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October 2007


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Questions about secularity through the Machelon and Fenech-Vuilque reports

by Phillipe GAST (attorney)

Religion has been a universal phenomenon in time and space since the Neanderthal man. It was so 100.000 years ago, when a humanoid offering food to the dead for their after-life asked him self for the first time: “am I a mortal body or an immortal soul? It continues to be so now-a-days, through the proliferation of rather whimsical theories on the same subject, made possible by freedom of belief, expression and association. Science has approached only superficially the question via NDEs (Near Death Experiences) or transpersonal psychology, it is natural and healthy that there would be a permanent effervescence about the existential question puzzling humanity for eons, particularly when we think of the melting pot of the last decades human and worship wise.

The question of religions generating a civilization gap on one hand and the proliferation of cults on the other hand, create chilly behaviors of withdrawal by keeping to what is known (one’s own religion), and rejecting the others. As Dean Carbonnier used to say, “a cult is somebody else’s religion” (so Protestantism is perceived as a cult by Catholics, Catholics are viewed in the same manner by Orthodox, Christians by Pharisee Jews, Muslims by Jews and Christians, Buddhists by Brahmans and so on)

Yet, conceptually, both ideas of religion and cult have the same eidetic structure: a tie (1) to the Eternal (subjective, spiritual, vertical) ; a collective tie (objective, horizontal), a dogmatic tie (the words of the founder are the truth, and they are unquestionable), the only difference if one stands from the viewpoint of a State governed by the rule of law where all what is not forbidden is permitted is that we keep the negative meaning of the word cult , for there can be a cult only if a dogmatic movement commits or leads people to commit illegal acts in connection with their tenets. Then, it is easy to recognize a cult: any movement definitively sentenced for having committed or having led other people to commit offences in connection with their tenets is a cult.

Besides, the religious functioning is intrinsically opposite to the democratic or scientific process in which truth is relative and results from the agreement of the majority while respecting the criticism of the minority. Indeed, it is a minority which, in the religious mechanism, imposes its unquestionable vision of the Truth. Secularity, which recommends separation between the secular world (non religious) and the religious world, can be understood in several ways:

- An inclusive way by abuse of language: one recognizes and subsidizes all worships (Concordat system, but… what about new religions?)

- Or in exclusive stricto sensu way: “the law recognizes or subsidizes no worship” (article 2 of the Dec. 9, 1905 Act). (3), indifference of the State therefore and of citizenship in relation to religion that guarantees the difference.

Often secularity is not foreign to religion founders themselves, as Buddha who founded the first monasteries with monastic different rules for monks and laymen and separate ways of life; or still when Jesus Christ advises “give to Cesar what belongs to Cesar and to God what belongs to God” or “my kingdom is not in this universe”. In a context of secular separation according to the exclusive French conception (closer to the first meaning), indifference from them State is a duty that must tolerate an exception only when religious freedom generates a prejudice (freedom being able to do all that does not harm others (3).

So, when religions generate a breach of the peace, be it via illegal behavior of historical religions through fundamentalist movements (Islamic fundamentalists, Catholic anti-abortion commandos…) or sectarian ones, the State has the duty to step in to restore democratic order, including by using repression and the disbandment of criminal organizations. It is within this context that a report was ordered by the government (3) to Mr. Michalon (President of Paris 5), handed in, in September 2006 aiming at the updating of secularity and that the National Assembly has handed in a report n° 3507on “cults and children” on December 12th 2006.

Even of a very uneven value, these two reports (the first one is rigorous and dialectic, even if one can challenge its viewpoint), the second one is purely ideological and as we shall see, both end up questioning the French idea of secularity as a strict separation. On one hand by involving the State in a much more active way in the religious phenomenon (I) but also and above all on the basis of a doubtful finally discriminating conceptualization (II)

I : Increased State interventionism in the religious field

Both reports recommend a stronger intervention of the State in the religious matters, whether traditional (A) or sectarian (B):

A: the interventionism sought by the Michalon report. It suggests, ensuring equality among worships (4), that the State must not hesitate in facilitating administrative emphyteutic (long lease) contracts, eventually with a provision for purchase nor subsidizing or supporting worship premises in order to organize social peace.

