A General Prohibition for Teachers in Public Schools to Wear a Headscarf is Incompatible with the German Constitution

One of Germany’s worst and most freedom-denying pieces of law has become a thing of the past. Because of a mature insight on behalf of the responsible politicians to revoke unjust legislation? No way! This is not how politics work in Germany, sadly. Instead, the Federal Constitutional Court of Germany (BVerfG), one more time, had to settle the mess politics has left behind.

In a court decision from January 27 (1 BvR 471/10, 1 BvR 1181/10) that was published today, the BVerfG has ruled that legislation by the state of North Rhine-Westphalia (NRW) that prohibited non-Christian teachers to dress according to their religious believes is partially incompatible with the Basic Law for the Federal Republic of Germany (GG) and partially has to be applied in a restricted manner to be compliant with the GG.

The offending law settled that teachers in NRW’s public schools may not express political, religious, ideological or other exterior exhibitions that might disturb or endanger the neutrality of the state with respect to pupils or parents or the political, religious or ideological harmony in schools. (I know that this translation sounds awkward but the German version (§ 57 Abs 4 SchulG NW) isn’t much better.) The law prohibits in particular such exterior exhibitions that might imply disagreement with the basic constitutional freedoms. Finally, an exemption is made for display of symbols that reflect NRW’s Christian occidental heritage.

The 2005 law uses weasel wording to (not very successfully) obscure the fact that its actual intent was to prohibit Muslim women to wear headscarves while not imposing similar restrictions on the use of Christian crosses and similar items. The authors of the law must have been well aware that what they attempted to regulate was at least on the borderline of being unconstitutional, disobeying the religious freedom of the affected teachers. This was also recognized by the BVerfG (marginal number 135).

The BVerfG has decided that the special treatment of Christian occidental symbols was an outright violation of the constitutional requirement for equality of treatment and is therefore void. The general prohibition of religious symbols exposed by individuals was restricted to cases where, among other requirements, the state could provide evidence that use of such symbol by a particular individual actually endangers peace and security in school. The government’s reading, partially supported by some other courts, that a Muslim woman wearing a headscarf generally expresses disagreement with the fundamental constitutional liberties was dismissed as being absurd.

I find it sad to see how our state is currently failing to maintain secularism as well as individual religious freedom at the same time.

The state should, but currently doesn’t, keep religious influence on its public activities to an absolute minimum. This is especially important in schools where children’s future understanding of the workings of our state and society is formed. The churches in Germany have way too much influence in politics and play too big a role in providing services like medical treatment and education. Religious symbols like crucifixes should be removed from all public buildings, especially schools, children should not be encouraged by their teachers to participate in religious action and religious education should be banned from public schools. Parents who wish such education offered to their children can organize it in the free time with local churches and other organizations without impacting those children whose parents wish for a secular education.

At the same time, the individual religious freedom must be respected by the state. Every citizen (and this includes teachers) has the right to choose to live its life according to whatever religion they wish. It is not imposing any unacceptable burden on any child to see a teacher live its life according to religious believes they (and probably their parents) don’t share. On the contrary, seeing from early ages that different people have different believes can only benefit the formation of a child’s tolerant attitude towards a pluralistic society. Of course, teachers must refrain from any attempt to impose their own believes on the children commended to them, except when explicitly asked for explanation and even then make clear that it is their own private believe which the child may or may not share.

Within the boundaries set out by our constitution, there shall be room for any individual to follow their convictions and no need to hide this from others. In case the reader might be interested and as far as I am concerned, I don’t believe in any God or other paranormal powers whatsoever and recommend against taking any ages old book way too serious. I do care about my freedom to decide how to dress myself and don’t accept other people or even the state telling me how to cover my head.

What I find especially disgusting about forbidding Muslim women to wear their headscarves during work is that this is nothing less than a government order to undress in public against the will of the person in question ignoring their sense of shame. The origin of the rule for Muslim women to cover their body might not be a feminist one, to say the least, but this doesn’t mean that the feelings of women used to this tradition are any less important. There can be no doubt that women are mistreated and deprived of their rights in many Muslim families in Germany and elsewhere. This is unacceptable and our society must tackle this issue but the current law in question only made matters worse. Injustice by the family is not helped by adding more injustice by the state. As the Aktionsbündnis muslimischer Frauen (alliance of Muslim women) reported to the BVerfG in their statement (marginal number 64 in the court decision):

The law has made the factual implementation of equality for headscarf wearing women impossible not only in schools and caused discrimination that formerly did not exist in this intensity. […] The prohibition of wearing a headscarf has made self-confident, integrated and economically sovereign women into unsettled, sidelined and dependent women. Women who did not abide to a traditional gender were forced into a traditional one and the signal was sent to Muslim schoolgirls that they had to decide between headscarf and career.

And finally, I’m not exactly convinced that all peculiarities of our modern society’s mainstream understanding of gender are strictly superior.

So, we finally got rid of another unjust piece of legislation. I don’t know how many talented young Muslim women in the past nine years have decided to become housewives rather than teachers because of this law but at least, we have legal certainty now. What scares me still is the fact how many blatantly unconstitutional laws the BVerfG has to void in recent years. Surely, the court is powerful and generally does its job very well. However, it can only act after injustice has already happened and then only if courageous people are not shy to fight for their rights to be reestablished. But what is even more scary is the fact that the BVerfG has taken over almost exclusively the job of defending our constitutional rights. The desire to give maximum practical impact to the essential freedoms guaranteed by our constitution should be rooted deeply into the heart of every politician in a liberal democracy. Among the powerful political parties in Germany, I see little evidence for such commitment to these civilian liberties. Sure, there can be no disputing that the vast majority of politicians at the moment values our liberal democracy. But I do recognize that for a frighteningly large number of politicians, defending the constitution is not the driving force of their daily jobs. Rather, it has become more of a game for them to try finding new clever tricks to cross the borderlines set out by the constitution. The BVerfG is currently strong at defending these but if our society fails at rooting the constitutional values deep in the hearts of the vast majority of people, it will only be able to continue doing this for so long.

The current BVerfG decision was triggered by two NRW teachers who were about to be removed from their jobs because they rejected to abide by the law and continued to cover their hair during work time. Our society should be proud of those women who have set an example that Muslim woman, too, can and are willing to fight oppression. Now that they can continue teaching, hopefully they will be able to pass on the lecture to their pupils that nobody in our society has to accept injustice on behalf of the state and our legal system provides effective ways to reestablish ones dignity. Maybe this can also help making the idiocy taught by various extremists a less appealing last resort for minorities who feel sidelined from our society. Seeing such examples is an invaluable experience for children to gain confidence into our constitution and can hopefully help planting the civilian liberties more deeply into the hearts of our next generation of politicians. Eventually, the example will also help girls of any religion to realize that life has more to offer than becoming a good housewife or Germany’s next top model. Studying our constitution can be worthwhile but physics or computer science are fine, too.

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