THE FAMILY COURT JUDGE TAKING

RELIGIOUS CONVICTIONS INTO ACCOUNT:

A FRENCH AND EUROPEAN PERSPECTIVE
by Hugues Fulchiron

ABSTRACT

Even in a secularized society, the family court judge is sometimes required to

take into account a parent's or a child's religious convictions, for example, those
concerning marriage, divorce, parental responsibility, or adoption. Can equili-
brium be reached among (a) the right of every person to freedom of conscience
and religious belief, (b) the protection of the rights and interests of others, in
particular the rights and the interests of the child, and (c) the defense of the
fundamental principles of the society in whose name the judge applies the law?
The judge's task becomes even more difficult because the question of the place
of religion and religious beliefs in society is closely linked to a country's
traditions, history, customs, habits of mind, and, in fact, identity. Nevertheless,
beyond this diversity, it appears that in a society like the French or the European
one, which respects pluralism of ideas and beliefs-that is, a society that seeks
to ensure respect for individual rights and freedoms-two words seem to guide
the court: neutrality and respect. In fact, the family court must remain faithful to
two commandments: "Do not judge beliefs" and "Do not judge believers." This
article explores these matters with special attention to French and European law.

I. INTRODUCTION

A few years ago, a French judge expressed his helplessness over a request he
had received: A Muslim father asked him to annul the baptism of his son into
the Catholic religion, which the mother had just arranged, seemingly at the
child's request, but without the father's consent. Once the father was reminded
that the state judge is fundamentally incompetent to rule about a sacrament;
once the possible liability of the priest who should have ensured the consent of
both parents had been assessed; once the rights and duties of the mother were
taken into account (in this case, she alone exercised parental authority); once the

I Professeur t l'Universit6 Jean Moulin Lyon 3; Directeur du Centre de droit de la famille

(Lyon).

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14 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

force of child's consent was weighed (but he was only seven years old); once
the child's interests were considered (the child lived in a Catholic milieu, but
was this vital and would it not have been better to retain his freedom of choice
about his multi-confessional family?)-then, an acknowledgement finally had to
be made of the difficulty for the family court judge to intervene in a matter that
by its nature transcends the legal framework within which we purport to deal.
What equilibrium can be found between the one's right to have one's
religious beliefs respected as guaranteed by the major international documents,
parents' rights, the rights of the child, and respect for the fundamental principles
of the society in whose name the judge applies the law? What if, for instance,
this had not been a baptism but a ritual circumcision? We recall the controversy
caused in 2012 by the decision of the Cologne Landgericht,2 and the debate
inspired a few months later by the Resolution of the Parliamentary Assembly of
the Council of Europe, about respecting the physical integrity of children.3 And
what if it had not been an established religion, but one of those minority
movements that a lot of people hasten to describe as "a sect"?
Conflicts between norms (national or international legal standards against
religious norms), conflicts of rights (individual rights and freedoms against
public order; individual rights and freedoms against individual rights and free-
doms), conflicts of interest (adults' interests, parents' interests, the child's
interest, collective interests), and conflicts of beliefs (as the family court judge is
often required to decide between opposing convictions) place the judge in a
particularly difficult position, especially as in family law it is not possible to
reason only in terms of law and principles: Family cases involve people, feel-
ings, and spiritual and worldly lives for which the judge has, in a way, to bear
the burden.
The judge's task becomes even more difficult because the question of the
place of different religions and of religion itself in society is closely linked to a
country's identity, traditions, history, and habits of mind. When we consider, for
instance, the incomprehension that has met French secularism and its concomi-
tants, such as the ban on headscarves in schools or the burqa in public places,4
when we consider the passions aroused by the question of crucifixes in Italian
public schools, or when we consider the controversies aroused in mainland

2 Landgericht K6ln 26 June 2012. This decision was followed by the adoption on Dec. 12,
2012, by the German Parliament of an amendment to the German Civil Code, which now
permits circumcisions under stipulated conditions.
3 Children's Right to Physical Integrity, Resolution 1952 (2013), Recomm. 2023 (2013),
Rapp. Doc. 13297 (Sept. 6, 2013), available at http://assembly.coe.int/nw/xml!XRef/X2H-
Xref-ViewPDF.asp?FileID=20174
4 See infra sections III.A.1. 3; III.B.2. 6.

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2014] Family Court Taking Religious Convictions into Account 15

Europe by Canadian experiences of reasonable accommodations, then we reflect

more generally on the difficulties that Western societies are experiencing in
encountering other societies, particularly traditional Muslim societies, where
law and religion are closely intertwined.
In reaching a decision, as with endorsing methods of reasoning, the family
court judge (or, generally speaking, the judge or the civilian, criminal, or
administrative authority responsible in the widest sense for family law) is
imbued with these particular characteristics, even if the judge is not always
conscious of this. This doubtless is what makes any comparison or attempted
synthesis extremely difficult. In fact, if the definitive rules are clearly stated in
national constitutional standards or in major international documents, the
manner of implementing them varies from country to country. In a society like
the French or European one, which respects pluralism of ideas and beliefs-that
is, a society that seeks to ensure respect for individual rights and freedoms (so
we lay aside systems that imbue the family court judge with the role of guardian
of the faith or that make the religious authorities responsible for providing
family justice)-two words nevertheless seem to transcend this diversity; two
words seem like fundamental requirements: neutrality and respect. To put it
another way, the family court must remain faithful to two commandments: first,
do not judge beliefs, and second, do not judge believers.

II. NEUTRALITY: Do NOT JUDGE BELIEFS

Faced with a situation involving the religious beliefs of family members, or of

one of them, the judge has a dual obligation: to try to objectify the situation,
which means dealing with matters that by definition go beyond the scope of the
law, by purely legal means; and to retain a certain reserve, which means
maintaining the necessary distance so his or her judgment is influenced neither
positively nor negatively by the nature of the convictions involved.

A. The Duty of Objectification

The commitment to objectification requires a dual effort from the judge in

general and the French laic [lay] judge in particular.

1. The court must first translate religious questions into legal categories,
the only categories under which it is called upon to make legal rulings.

