“character of cultural, artistic or festive” for their installation shall be established.
The decision Wednesday by the State Council on the nativity may not put an end to the debate on a question which may seem anecdotal, but which puts into play the principles of secularism, neutrality of the public service, and identity. “The controversy is not closed, even if discussion of the cribs to the day when Donald Trump is elected president of the United States seems a little ridiculous…”, sighed the lawyer.
After being examined on two occasions on the subject that has deeply divided the seventeen magistrates of the judicial assembly – the most solemn formation of the high administrative court – have held that the installation of a crib is only legal if it submits to strict conditions.
“A plurality of meanings”
To begin, the administrative law judges refer to the law of 1905 and its article 28, which prohibits the installation of signs or religious symbols by a public person. It is the principle. But they attribute to child care “a plurality of meanings” : scenes of the christian Nativity, but also “the elements of decoration of the profane”. In this logic, a nursery may be permitted, on condition that you adhere to a number of criteria. Its installation should be temporary, during the celebration of the end of the year. It must present “a cultural, artistic or festive” and does not express the “recognition of a cult or a religious preference”, let alone avoid all religious proselytism. It should also be set to “local customs”. Finally, everything depends on the place where it is installed.
A distinction is thus made between “public buildings”, the headquarters of a public authority or a public service, where the conditions are more demanding than in the “other public locations”. In the first, the ban is to bet unless its “cultural, artistic or festive” is established. In the latter, such as the square in front of city hall, access to public buildings, Christmas markets, the green light is given for the celebration of the end of the year.
” strong recognition of our identity, of our history and our roots”
What will be the scope of this decision? It is difficult to anticipate both the reasoning of the Council of State, the complex, is a matter of interpretations. A priori, only the representations of the birth of Jesus with “cultural, artistic or festive” are therefore permissible. But these three criteria remain quite vague. The elected supporters of the nativity scenes will find many reasons to justify their choice. Laurent Wauquiez (LR), president of the regional council of Auvergne, Rhone-Alps, is not deceived, announcing his intention to install a nursery at the council area for fun and history”. More delicate will be the claims of a “defense of the christian culture,” Robert Ménard, the mayor of Béziers close to the FN, or of a candidate in the primary from the right, Jean-Frédéric Poisson, who wants to”recall the christian roots of France”. The member of parliament Éric Ciotti (LR), which wants to add the word “secularism 8221; in the French currency, but it will again be a manger to the departmental council of the Alpes-Maritimes this year, also welcomes “strong recognition of our identity, of our history and our roots”. For its part, the Conference of bishops of France is careful not to take frankly party in the debate, recalling that “the presence of a nursery in all public buildings is not a claim of the Church is” catholic, but notes, “the attachment of the French to this tradition.”
Everyone sees noon at his door
As for the attorneys who have brought cases before the Council of State, everyone sees noon at his door. For Me Alexandre Varaut, lawyer for the department of Vendée, where it had been exposed to a Nativity scene, this decision “is going in the right direction despite the willingness to deny the evidence of an intimate relationship of the fifteen centuries between the French and the crèches”. But I Varaut anticipates “conflicts on the interpretation of the criteria adopted by the Council of State and, therefore, of new litigation.” Counsel for the national Federation of the free thought, to Me, Régis Froger is satisfied, himself, that “the principle of a ban in the public buildings and an authorization in the public space has been claimed” but also expects to revisit the issue arise at the discretion of assessments on a case-by-case basis.
The case-law of the wise promises to be very restrictive, however. The judges were seized of two conflicting decisions of administrative courts of appeal on nurseries in the Vendée and at Melun. However, for the case of Melun, they report that the crib is installed in the enclosure of a public building”, as it does to “no local use”, that it is not located in “an environment that is artistic, cultural or festive”. To conclude that this installation, which infringe the principle of neutrality must be reversed.