The idea of banning the Islamic veil in public spaces regularly resurfaces in French political debate. With the 2027 presidential election approaching, the proposal has once again come to the forefront, with the Rassemblement National confirming its intention to prohibit the wearing of the Islamic veil in public spaces, notably by imposing a fine.

Beyond the political positions surrounding the proposal, a preliminary question must be addressed: would a general ban on wearing the Islamic veil in the street be compatible with the constitutional and European principles protecting freedom of religion?

Under the law as it currently stands, the answer is far from straightforward. Such a ban would represent a significant departure from the legal framework currently governing the wearing of religious symbols in public spaces.

Secularism Does Not Require Citizens to Observe Religious Neutrality in Public Spaces

A common misconception in public debate is that the French principle of laïcité requires individuals to conceal their religious beliefs when they are in public.

This is not what French secularism means as a matter of law.

Article 1 of the French Constitution provides that France is a secular Republic, guarantees equality before the law without distinction as to religion, and “respects all beliefs”. The French Constitutional Council (Conseil constitutionnel) has also held that the principle of laïcité encompasses the guarantee of the free exercise of religion.

The Law of 9 December 1905 on the Separation of Churches and State follows the same logic: the Republic guarantees freedom of conscience and the free exercise of religion, subject to restrictions necessary for the protection of public order.

In other words, the requirement of religious neutrality applies primarily to public authorities and public officials; it does not constitute a general obligation imposed upon private individuals.

The French Council of State (Conseil d’État) has similarly stated that users of public services are, as a matter of principle, entitled to express their religious beliefs, subject to specific restrictions arising, in particular, from legislation, public-order considerations, or requirements relating to the proper functioning of the public service.

A fortiori, a person simply walking down the street is not subject to a general obligation of religious neutrality.

Under current French law, a woman may therefore wear a hijab or religious headscarf in the street, just as an individual may, in principle, wear a kippah, a cross, or another symbol expressing a religious belief.

The Islamic Headscarf and the Full-Face Veil: A Fundamental Legal Distinction

Another important distinction must be made: French law does not treat a headscarf covering the hair in the same way as a garment concealing the face.

Since the Law of 11 October 2010, no person may wear, in public spaces, clothing intended to conceal their face. For the purposes of that legislation, public spaces include public roads as well as places open to the public or used for the provision of public services.

The prohibition therefore applies, in particular, to clothing that prevents the identification of a person’s face. By contrast, a headscarf that leaves the face visible does not fall within the scope of this prohibition. This distinction is expressly confirmed by the French administration’s official guidance.

This distinction is essential.

The 2010 legislation did not, as a matter of law, establish a general prohibition on a particular religious symbol. Rather, it established a general rule prohibiting the concealment of the face, irrespective, in principle, of the individual’s religion.

The Constitutional Council upheld the legislation, finding that Parliament had struck a balance that was not manifestly disproportionate between the protection of public order and constitutionally protected rights, while entering a reservation concerning the exercise of religious freedom in places of worship.

The European Court of Human Rights (“ECtHR”) also held, in S.A.S. v. France on 1 July 2014, that the French prohibition on concealing one’s face in public did not violate the European Convention on Human Rights.

However, that judgment does not mean that any prohibition on religious clothing in public spaces would automatically be compatible with the Convention.

A Specific Ban on the Islamic Headscarf Would Raise Major Constitutional Difficulties

A prohibition specifically targeting the hijab or Islamic headscarf would be of a fundamentally different legal nature.

Where the face remains visible, the argument based on the need to identify individuals loses much of its relevance. The measure would no longer target the concealment of the face but rather the visible manifestation of a religious belief.

It would therefore directly interfere with freedom of conscience and the freedom to manifest one’s religious beliefs.

The Constitutional Council has held that Article 10 of the Declaration of the Rights of Man and of the Citizen protects freedom of conscience and that the principle of laïcité requires the Republic to guarantee the free exercise of religion. Restrictions on these freedoms must therefore be justified and comply with the requirements of necessity and proportionality.