The operation can be complex because, as mentioned above, beliefs, as well as

behavior or claims related to these beliefs, are of a special nature and do not fit

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16 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

easily within the framework of positive law. Two examples from marital law,
annulment of marriage and divorce, are illustrative.
First, the civil courts can be called upon (whether or not in conjunction with a
religious authority) to annul a marriage on the grounds that consent to the
marriage was not validly given. This might be the case, for instance, if the
husband had concealed the existence of a first marriage that had ended in
divorce, this first marriage precluding the celebration of a religious ceremony to
which the wife and plaintiff attached particular importance, or if the husband
had discovered on their wedding night that his wife was not a virgin, which the
applicant claims would be contrary to his religious convictions and would have
vitiated his consent.
In such cases, it is the judge's task to translate the demand and the reasons
motivating it into the categories of positive law, without dismissing religious
convictions a priori on the grounds that they should remain marginalized under
the law, but without deferring to them, either. In fact, the judge should address
the issue as a matter of lack of consent, by analyzing what seems to be decisive,
objectively and subjectively, about the marriage itself (marriage as it is consi-
dered in the society to which the judge belongs) and with regard to the under-
standing that the individuals concerned had of marriage when consent was
given. So the French court will pronounce the annulment of the marriage if the
existence of a divorce makes impossible the celebration of a church wedding to
which the applicant spouse attaches decisive importance.5 But the court will
refuse to take the woman's non-virginity into account, because even if this
condition were essential for the applicant, it does not objectively constitute an
essential quality of marriage in contemporary society, particularly as it recalls a
conception of the status of women that is hardly compatible with the principle of
equality. 6
Second, similar remarks could be made about divorce when religious prac-
tices are invoked in support of an adversary divorce or when one spouse
reproaches the other for proselytizing, excessive religious practices, or refusal to
participate in certain religious festivals. 7 Christianity, Buddhism, Islam,
Jehovah's Witnesses, and all other religions have to be placed on an equal
footing.8 The judge must avoid all ideological considerations to consider, as

5 E.g.,
Cour de cassation [Cass.] [Supreme Court for Judicial Matters] le civ., Dec. 2, 1997,
RTD civ. 1998 at 659, obs. J. Hauser; the husband has also to prove his religious convictions
and his respect for these convictions.
6 E.g., Cour d'appel [CA] [regional court of appeal] Douai, Nov. 17, 2008, JCP
2009, II,
10005, note Ph. Malaurie.
7 E.g., Cass. le civ., June 19, 2007, Dr. famille 207, no. 2007, obs.
V. L.-T.
8
See PH. MALAURIE AND H. FULCHIRON, LA FAMILLE [THE FAMILY] no. 718, 11 th ed. (2011).

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2014] Family Court Taking Religious Convictions into Account 17

objectively as possible, the grievances raised within the appropriate legal

framework-here, an adversary divorce-with the subtle equilibrium between9
respect for everyone's religious beliefs and the obligations implicit in marriage.

2. This effort at objectification requires that the judge assess each

situation in a concrete, rather than abstract, sense.

The judge who is respectful of everyone's religious convictions (the judge as the
guardian of pluralism) must not reflect abstractly about a belief of whatever
nature, but must consider the impact this belief has or may have on the concrete
situation in question. Otherwise, the judge would have to rule on the beliefs
themselves, which would amount to exercising a social policy about beliefs that
would be contrary to the principles governing a democratic society. Once again
we can consider two examples: adoption and the relationship between parents
and children after separation or divorce.
First, in France, as in other countries, adoption is limited by controls based on
the parents' ability to support a child. This control works through prior admini-
strative authorization, the agrment. This procedure has been highly contested in
the context of cases involving Jehovah's Witnesses. Authorization has on
occasion effectively been refused owing to the candidates belonging to this
religion, because of Jehovah's Witnesses' attitudes to medical treatment, or
more generally, because their view of the world would harm the child's
interests. The French Conseil d'Etat, hearing an appeal against a refusal of
authorization based on the parents belonging to the Jehovah's Witnesses, has
confirmed the trial judges' refusal of approval, linked in particular to the
applicants' hostility to blood transfusions. 10 In another case, the refusal was
based on the parents' militancy and their adherence "to a notoriously negative
vision of human society" (in the words of the social work inquiry)., Such
decisions are questionable, as they amount to judging beliefs, because belonging
to a faith and its prescriptions are, in the abstract, forming the basis of the
refusal, regardless of qualities that the parents might otherwise bring.

9 See J. CARBONNIER, DROIT DE LA FAMILLE, LA FAMILLE, L'ENFANT, LE COUPLE[FAMILY LAW:

THE FAMILY, THE CHILD, THE COUPLE], 21st ed., PUF, Th~mis, DROITPRIVE [PRIVATE LAW]
483 (2002).
10 CE Sect., Apr. 24, 1992, D. 1993 at 234, note I. Rouvibre-Perrier.
u CA Douai, May 3, 2001, JURISDATA no. 853609.

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18 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

One could also question the conformity of the law with the European
Convention on Human Rights (the Convention) 12 in the articles about the right to
found a family, 13 combined with the right to respect for religious beliefs 14 and
with Article 14 (rejection of all discrimination). At the risk of causing offense, a
comparison with the jurisprudence of the European Court of Human Rights
concerning the refusal of approval invoked against homosexuals seems most
enlightening; the Court has held that French authorities' refusal to approve a
homosexual applicant for adoption for reasons directly or indirectly related to his
or her homosexuality (taken as general information considered in the abstract)
constituted discrimination under Articles 8 and 14 of the Convention.1 5 1Would
6
not the same reasoning follow in cases concerning religious commitment?
Furthermore, this is what might be inferred from the judgments of the
European Court of Human Rights about parental responsibility after separation
or divorce, including the famous case of Hoffman v. Austria.1 7 In Hoffman, the
Austrian Supreme Court had overturned a lower court judgment awarding
parental rights to the mother. The Supreme Court's reasons related to her
belonging to the Jehovah's Witnesses. Accepting the father's arguments, the
Supreme Court emphasized that children were at risk of total social isolation
(see especially the Jehovah's Witnesses' attitude to religious holidays, including
Christmas); the potential consequences of refusing blood transfusions were also
evoked. The European Court of Human Rights held that this decision of the
Austrian Supreme Court violated the Convention. The Court stressed that the
social work survey, on the basis of which the judges entrusted the child to his
mother, had not revealed any potential danger. Similarly, in Palau Martinez v.
France's (another question of parental responsibility after divorce), a decision of
12 Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter
Eur. Con. H.R.), Sept. 21, 1970, 213 U.N.T.S. 222, available at http://www.ECHR.coe.int/
Documents/Convention ENG.pdf
13 Id., art. 12, provides that "Men and women of marriageable age have the
right to marry
and to found a family, according to the national laws governing the exercise of this right."
See also id., art. 8 (right to respect for private and family life).
14 See id., art. 9 (freedom of thought, conscience, and religion).
15 Frett6 v. France, Eur. Ct. H.R. App. No. 36515/97, Feb. 26, 2002, http://hudoc.ECHR.

coe.int/sites/eng/pages/search.aspx?i=001-60168; E. B. v. France, Eur. Ct. H.R. App. No.