Indeed, the Michalon report justifies this interventionism by the fact:

1) That many local governments exert their right of pre-emption to prevent the implantation of worship premises (in particular Muslim ones cf. p. 12);

That, for instance the State has financed the Paris mosque in 1920 (p 19);

2) That the State financed a center for sacred art at the time the Cathedral of Ivry was being built (today it is an Arts center, not a worship one);

3) And above all when the Catholic religion benefits, thanks to the 1905 Act, of a perpetual and free use of historical places of worship, completely unfair for other worships (and this even though the Catholic Church had refused to create worshipping associations in 1905 by which many churches became local government’s property) public property (with a duty of maintenance in order to avoid liability for possible accidents) but still since, assigned to private associations (p. 29) by a system of legal affectation (diocesan associations by the way benefit from a statute coming from ‘international’ agreements with the Vatican);

That finally to justify their propositions of interventionism of the State, the report bases itself on the fact that in the Constitution, the exclusive conception of secularity is not explicitly mentioned, but only appears in the 1905 Act and therefore it is possible for the State, as soon as they maintain an egalitarian neutrality, to step in, without infringing secularity.

Concerning its finality, the purpose being social peace is praiseworthy and abides to the letter to the Constitution because while the word exclusivity is not mentioned, the very meaning of secularity makes reference to this separation from religion, proposing interventionism on grounds that the State should organize freedom is a highly questionable viewpoint. If it is true that any discrimination against religious movements is forbidden by the idea of secularity, the fact of having the State intervene constitutes a serious breach to the principle of article 2 of the Dec. 9, 1905 Act and if it is true that its principle is not defined in the Constitution which mentions secularity only in words of equality of tolerance, the idea of separation is inherent even to the concept of secularity as we have seen it and this separation is made clear in article 2.

Even if it is true that the 1905 law is strewn with exceptions and contradictions as the worshipping associations must be “recognized” as such by the Prefect if they want to receive untaxed donations… these exceptions should be suppressed. Indeed it would be much more advisable to clarify the 1905 law by strictly applying separation, without fiscal advantages (5) to worships because, in the end, why should the Republic grant fiscal advantages to ideologies that function in an opposite way?

The use of the 1st of July 1901 Act would be quite sufficient, under the condition that they may receive donations and legacies, as this is possible since 2005 (5)…. But the reason of these contradictions to the principle behind article 2 of the 1905 Act is to be actually found in the intention of the 1905 legislator of closely watching worships by forcing them to keep specific accounts and a very restrictive use of their money (but one could answer that nothing prevents tax controls on 1901 associations!)

Concerning worship premises, it is rather questionable to assimilate them to installations of general interest or as public equipments (report p. 28).

Indeed they are only for the use of private legal entities that participate to worship. Furthermore, populations participating to a regular worship are a minority (about 6 % of the French population and only 2 % of youngsters go to mass steadily).

It would besides be much more judicious to put on the real-estate market all worship premises outside the historic legacy; and then - as they are the property of public bodies – assign them to local worship associations (and why not cultural associations) against the payment of a rent for maintenance charges (this would contribute to an equality of treatment for worships : some would no longer be favored by this situation on one hand, and on the other hand, others find abnormal for the tax-payer to pay with his taxes the repairs of premises of a worship he may reject! One could even imagine, why not? That other worships or religions may rent these historical premises, in case there would not be enough Catholics to assume their expenses.

Concerning graves in cemeteries, the propositions of the report bring to light the contradiction between the principle of free individual choice of one’s sepulture (5) and collective requirements (hygiene – burying in the ground the bodies for Muslims and prohibition to re-affect the grave, or perpetual occupancy), it is clear that if infringement to freedom of worship and to private life appear here, public interest should stand first (if it established). But in as much as these imperatives are not at stake, why refusing denominational graves for people who want them? In this sense, the circulars of the Minister of the Interior answering Israelites and Muslim claims of 28th November 1975 and 14th February 1991 have indeed indicated to Mayors the possibility of actually gathering graves of the dead wishing to be inhumed in a grave proper to their religion, with the assistance of qualified people to provide for their funerals. But this possibility should be a right: dead people’s sense of community will not affect the living!

Concerning the statute of ministers of worship (6), why could they not be wage-earners and not have them follow the general system of social welfare? Indeed, the clergy subordinated to its hierarchy or maybe to the one of worship associations which set for them the place and time of worship activities, this corresponds to a subordination tie of a salary.

Concerning the excessive statutes of Guyana which is still under the system of royal laws on the Catholic religion of State and the one of the departments Alsace Moselle which are still under the Concordat system (and even though populations seem to visibly prize it) it would be advisable that the Republican and secular coherence be applied there as elsewhere, sending back religion to the private world.

