Constitutional Court Decision Review: BVerfGE 1 BvR 471/10, 1 BvR 1181/10 – Balancing Religious Freedom and State Neutrality
Dr. Lasse Schuldt, DAAD Lecturer of Law, CPG, Faculty of Law, Thammasat University
Germany’s “headscarf debate” has taken a new turn after a recent decision of the FederalConstitutional Court of Germany (the “Court”). With order of 27 January 2015 (published 13 March), the Court ruled on the constitutionality of a state (Land) law prohibiting public school teachers from wearing any religious clothing or symbol while teaching. The decision differs from the Court’s 2003 judgment on a comparable legal matter as the new ruling limits the lawmakers’ discretion in balancing religious freedom and state neutrality more narrowly than before.
II. The Facts
The Court pooled two separate individual constitutional complaints by two women who worked as educational staff – one as a teacher, the other as a social educator – in state schools in the Land North Rhine- Westphalia. Both applicants are Muslim women of German nationality and both of them consider the rule to cover oneself as an obligatory rule according to their Muslim belief. They entered the school service on the basis of private employment agreements in 1997 and 2001, respectively. Both of them used to cover their hair and neck by wearing a headscarf while working.
In 2005, the state legislative chamber of North Rhine-Westphalia inserted a revised provision into its Education Act (SchulG NW). According to § 57 sec. 4 sentence 1 SchulG NW, at school, teachers may not publicly express views of a political, religious, ideological or similar nature which are likely to endanger, or interfere with, the neutrality of the Land with regard to pupils and parents, or to endanger or disturb the political, religious and ideological peace at school. Pursuant to sentence 2, conduct that might create the impression among pupils or parents that a teacher advocates against human dignity, the principle of equal treatment, fundamental freedoms or the free democratic order is prohibited. However, under sentence 3, carrying out the educational mandate in accordance with the Constitution of the Land and presenting Christian and occidental educational and cultural values accordingly do not contradict the prohibition set out in sentence 1. By way of § 58 sentence 2 SchulG, these provisions apply not only to teachers but also to other educational staff, including socio-educational staff, employed by the Land.
In 2005 and 2006 respectively, the school authority, citing the new law, requested the two claimants to remove their headscarves while on duty. One of them replaced the headscarf by a beret with a knit band and a polo-neck pullover. Nevertheless, she received a warning by the school authority. Her lawsuit, brought to the labour courts and directed at removing the warning from her personal file, was unsuccessful at all levels of jurisdiction. The other applicant refused to discard the headscarf, received a warning and was finally dismissed. Her lawsuits in the labour courts were equally unsuccessful.
III. The Decision
By a majority of six votes to two, the Court’s First Senate decided in favour of the two complainants. The order found the labour court judgments in breach of their the freedom of faith and the freedom to profess a belief (Art. 4 secs. 1 and 2 of the Basic Law, Grundgesetz – GG). According to the First Senate, the labour courts did not take into account that the relevant sections of the Education Act have to be interpreted restrictively, in a way that is in conformity with the Constitution: In order to justify the prohibition of expressing religious beliefs by outer appearance or conduct, it shall not be sufficient that this expression constitutes an abstract danger. Rather, it has to constitute a sufficiently specific danger of impairing the peace at school or the state’s duty of neutrality.
1. Scope of Protection
The Court first emphasizes that state employees – like, in the present case, educational staff – can invoke freedom of faith against the state. The fact of being integrated into a certain state sphere of duties does not put into doubt the general ability to claim the protection by basic rights. Furthermore, it is irrelevant whether the respective individual is a state employee under private law or a civil servant under public law.
Regarding the material scope of protection, the Court states that Muslim women who wear a headscarf or any other piece of cloth in order to cover the hair and neck for religious reasons can invoke Art. 4 secs. 1 and 2 GG. It is of no importance whether a big or small number of believers considers a religious rule as mandatory. Rather, the Court will consider any rule under the scope of freedom of faith as long as this rule can be substantiated by reference to individual beliefs as well as the religious group’s general convictions. As both applicants submitted from the earliest stage of the labour court trials that they wear the headscarf due to an imperative religious rule, the Court found that this practice was under the scope of Art. 4 secs. 1 and 2 GG.
The school authority as well as the labour courts based the headscarf ban on § 57 sec. 4 sentences 1 and 2 SchulG NW that prohibit, inter alia, the expression of religious views by teachers. In this respect, the Court holds that the two complainants indeed expressed a religious view by wearing a headscarf while teaching. Though a headscarf cannot by itself be considered a religious symbol, it has to be viewed within the relevant social context. According to its findings regarding the complainants’ religious motivation, the Court attributed a religious connotation to their wearing of headscarves.