43546/02, Jan. 22, 2008, http://hudoc.ECHR.coe.int/sites/eng/pages/search.aspx?i=001-84571
16 Eur. Con. H.R. arts. 8, 9 & 14; see G. Gonzalez, La Convention europtenne des droits de

l'homme et la libertt de religion [The European Convention on the Rights of Man and
Freedom of Religion], ECONOMICA (2007).
17 Hoffman v. Austria, Eur. Ct. H.R. App. No. 15/1992/360/434, June 23, 1993, not available
on hudoc.
is Palau Martinez v. France, Eur. Ct. H.R., App. No. 64927/01, Dec. 16, 2003, http://hudoc.
ECHR.coe.intlsites/eng/pages/search.aspx?i=001-61548

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2014] Family Court Taking Religious Convictions into Account 19

French courts was held to have violated the Convention. According to the
European Court of Human Rights, the court of appeal on whose assessment the
French Cour de cassation relied "ruled in abstracto and on the basis of general
considerations, without establishing a link between the children's living condi-
tions with their mother and their real interests.
19
Although relevant, that reasoning
was not in the Court's view sufficient."
In both Frett v. France and Palau Martinez v. France,judges were criti-
cized for having judged beliefs in the abstract and not in the concrete context of
the situation at hand. Religious belief is a point of fact, which the judge may be
required to take into account, 20 but it is only one factual element among others.
Again, the comparison with cases involving the homosexuality of one parent is
enlightening.2 1 In these cases, abstract assessment can mask a value judgment,
which is a source of discrimination.

B. The Obligationto Reserve Judgment

As the examples cited above show, the family court judge is subjected to two
kinds of temptation. The first and most obvious is to make a value judgment
based on the judge's own beliefs. The second, even more complex, is to set up
the court as an interpreter; that is, no longer to consider convictions from the
outside but somehow to try to consider them from the inside in order to better
appreciate the behavior or decision in question.

1. First Temptation: Value Judgment

As we have remarked, value judgment is the most obvious and most dangerous
temptation because it is most often unconscious. A value judgment may be
made from the judge's personal principles and values (but of course this is
linked to the more general problem of the judge's subjectivity, which is a vast
question), especially with reference to principles and values in whose name the
judge is required to apply the law.
In most cases, the consideration of the social consensus from which the judge
exercises power is a consensus more or less suspicious, if not hostile, to the
religious beliefs at issue. Outside states where law and religion are closely

19Id. 42; see Vojnity v. Hungary, Eur. Ct. H.R., App. No. 29617/07, Feb. 12, 2013,
http://hudoc.ECHR.coe.int/sites/eng/pages/search.aspx?i=001 -116409
20 See also systems providing that a child should preferably be adopted by a family of the
same religious confession, such as Quebec, the United Kingdom, and Russia.
21 Cf Salgueiro da Silva Mouta v. Portugal, Eur. Ct. H.R., App. No. 33290/96, Dec. 21,

1999, http://hudoc.ECHR.coe.int/sites/eng/pages/search.aspx?i=001-30004

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20 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

intertwined (for instance, countries under Islamic law), religious convictions are
usually invoked as an exception; that is, not to claim rights for oneself but to
deny them to others, such as taking parental authority from a parent, refusing an
authorization for adoption, granting a divorce, or demanding a protective
measure for a child. The risk is particularly high in a society like France, where
the more-or-less well-understood secular tradition tends not only to exclude
religion from the public domain, but mistrusts religion when it leaves its private
domain to hazard an appearance before the courts. To the point that any
religious belief invoked in support of a claim appears a priori to be suspect, the
temptation applies to all religions and even more so in the case of a minority
religion. But the risk is also present in countries that grant considerable latitude
to religion, because it is tempting to reason in terms of a definitive religious
model, making ideas that differ from it barely comprehensible or barely
acceptable. Somehow, there is a natural "sectarization"-a process interpreting
religious beliefs as belonging to an irrational sect that an authority such as the
court, by definition intended to stand for rationality, has difficulty dealing with.
The difficulty in finding equilibrium is particularly likely to occur when the
judge is called upon to oversee the relationship between a child and its separated
parents. Two recent examples are the Palau Martinez v. France ruling of the
European Court of Human Rights in the case of Jehovah's Witnesses,22 or the
French law on a parent belonging to the Railian or Siddha Yoga movements.
This attitude does not necessarily lead to adverse consequences for the parent
whose religious beliefs are involved, but it grants to him or her special status,
because it is necessary to prove that the religious convictions do not in them-
selves have harmful consequences for the child.
But the European Court of Human Rights, while ensuring that national
judges do not let themselves be guided by prejudices, shows prejudice in certain
cases. We may consider as examples the rulings in which the Court seems to
doubt the compatibility of Islam with the principles of a democratic society; that
is, with the ideal upheld by the Convention as understood and interpreted by the
24
Court.

22 Palau Martinez v. France, Eur. Ct. H.R., App. No. 64927/01, Dec. 16, 2003, http://hudoc.
ECHR.coe.int/sites/eng/pages/search.aspx?i=001-61548
23 Cf about a Muslim father, Cass., le civ., Oct. 24, 2000, RTD civ. 2001 at 126, obs. J.
Hauser: the father exerts considerable pressure on his young daughter as he requires her to
wear a veil.
24 E.g., Refah Partisi v. Turkey, Eur. Ct. H.R. App. Nos. 41340/98, 41342/98, 41343/98,
&
41344/98, Feb. 13, 2003, http://hudoc.ECHR.coe.int/sites/eng/pages/search.aspx?i=001-
60936, and the rulings about repudiation, or perhaps, in one sense, the ruling in S. A. S. v.
France, Eur. Ct. H.R. App. No. 43835/11, July 1, 2014, http://hudoc.ECHR.coe.int/sites/

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2014] Family Court Taking Religious Convictions into Account 21

On the other hand, the temptation to make value judgments can lead to
emphasizing convictions and beliefs excessively in the name of pluralism. The
danger may then trap individuals in model beliefs or practices, for which the
judge guarantees the respect, if necessary, against expectations or against the
interests of the parties. This may be the result of ill-administered, reasonable
accommodations, which assign the beliefs appropriate to a particular community
to individuals. The risk of communitarization then replaces the risk of
sectarization.
This approach, which assumes that the judge somehow becomes the defender
of religious convictions or of what he considers constitutes the religious convic-
tions of a particular community, recalls the second temptation to which judges
are subjected: the temptation of interpretation.

