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Financing of Churches

No public funding for faiths

The principle of no public funding for faiths is formulated in Article 2, paragraph 1 of the Law of 9 December 1905: “The Republic does not recognise, pay the salaries of, nor subsidise any (...)

The principle of no public funding for faiths is formulated in Article 2, paragraph 1 of the Law of 9 December 1905: “The Republic does not recognise, pay the salaries of, nor subsidise any faith”.

To date, the ban on public funding is a logical consequence of the end of the system of recognised religions, in force throughout the 19th century, which was based on the public law status of four religious groups - Catholic, Lutheran, Reformed and Jewish - organised and funded by the state. The separation of church and state logically entailed abolition of the public budget allocated to them and which mainly included salaries for ministers of worship and maintenance of religious communities’ built heritage. In addition to Article 2, one must mention the ban on subsidising religious associations which replaced the abolished state religious institutions and were “formed to support expenditure, maintenance and the public exercise of a faith” (Article 18). These associations must have practising a faith as their exclusive aim and, in particular, they cannot “in whatever form, receive subsidies from the state, départements or communes” (Article 19).

This no-funding rule has exceptions laid down by the legislator and administrative case law has also contributed to mitigate the effects of this ban.

D 16 April 2013    AAnne Fornerod

No public subsidies and principle of secularity

With the introduction and constitutionalization of the principle of secularity within the contemporary legal order, the secular state finds itself faced with two imperatives: that of implementing (...)

With the introduction and constitutionalization of the principle of secularity within the contemporary legal order, the secular state finds itself faced with two imperatives: that of implementing religious freedom and that of equality between the faiths, which derives from the principle of neutrality. The constitutional principle of secularity thus refers at first glance to an equilibrium that is not in principle opposed to financial intervention by public authorities; rather, it should, as appropriate, merge with it. Consequently, we find several interpretations in case law.

The decision by the Council of State of 15 February 2013 that “a ban on subsidising faiths, which cannot be compared to a cultural practice, has for over a century sought to guarantee - taking into account the history of the relationship between faiths and the French State - the neutrality of public persons with regard to faiths” (no. 347049). However, it should be noted that the Council of State had decided in March 2005 that “the constitutional principle of secularity which applies in French Polynesia and implies neutrality of the state and local authorities in the Republic and equal treatment for the different faiths, does not in itself forbid granting - in the public interest and under the conditions defined by law - certain subsidies for activities or equipment required by the faiths”. As for the Constitutional Council, it proposes a definition of the principle of secularity, from which it follows that the Republic does not recognize and pay the salaries of any faith... but it does not address the question of subsidies (21 Feb. 2013, no. 2012-297 QPC).

D 16 April 2013    AAnne Fornerod

Legal exceptions

Beyond the exceptions contained in the 1905 Act itself, the legislator has intervened on several occasions to correct situations which may prove to be discriminatory in a religious landscape that (...)

Beyond the exceptions contained in the 1905 Act itself, the legislator has intervened on several occasions to correct situations which may prove to be discriminatory in a religious landscape that is profoundly different from what it was in the early 20th century.

Article 2 should be read together with Article 1 of the Law of 1905, according to which “The Republic ensures freedom of conscience. It guarantees the free exercise of faiths subject solely to the restrictions published hereafter in the interest of public order”. These provisions can be construed as imposing a commitment by the state to protect the expression of religious beliefs, which extends to funding if necessary.

From among the exceptions, spiritual assistance should be cited first. Article 2 of the Law of 1905 provides that: “there could, however, be incorporated into said budgets expenditure relating to running chaplaincy services intended to ensure the free exercise of worship in public establishments, such as high schools, primary schools, old people’s homes, asylums and prisons.”

As regards the important issue of schools in the history of French secularity, one should highlight the Debré law of 31 December 1959; it deals with the relationship between the state and overwhelmingly Catholic private educational institutions, linking them to the public education service and, as such, organizing their funding.

In addition, religious activities and organisations benefit from a set of tax exonerations and deductions.

D 16 April 2013    AAnne Fornerod

Religious and cultural activities

Case law shows that the scope of the principle of no public subsidies covers strictly ritual practices, but also encompasses the activities of religious organisations, whether related or not to (...)

Case law shows that the scope of the principle of no public subsidies covers strictly ritual practices, but also encompasses the activities of religious organisations, whether related or not to such celebrations. The ban applies not only to all public subsidies for religious associations in the 1905 Act, but also to associations under the 1901 Act that have a broader purpose than exercising a faith and even if the subsidy is not aimed at this religious activity. Accordingly, due to its social and cultural activities, an association cannot benefit, for example, from tax exemptions designed for religious associations. But, because of these religious activities, it cannot receive public subsidies either, which constitute subsidies to faiths prohibited by Article 2 of the Law of 1905 (Council of State of 9 Oct. 1992, no. 94455).