The school authority’s order to discard the headscarves, however, constituted a serious restriction of the complainants’ freedom of faith: It was a restriction as it made it impossible for the complainants to adhere to their religious rules while at work; and it was serious in character because both complainants considered the rule to cover the hair and neck an imperative commandment of faith. This imperative commandment touches upon the complainants’ personal identity (Art. 2 sec. 1, Art. 1 sec. 1 GG).
3. No Constitutional Justification
Though the Justices reiterate that the state legislatures possess a general prerogative of evaluation in order to assess new facts and new developments, they emphasize that, in any event, the balance has to be reasonable. In the present case, the Court came to the conclusion that § 57 sec. 4 sentences 1 and 2 SchulG NW are constitutional but need to be interpreted restrictively. The labour courts, however, failed in interpreting the relevant sections in this way as they simply adopted the lawmakers opinion according to which the expression of religious beliefs by outer appearance or conduct needs to constitute only an abstract danger in order to justify a warning or dismissal. Rather, the Court holds, the teachers’ behaviour has to constitute a sufficiently specific danger of impairing the peace at school or the state’s duty of neutrality.
Therefore, the Court holds that the restriction was disproportionate. On the way to this result, the Court balances the teachers’ freedom of faith with conflicting legal interests of constitutional value, i.e. third persons’ basic rights as well as other constitutionally rooted values. In the present case, the Court weighed the educational mandate of the state (Art. 7 sec. 1 GG) and state neutrality, the right of parents to educate their children (Art. 6 sec. 2 GG) and the pupils’ negative freedom of faith (Art. 4 sec. 1 GG).
First, the Court considers the pupils’ negative freedom of faith. It holds that, on the one hand, in a pluralistic society, nobody has the right not be confronted with religious beliefs, practices and symbols. On the other hand, the Court acknowledges that the situation in a school is particular as the pupils do not have any chance to escape it. However, the Court differentiates a situation in which the state as an institution and out of its own impetus presents religious symbols – as it would be the case with crucifixes on classroom walls –, and situations like the present one in which the religious symbol is presented due to a teacher’s individual decision for which he or she can invoke the individual freedom right of Art. 4 secs. 1 and 2 GG.
Furthermore, the Court emphasizes that, by tolerating a religious expression that is connected with the wearing of a headscarf by a single teacher, the state does not adopt this expression. Moreover, this expression can also not be attributed to the state. Therefore, as long as the teaching staff does not advertise their religious beliefs verbally, the pupils’ negative freedom of faith is not violated. This reasoning is then applied accordingly to the right of the parents to educate their children.
Regarding the educational mandate of the state, the Court notes that this mandate has to be implemented neutrally. State neutrality under the Basic Law means that the state has to treat all religions and faiths equally and that the state must refrain from identifying itself with or giving privileges to a certain religion or faith. However, according to the Court, this meaning of state neutrality shall not be mistaken as a strict separation between state and church. Rather, it shall be understood as an open approach that fosters and supports religious beliefs and practices of all kinds. As religious symbols worn by individual teachers cannot be attributed to the state, tolerating a teacher wearing a headscarf due to an imperative religious commandment does therefore not violate this concept of neutrality.
The central aspect of the Court’s decision is that an abstract threat to state neutrality and peace at school, as posed by individual staff wearing religious symbols, cannot justify an order to discard a religious symbol if the person in question considers this symbol as an imperative commandment of faith. However, as already noted above, a sufficiently specific danger can indeed function as a justification. According to the Court, a situation of specific danger could arise if pupils or parents at a particular school or within a particular area hold very controversial or even contradictory views and, due to the visibility of religious symbols, promote these views at school in a way that endangers the school’s order as well as the educational mandate of the state. However, before ordering a teacher to remove the religious symbol, the school authority will have to try to find a possibility for the teacher to work in a different position, first.
Regarding § 57 sec. 4 sentence 2 SchulG NW, the Court further holds that wearing a headscarf for religious reasons does not constitute a conduct that might create the impression among pupils or parents that a teacher advocates against human dignity, the principle of equal treatment, fundamental freedoms or the free democratic order. According to the Court, it can by no means be implied that those religious doctrines which consider the wearing of a headscarf as mandatory advocate such a behaviour.