2. Second Temptation: Interpretation

When judges are required to understand the religious beliefs of the parents or
child, they must necessarily make an imaginative effort to appreciate both the
subject matter of litigation and the practical consequences of the convictions
concerned. Two dangers threaten a judge in what may appear at first to be a
natural process.
First, the judge may become the interpreter of the orthodoxy of beliefs, or,
especially, of the consequences that the believer attaches to them. In this type of
case, condemnation comes all the more easily because the judge highlights the
contradictions between the religious convictions invoked and the religion in
question. Two examples illustrate this point.
The first, and doubtless the best known example, concerns the delivery of a
get. We know that according to Jewish law, the husband must grant the wife a
certificate of divorce, the act of repudiation or get, if she is to be permitted to
remarry in compliance with Jewish law as understood by Orthodox Jews. If the
husband refuses to issue this letter, the wife sometimes applies to a civil court to
try to force him to do it directly (for instance by a penalty) or indirectly (through
damages).25
In such a situation, the French judge objectivizes the circumstances by
placing them under Article 1382 of the Civil Code, that is, under the general
principle of civil liability: a fault, an injury, a causal link. But to characterize the

eng/pages/search.aspx ?i=001-145466, about the ban by French law on wearing the burqa in
public places.
25 Jewish teachings and American civil law on this matter are extensively discussed in Rabbi
J. David Bleich, A Proposalto Withhold a Divorce Decree on Grounds of Equity, 5 INT'L J.
JURIS. FAM. (forthcoming, 2014).

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22 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

offense, the judge must search in religious prescriptions to determine whether

the husband is obligated to issue the get, whether its issuance depends solely on
his own liberty of conscience, or whether there are certain cases in which the
husband must grant the get while in others it would be only an option. The
European Commission on Human Rights had previously validated French
jurisprudence under Article 9 of the Convention in stating that according to the
Hebrew law, "it is customary to hand over the letter of repudiation after the civil
divorce has been pronounced, and that no man with genuine religious
convictions would contemplate delaying the remittance of this letter to his ex-
wife. ' 26 In a sense, the husband's refusal would be an offense, as he would not
be in compliance with the requirements of his religion, at the risk of placing the
woman in a particularly difficult situation. His refusal would be akin to an abuse
of law, justifying relief in consideration of the religious practices themselves.
Thus the civil judge can turn the court into the guardian of orthodoxy, which is
to say it can endorse the least ambiguous version of the religious doctrine in
question.27
The second example concerns the institutions of Islamic law. In some
cases-for example, the case involving a petition to deny custody to a mother
who has remarried a non-Muslim, or the case of a father who justifies his
behavior by invoking an alleged right of marital coercion by arguing from
religious considerations, the judge may be tempted to give the litigant a lesson in
Islamic law to demonstrate to him the unfoundedness of his demand, or at least
the nuanced nature of Islamic law on these issues. Undoubtedly, such a case
would be a good opportunity to give a lesson, but a civil court, whether
informed by one of the parties or by its own reading, has no legitimate right to
interpret religious practices or what the party considers, perhaps incorrectly, to
be derived from religion. Above all, such an approach may again lead judges to
turn themselves into arbiters of dogmas or beliefs.
More generally, the judge must avoid a second danger: no longer presuming
to control the orthodoxy of beliefs, but verifying their religious character (their
"religiosity") by attempting to distinguish between beliefs and social practices.

26 D. v. France, E.Ct.H.R. App. No. 10180/82, Dec. 6, 1983. The Commission emphasized
that the French court's judgment "also reveals that the applicant has been summoned to
appear before the Rabbinical Tribunal in Paris to explain his refusal to comply with this
precept," and concluded that "in refusing to hand over the letter of repudiation establishing
the religious divorce to his ex-wife, the applicant was not manifesting his religion in
observance or practice, within the meaning of Article 9, para. 1 of the Convention [i.e., the
Eur. Con. H.R.]." In consequence, "there was in this case, no interference with the rights
ensured by the Article 9 of the Convention."
27 Cf the decision of the Supreme Court of Canada in Bruker v. Markovitz, 3 S.C.R.
607
(2007), available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/tem/2397/ndex.do

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2014] Family Court Taking Religious Convictions into Account 23

The question is familiar and has been extensively studied by lawyers, sociolo-
gists, and anthropologists. Many family rules that people experience as religious
precepts actually are practices appropriate to a given society at a given moment
in its history, even having their roots in secular customs. The problem arises in
Europe most especially in cases involving populations from North Africa or
Turkey, whose beliefs combine precepts derived from religious origins that have
developed into social customs, some of which customs predate the arrival of
Islam in the country of origin. The situation is particularly delicate because these
practices have often crystallized in the host society; although they are changing
in the country of origin, they have become frozen in countries of immigration
where they form a kind of cement binding the community together. 28
Confronted with practices that the parties consider to be religious, can the
judge attempt to separate social from religious practices, reserving the protection
appropriate to religious convictions to the latter? In particular we think of
justifications for the alleged right to marital constraints and, more generally,
about the status of women, or even the area of tolerance that some people
maintain should include certain forms of domestic violence.
Such an approach could appeal to supporters of pluralism and respect for
cultural diversity, but it is far too ambiguous. Does the judge have the task of
separating the wheat from the chaff? Especially in the eyes of the parties, beliefs
form a coherent system. It remains useful to help people to distinguish between
religious precepts, social practices, and superstitions. This may be the role of
religious authorities or social mediators. But this is not the judges' job, and in
the eyes of the believer they have no legitimate right to do so.
To put it another way, it is appropriate that judges make an effort to compre-
hend in order to understand the facts of the cases before them, including their
social and religious dimensions; they cannot exercise judgment except with
regard to principles and values that underpin the legal order in which they
operate. Only those principles and values can justify infringing the right to
respect for religious convictions.
Moreover, the judge must avoid unreflectively attributing to individuals the
beliefs of their communities, as if the fact of community membership implied a
particular belief. What the judge must guarantee is the protection of an
individual right to freedom of belief and religion. This shows that beyond a duty
of neutrality (a duty of abstention), the judge is under an (active) obligation to
respect individuals' religious beliefs, and thus their natures as believers.

28 Supra section I.B. 1.

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24 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

III. RESPECT: Do NOT JUDGE BELIEVERS

This is no longer just a basic duty of reserve, but what we might call a positive
obligation of the judge: to ensure respect for the choices made by believers as
believers, insofar as these choices do not clash with essential principles that the
judge will also be responsible for defending.
As a believer, the individual has a double aspect: first, an individual aspect,
insofar as it is true that it is an individual belief that is in question and an
individual right that is protected; and second, a collective aspect, both in the
community of believers but also in the social community where the believer
resides.

A. The IndividualAspect

The family court judge is rarely required to rule about decisions that an adult
makes for him- or herself in the name of religious conviction (for example,
about a name or surname). At most, the judge may be required to draw conclu-
sions about, for instance, divorce or the manner of exercising parental
authority. 29 More frequently, judges are called upon to intervene in litigation
involving the choices that parents would impose on their child, or the choices a
minor child would like to make in spite of the opposition of a parent.

