Par Régis Dericquebourg

The population of France and the persons that govern it have variously adopted diverse social innovations.  Let us cite several examples.  Ecology, long considered the concern of backward-looking opponents to progress in the decade of the 1950’s, is now accepted by politicians as a necessary element of the electoral platform.  Homosexuality has ceased to be seen as an offence against the “natural order”.  The union of homosexuals has been legalized, and discrimination against homosexuals is punished by judges.  Many feminist demands have been granted.  Conscientious objection has been accepted.  The autonomy of adolescents is recognized, voluntary interruption of pregnancy has become legalized and regulated.
However, if France like other countries has assimilated a number of new opinions and social practices, she remains reticent, perchance opposed to the presence of religious minorities (so-called sects).  That this is nothing new has been demonstrated by historians who have traced it to the middle ages (See the work of Norman Cohn, Christopher Hill, and others.)  Of course one no longer murders marginal believers, but their presence is still unsettling.  All it takes is to survey the press on the subject and count the number of parliamentary reports consecrated to sects since the 1980’s.  Or again consider the attention and funding given to anti-sect militants by the public powers.
The critical question is what place should be granted to these religious movements if one refuses to acknowledge them as religions.

Secularity and religious pluralism.

In France, relations between religions and the State are governed by the principle of laïcité (here translated as secularity).  This principle took juridical form in the law of 1905, which separated “worship associations” (cultes) from the State. This approach, sometimes referred to as the “French exception,” is specific to France.  The principle has been invoked often by anti-sect militants as justification for refusing to accord a place in society for religious minorities. To us it is a unilateral and excessive interpretation of the concept of secularity, which in principle should provide the basis for a religious plurality where religious minorities (called sects) have a place, especially when it is difficult to legally differentiate between sect and established church.
The Law of 1905 is the result of a two stage history described by the sociologist and historian Jean Baubérot.
The initial stage was the Concordat. Voted on the 8th of April, 1802, it was an agreement (referred to hereafter as the Concordat) signed between the Pope and the French government in the aftermath of the revolution of 1789. In it, religious pluralism is accepted, for Catholicism is recognized only as the religion of the majority of French people, and no longer as the religion of France.  Also recognized are two branches of Protestantism and in 1808, Judaism.  In fact, the Concordat established the regime of recognized cults (worship associations).  It also considered religion as fulfilling a mission of public service.  But while the State and the religions made common cause, each was empowered to propose its own competitive code of conduct.  The Concordat regime lasted more than a century before being replaced by the Law of 1905, prepared under the influence of associations of free thinkers.

The second phase therefore begins at the enactment of the Law of 1905 (and its complement of the 2nd of January, 1907), designated as the “Law of Separation of the Churches from the State,” even though it refers only to cults rather than churches.  This law is held to establish an original form of secularism because few countries have such a law, the exception being Turkey which imitated it.  In the mind of the law makers, the Secularity of the law of 1905 created a modern liberty which includes both freedom of conscience and freedom of religion. This law is still in vigor in France, and its 100th anniversary has just been celebrated. In its first article, the Law of 1905 affirms:  “The Republic assures liberty of conscience.  It guarantees the free exercise of cults [worship groups] under restrictions which may be decreed in the interest of public order.”  The law sets up a regime of separation of religion from State in its second article which affirms that « The Republic neither recognizes nor pays the salaries of, nor subsitizes any cult. »

In his commentary on the Law of 1905 Professor Jacques Robert observes that the law promotes a two part religious liberty:  the liberty of the individual to freely chose or refuse religious membership, and the collective liberty which permits each group to organize itself to perform cult [worship] and to control its own activities.  The two articles of the law cited above imply the notion of State neutrality, which is consequent to the absence of the recognition of cults.
The State is neutral because it should show no preference for one religion and because it commits itself to guarantee to everyone the free exercise of cult [worship activity] in everyday life.  This may extend as far as recognizing conscientious objection when based on spiritual convictions.
The Law of 1905 also grounds liberty of conscience. It is a full liberty and not a simple toleration, which would be a type of condescension toward religious minorities.  This full liberty of conscience was already included in the text voted by the National Assembly on the 22 and 23 of August 1789:  “No person shall be troubled on account of his opinions, even of a religious nature, so long as their manifestation does not disturb the public order established by the law.”  The State even pledges itself to prevent violations of the freedom of conscience to the extent that its exercise does not upset public order.
The third implication of the Law of 1905 comes as a consequence: the nonconfessionality of the State. The latter must neither profess religious faith nor treat some citizens as spiritual deviants. The State pledges not to create distinctions between religions, nor as a consequence to define religion in a manner to identify « true religions » from « false religions ».  Nevertheless, to certain sociologists like Jean Paul Willaime, the ever present Catholic holy days in the calendar, the importance given to church buildings in the national and local cultural inheritance, and the recourse to Catholic funerals for heads of State, create the impression of a Catholicized secularity in which Christian imagery has become the imagery of secularity.
In principle, the Law of 1905 establishes a religious plurality where minority religious groups may occupy a space in the religious landscape of France on the same basis as Catholicism, Protestantism, Judaism, and Islam. Nevertheless, the Law of 1905 is not always interpreted in this sense.

