The drama of the war in Ukraine must not overshadow the social issues on which the preservation of our democracy depends. This is the case with the issue of religious display in public service. On March 2, the Court of Cassation made an important decision on this issue, which will become a model. It ruled that the Bar Association could prohibit the wearing, in the robes of a lawyer, of any sign of religious, philosophical, social or political affiliation or opinion, and that the ban then extended to student lawyers.
Let’s summarize the facts. A student lawyer, of the Muslim faith, contested the inclusion (in 2019), in the regulations of the Bar Association of Lille, of an article stating that “the lawyer may not wear with the robe or decoration, nor any sign that ostensibly a religious, philosophical, community or political belief or opinion.” This rule change followed the applicant’s refusal to participate bareheaded in her swearing-in ceremony. Douai’s appeals court dismissed the student attorney’s appeal and ruled Which ” every lawyer, in the exercise of his functions of defense and representation, must erase what is personal for the defense of his client and the right The Court of Cassation agreed with the Court of Appeal, appealed.
The Court of Cassation had to answer two questions: is the Bar Association authorized in its rules of procedure to prohibit the wearing with a lawyer’s robes of any sign that expresses a religious, ideological, community or political image? Would such a ban constitute an attack on religious freedom?
In answer to the first question, the Court of Cassation ruled, in the silence of the law, that it falls within the competence of a council of the Order to regulate the wearing and use of the suit of its profession.
Sport should express belonging to a common citizenship, to a common humanity, and should not become a pretext for counting (and confronting) one another between tribes.
With regard to the second question, the Court of Cassation answered it by deeming the restriction of the freedom of expression of the religious beliefs of lawyers and student lawyers justified. By requiring its members to wear court dress without any distinctive sign, the Bar contributes to guaranteeing equality between lawyers and thus equality between litigants. Prohibiting the wearing of any sign that expresses a religious, philosophical, community or political conviction or opinion is therefore necessary and adequate to guarantee the right to a fair trial. It’s not discrimination.
From the bar…
We must commend the accuracy and clarity of this decision. We can also draw lessons by analogy with regard to two categories of people whose obligations have so far not been clearly defined in terms of religious and political discretion: student-teachers of the public and athletes who exercise their activity (training, competitions, etc.) . .) within the framework of a sports federation or a municipality.
What is true for bar school students is true for future teachers in public institutions who will also have to be fully available to their students (like the lawyer to his clients). This full availability is required both by the emancipatory vocation of National Education and by the respect for the equality of all for public education. It requires the prospective public school teacher to erase from his dress (and his conduct) any expression of political, philosophical, or religious allegiance.
… In sports
And what applies to the Bar Association also appears to apply to a sports federation. The second, like the first, can, under its autonomous regulatory power, impose obligations of religious discretion on its users even in the absence of legal authorization.
These, moreover, are proportionate to the eminence of the aim pursued: to promote equality between players, team spirit and the universal sporting ideals, on which rule 50.2 of the Olympic Charter is inspired, according to which: “ No form of political, religious or racial demonstration or propaganda is allowed in any Olympic venue, venue or other venue †
This principle of neutrality and the reference to rule 50.2 have been incorporated by the French Football Association into an article of its statutes: an appeal has been lodged with the Council of State by a group of “hijabs”. How can we imagine that the outcome of this lawsuit differs from that of the appeal that was rejected by the Court of Cassation on March 2?
Places where sports are practiced bring athletes together as athletes. If they became the seat of political demonstrations or religious displays, it would mean the end of the universalist values of sport and the power of inclusion. Sport should express belonging to a common citizenship, to a common humanity, and should not become a pretext for counting (and confronting) one another between tribes.
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Through the circle “Law and public debate”:
Noëlle Lenoir (Former Minister and Honorary Member of the Constitutional Council), President,
Pierre-Henri Conac (law professor),
Dominique de la Garanderie (Former President of Paris),
Jean-Claude Magendie (former First President of the Court of Appeal of Paris),
Jean-Yves Naouri (Managing Director),
Emmanuel Piwnica (lawyer),
Jean-Eric Schoettl (former Secretary-General of the Constitutional Council),
Frédéric Thiriez (Lawyer at the Councils),
Philippe Valletoux (advisor).