Crèche Clash

Here’s an update on a story I covered in this space two years ago: the Christmas Wars in France. For the past couple of years, plaintiffs in France have brought challenges against the display of Christmas crèches on public property. Plaintiffs argue that such displays violate the principle of laïcité—the French version of the separation of church and state.

Laïcité is a complicated concept that outsiders can easily misunderstand. Americans usually translate it as “secularism” and think of it as a particularly strict version of our own Establishment Clause jurisprudence, but it’s not that simple. Originally understood in expressly anti-Catholic terms, laïcité still connotes, for some French citizens, the idea that public life should categorically exclude religion. For others, it means something more like a benevolent impartiality toward religion. Former President Nicolas Sarkozy, for example, famously advocated a “positive laïcité” that properly acknowledged religion’s contributions—in practice, mostly Catholic—to French history and culture.

In short, laïcité is a contested idea, a marker in France’s continuing conflict over the meaning of the Revolution. So it has been unclear what the French courts ultimately would decide about the nativity scenes that French municipalities erect on public property every December. Recently, the Conseil d’Etat, France’s highest administrative court, issued a pair of rulings on the question, one in a case from Paris and the other in a case from Nantes. The rulings, which walk a fine line between banning all public crèches and giving them blanket approval, closely track American law.

The Conseil has released an official summary of the rulings in English. The Conseil begins by stating that laïcité forbids “any display by public authorities of signs and symbols showing a public recognition or a preference for a given religion.” A Christmas crèche poses a difficult case. Although a crèche can convey a religious message, it also has a non-religious meaning as a familiar seasonal decoration. One message is forbidden for the state, the other acceptable. Display of a crèche by a public authority is therefore legal, the Conseil declares, “only” where the crèche “has a cultural, artistic or festive purpose, but not if it expresses” recognition of or preference for a religion. To determine the meaning of a display, one must consider the particular circumstances, “including the existence or the absence of local traditions and the location of the display.”

Readers familiar with the American case law will recognize this as a version of the “endorsement test” our own courts use to evaluate the constitutionality of public nativity scenes. Under the test, first proposed by Supreme Court Justice Sandra O’Connor in a 1984 case from Pawtucket, Rhode Island, a display violates the Establishment Clause if it amounts to an official endorsement of religion, that is, if it suggests that the government approves a particular religious message (or disapproves such a message, though that issue does not regularly arise). Official endorsements make non-adherents feel like second-class citizens, the reasoning goes—like less than full participants in the political community. As a consequence, such endorsements violate the Constitution.

To determine whether a crèche amounts to an official endorsement of religion, one must look to all the circumstances, including the precise setting of the crèche and the presence or absence of non-religious holiday decorations. In the 1984 case, Justice O’Connor concluded that the city of Pawtucket had not endorsed Christianity. The city had included its crèche as part of a larger seasonal display along with other, non-religious decorations. An observer would conclude not that the city was promoting Christianity, she reasoned, but that it was marking a seasonal holiday with its traditional symbols.

The endorsement test has not escaped criticism. To distinguish between the religious and non-religious messages of a crèche seems very artificial. Moreover, cases often turn on minute details, which makes the law unpredictable; critics refer to a “three plastic reindeer rule,” under which the presence of a sufficient number of secular decorations in close proximity to a crèche render it constitutional. Scholars like Steven Smith point out that the neutrality of the test is an illusion. Removing traditional Christmas displays from public places suggests not neutrality about religion in public life, but hostility. It’s not even clear that the current Supreme Court would continue to apply the test. Notwithstanding the criticisms, though, for now the endorsement test is an important part of American constitutional law.

The Conseil doesn’t mention the American cases. That’s not surprising; French courts do not even cite their own prior decisions. But American constitutional law has increasing influence in other countries, and the Conseil surely knows about the endorsement test. Even without an acknowledgement, the influence of the test is clear. In the emphasis on a display’s context, and the need for a “cultural, artistic, or festive,” as opposed to religious, meaning, the Conseil’s rulings closely track the American approach.

The Conseil went beyond American case law, though, in announcing presumptive rules for display of a crèche that depend on whether the display is inside or outside a public building. Interior displays are presumptively illegal: “Inside public buildings,” the court declared, “where public administrations and services are located, a Nativity scene cannot be displayed, unless specific circumstances demonstrate its cultural, artistic or festive purpose.” With respect to exterior displays, the presumption is reversed: “Given the festive nature of such displays in relation to the end of the year celebrations, Nativity scenes can lawfully be displayed, unless they constitute an act of proselytism or the expression of a religious opinion.”

In short: Inside bad; outside good. I guess the idea is that an indoor nativity scene, as opposed to an outdoor nativity scene, is very likely to be understood as religious. But what sense does that make? Perhaps the court believes that citizens entering a public building to obtain a public service shouldn’t have to confront religious symbols of which they disapprove. That seems to me a valid point, though citizens often must confront many other symbols they find objectionable inside public buildings. Or maybe the idea is that it’s harder to avert one’s eyes inside a building than outside on the street. But neither of these concerns has anything to do with whether a display is itself religious.

Applying these principles, the Conseil ruled that the Paris Christmas crèche, which the city had displayed inside a local government building, was illegal. With respect to the case from Nantes, the court remanded the case for further consideration of the particular context of the display.

Whether the French version of the endorsement test turns out to be any more workable than our own remains to be seen. The problems of artificiality and unpredictability will no doubt perplex French judges as much as American, especially given the Conseil’s insistence that a nativity scene is acceptable only when it has a secular meaning. (When does a nativity scene ever have only one meaning?). The inside/outside distinction seems contrived.

Even more, removing nativity scenes may upset cherished local traditions, a possibility the Conseil itself mentions. Tradition cannot be the only relevant factor, of course; some traditions deserve to die. And the concern with avoiding offense toward non-adherents is certainly valid. But a test that eliminates a consistent and popular practice in the name of a disputed neutrality will irritate many people. No doubt some French will see the Conseil’s rulings as further examples of a campaign to de-Christianize their society, one that has been going on since 1789. In a year of tremendous political turmoil, the Conseil’s rulings may become another factor pushing the French electorate to the Right. I wonder what François Fillon and Marine Le Pen will have to say.

Mark L. Movsesian co-directs the Tradition Project at the St. John’s Center for Law and Religion.

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