Sects and the Law

The legal forms which religious minority groups, including sects, may adopt are: the simple association (association déclarée) which grants legal personality under the Law of 1901 ;  the association for public usefulness (association d’utilité publique), the granting of which requires an examination of the activities and purposes, the status of the congregation (Three conditions must be satisfied : communal living of the members, religious covenants, and obedience to rules approved by the Church); and the association for worship (association cultuelle).  This last form is accessible to all religious movements, but there is a qualification called “full recognition” without which an applicant group may not enjoy religious privileges such as tax exemption, access of chaplains to members in hospitals and prisons, or the right to receive charitable gifts and legacies.  Full recognition requires it to prove itself under examination by the ministry of Interior to be exclusively religious in nature. But each time that the State Council (Conseil d’Etat) has been called upon to arbitrate the granting of full recognition to a worship association, the theological discussion has been shifted to an examination of religious activities to ascertain that the group’s practices are exclusively religious.
For example groups have been excluded because of a publishing activity judged too commercial.  When applicants have created a separate commercial entity to print and sell religious works, their effort has not resulted in the desired recognition.  Other grounds have been found for opposition.  In the case of the Jehovah’s Witnesses, it has been the refusal of blood transfusions for children on the premise that this practice “clashes directly with our conception of the protection of health and with the right to life of the child.”
This type of thinking, according to Judge Jacques Robert, is a shift away from considering the purpose of the association as stipulated in the law to the study of the behaviors of its adepts. The judge’s criticism does not apply uniquely to the Conseil d’Etat.  Starting from infractions of the law committed by an adept, the media have incriminated the religious group itself.  It is as if one imputed to Masonic obedience the crimes committed by one of its members, who for absence of evidence had not been ejected.
In the case of religious sects, the logical shift has been reinforced by an Interior ministry precedent calling for a police investigation of the public interest of its “‘professed’ religious activities” and of the “manouverings” of its leaders and members.
When it comes to facts, the ill defined notion of public order leads to rejection of nearly all applications for full recognition of the status of worship association. Why does this happen?  To appease public opinion.  Example in point:  A past minister of Interior responded to a question by a member of parliament concerning a religious minority group under attack by anti-sect militants in the following terms:  “The administration is vigilant never to allow ‘this sort of sect’ to benefit from the Law of 1905 in regard to recognition of their worship.”  Consider the case of the Church of Christian Science.  Public opinion has covertly crept into consideration of their request for full recognition through the tactic of calling them a “church of healing”, while other groups belonging to the same organization have been recognized for decades. Thrashing by those opposed to sects added to media thrashing about ‘illegal practice of medicine’, of which they are not guilty, has achieved their exclusion.
It is uncertain whether Antoinism, although it received full recognition long ago, could be recognized today, as it is just as much a ‘church of healing’.  The facts testify that public opinion is taken into account when it should have nothing to do with the decision of full recognition.
In summary, through the practice of requiring full recognition of its religious status in order to grant the specific advantages due a worship association, the Republic has reintroduced a form of State recognized religions. As said by Dean Jean Carbonnier, “All religions do not appear to have the right of equal consideration…”

