Religious freedom in a secular society: the case of the Islamic headscarf in France

Abstract

In 1989, three Muslim girls were expelled from their secular public school in France for wearing the Islamic headscarf. Similar expulsions took place in other schools across the country and came to the attention of the international community. The schools believed that the wearing of the headscarf was contrary to the Republican principle of secularism, which is a central tenet of French society and public policy, particularly where education is concerned. In a bid to resolve uncertainty, the Conseil d’État delivered its legal opinion, stating that wearing religious signs in public schools was not by itself incompatible with secularism. However, religious signs could be prohibited in certain circumstances. Over the following years, many of the expelled schoolgirls appealed their expulsion decisions. In the majority of cases, the courts upheld the girls’ right to wear their headscarves at school. This paper discusses some of the significant events in the affair of the headscarf, including the 1989 legal opinion, key ministerial circulars issued to explain how the legal opinion was to be applied and the case law from the appeals brought by the expelled schoolgirls. The paper also considers the development of secularism in France and the notion of rights and duties which was integral to the doctrine of secularism. Finally, this paper considers some lessons which can be learned from the affair of the headscarf in France and notes some events which have occurred in Australia in recent years and which raise similar questions to those arising in the affair of the headscarf.