D 16 April 2013    AAnne Fornerod

Council of State decisions of 19 July 2011

The Council of State has in some way put an end to a paradoxical aspect of the public subsidies of religious activites, and abandoned a wider understanding of worship in five decisions of 19 July (...)

The Council of State has in some way put an end to a paradoxical aspect of the public subsidies of religious activites, and abandoned a wider understanding of worship in five decisions of 19 July 2011 that open up a new approach to the legality of public funding. Generally speaking, one can read into the case law that it has been adapted to a renewed manifestation of religious practices in public within a secularised society, insofar as they should be welcomed and structured under the same conditions as other manifestations of social life.

The solution adopted in the Commune de Montpellier decision (no. 313518) follows this direction: the city had made premises for the exercise of worship available to an association for a renewable period of one year. The Council of State points out that “a commune cannot refuse the application to use such a room for the sole reason that this request is presented to it by an association with the aim of exercising a faith”. On the other hand, the commune could not authorise lasting and exclusive use of this room for an association to practise worship; it would then constitute a gift of a building of worship, flouting the 1905 Law.

The Communauté urbaine du Mans decision (no. 309161) concerns adapting disused municipal premises to install a temporary place of ritual slaughter during the feast of Eid al-Adha. The Council of State recalls that allocating the building must exclude any act of generosity, but above all, it submits its legality to the existence of “a local public interest arising out of the need that faiths be exercised under conditions conform to the requirements of public order, in particular public safety and public health, considering the distance from any slaughterhouse in which ritual slaughter is practised, in accordance with regulations”.

The Madame V. decision (no. 320796) deals with compatibility between administrative emphyteutic leases for the construction of places of worship and the ban on public funding for faiths. The issue was raised with regard to the amount of rent charged to the religious associations concerned, which sometimes symbolically could be likened to a subsidy. According to the Council of State, the legislator intended to “waive” the provisions of the Law of 9 December 1905 to allow local authorities to facilitate the realisation of such buildings.

Finally, two decisions relating to the Commune de Trélazé (no. 308544) and the Fédération de la libre pensée du Rhône (Rhône Federation of Free Thought) (no. 308817) both deal with the financial support that municipalities can offer religious cultural heritage. The first case concerns the purchase and installation of an organ in a parish church by the municipality, in order to organise cultural events. The second concerns a municipal subsidy for the installation of a disabled access ramp in the Basilica of Notre-Dame de Fourvière in Lyon. In both cases, the Council considered that the city’s financial intervention was motivated by cultural reasons, that its intention was to promote its religious heritage. So that the subsidy would be legal and not fall within the scope of Article 2 of the Law of 1905, these facilities and the equipment had to be in the local public interest, related specifically to the importance of the building for cultural development or else tourist and economic development in the local area. They had in no way to be intended for the exercise of worship. The fact that such facilities or equipment can, furthermore and incidentally, benefit people who practise the religion has no bearing on the legality of the subsidy.

D 16 April 2013    AAnne Fornerod

Funding places of worship

Article 19 of the Law of 1905, which prohibits subsidies for religious associations, does however provide for sums allocated to repair buildings used for public worship not to be considered as (...)

Article 19 of the Law of 1905, which prohibits subsidies for religious associations, does however provide for sums allocated to repair buildings used for public worship not to be considered as subsidies, whether or not the former are classified as historic monuments.

The Law of 29 July 1961 (Articles L. 2252-4 and L. 3231-5 of the General Local Authorities Code) also enables public authorities to guarantee loans contracted by religious organisations in order to finance the construction of places of worship in developing conurbations. Public aid can also take the form of emphyteutic leases (Article L.451-1 of the Rural Code) for the construction of a place of worship on the private domain of the local authority owner: the land is thus placed at the disposal of the association (religious or not) via a long term lease, at the end of which the building becomes the property of the local community. More recently, the Order of 21 April 2006 (Article L. 1311-2 CGCT) opened up the possibility of resorting to the administrative emphyteutic lease “in order to assign a building of worship open to the public to a religious organisation”, within the public domain of local authorities.

The Ministry of Interior issued a summary document in 2016: Gestion et construction des lieux de culte, guide pratique (Management and construction of places of worship, practical guide).

D 15 April 2016    AAnne Fornerod

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