New Development in the German Headscarf Debate

August 29, 2004

The Headscarf Debate has raged on in Germany since the Federal Constitutional Court (Bundesverfassungsgericht) issued its decision on September 24, 2003 that a Muslim school teacher could not be prevented from wearing a headscarf while teaching under the current administrative and legal framework in place at that time. The Court held that such an issue going to the fundamental rights of relgious free exercise and the constitutional guarantee to civil service employment under certain conditions should properly be decided by a democractically elected legislature. Thus, although Fereshta Ludin was allowed to continue wearing her headscarf as of the date of that High Court decision, the issue was not settled because each German state (Bundesland) was now in the position to create legislation to ban the headscarf under a “sufficiently clear legal basis” to pass constitutional muster in the Constitutional Court. See my earlier thread in English for some analysis of the difficulties in this decision and its implications.

This summer, the Headscarf Debate has progressed as each German state has passed its own legislation prohibiting teachers from wearing the headscarf while teaching:

Nachdem das Bundesverfassungsgericht im September 2003 klare gesetzliche Grundlagen für ein Kopftuchverbot an staatlichen Schulen gefordert hatte, beeilten sich beide Länder und verabschiedeten die neuen Gesetze bereits im April 2004.

Most recently, Iyman Alzayed, a teacher in Hannover is making headlines with her decision to emigrate to Vienna from her homeland of Germany in order to avoid the newly enacted Lower Saxony (Niedersachsen) state legislation proscribing the headscarf while teaching. The Constitutional Court has recently found the new Baden-Württemburg state legislation resulting from the September 24, 2003 decision’s allowance for the creation of a sufficiently clear legal basis upon which to ground a prohibition to be constitutional (“Die Leipziger Richter entschieden jetzt, dass das Gesetz den Vorgaben ihrer Karlsruher Kollegen entspricht.”). In Vienna, she will be able to work and remain true to her religious convictions at the same time, rather than be forced to choose between working and abiding by her convictions. Mohammed also left his country of Mecca because of religious persecution–but he returned in triumph eight years later. Will there be such a return for exiled Muslim school teachers who are avoiding a state that is hostile, rather than neutral, toward religion?


Still on Vacation

August 26, 2004

I’m still on vacation but will now have internet access and can finally update my blog again (starting tomorrow, it is really late right now). I have just taken a look around the blogs and realize just how much I have missed and am wistful about it. I debated commenting on a dozen new threads at T&S but spared the crowd my rants. I also resisted the temptation on so many other blogs as well. How’s that for self mastery for you? I think the best strategy is just to start posting here and commenting elsewhere from this moment on instead of trying to jump into stale threads or force people to hear my opinion on topics already fleshed out.

Times and Seasons

August 15, 2004

I greatly appreciate Kaimi’s announcement of a bird’s eye view over at Times and Seasons. I noticed more traffic after that and hope that readers find this blog interesting. Kaimi noted that it has mostly been about politics and religion so far, which is true to a certain extent, but if you look back a little bit you’ll see that it is indeed more eclectic than that (as advertised in the header). I’m not saying that such eclecticism is a good thing; to the contrary, my penchant for eclecticism has self-selected me out of “specialist” status in any category, even the category of eclectic literature!

Initially, I had planned on blogging in multiple languages, and even began doing so here in German regarding the legal status of Muslim headscarves in Germany, and here in Spanish on the topic of one of my favorite poets of the Spanish Enlightenment, Manuel José Quintana.

I am still interested in foreign language blogging because it is a lot of fun for me and it will help me to keep up my skill in various languages. But I have been reevaluating what I want to do with this blog, and I think that my goals are better achieved in this instance by blogging in English so as not to alienate any commenters who might want to contribute to any discussion here. I will, however, continue to blog in various languages, primarily German, Spanish, and Danish (I presume) over at the Mexiko Platz Posse blog.

Finally, note that Jordan Fowles, by far the smarter of the two of us (and we have three other brothers and a sister), will also be posting on a bird’s eye view, as he is a permanent blogger here. I don’t presume that we will reach the level of discourse found over on the Bell brothers’ blog any time soon. But I hope that Jordan will bring a more level-headed perspective to this blog than I possibly can, given my (unfortunate) tendency towards hyperbole and pathos (which any T&S readers will recognize has repeatedly gotten me into rhetorical trouble in numerous discussions over there).