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That the State pays for the salaries of the clergy of “recognized” religions is shocking, what about the other ones? And still more so if it would be compelled to insure a confessional religious teaching… as for students to be in the obligation to follow it except with an exemption (inversion as suggested by the report would only be a symbolic decision – p 68-). The teaching of the history of religions as a science, on the opposite, is a true duty for the State! The report has a tendency to take the Concordat system as a standard (p 68), which seems regrettable, but it is in the political line of the Minster of the Interior Sarkozy who had pushed for the creation of the Muslim Worship French Council in 2000.

As he is now the Head of the State, this foresees a five year period that will certainly be marked by this interventionism (in contradiction with his liberal political viewpoint recommending non-interventionism of the State in private activities, a State that must confine itself to assume his constitutional and Royal role) which concerning religion risks to develop a community attitude foreign to the logic of Human Rights which takes into account only the State and the People. Private legal entities are sent back to the private contractual report. But the contradiction is frequent in authoritarian systems or tendencies wishing to keep an eye and some control on religion which rises so many philosophical, economical, political stakes (Napoleon’s attitude, creating the Concordat remains the most obvious example).

B) An interventionism also sought by the Fennec report

From his very confession in the presentation of the report, it takes place in the straight line of the parliamentary reports (7) which have preceded it and which were disparaged : the 1995 one establishing a list of cults and the 1999 one denouncing their presumed financing. Always grounded on striking contradictions about the definition of cults (7) and above all the warping consist in quoting an allegation supposedly established in a movement (8) and then generalizing this allegation to unfold the behavior denounced in “cults”…

This method of fallacious argumentation used on purpose, constitutes a true mental manipulation, in the only true meaning of the word, the one of deception! The ideological and non juridical intention is obvious in particular for the Witnesses of Jehovah who have been recognized by the State (prefects, administrative courts and finally by the Council of State) (8) as a worship, but that the politicians of the report continue to qualify as a “cult”.

So about the idea of confinement of the child, instead of searching if movements have been sentenced for sequestration of children, the report pretends that the simple fact that children are born from parents who are members of a religious movement (arbitrarily qualify of cults) makes them “confined (p 21) ; the fact that children do not watch TV, listen to the radio, go to festivities and other “parties” constitutes a confinement (p 28)…

One will note the fine example of education presupposed by these words, considering the specifically edifying programs of the media and the fact that drugs are generalized in this type of « parties » and other « rave parties » ! Confinement would be doubled with mental manipulation (9) as soon as one tries to inculcate in a good-evil duality (p 32).

So the fact of inculcating values would therefore be harmful because it makes the child feel guilty (p 34).

So the fact of teaching what is legal and what is illegal, inevitably dualistic, would give a feeling of guilt and would be traumatizing for the child and therefore dangerous… So one will not be surprised that these politicians, with this type of politics are at the source of soaring youth criminality, in particular in schools where drugs, racket and violence against teachers, have become common place… which forces more and more parents to search for alternative educative systems and even to shelter in cults !

For, we must not overlook that escaping through cults reflects nothing else than the failure of classic decaying religious structures and of education from parents and the public schools!

All this would rather make one smile if the report did not put forth seriously freedom-killer propositions such as:

- Interdiction of proselytism (p 187) (while in the Kokkinakis case, the European Court of Human Rights (10) has admitted that proselytism was part of religious freedom of expression) and in particular numeric proselytism assimilated to a publicity that the About-Picard Act dated Dec.6th 2001 heavily punishes.

- It also seeks a “networking of the territory” (p 131) with Stalinist accents with increasing supervisory networks on education, health and training.

- We also will find here a serious infringement to freedom for psychotherapists (p 178, 179) who, as they are not holders of an exact science with systematically invariable results, cannot validly be controlled in a rigid way; it is enough, to protect the patient, by obliging the psychotherapeutic to inform his patient about his training, academic or not; then it is up to the free and so enlightened citizen to make his choice with full actual knowledge.

- We also find in this report a serious infringement to the right of the press by prohibiting sectarian publications or aiming at psychological (11) (sic !) subjection (p 91) because, considering the conceptual vagueness this covers, it is a total juridical incertitude and a considerable risk which would weigh on freedom of press.

- to conclude in an apotheosis, we will mention the opposition of the report to the “validation of results of academic researches” (p 82) carrying on with the fashionable tenet according to which the legislator steps in on sciences to determine what is historically “right” or not, for instance…

Therefore we note that the method is typically of an advertising and ideological nature (and not of a dialectic and contradictory type) as this is done in the scientific field) (12) and consists in starting from what nobody questions, i.e. the necessity to protect minors against any physical or moral attack, which indeed requires an important attention from the State, to slide towards the real purpose, i.e. attacking new religions. Therefore we are in front of this ideological report (coming from a large majority of Marxist oriented individuals), in in the way of classic propaganda of the former USSR. This invading interventionism…

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It can lead to nothing else than increased discrimination. This interventionism from the State can only end in discrimination (for instance between worship associations and non worship associations) on one hand, because when the State organizes a freedom, it inexorably limits it (A), but also, on the other hand, because starting from an inclusive secularity, the State then necessarily recognizes some religious movements and does not recognize others (B).