1. The Parents' Wishes

The first role required of parents for the child's general education and most
especially for the child's religious education is described in major international
declarations: the International Covenant on Civil and Political Rights (Article
18.4),3° the United Nations Convention on the Rights of the Child (CRC)
(Article 14),31 and the Convention,3 2 Protocol No. 1 (Article 2).

29 Infra section II.A. 1.

30 999 U.N.T.S. 171, Mar. 23, 1976, http://wwwl.unm.edu/humanrts/instree/b3ccpr.htm
31 1577 U.N.T.S. 3, Sept. 2, 1990, http://www.ohchr.org/en/professionalinterest/pages/
crc.aspx
32 Supra, note 12.
33 Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms, openedfor signature, Mar. 20, 1952, C.E.T.S. No. 009 [Protocol No. 1]. See also
Universal Declaration of Human Rights, art. 26(3), Dec. 10, 1948, G.A. Res. 217A (III),
U.N. Doc. A/810 (1948), available at http://www.un.org/en/documents/udhr/ index.shtml
("Parents have a prior right to choose the kind of education that shall be given to their
children."); International Covenant on Economic, Social and Cultural Rights, art. 13, 993
U.N.T.S. 3, Jan. 3, 1976, available at http://www.un-documents.net/icescr.html.1;

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2014] Family Court Taking Religious Convictions into Account 25

Under Article 14 of the CRC, parents are recognized as having a mission (the
text speaks of rights and duties): guiding the child in the exercise of freedom of
thought, conscience, and religion. States are required to make sure this right is
respected through a dual obligation-negatively (in respecting parents' choices
and refraining from interference in the exercise of the parents' mission), and
positively (by giving parents the means to carry out their mission). As an
example, states are not required to provide parents the means of educating their
children at home if the parents consider that the education provided in the public
or private school system is contrary to their religious beliefs. (The European
Court of Human Rights leaves states a wide margin of appreciation. There is no
consensus among the states that are parties to the Convention as to compulsory
attendance at primary schools, as the Court noted in Konrad v. Germany34).
Nonetheless, it is required of states that curricula respect parents' religious and
philosophical convictions. If family court judges are bound by this principle of
respect, they may be required to intervene in two situations: in the event of
disagreement between parents or in the event of danger to the child.
The case of parental disagreement is one of the most delicate missions of the
family court judge, especially as the assessment and decision-making criterion
for this area-that is, the child's interests (even if referred to as the child's best
interests)-loses much of its effectiveness here. The judge's unease is
particularly evident in a country like France, where the principle of secularism
tends to distance everything related to religion or the religious sphere from the
law.
French judges do not hesitate to punish a parent who would compel a child to
make a particular religious commitment without the knowledge or consent of
the other parent. This is not only because the choice of religion should be taken

Convention against Discrimination in Education, 429 U.N.T.S. 93, May 22, 1962, available
at http://www.unesco.org/education/pdf/DISCRI E.PDF (adopted by the United Nations
Educational, Scientific and Cultural Organization on Dec. 14, 1960). See generally Carmen
Garcimartin, Education in the Secular State: Whose Right Is It? 2 INT'L J. JURIs. FAM. 77
(2011).
34
Eur. Ct. H.R. App. No. 35504/03 1, Sept. 11, 2006.
35 Kjeldsen, Busk Madsen and Pedersen v. Denmark, Eur. Ct. H.R. App. Nos. 5095/71,
5920/72 & 5926/72, Dec. 7, 1976, http://hudoc.ECHR.coe.int/sites/eng/pages/search.aspx?i
=001-57509; Folgero and Others v. Norway, Eur. Ct. H.R. App. No. 15472/02, June 29,
2007, http://hudoc.ECHR.coe.int/sites/eng/pages/search.aspx?i=001-81356; Hasan and
Eylem Zengin v. Turkey, Eur. Ct. H.R. App. No. 144804, Oct. 9, 2007, http://hudoc.ECHR.
coe.int/sites/eng/pages/search.aspx?i=001-82580. Other Eur. Ct. H.R. cases of interest
include Lautsi and Others v. Italy, App. No. 30814/06, Mar. 18 2011, http://hudoc.ECHR.
coe.int/sites/eng/pages/search.aspx?i=001-104040 and Grzelak v. Poland, App. No. 7710/02,
June 15, 2010, http://hudoc.ECHR.coe.int/sites/eng/pages/search.aspx?i=001-99384

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26 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

by mutual agreement in the event of shared parental responsibility, but also

because-one is tempted to say-decisions on religious matters are one of the
fundamental choices that one parent cannot make alone, even when that parent
is vested with sole parental responsibility. The French judge and the French
Civil Code are careful not to lay down any such principle, as to do so would
give religious issues a special status hardly compatible with the principles of
French law, but we can detect it in reading between the lines in certain deci-
sions. Thus, the courts have punished a parent who had had a child circumcised
or baptized without the other's consent, even if the parent in question was solely
entrusted with the exercise of parental authority. 36 But what happens when the
irreversible has not yet taken place and the judge is asked to intervene in order
to authorize or prohibit? The French judge tends to maintain the status quo, in
referring to previous practice where it exists. In addition, French judges often
invoke the freedom of choice that the child can exercise upon reaching
adulthood. At first glance, this is a wise solution, which respects the child's
autonomy. In a case adjudicated by the Cour de cassation in 1991, the child
requested baptism; his age (16) allows us to assume the existence of informed
consent.38
But what other solution should be used, especially for a young child? The
choice of a religion, even if it is not irreversible (marking the body by
circumcision or spiritual marking through baptism does not prevent freedom to
convert or to reject all religious adherence); it is not a choice like any other.
French law is secular law that attempts to bring such matters within the frame-
work of educational choices under common law, but the judge's abstention,
symbolized by maintaining the status quo, and the inadequacy of the criterion of
the child's interest are sufficient to prove the contrary.
The judge's position is equally difficult when the court is asked to protect the
child against allegedly dangerous choices that one or both parents would make
for reasons related to their religious convictions. Even if protection of a child in
danger is a categorical imperative for the judge, interference in the field of
religious beliefs is always risky or questionable. Faced with this difficulty, the
European Court of Human Rights has set out two main principles.
On the one hand, the child's best interest in this, as in other areas, is a
paramount consideration and must be considered in context. This means that
even a situation of danger must be evaluated in concreto. Consequently, states
are forbidden to discriminate in any way about belonging to a particular religion

36 CA Paris, Sept. 29, 2000, RTD civ. 2001, note J. Hauser; CA Lyon, July 25, 2007, RTD
civ. 2008 at 99, note J. Hauser.
37 le civ., June 11, 1991, D. 1991 at 521, obs. Ph. Malaurie.
38 On the autonomy of minor children, see infra section III.A.2.

