This article is part of the IP 2021 series, in which we publish abridged, general-public versions of the academic papers presented in the Euroculture Intensive Programme. This year’s topic was Religion.
By Anna Oliwia Wierzbicka
On ne touche pas aux choses d’Alsace.
“Do not change anything in Alsace.” These words, attributed to the king Louis XIV, may never have been expressed by him, but they can be seen as evidence of the specific attitude of the French crown towards Alsace over the centuries. This attitude has lasted to this day, to the times of the French Fifth Republic. And one of its manifestations is the Concordat of 1801, which regulates the relationship between the state and four religious denominations in Alsace-Moselle (a region that consists of three departments: Haut-Rhin, Bas-Rhin and Moselle) until this day. It is still in force despite the adoption of the State secularism in France in 1905 by the French Law on the Separation of the Churches and State (Loi du 9 décembre 1905 concernant la séparation des Églises et de l’État), prohibiting any influence of the State on religious matters and vice versa.
At the end of 2011, during the French presidential campaign, the then socialist candidate François Holland announced that the Law of 1905 would be written into the French Constitution once elected, which would finally dispel doubts about the interpretation of state secularism in the French Republic. Later, as early as January 2012, he specified that the constitutional amendment would not apply to Alsace-Moselle. In 2013, the Concordat of Alsace-Moselle was challenged before the French Constitutional Court as unconstitutional. The attempt failed. The discussion around the Concordat as a challenge to state secularism continues in France, especially in recent months, when controversy has arisen over the public financing of the construction of a mosque in Strasbourg (the prefecture of the Bas-Rhin department and home to one of the Euroculture consortium partner universities – University of Strasbourg).
Alsace-Moselle is an exception to the French principle of laïcité – strict separation between State and Churches. The regional context of local laws, including with regard to religions, was constructed there and exists until now. The policymakers, the judiciary and other state actors are actively involved in creating the context in which a society lives and in which the law is enforced, this also applies to individual units inside national borders where created circumstances are different from those for the majority of a given country. In this case, the state actors established the possibility for the local Concordat regime to remain in Alsace-Moselle, distinguishing this region from the rest of France. How has the existing Concordat system in Alsace-Moselle been rationalised in official documents such as law proposals, decisions of the Constitutional Court and communication with the National Assembly in the light of the French principle of laïcité? To answer this question, we will explore the legal and judicial discourse surrounding the 1801 Concordat.
What is the Concordat of 1801?
The Concordat of 1801 was signed between Napoléon Bonaparte (the French Republic) and Pope Pius VII (the Holy See). As a result of negotiations from November 1800, the final version (the tenth draft) was accepted and signed on the 15th of April 1802 by representatives of both parties, and officially announced at the Notre-Dame de Paris. The Document establishes Catholicism as “the religion of the majority of French citizens.” At present, the Concordat still governs the relationship between the state and the Churches in the Alsace-Moselle. It recognises the four traditional religions of the region: Catholicism, Lutheranism, Reformism and Judaism and entails, among others, three main consequences.
The French Interior Ministry pays salaries to priests, pastors and rabbis as the religious ministers of Alsace-Moselle are recognised as civil servants. Religious education, which falls under the responsibility of the respective religious groups and their institutions, is a part of the curriculum in public primary and secondary schools. Moreover, the University of Strasbourg is the only university in France with Catholic and Protestant faculties of theology.
When the 1905 Law came into force, Alsace-Moselle was not part of France. As a result of the Franco-Prussian War, which France lost in 1871, Alsace-Moselle was annexed to Prussia, so French legislative changes did not apply in the region. The German legislators gradually introduced their own pieces of regulations and never abolished the Concordat system in the annexed territories. In 1919, after the First World War, Alsace-Moselle returned to France and its legal regulations were a mixture of French (pre-1871), German and local (1871-1919) laws. Initially, the French government set a transition period of ten years (repeatedly extended) during which the region was to fully adopt French law, but in 1951 it was decided that the local law would remain in force without a time limit.
Why does the Concordat matter today?
To get a clearer picture of a specific Alsace-Moselle legal and judicial environment surrounding the Concordat, this paper will look into four official documents – two legal and two judicial. The first one is the Proposition of Law N° 3216, submitted to the French National Assembly by Mr François Grosdidier and registered on 28th of June 2006. This proposal concerns the integration of Islam into local Concordat law in Alsace-Moselle. The second one is Decision no. 2011-157 QPC of 5 August 2011 delivered by the Constitutional Court on the matter of the constitutionality of Article L. 3134-11 of the Labour Code raised by the SOMODIA company, which challenged the prohibition of working on Sundays in Alsace-Moselle (which is also a provision of local law). Although the decision does not directly involve the Concordat, it confirmed the maintenance of local law in the region and has served to preserve the provisions concerning the relationship between the State and the Churches. The next one is Decision no. 2012-297 QPC of 21 February 2013, which went into the compliance of the Article VII of the organic articles of the Protestant denominations of the law of 18 germinal year X with the Constitutions, which requires the State to pay salaries to pastors in Alsace-Moselle. The complaint related to the Protestant denomination, but the decision of the Constitutional Court upheld the concordat regime in the region concerning also three other statutory denominations. The fourth and the last document is the Question N° 4739 delivered by Mr Bruno Fuchs to the National Assembly and published on 23rd of January 2018. The answer was issued on 1st of May 2018. The enquiry concerned the incorporation of Islam into the system of religious public education. The four documents express the division of French society on issues relating to the Concordat in Alsace-Moselle. Some segments would be enthusiastic about extending the Concordat to other faiths, such as Islam; while others would welcome its annulment in the spirit of laïcité. So what can we learn from these documents?