A: with limits inexorably connected to regulations…

The example of the Dec. 9, 1905 Act is typical of this tendency to regulate worships by adding extremely restrictive rules worshipping associations can practice only worship under the penalty to loose their statute, as the Council of State has confirmed it, and they cannot freely invest their funds (13). While, on the opposite, the July 1st 1901 Act is not very binding and it is often preferred by worships (in particular Muslims 90 % (14)).

In this direction, the Michalon report recommends some flexibility concerning their social object and with reason, but it is in the assumption where the existence of worship association would be necessary, which is questionable from the secular and republican viewpoint, because, as we have seen it, this raises various contradictions.

The example of the About-Picard anti-cult law, dangerous for freedoms, is also to be mentioned, because it is very vague in its concept of psychological subjection ; it is a perfect example of failure of this tendency to legislate for a yes or for a no, from the very confession of the Fennec report which quotes about twenty complaints and uses them as grounds (in six years), but out of which one case only (concerning Néo Phare – a widely unknown movement !-) has resulted in a sentence from the Court of Appeals of Rennes (p 105), but this condemnation is not yet definitive…

As we can see, the mammoth has given birth to a greenfly…Where is the important law that was to disband large cults in the news for 20 years and which was targeting Scientology, the Witnesses of Jehovah, etc?

One could even easily be ironical by stating that the 172 movements listed as being cults in 1995 are not cults as they have not been sentenced for sectarian abuses according to the About-Picard Act, nor, consequently, been disbanded… As we can see it, all this is only demagogic ideology without juridical pertinence, because the July 1st 1901 Act completely permitted to dissolve a contract of association for breach of law and order and good morals (article 6 of the Civil Code). But this State interference most of the time necessarily ends into discrimination.

B: By a necessarily unfair recognition.

This tendency to control is all the more obvious in the 1905 Act since it is precisely the Prefect who is in charge of recognizing worship associations from associations from the others.

So, some new religions benefit from this statute, but not others, and even if this mere fact is questioned by some politicians.

We will mention, in particular, new religions as the Witnesses of Jehovah that, after many years of refusals, have in the end been recognized by the Council of State as a worship (15); the fact that this movement is qualified as a cult by politicians shows the purely ideological view point of the Fenech report, while a serious juridical viewpoint would have focused on condemned movements.

We notice that inclusive secularity necessarily ends into discrimination, since some movements are recognized and not others and this happens at the mercy of political sides. Indeed, either the State must recognize all historical religions, but also the new ones (as soon as that they do not indulge into breach of the peace) or it must recognize some and not others and this generates discrimination.

So for instance, concerning historical religions, in Alsace the Muslim worship already has difficulties to be recognized (as Buddhists, Hindus and Taoists) which is discriminatory; and for new religions the problem is still worse! In a Concordat perspective, this situation is specifically unbearable: would one dream to salary the clergies of all new religions (Witnesses of Jehovah (16)…, to teach their tenets in schools …!

The granting of subsidies by the State or by local governments via long lease contracts (and still this measure is a small evil), of claims for corners in cemeteries, etc. can only also end in a swarm of recognition requests by foreign religions, but also by new ones and this only complicates the problem.

Only an exclusive secularity with a constitutional value (integrating article 2 of the 1905 Act in the Constitution) would avoid these dead end roads that furthermore, generate resentment from the concerned populations, which is the opposite of the result sought by the Michalon report that aims at social peace.

Philippe GAST
Attorney at the bar
University Professor

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(1) Article 5 of the 1789 Bill of Human Rights.