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2014] Family Court Taking Religious Convictions into Account 27

or considering a priori that such belonging would constitute a potential danger to

the child (which would amount to judging beliefs, as forbidden in section' 39II).
This principle leads in particular to the rejection of the "sectarian argument.
On the other hand, the existence of a real and imminent danger to the child
requires intervention by state authorities. Two examples can illustrate this argu-
ment: medical treatment and educational choices.
The issue of medical treatment related to religious convictions, especially the
refusal by Jehovah's Witnesses of all blood transfusions, has provoked particu-
larly difficult litigation in several countries, including France. Does such a
refusal justify taking educational assistance measures to entrust to a third party
(for instance, the healthcare establishment) the responsibility to take the neces-
sary measures, it being understood that in emergencies the physician must
provide care? 40 The French Conseil d'Etat ruled that the doctor, who had
resorted to blood transfusions in spite of opposition from parents, is not liable
when the danger was imminent and no substitute treatment was feasible or
available. 4 1 But the French position is not universal. And it once more raises the
question of the place of the child in the decision-making process.4 2
And what about the situation where the child is cut off from the world, is
subjected to severe psychological pressure, and is enrolled in the activities of a
particular community on account of the religious beliefs of one parent, with the
danger of being exposed to serious psychological, or possibly physical,
disorder? The mere fact that parents' educational practices are linked to
religious beliefs does not prevent the state from intervening. It must do so only
if the child's best interest is actually and seriously threatened. That was the
message delivered by the European Court of Human Rights in Schmidt v
France,43 in which the Court, taking into account elements revealed by the
social work investigation, refused to condemn France, as the reasons put
forward by the French court in support of its action "were sufficient under the

39 See Palan Martinez v. France, Eur. Ct. H.R., App. No. 64927/01, Dec. 16, 2003, http://
hudoc.ECHR.coe.int/sites/eng/pages/search.aspx?i=001-61548; M. and C. v. Romania, Eur.
Ct. H.R., App. No. 29032/04, July 27, 2010, http://hudoc.echr.coe.int/sites/eng/pages/
search.aspx?i=001-106433; Gineitien6 v. Lithuania, Eur. Ct. H.R., App. No. 20739/35, Sept.
27, 2011, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-100197; Vojnity v.
Hungary, Eur. Ct. H.R., App. No. 29617/07, Feb. 12, 2013, http://hudoc.ECHR.coe.int/sites/
eng/pages/search.aspx?i=001-116409
40 Cf CODE DE LA SANTE PUBLIQUE (CSP), art. L 1111-4. The CSP is dedicated to health law,

medical ethics, rights of patients, health products law, and the like. Available in French at
http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT 000006072665
41 CE Sect., July 3, 1996, Dr. fam. 1997, no. 9, note P. Murat.

42 See infra section III.A.2.

43 Schmidt v. France, Eur. Ct. H.R. App. No. 35109/02, July 26, 2007.

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28 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

best interest of the child which, in such cases, must come before any other
consideration." To assess this, judges are required to resist their own subjective
reactions and those of their assistants, primarily social workers responsible for
the social inquiry, which is often a point of reference for judges. 44
The mission of guidance, which has devolved upon the father and mother,
must be exercised within the respect for the best interest of the child. What place
should be given to the child's wishes in the judge's understanding; what part
should they play in respect to the child's rights? Because what is vital, as the
structure of Article 14 of CRC emphasizes, is the child's right to freedom of
conscience and religion.

2. The Child's Wishes

If Article 14 of the CRC is trying to find a delicate balance between the rights of
the child and the parents' mission, it nevertheless raises the question of the
child's fundamental right to freedom of thought, speech, and religion. In
addition, the parents' recognized right and duty to guide the child in the exercise
of its rights applies "in a manner consistent with the evolving capacities of the
child" (Article 14.2). What applies to the parents applies even more to the judge.
In general, parents are also obliged to listen to the child in all decisions that
concern it (Article 9). But how can we apply this principle? Some will no doubt
maintain that what the child says is suspect, as it is subject to the risk of
manipulation by the parents, or by one of them. Very often, the child's choice is
in fact related to the personal choices in religious matters of one of the parents.
The family court judge faces two particular issues: of choice of religion or
religious practices and of medical care.
The question of choice of religion or religious practices is treated very
differently in various legal systems. If we set aside the states that, in law or in
fact, do not allow religious conversion, and especially not the conversion of a
minor child, three major groups emerge.
First, some states afford the child a wide degree of autonomy, or even
absolute freedom after a certain age. This is the system of religious "pre-
majority," which is found especially in Germany, where between ages ten and
fourteen, the child may request to be heard by the judge for guardianship orders
when its parents change their religion; from age twelve, it may demand not to be

44 Cf CRC, art. 14.2, supra note 31:

States Parties shall respect the rights and duties of the parents and, when applicable, legal
guardians, to provide direction to the child in the exercise of his or her right in a manner
consistent with the evolving capacities of the child.

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2014] Family Court Taking Religious Convictions into Account 29

raised in a religious confession other than the one it has hitherto known; after
age fourteen (sixteen in Switzerland), it enjoys full religious majority so it can
therefore choose its religion.
Second, other states have no legal rules establishing a specific majority, but
grant a child considerable autonomy (as in Canada). Third, states like France
provide nothing specific; the common law applies and the judge is expected to
assess the situation according to the best interest of the child. The disadvantage
of such a situation, as for instance in France, is that the neutrality of the judges
inevitably leads them to focus on the status quo. Thus, in the 1991 ruling
described above,45 the Cour de Cassation affirmed the decision of trial judges
who had considered it appropriate to defer the situation until the child attained
its majority and could exercise its freedom of choice (in this case, the Jehovah's
Witness convert father approved his daughter's request for baptism while her
mother was opposed). According to the court, "[I]t is within the exercise of their
sovereign power of appreciation for the opportunity to proceed immediately to
the baptism of Catherine T., whom the trial court noted was born to Catholic
parents and had been baptized into their religion, and felt it best to wait until she
became major to exercise her choice." This cheapens the autonomy of the child
and its recognized rights. Should not the judge be content to verify that the will
of the minor child is real and informed? The same principle should prevail when
the child's choice is faced with the opposition of both parents.
More difficult still is the place for the child's wishes in choosing medical
treatment. It is doubtless around this issue that tensions about the child's
religious freedom are most fraught, as they do not merely involve the child's
spiritual life; they involve its very existence. The problem has in particular been
laid before the courts in cases involving vaccines or, in cases involving
Jehovah's Witnesses, medical treatment requiring a blood transfusion or the use
of techniques or products that the child rejects owing to religious convictions.
In general, if some legal systems seem more inclined to uphold the patient's
wishes (see Canadian law or American law), others, like French law, are more
hesitant, even if the principle prevails that the performance of a medical
procedure presupposes the free and informed consent of the patient. In the case
of a child, the consent of the patient poses particular problems related to age and
to the nature of the disease. Even states that favor the primacy of the patient's
wishes will bend the principle owing to respect for the child's life46 or make
reference to the child's capacity for understanding. In France, the law requires

45 Supra note 37 and accompanying text.

46 See, e.g., the decision of the Supreme Court of Canada in A. C. v. Manitoba, 2 S.C.R. 181

(2009), available at http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7795/index.do

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30 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

doctors to intervene in the event of an emergency, 4 7 which exempts them from

possible liability.
In practice, the balance the judge may be required to achieve if he or she has
been requested, for instance, to afford a measure of protection in relation to a
refusal of care, is particularly difficult to attain. Once the principles have been
established, we have probably reached the limits of the law in an area, which
primarily belongs to individual conscience.
The issue of respect for religious choices and actions arising from them does
not, however, take on a purely individual aspect. It is also has a collective
aspect.