August 14, 2004

I just installed sitemeter on my blog. I wish I had gotten it on the first day I started the blog at the end of July. Better late than never, though.

Freedom and the West

August 13, 2004

As I watch the opening ceremonies of the Olympics in Athens, I have enjoyed observing teams from the former eastern bloc enter the arena and march with all other free nations. Having spent a lot of time in Eastern Europe, and having developed an intense interest in that area of the world and its peoples, I appreciated the fact that these countries all now espouse democratic systems of government. Only five communist countries remain in the world, and only three of these really suppress their people in the old-school communist fashion: Cuba, North Korea, and China (although China only does so as to political freedom while the other two maintain economic oppression in addition to political oppression).

But watching the American team enter, the teams from traditionally “western” countries such as the UK, France, Germany, Holland, Denmark, etc., and then watching these Eastern European teams come in (by the way, why is everyone dressed so much better than the U.S.? Most of the teams are dressed in either suits or at least sport coats while we are in a sweat suit) got me to thinking about concepts of freedom between different areas of the world. At a time when there is so much anti-Americanism in the world, it is interesting to ponder that so many more countries enjoy freedom now than fifteen years ago. I thought back to a conversation I had about what “freedom” means with a Bulgarian friend of mine, Lucy, back in February.

Lucy said,

There is something I personally cannot understand in our modern society. Why do we think that OUR religious believes and OUR perceptions of human rights are the right ones? Are WE – the Europeans and the Americans – entitled to define not only the “world order” (what we are trying to) but human believes as well, the way WE consider it right?

I think it was the case in Afghanistan, it was the case in Iraque, in Kosovo. “You might not know but you are not free. I will show you what to be free is.” The formulation of “FORCING freedom” ( the slogan of the communists as well) appears a bit strange.

I’m not sure I take such a cynical view as Lucy does about freedom. I think that there is a more objective freedom that exists than that which Lucy suggested. From Lucy’s comment, it appears that she believes that freedom is subjective; that in promoting freedom and human rights around the world, the European Union (and its individual member states) and the United States are comparable to the Soviet Union, which crushed liberty through totalitarian rule, foreclosing such fundamental freedoms as religion, speech, press, association, political organization, privacy, and many other basic human rights.

Lucy also suggested that the whole concept of human rights and freedom, including the freedom of religion, is only an invention of the Europeans and Americans and that those two are “forcing” such freedom on the world. Lucy suggested that Afghanistan and Iraq are examples of this. The merits of these two conflicts are certainly debatable, particularly the war in Iraq. But it will be difficult to convince me that women in Afghanistan considered themselves “free” already before the Coalition pushed out the oppressive Taliban regime, which categorically did not allow any kind of personal freedoms, especially for women.

That is not just propaganda; it is a well documented fact that the Taliban regime abused such basic human rights as the freedom of religion and convictions (even the freedom to think what you want) in the most tragic of ways. Lucy seems to argue that the Afghans did not want to be “freed” from such oppression. I argue that it is human nature to want to be free from tyranny. Thus, Lucy might be right that the Taliban did not want the Coalition to intervene, because they only stood to lose their totalitarian power over the country. But it would take some kind of empirical evidence that the people of Afghanistan, who were oppressed, would have preferred to keep the Taliban in power than to govern themselves through a democratic system.

Those are my thoughts and opinions on the issue of whether the “West” is “forcing” freedom on the world.

MacDonald on Rational Profiling

August 11, 2004

In my last post I noted Michelle Malkin’s exhaustive response to Eric Muller’s criticism of her book In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror and compared the internment of the Japanese in WWII as analyzed in Malkin’s book and response to Muller to Spencer MacDonald’s BYU Journal of Public Law article on rational profiling in America’s airports after 9/11 (in which, as Spencer has noted, he also made a brief comparison between the internment and profiling in airports).

