values appears to be a necessary detour to limit a practice that, regardless of the efforts made to define it otherwise, remains a religious one. The reservations expressed regarding how to interpret “the exercise of religious freedom in places of worship open to the public” emitted by the Court thus laid bare the legal artifice used to justify the law. By requiring that the bill modify the ban regarding facial coverings in places of worship, the ruling cut through the fiction of generality and made explicit the real target, which was in fact a very specific practice. These interpretative reservations, designed to protect the law from censure by the ECHR, not only specified the true objective that had guided the legislation from the beginning, but also restored its religious dimension.

60The concept of an immaterial public order thus paves the way for the law to be mapped against Republican values, which, despite corresponding to the spirit of the constitutional principle of secularism, nonetheless operate politically. It also helps to reframe secularism which, when dealing with Islam, tends not only to become more exclusive than inclusive, but also veers towards becoming a civil religion. [91] As it presupposed legislative intervention to define its contours, the appearance of the concept of immaterial public order confirmed the decline in the use of case law to address religious matters. This trend began with the 2004 law, which followed a bitter legal battle challenging the legitimacy of administrative judges to have the final word on secularism by virtue of their role as the guardians of freedom. As a synonym for liberal secularism, the legal regulation of religious controversies – which in the past had lent the Council of State its nickname as “the regulator of parish life”, according to Gabriel Lebras – consisted first and foremost in protecting all individual freedoms from state encroachment: prohibition being the exception, and freedom being the rule. However, it is this almost procedural view of the management of religious affairs (in which judges limit themselves to arbitrating on a case-by-case basis) that is today being disrupted by repeated legislative interventions, which not only generalise prohibitory measures in the name of an increasingly broader definition of the common good, but also extend their scope via a similarly comprehensive definition of public space.

61***

62If any doubts still remained, examining how the law prohibiting full-face veils was elaborated attests to the crucial role played by the law in determining how the rules of the game are defined when attempting to integrate Islam into Western societies. [92] This essential role is also a remarkable vantage point for observing how law-making has been reconfigured, thanks to the rise of constitutional justice and to the toppling of the legal equilibrium that had hitherto governed religious practices, following the emergence of practices that were apparently contradictory to the values of democratic society.

63With regard to this first dimension, tracing the creation of the law banning full-face veils reveals just how futile it would be to proceed to an analysis in terms of communicating vessels, as if increased intervention by constitutional judges necessarily entailed a loss of power for parliament or the executive branch. It is undeniable that constitutional judges in France have become full-fledged actors in the legislative process and that they now represent a source of pressure that governmental and parliamentary actors can no longer ignore. Nevertheless, the latter do not lack resources to mitigate this pressure. While it is largely accepted today that the Constitutional Court has become a co-legislator or co-author of laws, [93] governmental and parliamentary actors also appear to be co-producers of the Court’s rulings. Although the Court’s decisions partially neutralise the legal arguments developed by governmental and parliamentary actors, they are nevertheless the product of time-consuming and costly “tinkering” with the law – in which constitutional experts engage more or less willingly – as well as the fruit of political strategies seeking, if not to bring the Court into alignment with the law, at least to prevent it from speaking out against it.

64Part of the explanation for this specific law’s constitutional approval lies in the socio-political context in which the Court conducted the constitutional review: a context that was partly the result of the media coverage of the parliamentary fact-finding mission, and of political strategies looking to pre-emptively delegitimise the possibility of censure. In that regard, constitutional approval merely reminds us of the importance of realistically interpreting constitutional justice, which, as it is embedded within the political realm, is partially dependent on the latter. However, it would be inappropriate to disregard or underestimate the extent of the legal and political work expended to enlist constitutional law and have the Court speak out against the burqa. While politics influenced the law, the law’s reasoning can also be seen in the drafting of the text. These “extrajudicial” constitutional deliberations certainly entailed political aims being tested by the law, forcing political actors to take the law seriously and to justify their legislative attempt in legal terms, which ended up being a particularly laborious collective endeavour. If the stamp of constitutionality at first appears to be the expression of a legicentric political and judicial tradition, we must nonetheless ultimately conclude that the law was created in the shadow of constitutional justice. The fact that this shadow had such influence on the process proves that constitutional approval was far from certain.

65If a French exception truly exists, we must look elsewhere to find it, perhaps in the form taken by the Constitutional Court’s ruling: its argument is both peremptory and laconic, [94] expressing a moral paternalism according to which wearing a full-face veil is defined in terms of society’s interests – which it supposedly endangers – rather than in terms of the meaning conferred upon the practice by its adherents. [95] The French exception reveals the symbolic effectiveness of Republican values, which in the name of the public interest and preserving the social contract of a holistic view of society, has come to subvert the liberal spirit of secularism: or in other words, to legitimise change in the name of continuity.