Summer has begun and it’s the time of year when France’s highest administrative court, the Council of State, is more or less expected to pass a brief decision or “ordinance” on swimming equipment.
Yet the same court ruled in 2016 that it would have been illegal for mayors to invoke secularism to judge and control what people wore on the beaches of the Côte d’Azur.
The two injunctions, which of course concern the burkini, are not incompatible.
And the debate around them – about freedom of religion, living together and, ultimately, majority views on decency and the law – will most certainly take on a pan-European dimension.
Sooner or later, the European Court of Human Rights (ECHR) in Strasbourg will have the final say on the matter and its judgment, such as that authorizing the banning of the full-face veil, risks influencing policy-making through the continent.
Starting from freedom of belief, the basic premise of the June 2022 decision of France’s highest administrative court is that one cannot rely on one’s religious beliefs to refuse to comply with the general rules governing relations between individuals and public authorities.
Far from reflecting extreme views on secularism [secularism]this principle was upheld by the United States Supreme Court in a 1990s case concerning ritual smoking of banned substances.
However, federal and state laws have been enacted to mitigate this absolutist position, and the ECHR has since issued numerous rulings that balance respect for religious views against the public interest promoted by the offending general rule.
If the Council of State (CoE) had followed Strasbourg’s approach, Grenoble might have won.
The security risk posed by the presence of suction valves in swimming pools, which has been invoked to ban underpants, shorts (and by extension burkinis), appears negligible. As for hygiene, this seems to be sufficiently protected by another rule requiring users to put on their swimsuits shortly before entering the water.
However, this is not the only questionable aspect of the CoE’s reasoning. The CoE also considered — in what constitutes, for a French court, a positive prospective reflection — that secularism did not prevent cities from voluntarily making collective exceptions to the general rules to take account of the religious convictions of users, under certain terms.
The condition that Grenoble was supposed not to have fulfilled was that of equality; he had only tried to accommodate Muslim pool-goers. Although this seems reasonable, the CoE did not bother to explain what other beliefs were not taken into account; and this is another reason why his prescription may not be fully convincing.
The above weaknesses in the legal reasoning cannot, of course, support accusations that the CoE harbors negative attitudes towards Islam, particularly when the Côte d’Azur decisions are taken into consideration.
It must be admitted that these cases differed from that of Grenoble in that they did not concern the use of public services.
However, the 2016 CoE injunctions seemed to favor, to some extent, religious lifestyles over other “clothing” preferences. The court found, for example, that public discomfort with the way people dress cannot, in principle, nullify civil liberties.
Still, public discomfort with nudity seems to continue to warrant some restrictions on what you can (not) wear on the beach. (In modern civilized societies, the reason for these restrictions is not the prevention of disorder or crime but “decency”.)
So, whether we like it or not, vague majority opinions about social acceptability still influence rulemaking. What should we do then to protect individual freedoms and avoid criticism of the inconsistency of the law and the opportunism of our highest courts?
The Grenoble decree may point us in the right direction since, according to the press, it also authorizes topless swimsuits. In doing so, he consistently defended the right to stir up trouble, not only among secular activists but also among social conservatives.
Should we then hope that Grenoble will be sanctioned by the European Court of Human Rights? Although for technical reasons this particular dispute may not be ready to be heard, we may get some indication of the prospects for success sooner than expected as Strasbourg recently agreed to consider a similar case in Belgium.
This article may have started on a humorous note. However, the burkini controversy should not be taken lightly.
It illustrates the many dilemmas facing European societies today. The pursuit of respect for human rights and social cohesion may compel us to make a genuine effort to accommodate people with strong religious beliefs (regarding holidays, prayer times as well as preferences in dress and food) while resisting a host of other demands related to restrictions on freedom of expression and the return of social conservatism.
And the above decisions of the CoE may have paved the way for serious reflection on what it takes to “live together”.