B. The Collective Aspect

If belief is protected for individuals on behalf of everyone's right to freedom of

thought, conscience, and religion, believers are in a double community: the
community of believers who share the same beliefs, on the one hand, and the
social community in which they live as citizens, on the other. Their freedom is
exercised within these two communities, which raises two sets of questions. In
their assessment of the situation before them, should judges take into account
belonging to the community of believers, as a community? What balance can be
found between the requirements of the individual faith in question and the
values of the society that they represent?

1. The Community of Believers: Taking Cultural Differences into

Account?

The question of taking cultural differences into account in the community of

believers arises only when religion is one of various characteristics (ethnic,
cultural, linguistic, etc.) that underpin the existence of this community and
ensures its unity. Religion is then a marker, and sometimes the marker, that
binds the community together in spite of its diversity. By a kind of reflex, social
practices shared by the bulk of the community may take on a religious connota-
tion, although they are in no way imposed by the religion concerned. But
because religion shapes the identity of the community, the social practices are
experienced by members of the community and considered by those outside it as
inseparable from religious beliefs. Such is the case, for example, of Muslim
communities living in Europe or in other Western countries-communities that
could not be more diverse, coming from the Maghreb to the Mashriq, and from

41 C.S.P., art. L 1111-4.

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2014] Family Court Taking Religious Convictions into Account 31

Turkey to Indonesia, but whose internal and external unity is guaranteed by

sharing the same faith. In family matters, the situation is even more complex,
because family issues are doubtless those most closely related to religious
requirements, or more precisely those most intensely experienced as derived
from religious prescriptions.
Consequently, two types of questions have been asked. To give their deci-
sions more relevance and effectiveness, should judges take account of the
cultural differences related, within such a community, to a shared faith? Going
one step further, would it not be socially appropriate to provide these communi-
ties with specific rules or even for a judge to fully take into account the religious
convictions of the parties?
These are problems whose scope goes beyond the range of this article. They
have inspired many studies and will be the subject of other articles. We shall
merely make a few observations.
First, taking into consideration cultural difference is often presented as a
means of ensuring social harmony while respecting the pluralism of religions
and cultures. It may lead judges to assess situations in a particular way, or to
adapt their decisions, in their terms or in their results, to the social and cultural
characteristics specific to a particular community. Many writers, including
Anglo-Americans and Quebeqois, have stressed both the importance and the
ambiguity of this type of approach. Do we not run the risk of locking the
individual into a system of values and behavior that he or she does not
necessarily share, or whose rigid character does not correspond, or no longer
corresponds, to actual experience in that community? Studies have shown, for
instance, that young people whose families (currently over two or three
generations) were from North Africa or Turkey have built their own culture and
their own modes of acculturation; they will certainly refer to the religion, which
is fundamental to their sense of belonging, but their behavior, beyond certain
minimal rules of socialization, does not necessarily conform to religious
orthodoxy. For their part, the older generations have difficulty distinguishing the
social practices specific to their communities of origin from matters of a
religious nature. On top of all this, the variety of ways in which religious rules
may be interpreted makes it even more difficult to take account of often elusive
cultural differences, other than by reducing them to stereotypes or prejudices. 48
The family court judges who claim to take cultural differences into account
in order to make their actions more adaptable are therefore likely to face many
difficulties, which can be illustrated by two examples. The first example

48 See, e.g., M. C. FOBLETS, J. F. GAUDREAULT-DEsBIENS, A. DUNDES RENTELN (EDS.),

CULTURAL DIVERSITY AND THE LAW, STATES RESPONSES FROM AROUND THE WORLD
(2010).

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32 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

concerns the alleged right to marital constraint (right of djebr) that the father
claims to exercise over his daughters by invoking a religious basis. Faced with
difficulties (the problem arises especially when a daughter fears that when
spending a holiday in the country of origin, she will be forced to marry a man
the two families have chosen), French judges demonstrate great caution. Once it
is accepted that it is futile to try to demonstrate that this law is not a religious
requirement (see the first commandment, "Do not judge beliefs" 49), the judge,
including the juvenile court judge, would be well advised to adapt his or her
means of action to prevent the cure from being worse than the disease: The
young woman risks being rejected by her family and her greater community. In
practice, judges and social workers often feel helpless, if only because they are
aware of the shortcomings of the judicial response.5 0
Second, and more complex still, is consideration of cultural differences by
the criminal court judge in the context of family offenses, including violence
against women or children, attacks on the physical safety of children, or sexual
abuse presented as a means of initiation or of socialization. The question could
arise in particular over the practices of excision or infibulation. In such cases,
the cultural difference, albeit rightly or wrongly connected in the minds of adults
to religions precepts, is not acceptable: The host society is responsible for
defending the values on which it is based. 1
Finally, and going one step further, one could consider whether it would not
be appropriate to implement, at least experimentally, means to treat family
disputes that are specific to particular communities. The implementation of spe-
cific provisions or devices for particular communities (immigrant community or
native community) has been tested in various countries in Europe and North
America in the name of promoting cultural pluralism and respect for beliefs. We
are thinking in particular of the Canadian "reasonable accommodations."
Sometimes the creation of their own jurisdictions, particularly for family
matters, has been proposed and attempted so that family litigation might be dealt
with by the communities themselves. 2

49 Supra Section II.A.

50 See, e.g., H. FULCHIRON, ED., L'ETRANGER EN FRANCE, FACE ET AU REGARD DU DROIT

[THE STRANGER IN FRANCE: LEGAL EXPRESSION AND REGARD] (1999).