In re-reading Spencer’s article, I was reminded of Spencer’s great example from Harrison Ford’s character in The Fugitive:

II. Richard Kimble: A Profiling Example

In the 1993 movie The Fugitive, Harrison Ford played Dr. Richard Kimble, an affluent Chicago surgeon who returns home one night to find his wife murdered and her murderer – a one-armed man – escaping. Kimble is charged with the crime, convicted, sent to prison, then escapes and spends the rest of the movie tracking down the one-armed man using a fairly straightforward methodology. First, he compares the type of prosthetic arm he had seen the murderer wearing to a hospital’s database and compiles a list of people who had been fitted with such a device. Kimble then uses other factors (such as the age of the patient, whether the prosthetic arm was on the right or left-hand, etc.) to narrow the list to five candidates. He then tracks down each candidate, one of whom turns out to be his wife’s murderer. The one-armed man is arrested and Kimble exonerated.

Perhaps Richard Kimble was on to something. Imagine what would have happened had Kimble conducted his search without considering “the one identifiable fact [he] knew about [the murderer].” He would have spent years searching the entire population of Chicago, two-armed and one-armed alike, male and female, young and old, black, white, Hispanic, Asian, and so on. Faced with such a daunting task, he likely would have given up his search and turned himself in to the U.S. Marshals.

Consider this example in light of the September 11 attacks. All nineteen hijackers were adult males of middle-eastern ethnicity. What might happen if America ignores the identifiable facts we know about hijackers? The FTSA must decide whether to modify current profiling procedures to include consideration of race, gender, and age. The following sections will discuss some of the legal arguments for and against such a policy, compare and contrast airport profiling to other instances of profiling, and explain current airport profiling procedures.

R. Spencer MacDonald, Rational Profiling in America’s Airports, 17 BYU J. Pub. L. 113, 115-16 (2002).

Analyzing Internment

August 10, 2004

Michelle Malkin has responded to criticisms of her new book In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror. On her blog she scrutinizes every point raised against her book by North Carolina Law Professor Eric Muller in a ten part critique ending on August 5 over on The Volokh Conspiracy.

Malkin’s defense of her view that the national-security based rationale for the Japanese internment camps in WWII was legitimate, and not a result of the racist, xenophobic motives that a politically-correct history has ascribed to the situation (even though she seems to acknowledge that some of that undoubtedly existed) reminded me of Spencer MacDonald’s cogent article in BYU’s Journal of Public Law, Fall 2002 issue, on rational (racial) profiling in American airports after 9/11. In short, MacDonald argues that it is both rational and justifiable to give extra scrutiny to a certain “race” or “ethnicity” when the single defining characteristic known about possible terrorist perpetrators is that 99.9% of the time, they are middle-aged, middle-eastern males. Neither Malkin nor MacDonald suggest that internment or profiling more generally on this basis is the ideal state of things; they are merely noting that certain national security situations can render it necessary at certain times.

In the case of the Japanese, Malkin presents evidence that those of Japanese ethnicity posed an identifiable and real threat to national security on the relatively vulnerable West Coast during WWII. One of moment that stands out in Malkin’s merciless response to Eric Muller’s unfavorable critique was when she noted the fact that his criticism of some of her sources — FBI casefiles and the like — did not prevent him from citing to “middle school pages” and “other secondary sources of dubious origin” in his blogged critique (see middle of Part 6 of Malkin’s response).

Finally, although Muller implies that Malkin is advocating rounding up all individuals in America of Arab ethnicity and “throwing them into camps,” Malking makes clear that her book in no way defends such a xenophobic position. In her own defense to Muller’s condescending implications, Malkin writes the following:

As I make plainly and thoroughly clear in both the lengthy introduction and conclusion [of my book], I am advocating narrowly-tailored and eminently reasonable profiling measures such as:

p. xxiii. The post-September 11 monitoring of Arab and Muslim foreign students on temporary visas.

p. xxv: Airport and travel screening measures that subject individuals of certain nationalities to heightened scrutiny; preventive detention of known illegal aliens, suspected terrorists, or enemy combatants; immediate deportation of illegal aliens from terror-sponsoring and terror-supporting nations; a moratorium on temporary visas to countries with large al Qaeda presences.

p. xxviii: Heightened scrutiny of Muslim chaplains and soldiers (p. 152) serving in the military and in prisons.

Kudos to Spencer MacDonald who illuminated such a narrowly-tailored and eminently reasonable approach as a first year law student at BYU in his Fall 2002 Journal of Public Law article.