(2) (Of which the etymology sends back to follow – sequi - a new tenet which cannot be cut – secare - from an older one)

(3) Of which the classical definition suggested by Léon Duguit in 1925 in his Treaty of Constitutional Law was “worship is the accomplishment of certain rites, of certain practices which, in the believers’ eyes, put them in communication with a supernatural power.” Later on and in the same meaning, the Council of State defines “the public exercise of worship” as the “celebration of ceremonies organized with the purpose of the accomplishment of some rites or practices by people gathered in a same religious creed”. CE, contentious opinion dated 24th October 1997. This definition is in the end almost one century old and it has established the refusal of the qualification of worship association to the Union of Athées of which statutory object was “the gathering of people who consider God as a myth” p 42 ; CE, 17th June 1988, Union des Athées de Paris, AJDA, 1988, p 612. But, on the opposite the report of the Commission of Human Rights (dated 6th July 1994, Union des Athées v/ France, req. n 14635/AJDA 1993, p 496) positioned in the opposite way. The Commission of Human Rights noted that the main difference between associations of common law and worship associations was in the possibility to receive tax exempted donations. The Commission of Human Rights stated “that no objective and sensible justification” enabled to maintain such a distinction between the two types of association. Unfortunately, the Court did not yet pass the sentence on the merits in this case. This viewpoint could still be shaded as in a later decision, the Commission of Human Rights has considered that a movement which does not have “the statute of worshipping association could not ask for an identical treatment as the Catholic Church’s one”. (Association Sirvananda ed yoga Vedenta, 16th April 1998, req. n° 30260/96).

(4) The Catholic worshipping premises have been nationalized during the 1789 Revolution, in 1905 89 % of the Catholic premises were public property against 49 % for Protestant worships and 11 % for synagogues (Michalon report p 31)

(5) Freedom of private life of article 9 of the European Convention of Human Rights and on the other hand article 3 of the 1884 law that states that “is forbidden, in the exercise by the Mayor of his powers of police of cemeteries and funerals, any distinction due to the deceased’s creeds or of the circumstances of the death” (current article L. 2213-9 of the General Code of local authorities).

(6) As the one to re-assign the space after a 30 years statute of limitations (if not, in a few centuries, the whole Earth will become a cemetery!)

(7) As the report reminds it (p 53) the “Caisse Mutuelle d’Assurance Vieillesse des Cultes (CAMAVIC), financed by contributions, but its own resources being insufficient due to the diminution of the active clergy… The 19th December 1997 Act on the financing of Social Welfare for 1998 has aligned this system on the general system and has financially integrated it. The 29th July 1999 Act, on the creation of the Universal Disease Security, has conducted to the amalgamation of the CAMAC and the CAMAVIC. The fund of reference is now the Caisse d’Assurance Vieillesse, Invalidité, Maladie des Cultes (CAVIMAC), operational since 1st January 2001. Its specific role enables them to take into account the specificities of each worship for the implementation of social rules. To take only one example, the CAVIMAC presents the particularity of adopting contribution base estimated in a global and inclusive way, identical for everyone. Such is not the case of the general system (…) we cannot say the same for other worships, in particular the ones recently established in France. Presently, indeed, the policyholders who insures a full worship activity and who abstains from becoming affiliated to the CAVIMAC benefit from the minimum income of insertion, the universal disease security and eventually from the additional allocation of solidarity funds for the elder at 65. The present allowances of the CAVIMAC are such today that there is a great temptation to remain within the frame national solidarity system, mainly because as a “minister of worship” the concerned people will have to pay their elder and disease contributions” p 55 (7) for all that not checked, in lack of definitive penal condemnation and furthermore put forward without contradictory.

(8) The calculating about the method chosen is eloquent : it quotes between 60.000 and 80.000 children locked up in France on a base of a calculation according to which, for the Witnesses of Jehovah who would be about 45.000 in assuming that in these families there is at least one child, we came to the figure of 45.000 sic !

(9) (An old groundless Shamanic superstition pretending that one can impose an ideology to someone else against his will! While deception remains the only the only mental manipulation (well mastered by these reports!)

(10) Ruling dated 25th May 1993 (series A n° 260-A)

(11) In as much as exploitation is a good concept, the one of « psychological subjection » worded in the About-Picard Act (which did not want to take up the word mental manipulation) is just as nebulous!

(12) Regarding former reports, University research centers have not been consulted, which is significant about the objectivity of the approach, contrarily to the Michalon report, which is of a very different range.

(13) . "The worship associations cannot pay back money to 1901 Act associations. To avoid donations and legs from believers being “trapped” within worship associations, it is necessary to facilitate the circulation of financial flows between associations by abrogating the dispositions of article 19 of the 1905 Act and of the second paragraph of article 33 of the March 16th 1906, which prohibit transferring funds of worshipping associations to other associations outside this statute” p 42 of the Michalon report.

(14) Mainly since the suppression of the prior authorization for foreign associations, this is a questionable measure about the compatibility of their object with French law and order.

(15) Prefectures have delivered worship status to about one thousand associations – Le Monde 23rd – 24th of July 2006 - that has been confirmed by the Council of State.

(16) Since today this movement is recognized as a worship one

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