22, 2000, Bull. crim., no. 133; CODE PENAL (C. PEN).
51 Cass., crim., Mar. arts. 222-9 & 223-
6; see Combating female genital mutilation in EU, EUR. PARL. Doc. 2008/2071 (INI) (2009),
available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+
TA+P6-TA-2009-0161+0+DOC+PDF+VO//EN
52 See, e.g., CH. LANDHEER-CIESLAK, LA RELIGION DEVANT LES JUGES FRAN_AIS ET
QUEBECOIS DE DROIT CIVIL [RELIGION BEFORE FRENCH AND QUEBE OIS JUDGES OF CIVIL
LAW] (2007).

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2014] Family Court Taking Religious Convictions into Account 33

It is the task of others to present these experiences, whose results are both
promising and ambiguous. It should simply be noted that none of these
experiments is transferable from one society to another, as each society has
certainly constructed its own equilibrium (its own ecosystem, one might say) in
organizing relations between communities and the place given to religion and
religious matters in society.
Here we reach the second collective aspect, one that inscribes the individual
and the community of believers in a vaster community-the society in which
they live.

2. The Social Community: Respect for the Values of the Host Society

It is a commonplace that the values held by a society may limit individual

freedoms, especially freedom of thought, speech, and religion. Family court
judges often are faced with this problem when they should apply foreign law
imbued with religious precepts or when they need to take a decision by virtue of
their own legal rules about a family of foreign origin, or, more generally, when
certain individual behavior is dictated by what the person sees as a religious
obligation. However precious the freedom of religion and respect for beliefs
might be, they are limited by the core values that shape the host society. Interna-
tional documents guaranteeing freedom of religion do not say anything else,
even if they insist on the exceptional nature of these restrictions. Thus, Article
14.3 of the CRC5 3 states that "Freedom to manifest one's religion or beliefs may
be subject only to such limitations as are prescribed by law and are necessary to
protect public safety, public order, health or morals, or the fundamental rights
and freedoms of others." This is also an issue that goes far beyond the scope of
this article. Again, we will limit ourselves to a few brief comments.
Two sets of principles and values may conflict with religious beliefs that
could be invoked before the family court judge. First, some are conceived within
the legal system concerned as having universal scope, while others are related to
the society's identity.
Ambiguous as it may be, the formula "principles and values considered
within the society in question to be of universal scope" can avoid the debate
about the universalism and relativism of human rights. Suffice it to say that in a
given society, invoked principles and values are considered to be universal. In
Western societies nurtured on the rights and freedoms articulated by major
international declarations, these values and principles are organized around the
triptych of liberty, equality, and pluralism. These principles and values all

" Supra note 31.

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34 InternationalJournalof the Jurisprudenceof the Family [Vol. 5

constitute potential limits to the respect for religious beliefs or what is consi-
dered by the believer to be of a religious nature.
We could multiply examples in domestic or international law, for example,
the principle of equality between men and women, or the principle of equality
between children, which led the European Court of Human Rights5 4 and
national courts55 to condemn anti-egalitarian rules, even if those rules have
sources in religious texts.
Beyond this is a principle that takes on growing importance in contemporary
law: the principle of respect for the integrity of the person, in its dual physical
and moral aspect. Debates about excision or the more recent controversy in the
German courts about circumcision5 6 emphasize this.
But other principles and values specific to a particular society may also guide
the action of the family court judge. For example, if we ignore societies where
respect for the dominant religion dictates the approach of the family court judge,
at the risk of acting against other religions, certain values may be considered in a
given society to be an essential part of its legal order, or an element of its
identity: They are related to history, culture, political organization, and how the
society in question represents itself, with a degree of myth and belief. These are
all things that sometimes make these values, and their consequences, difficult to
understand from the outside.
As mentioned, one of the most illuminating examples is undoubtedly the
French principle of secularism. 5 7 This principle greatly influences the family
court by implanting a constant desire to maintain a distance from questions of
religion and religious matters, and presenting French judges with difficulties
when they have to address issues that involve beliefs. The principle has also led
the French legislature to take action that caused some misunderstanding beyond
French borders, as for example the law about the veil at school58 and the ban on
wearing the burqa in public places. 9

54
D. D. v. France, Eur. Ct. H.R. App. No. 3/02 (Feb. 8, 2006), not available on hudoc.
55 Cf French jurisprudence about Islamic repudiation of a spouse, about the prohibition of
establishing parentage outside marriage, or about inequalities of inheritance affecting a
natural child. See L. GANAGE, LES METHODES DU DROIT INTERNATIONAL PRIVE A L'EPREUVE
DES CONFLITS DE CULTURE [METHODS OF PRIVATE INTERNATIONAL LAW TO PROVE
CONFLICTS OF CULTURE], Courses of The Hague Academy of International Law (2013).
56 Supra Section I,
3.
57 Supra Section I, 4; Section III.A. 1 at 3.
58 Loi 2004-228 du 15 mars 2004 encadrant, en application du principe de lafcit6,
le port de
signes ou de tenues manifestant une appartenance religieuse dans les 6coles, collbges et
lyces publics [Law 2004-228 of Mar. 15, 2004, An Application of the Principle of the
Separation of Church and State, the Wearing of Symbols or Garb Showing Religious

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2014] Family Court Taking Religious Convictions into Account 35

IV. CONCLUSION

Thus, we return to the problem raised initially: first, the difficulty of finding the
right distance between the mission of judges appointed in a given society to
apply the law and defend the values that underpin the legal system in whose
name they act; second, respect for individual religious beliefs that most often are
at odds with the social consensus (when the judge is called upon to intervene)
and sometimes in conflict with the principles and values on which the society is
based. To address such questions, it is not enough to hide behind the values,
which might be considered superior, but we must constantly seek an ever-
unstable and rarely satisfactory balance between the affirmation of principles
that shape a society and respect for individual beliefs, even when they are a
source of dissent. A quest for equilibrium-which is, for certain people, like an
act of faith.

Affiliation in Public Primary and Secondary Schools], http://www.legifrance.gouv.fr/

affichTexte.do?cidTexte=JORFTEXT000000417977&dateTexte=
59 Loi 2010-1192 du 11 octobre 2010, interdisant la dissimulation du visage dans l'espace
public [Law 2010-1192, Oct. 11, 2010, Prohibiting Concealment of the Face in Public
Space], http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT0000229116
70&categorieLien=id. The Eur. Ct. H. R. seems to have understood the matter:
Having regard in particular to the breadth of the margin of appreciation afforded to the
respondent State in the present case, the Court finds that the ban imposed by the Law of 11
October 2010 can be regarded as proportionate to the aim pursued, namely the preservation of
the conditions of "living together" as an element of the "protection of the rights and freedoms of
others...."
S. A. S. v. France, Eur. Ct. H. R. App. No. 43835/11 (July 1, 2014), http://hudoc.ECHR.coe.
int/sites/eng/pages/search.aspx ?i=001-145466

Electronic copy available at: https://ssrn.com/abstract=3223913

Electronic copy available at: https://ssrn.com/abstract=3223913