An English Explanation for that German Post on Headscarves and Pluralism in Germany

August 5, 2004

My last post refers to the headscarf debate as it is playing out in Germany. Recently, three German federal states (Bundesländer) have enacted legislation forbidding teachers from wearing headscarves while teaching school. This came as a result of the landmark Headscarf Decision of the German Federal Constitutional Court (Bundesverfassungsgericht–Germany’s highest court on constitutional matters. The court found that the administrative regulation in the case prohibiting Muslim teachers from wearing a headscarf while teaching was unconstitutional because such a question bearing directly on both the right to religious freedom and the right to employment needed to be decided by a democratically elected legislature. So the court gave with one hand while taking with the other: the court upheld the woman’s constitutional right of religious freedom in wearing the headscarf, but only on the ground that there was not a sufficient legal basis in state law to support such a regulation. So the states were free to create such a regulation. Immediately after the decision, a majority of German Bundesländer had proposed such legislation, and now at least three states have banned the headscarf under specific state law.

Personally, I think that it is a severe restriction of religious freedom for the state to outlaw wearing a headscarf in public places. It forces the individual who desires to live according to her religion to choose between her faith and going to school or working, etc. Forcing such a decision is not neutrality but rather hostility towards religion or its expression.

I applaud the Bundesverfassungsgericht for noting that restricting a teacher from wearing a headscarf is an unjustifiable limitation of Art. 4 of the Grundgesetz (Germany’s Basic Law or Constitution) and that article’s guarantee of the freedom to manifest one’s religion without interference from the state. But there are problems with this decision. As noted, the Bundesverfassungsgericht said that the prohibition on wearing a headscarf only violated the teacher’s right to religious freedom because an administrative body created the restriction, rather than a state legislature. The court then said that if the state legislatures create the “missing legal basis” for the prohibition on wearing a headscarf while teaching school, then this might be constitutionally justifiable based on the students’ negative right to religious freedom not to be confronted by a teacher wearing a headscarf “without meaningful opportunity to evade such contact.” The court declared in paragraph 47 that it was within state competencies to create a prohibition through the democratic process:

Das unvermeidliche Spannungsverhältnis zwischen positiver Glaubensfreiheit eines Lehrers einerseits und der staatlichen Pflicht zu weltanschaulich-religiöser Neutralität, dem Erziehungsrecht der Eltern sowie der negativen Glaubensfreiheit der Schüler andererseits unter Berücksichtigung des Toleranzgebots zu lösen, obliegt dem demokratischen Landesgesetzgeber, der im öffentlichen Willensbildungsprozess einen für alle zumutbaren Kompromiss zu suchen hat. . . . Dies schließt ein, dass die einzelnen Länder zu verschiedenen Regelungen kommen können, weil bei dem zu findenden Mittelweg auch Schultraditionen, die konfessionelle Zusammensetzung der Bevölkerung und ihre mehr oder weniger starke religiöse Verwurzelung berücksichtigt werden dürfen.

Additionally–and I think even more usefully–the prohibition violated Article 33, para. 2 of the Basic Law, which guarantees employment free of discrimination based on religion. See Headscarf Decision, para. 30 and paras. 30-35. Essentially, the teacher subjected to this prohibition on wearing a headscarf is forced to choose between working and living according to her religion. Headscarf Decision, para. 36.

In other words, the court took the easy way out by sending the question back to the state legislatures. This was unfortunate because even if the states create a “sufficiently clear legal basis” it does not change the fact that such a prohibition violates both Art. 4 of the Basic Law and Art. 33 of the Basic Law–it just provides an excuse to do so.

The state would be much better off by celebrating the religious pluralism that is found there rather than protecting citizens against it. To be truly neutral, the state cannot prohibit a teacher from wearing a headscarf while teaching. Such an individual choice by the teacher cannot be attributed to the state. That is to say that by allowing a teacher to wear a headscarf, the state is not endorsing Islam. Such a notion is absurd. Rather, the state is allowing religious freedom to flourish without promoting any one religion over another.

As for the students in the class, the teachers decision to wear the headscarf does not harm the students in any way. Rather, it teaches them that their country protects religious freedom and confronts them with religious pluralism in a very natural way (that is, outside any questionable seminars given by the school about “neue religiöse Bewegungen” or Muslims or whatever). The school should count itself lucky that such an opportunity for a true life-lesson about religious pluralism exists.

The Germans want to maintain neutrality, but they are promoting state-sponsored religious hostility instead. I thought it was great that so many Muslim women in Germany, France, the UK, and in the Middle East protested the planned legislation and demanded their right to live according to their religion without such intrusive and paternalistic state intervention.