The Council of State considered that a Christmas crib may not, a priori, “not to be installed” in a public place, except if this installation presents a cultural, artistic or festive “.
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The State Council had just decided, Wednesday, November 9, a question at once anecdotal and invested with a strong political charge : a town hall, a council-general or any other public person can install a nativity crèche on a public place without infringing the law of 1905 on the separation of Churches and State ? For the judicial assembly, the highest administrative court, which met when it comes to making policy decisions on contentious issues, it is yes, under certain conditions are quite restrictive, however.
Seized by two departmental federations of free thinkers, who challenged the installation of nurseries by the city hall of Melun (Seine-et-Marne) and the department of the Vendée, the administrative courts had rendered conflicting decisions. The Council of State was therefore called upon to decide in cassation, these two cases dating back to 2012.
The judges of the Palais-Royal had, in particular, decide if, in either case, the councillors had breached article 28 of the 1905 law. This one has that” it is forbidden, in the future, to raise or affix any sign or religious emblem on public monuments or in any public place whatsoever, with the exception of buildings used for the worship, of the land of burial in cemeteries, funeral monuments as well as museums or exhibitions “.
It was first to determine if a crib of the Nativity, which is none other than the staging of the birth of Jesus Christ, as it is told in the Gospels, is in itself a sign or an emblem religious. Not necessarily, answered the councillors of State, to the extent where, according to them, ” a creche is a representation that can assume a plurality of meanings “. Because it shows ” a scene that is part of the christian iconography “, she ” has a religious character “, but ” it is also a part of the decorations and illustrations which accompany it traditionally, without particular religious significance, the festivals of end of the year “.
The State Council therefore calls for a case by case evaluation to determine if the crib was installed by the public person has a ” character of cultural, artistic or festive without express recognition of a cult or mark a religious preference “, or if, on the contrary, it is also accompanied by a religious dimension, in disregard of the principle of neutrality which held the power of the public.
to perform this assessment, the Council of State application to take account of four criteria : the context of this installation, into which shall enter no element of proselytism ; the special conditions of the installation ; the existence or non-existence of local customs ; the place chosen to set up the nursery.
The assembly of the Palais-Royal in particular, a distinction between the nativity scenes erected in the ” within the walls of public buildings, seats of a public community or a public service “, and the other, in particular placed on the public way.
In the first case, the nursery will be a priori considered as illegal, except for ” special circumstances allowing it to recognize a cultural, artistic or festive “. Conversely, it will be more easily accepted in the street or on a place, as long as it is not in the nature of an opinion of religion.
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