The French Constitutional Council was seized on 18 November 2025 by the juge des référés of the Council of State with regard to a question raised by the Association des Bleuets de France concerning the constitutionality of Article 36-3 of the 1905 Law on the Separation between Church and State, as amended by Law No. 2021-1109 of 24 August 2021 strengthening respect for the principles of the Republic.

The provision reviewed by the Constitutional Council provides, within the framework of the policing of religious worship, that the representative of the State in each Department or, in Paris, the Prefect of Police may order the temporary closure of a place of worship where instances of incitement to hatred or violence occur. According to the applicant association in the proceedings a quo, these provisions, as interpreted in prevailing case law, would allow the administrative authority to order the closure of a place of worship on the basis of elements lacking a direct factual connection with what occurs within the place of worship concerned. Such an interpretation would therefore rely on grounds extraneous to those provided by statute and would impose upon religious freedom a restriction that is inappropriate, unnecessary, and disproportionate in relation to the allegedly pursued objective, namely the protection of public security.

The French judges first reiterated that, pursuant to Article 10 of the 1789 Declaration of the Rights of Man and of the Citizen, freedom of conscience—and therefore religious freedom—must be guaranteed. They further specified that Article 1 of the Constitution enshrines equality before the law for all French citizens and the Republic’s respect for all beliefs. From the combined reading of these provisions, a specific obligation upon the Republic to guarantee the free exercise of religion may be inferred. Likewise, it is incumbent upon the Republic to recognize freedom of association, which may only be restricted where limitations are necessary, appropriate, and proportionate to the objective pursued.

In examining the contested provisions, the Constitutional Council focused on the preparatory works of the Law of 24 August 2021, which amended them. The legislature had pursued the constitutionally significant objective of preventing serious disturbances of public order arising from provocation or incitement to hatred or violence against individuals.

Furthermore, the Court specified that the closure of places of worship may only be ordered where acts of provocation or incitement to hatred or violence against an individual or a group have occurred within the premises concerned.

As regards the interpretation challenged by the applicant association as detrimental to freedom of religion and worship, the Constitutional Council denied the existence of a settled line of case law to that effect. At the same time, however, it clarified that nothing prevents the administrative authority or the prefect, subject to judicial review, from taking into account statements made outside the place of worship or ideas and theories which, although not disseminated by those officiating or managing the place, nonetheless present a sufficient connection with it.

Paragraph 2 of Section I of Article 36-3 further requires that any administrative order closing a place of worship must be preceded by adversarial proceedings and must contain an adequate statement of reasons. The legislature also limited the maximum duration of the closure to two months, excluding the possibility of renewal, and provided that any subsequent closure order may only be based upon new circumstances arising after the reopening of the premises. The measure must be justified and proportionate to the grounds on which it is based: accordingly, the prefect is required to assess the needs of those who regularly attend the place of worship and the possibility for them to practise their religion elsewhere. The administrative courts are entrusted with verifying that the measure is appropriate, necessary, and proportionate.

Finally, the Constitutional Council specified that the closure order may be challenged through interim relief proceedings under the Code of Administrative Justice, with the possibility that, where deemed appropriate by the judge, a public hearing may be held. In such a case, enforcement of the measure is suspended until the decision on the interim application is delivered, which must occur within forty-eight hours.

Having thus outlined the legal framework underpinning the contested measure, the constitutional judges ultimately rejected the complaint alleging a violation of constitutional requirements and accordingly declared Article 36-3 of the 1905 Law on the Separation between Church and State compatible with the Constitution. The Constitutional Council therefore denied the constitutional incompatibility of the provision under review in the wording resulting from the 2021 amendment, which had already been subject to constitutional review and revised or amended in accordance with the indications previously provided by the Council itself.

The decision therefore confirms the tendency of the Conseil constitutionnel to grant the legislature and the administrative authorities a broad margin of discretion in preventing phenomena of radicalisation, provided that such measures remain subject to effective procedural safeguards and judicial review. At the same time, the judgment consistently reflects the established constitutional case law on the matter by underscoring the centrality of proportionality review in adjudicating the tension between public security, on the one hand, and fundamental freedoms, including freedom of religion, on the other, particularly where broad interpretations of the conditions governing measures for the policing of religious worship are accepted.

 

(Comment by Martina Palazzo)