Although it exists in sociology, the notion of sect does not exist in French law, even though judges have attempted to introduce it into jurisprudence as a reason justifying a verdict.  Already in 1969, Dean Jean Carbonnier concluded:  “It appears to us however that all discrimination against supposed sects should be rejected (that of which a sect subsists is a substance not other than that which one designates as religion: it always has to do with the collective relation of men to Gods through beliefs and acts of worship.”
Later, Jacques Robert added: “Neither the number of adepts—religion remains a collective phenomenon, but three persons gathering can form a Church and a sect, here sparse, elsewhere a multitude—nor novelty—both heresies and reforms attest to the possibility of new beliefs, arising in an instant—nor eccentricity—but is conformity a constituent of public order ? none of these can lead to considering sects as other than religions or to treating them differently.  From the moment they rest on a set of beliefs proposing an explanation of the world and its creation, that they are based on practices and rites and that they maintain a permanent clergy, why are sects not seen as ‘religion’?” The author considers the civil and penal codes as adequate for dealing with infractions by religious bodies as for the rest of society..
As shown above, judges do not distinguish between sects and churches.  Sociologists introduced a typology to distinguish, in a non pejorative manner churches, sects, denominations, metaphysical groups, cults, and informal religious practices.  But in the law there are no churches, only « cultes » or worships.
This absence of distinction within the law has several consequences.  a) So long as they have not been convicted of disturbing public order, sects and other spiritual minorities should have the same legal status as religions.  Legal infractions of a believer should not be imputed to the group he belongs to unless the latter recommends them or benefits from them.  In the private sphere, the conversion of one spouse to a minority religious group should not constitute a justification for divorce so long as it does not endanger the life of the couple.  c) In the event of a divorce, custody of the children should not be decided on the basis of the religious membership of a spouse. The judge should consider only the material and intellectual interests of the child.  These may be trusted to a parent who is a member of a religious minority. As to religious training of the child, should an atheist or a dual indoctrination be provided for the religion of both mother and father?  d) Authorization to adopt children should not be refused to parents based on their religious affiliation so long as it does not harm the material and psychological interests of the child.

Factually speaking, there are very few legal complaints lodged against sects, and of them there are very few convictions.  There have been cases of handing out literature on the public streets, of children not appearing in the case of divorce (a situation seen often elsewhere), one case of fraud, some cases concerning conscientious objection (settled by M. Léotard in 1995), which have no basis to be filed anymore. The Family (former Children of God) has been cleared of every accusation of pedophilia after 10 years of prosecution.  The Jehovah’s Witnesses have succeeded in obtaining by litigation building permits allowing the construction of meeting houses that had been blocked by certain mayors under local pressure by anti-sect agitators.
There was one serious conviction concerning the Néo-phare group, but it came by application of the law concerning mental manipulation of 2001, and that is a subject different from that of the law of 1905. There have been notable cases where judgments in French courts (and only those of French courts) have been overturned by the European Court of Justice.  The same has occurred in reference to administrative discriminations.

Discussion

Secularity based on the Law of 1905 authorizes religious plurality and would permit us to conceive of a French religious landscape without religious discrimination.  Nevertheless the law is subject to the ideologically opposed interpretations that derive from the aspirations of those who promoted it, for the law resulted from the confrontation of conflicting ideas present at its writing. At the time, two strong tendencies were in opposition: a) A progressive secularization without bitterness, progressively separating religion from power and embracing the notion of independence with regard to religion.  This neutral secularizing current could accommodate religious pluralism. b) The active suppressive secularization with an agenda, leaders, partisans, and a militancy extending to an administrative program.  This we might call « combative secularization. »  This latter was in line with radical socialism and the anticlerical agenda of Emile Combes to expel the Jesuits and the Catholic teaching orders. c) These forces could combine in a settlement with the other France, believing France, in a pact placing on the same level a limited number of large confessions (Catholicism, Protestantism, and Judaism).  The law’s promoters did not anticipate either the arrival of an Islam that would call attention to itself (the wearing of the veil in school) or the multiplication of minority religious groups.
For some, secularity concerned only those religions on the stage during the debates of 1905.
Recounting the subsequent evolution of the religious field, Jean Baubérot brings up a third and deliberate stage of secularization, of pluralist conception backed by the Declaration of the Rights of Man and of the Citizen, mindful of the contribution of social sciences that includes religious groups among those voluntary and associative groups that prevent social fragmentation.  This same orientation of thought is expressed by Jean Paul Willaime under the name of dialogic secularity.
Another point:  Does the presence of sects call into question the secularity of the State?  It appears that is not the case as they are best served by a protective State secularity.  Also the minority religious groups do not seek privileged status. To maintain spiritual purity they distance themselves from the profane world.  Above all, these are religions of conversion not of imposition. The require a voluntary act of adhesion, even of those who have been instructed during their childhood. Consequently, many of youth do not follow the religion of their parents, and these religions have difficulty becoming a family religion.

Discussion.