It would consequently be necessary to identify a sufficiently compelling public-interest objective capable of justifying such a broad prohibition.

The principle of laïcité alone would appear insufficient for this purpose.

In its 2010 study concerning the full-face veil, the Council of State had already concluded that the principle of laïcité could not provide a legal basis for a general prohibition applicable throughout public spaces. It also highlighted the difficulties that a prohibition specifically targeting religious clothing could raise under the principle of non-discrimination.

That reasoning would carry particular weight in relation to a headscarf that leaves the wearer’s face entirely visible.

A Question of Equality and Discrimination

A prohibition expressly targeting the “Islamic veil” would also raise questions under the principle of equality.

Article 1 of the Constitution guarantees equality before the law without distinction as to religion and provides that the Republic respects all beliefs.

This inevitably raises the question: why prohibit the Islamic headscarf but not other forms of clothing or symbols expressing religious beliefs?

Legislation specifically targeting a symbol associated with one particular religion would have to justify that difference in treatment on sufficiently objective and compelling grounds.

Failing this, it could be challenged on the grounds of equality before the law, freedom of religion and the principle of non-discrimination.

Nor would framing the prohibition more broadly — for example, by banning all visible religious symbols in public spaces — necessarily resolve the difficulty. Although such legislation might be less directly discriminatory in its wording, its extremely broad scope would nevertheless constitute a significant interference with the freedom to manifest one’s beliefs in public.

Freedom of Religion Also Applies in Public Spaces

The legal debate should therefore not be reduced to a conflict between laïcité and the Islamic headscarf.

French secularism does not require religion to disappear from public life.

Its primary function is to ensure the neutrality of the State while simultaneously guaranteeing individuals’ freedom of conscience.

The street is not, in legal terms, equivalent to a public administration. Nor do citizens become subject to an obligation of neutrality merely because they are present in a public space.

Restrictions are possible: to protect public order, to enable the identification of an individual, to ensure the proper functioning of certain public services, or in other circumstances specifically defined by law.

However, moving from targeted restrictions to a general prohibition on wearing a religious symbol in public spaces would represent a fundamental change in the nature of the legal framework.

Would a Referendum Resolve the Legal Difficulties?

In light of the constitutional issues involved, the possibility of holding a referendum has been raised as a means of introducing such a prohibition. This strategy itself illustrates the legal difficulty surrounding the proposal: a prohibition enacted through ordinary legislation would face particularly stringent scrutiny as to its compatibility with constitutionally protected rights and freedoms.

However, recourse to a referendum would not, in itself, eliminate all of the legal issues.

It would first be necessary to determine the constitutional basis for such a referendum, the precise nature of the text submitted to the electorate, and its relationship with France’s international and European obligations.

More importantly, a change in domestic law would not automatically extinguish France’s obligations under the European Convention on Human Rights.

A General Ban Would Be Difficult to Reconcile with the Current State of the Law

Parliament unquestionably has a degree of discretion to regulate certain manifestations of religious belief where considerations of public order or particular circumstances justify doing so.

However, a general prohibition preventing an adult woman from wearing a headscarf that leaves her face visible while walking in the street would cross a very different legal threshold.

Such a measure could not simply be equated with the existing prohibition on concealing one’s face. It would directly affect the manifestation of religious belief and would therefore have to be assessed against the constitutional principles of freedom of conscience, the free exercise of religion and equality, as well as the protections afforded by the European Convention on Human Rights.

The issue therefore extends far beyond a debate about clothing.

It ultimately raises the question of how far the State may go in regulating the religious appearance of individuals in shared public spaces.

And this may be where the real legal issue lies: French secularism protects the neutrality of the State; it has not, to date, served as a basis for imposing religious neutrality on private individuals in the street.

Using laïcité as the basis for a general prohibition on the Islamic headscarf would therefore constitute not merely an extension of the existing legal framework, but a profound alteration of the balance between secularism, freedom of religion and public order under French law.

Picture of Artur Aldyrkhanov on unsplash