Firstly, the Proposition of Law N° 3216 requests the inclusion of Islam into the 1801 Concordat and presents the picture of inequality in Alsace-Moselle which affects in particular Muslim population. Expanding the scope of the Concordat to non-statutory faiths would be a solution for the problem, leading to increase in equality among the followers of different denominations in the region. The author makes use of bold and italicised statements to draw attention to the content, and to emphasize the inequality, and of rhetorical questions, which are intended to provoke reflection of the reader, to express the author’s doubt about the current state of affairs in Alsace-Moselle, or even sarcasm indicating that limiting the concordat regime to just four denominations is ridiculous.
Secondly, Decision no. 2011-157 QPC of 5 August 2011 blocked the inclusion of Islam and other faiths. Although the decision itself did not directly address the Concordat but local law as a whole, the Constitutional Court ruled that it may be amended only on condition that the action does not increase the differences in treatment or the scope of the local provisions will not be extended. In its decision, the Court referred to the Laws of 1919, 1924 and the Ordinance of 1944, which all upheld the local law of Alsace-Moselle, and to the 1946 Constitution, which, according to the Court, did not challenge the status quo in the region. Moreover, the body uses the words such as “increase” and “not manifestly disproportionate”, which shows an implicit acknowledgement that the current situation causes disparities in treatment, i.e. inequality.
Thirdly, Decision no. 2012-297 QPC of 21 February 2013 underpins the definition of the laïcité principle in France. Laïcité means that the State does not recognise any religious confession nor pay salaries to religious ministers. However, interestingly, the Court’s explanation is contrary to the situation in Alsace-Moselle. The justification for this contrast is as follows: the Court references to former legal acts – Law of 1919, 1924 and the Ordinance of 1944 (which is fully compatible with Decision no. 2011-157 QPC of 5 August 2011), subsequently the Court states that the 1905 Law does not apply in Alsace-Moselle. It also interprets the 1946 and 1958 Constitutions. Neither mentions the exceptional situation in Alsace-Moselle; the Court therefore concludes that the two constitutional Acts establishing the French Republic as secular were not intended to undermine and challenge the status quo in Alsace-Moselle. The Decision no. 2012-297 QPC of 21 February 2013 raises the only possible conclusion: the Concordat of 1801 was maintained by the previous legislators and therefore it is preserved now.
Finally, in Question N°4739 Mr Fuchs points out that the inclusion of Islam in the Concordat system in the region would allow to avoid discrimination against Muslim populations. As an argument for including other religions in the public education system is the fact that local documents on religious education do not specify which religions are meant. In its answer, the National Assembly refers to both decisions of the Constitutional Court justifying that the Concordat of 1801 applies only to specific cults and cannot be expanded. It contributes to the vicious cycle of tensions between supporters and opponents of the unique situation in Alsace-Moselle.
The Concordat signed in 1801 by Napoléon and still in force in Alsace-Moselle not only made this region an exception on the map of France, but is also a source of constant debate. Attempts are being made to include religions not currently covered by the Concordat, such as Islam, even after the decisions by the Constitutional Court, which have maintained the special status of Alsace-Moselle and served as an explanation for keeping it in an unchanged form. Laïcité, understood as non-recognition by the state of any religion is in conflict with the reality in Alsace-Moselle. How has the problem been solved by the Constitutional Court and the National Assembly? By referring to the old laws upholding the status quo of Alsace-Moselle and to the Constitutions, which does not mention this exception to laïcité. In Alsace-Moselle, where France recognises four faiths and pays salaries to the ministers of these faiths, the concept of laïcité was stretched to cover the region, and the tensions hang in the air.
Like any letter of the law, laïcité is susceptible to adjustments depending on the situation on the ground. In this case, the words credited to Louis XIV have proved to be more valid: “Do not change anything in Alsace.” More than a century has passed since the region was returned to French rule, but legal and judicial documents continue to express what its inhabitants have known for a long time. Alsace-Moselle is different. Given the recent controversies, perhaps it is time for the authorities to put more effort into the transition process. After all, two questions remain. Is there a limit to the broadening of the notion of laïcité beyond which it is no longer possible to talk about laïcité? And how long will Alsace-Moselle maintain the current state of affairs?
Image Credits: Anna Wierzbicka