The above considerations show that sects, as they are commonly called, are not incompatible with secularity as its inventors conceived it.  The Law of 1905 can justify neither those who oppose religion in general nor those who militate against sects in particular. We have shown in a chapter of a collective publication devoted to the question of the agitation against sects that this aggression is more a political orientation than the correct application of secularity.   Secularity is not a pertinent argument in reference to minority religious groups.  Let us come back to the formula spoken by Emile Poulat in La Croix : “Secularity in a jumble, appealed to for every purpose and no purpose, like modernity has become an incantation invoked upside-down and cross-wise, and served up with any sauce.”
Furthermore, we note that on the European level, the recommendations that followed the reports by Cotrell in 1984 and Hunt in 1991 go in the direction of the open interpretation of the Law of 1905, in spite of it being typically French.
For example, the recommendations are supported by the freedom of believe declared in article 11 of the Declaration of the Rights of Man and of the Citizen.  They affirm that one must not pass judgment against freedom of conscience, neither consider a special jurisdiction with a special surveillance system to identify infractions of minority religious groups, which should be treated as any other group before the civil and penal code.  They further mention that religious association status should be accorded to all movements for which the object conforms to the criteria in the law for identifying organizations engaged in commerce under a religious cover.

Conclusion.

Successive reports on sects have attracted the attention of foreign scholars.  These have often been highly critical.  They have insistently criticized the absence of proof; the vagueness of accusations; and the inclusion of historical religious minorities such as Protestantism; and the practice of including them with a jumbled catalogue of psychotherapeutic associations with no tie to even the most far-out religious thought; alternative movements; and discussion groups.  They have reproached the use of vague and non scientific terms of accusation such as “brain washing” or its no less discredited successor names, such as “mental subjection” or “mental manipulation”.  Sociologists and political scientists point out that what is in France a minority may be a majority somewhere else. The cases of Buddhism or of Hinduism are an illustration.

If certain states such as the United States or those of northern Europe have found fault with French reports and with France’s distrust of religious minorities, other states such as Belgium and China have taken inspiration or referred to France in an attempt to legitimate persecution of religious minorities that in the case of China include classic Protestantism and Catholicism.  While in France, the fight against the religiously unusual is rarely violent, the agitators are possessed of an obsession to which are added one after the other an anti-Americanism (sects being seen as Trojan horses from America), an underlying anti-clericalism misdirected against another target, the rejection of that which is perceived as running counter to enlightened thought, and the idea that a minority is a social pathology.

The question that is posed by religious minorities as well as by Islam is: what are the acceptable limits of pluralism and of representing society as not fragmented.
In fact, resistance to religious pluralism is more rooted in politics than in the principle of secularity that is invoked by those who agitate against sects.

Bibliographie succinte.

Jean Baubérot : Vers un nouveau pacte laïque ? Paris, Seuil, 1990.

Norman Cohn : Les fanatiques de l’apocalypse, Paris, Payot, 1983.
Emile Poulat : Laïcité-Liberté, Paris, Cujas, 1988.

Emile Poulat : La Croix, 13/09 :1996.

Jacques Robert : Libertés publiques et Droits de l’homme, Paris, ed. Montchrestien, 1971). p. 419-420.

Jacques Robert : La notion juridique de laïcité, Extraits de la Consultation du Professeur Jacques Robert (Octobre 1991).

Résolution sur une action commune des Etats membres de la communauté européenne à la suite de diverses violations de la loi commise par de nouvelles organisations œuvrant sous couvert de la liberté religieuse. Journal officiel des communautés européennes, 2 juillet 1984, n° C172/41 ;

Résolution sur les sectes en Europe votée le 29 février 1996. PV. Séance –provisoire adoptées 96 02 29 Fr.
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Alain Garay : Aperçu rapide sur la circulaire du 29 février 1996 relative aux “Mouvements à caractère sectaire”, La Semaine Juridique, n°15, 10 avril 1996.

Yvonne Desmur-Moscet : Régime des cultes, Paris, ed. Juris classeur, 1992 : fascicule 215, 2, 1992, p.16-22.

Recommandation 1178 relative aux sectes et aux nouveaux mouvement religieux, Official Journal of The European Communities, C 241, Vol. 35, 21 septembre 1992.

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Bryan Wilson : Les sectes religieuses, Paris, Hachette, 1970.

Jean-Paul Willaime : la laïcité culturelle, Projet, 240, Hiver, 1994-1995.

Dominique Kounkou (ed.) : Les nouvelles formes du sentiment religieux : un défi pour la laïcité moderne ? Paris, L’Harmattan, 2003.

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