Religious Liberty and French Secularism*
Robert, Jacques, Brigham Young University Law Review
I. RELIGIOUS LIBERTY
The democratic state that endeavors to respect the opinions of all its constituents must extend its protection to all religious groups if religious freedom is to be considered more than a particular, subordinate aspect of the freedom to form one's own opinion. These two freedoms seem to merge into one, but, at the same time, religious freedom both falls within and extends beyond the bounds of the freedom of opinion.
Religious liberty is first and foremost an individual liberty because it represents an individual's ability to give, or not to give, intellectual attachment to a religion-to choose the religion freely or to refuse it. But it is also a collective liberty in that, not exhausting itself in faith or belief, it necessarily gives birth to a practice whose free exercise must be guaranteed. Free exercise of religion must be assured in order to guarantee complete religious liberty. This proposition presupposes that every religious movement must be the master of its own activities, possessing the right to organize itself freely. This free organization inevitably poses the delicate problem of relations between religions-or churches-and the state.
II. CHURCH-STATE RELATIONS
It is necessary to point out that the relations between churches and the state are not necessarily indicative of the general level of religious freedom in France. It is enough to say that such relations can be on equal footing with religious liberty-at least as much as any other specific relations.
France, for its part, has experimented throughout its history with nearly all of the existing formulas for church-state relations. If France has finally opted for what is termed a secular stance, it is because France found, at the beginning of the twentieth century, that the secular stance conforms more than any other to France's inclinations and ideals. This secular approach is not the only one to be practiced among democratic states; indeed, the secular approach is rare. Other approaches are perfectly conceivable and have been adopted by many states.
Even in a democratic state, it is possible that a sort of fusion exists between the "temporal" and the "spiritual," or at the very least a union between them that can manifest itself in various forms: a state religion, recognized churches, and incorporation of the church into the state.
Even if Europe alone is considered, one notices an extraordinary complexity in relationships between church and state. Although all European countries demonstrate a profound Christian influence, no juridical system is comparable to another. One finds in Europe a mixture of state-church systems (for example, the systems of England, Denmark, Greece, Sweden, and Finland); systems of separation (such as the systems of Holland, Ireland, and France); and systems using formulas that combine basic separation and cooperation (such as the systems of Germany, Belgium, Austria, Spain, Italy, and Portugal). However, profound influences are diverse, and not always in the way that one would think. For example, religious influence is stronger in Ireland (in spite of its system of separation) than in Sweden (which maintains a state-church system).1 The church-state connections are weaker in Catholic Europe than in Protestant or Orthodox Europe.2
From a legal perspective-especially in terms of sources of law-the fundamental principles that govern the relations between political power and religions are widely dispersed. They can be found in national constitutions, in European texts (European Convention on Human Rights3), in the laws of each state, in each country's historically observed practices, in concordats formed with the Roman Catholic Church, in international law, in various conventions passed with particular religious confessions (for example, in Spain or Italy), and in informal accords. Also, note that the varied nature of the state's recognition of denominations implicitly permits a distinction between the more represented denominations (and presumably the better established or more serious denominations) and certain others. …