In two rulings today, the French administrative supreme court, the Conseil d’Etat, specifies the conditions under which the temporary display of Nativity scenes by public authorities is lawful.
The Conseil d’Etat reiterates the implications of laïcité (secularism). Under this principle, public authorities are required :
to guarantee religious freedom, including the freedom of worshipping.
to insure that public officials and public agencies stay neutral in religious matters, especially by avoiding any recognition or funding of a given religion.
The Conseil d'Etat rules that the 1905 Statutory law on the separation of Church and State, that puts in place the religious neutrality principle, forbids any display by public authorities of signs and symbols showing a public recognition or a preference for a given religion.
Nativity scenes have a variety of meanings: they have a religious meaning but are also a decorative element during the end of the year holidays. Given this plurality of significations, the Conseil d’Etat rules that the display of Nativity scenes by a public authority in a public space is lawful, only if it has a cultural, artistic or festive purpose, but not if it expresses a public recognition or a preference for a religion.
In order to examine whether a Nativity scene display fulfills a cultural, artistic or festive purpose, or on the contrary if it demonstrates a public recognition or preference for a given religion, the Conseil d’Etat rules that the display needs to be contextualized, taking into account the particular circumstances in which it is done, the existence or the absence of local traditions and the location of the display.
Given the importance of the location of the display criteria, the Conseil d’Etat distinguishes two situations:
Inside public buildings, where public administrations and services are located, a Nativity scene cannot be displayed, unless specific circumstances demonstrate its cultural, artistic or festive purpose.
On other public properties, given the festive nature of such displays in relation to the end of the year celebrations, Nativity scenes can lawfully be displayed, unless they constitute an act of proselytism or the expression of a religious opinion.
Applying these principles, the Conseil d’Etat quashes two appeal courts judgments.
The Paris Administrative Court of appeal had ruled that the religious neutrality principle did not allow under any circumstances any Nativity scene display by public authorities. The Conseil d’Etat censured this analysis, but decided on the merits that, given the local circumstances of the case, the considered display of a Nativity scene inside a local government building was unlawful.
The Nantes Administrative Court of appeal had ruled in favor of the display of another Nativity scene, but had not taken into account all necessary elements to determine its lawfulness. The Conseil d’Etat ruling refers the case back to the appeal court to reexamine the case accordingly.