After having clarified that § 57 sec. 4 sentences 1 and 2 SchulG NW need to be interpreted restrictively and thereby saving these provisions from the verdict of unconstitutionality, the Court finally declares outright unconstitutional the third sentence of § 57 sec. 4 SchulG NW. By stipulating that presenting Christian and occidental educational and cultural values does not contradict the prohibition to express religious views, the law violates the prohibition of discrimination on grounds of faith and religious beliefs (Art. 3 sec. 3 sentence 1, Art. 33 sec. 3 GG).
Whereas the Federal Labour Court tried to save these provisions by differentiating between the terms “expressing” and “presenting” and by noting that the word “Christian” was held to mean a set of values stemming from the tradition of Christian-occidental culture, but were not connected to Christian beliefs, the Court rejected this view. Rather, it deducted from the legislative material the lawmaker’s intention to insert a privilege for Christian believers with regard to clothing and symbols. In the eyes of the court, this constitutes a direct unequal treatment. Therefore, the Court declared this provision null and void.
After almost twelve quiet years since the Court’s first “headscarf decision”, the present ruling has relaunched the “headscarf debate” in Germany. The result of the decision is that it will be much more difficult for the state to prohibit female Muslim teachers from wearing a headscarf.
Whereas some voices in German media in consequence considered whether they better send their children to private schools, others applauded the decision and called it a ruling against hysteria and in favour of integration. I agree with the opinion that the decision reflects the reality of a pluralist society in which Muslim women wearing a headscarf for religious reasons should not be deterred from becoming teachers. In this regard, the ruling echoes the words of the former Federal President of Germany, Christian Wulff, who noted in his speech to mark the twentieth anniversary of German unity: “Islam has now also become part of German identity”.
1. From Crucifixes to Headscarves
However, long before the legal implications of headscarves occupied the Justices in Karlsruhe, it was the Christian cross, or crucifix, that the Court had to deal with on two occasions. First, in 1973, the Court ruled that parties to administrative trials can request that crucifixes inside the courtroom be removed. At that time, courtrooms in North Rhine-Westphalia were by default equipped with a Christian cross. A Jewish lawyer and his Jewish client leading a trial before the administrative court in Düsseldorf formally requested the removal of the cross.
The Court stated that the presence of a cross in itself does not demand anybody to identify with the ideas and institutions represented by it. A Christian cross in a courtroom constituted only a “relatively minor interference”. However, the state must take into account that individual parties to a case can invoke their freedom of faith (Art. 4 sec. 1 GG) as they cannot be forced to lead a trial “under the cross” against their religious convictions.
The second instance in which the constitutionality of crucifixes on state walls had to be examined by the Court resulted in the famous “Crucifix decision” of 1995. By a close majority of five votes to three, the Court quashed a provision of the Bavarian Education Act that made the hanging of Christian crosses in Bavarian classrooms mandatory. The Court held that the pupils’ negative freedom of faith (Art. 4 sec. 1 GG) and the parents’ right to educate their children (Art. 6 sec. 2 GG) were violated.
According to the Court, the pupils were forced to “learn under the cross” with no chance to escape due to mandatory school attendance. The Court particularly pointed to their youth and limited ability to form individual standpoints, thus being particularly susceptible for psychological influence.
Furthermore, the Court rejected the Bavarian attempt to frame the cross as a mere expression of the occidental culture in part having been shaped by Christianity. Rather, the Court noted with remarkable clarity, it is, indeed, its symbol of faith as such. (…) The equipping of a building or a room with a cross is still today understood as an enhanced profession of the Christian faith by the owner. For the non-Christian or the atheist, just because of the importance that Christianity attaches to it and that it has had in history, the cross becomes a symbolic expression of particular religious convictions and a symbol of their missionary dissemination. (…) It has appellant character and identifies the contents of belief it symbolizes as exemplary and worthy of being followed.
In 2003, finally, the first headscarf case was decided by the Court. The facts were quite similar to those of the 2015 decision: Ms. Ludin, an educated teacher, applied to be admitted to the civil service. The school authority in Stuttgart rejected her application, pointing to the fact that she was unwilling to remove her headscarf while teaching and thereby demonstrated a lack of aptitude. The Court held that the school authority’s refusal violated Ms. Ludin’s right of equal access to public office and the guarantee of religious freedom. However, the Court based its decision on the fact that the Land of Baden-Württemberg lacked an appropriate legal basis for the authority’s decision.
Indeed, the Court held that the Länder were free to provide the statutory basis lacking at that time by specifying the extent to which religious clothing may be worn at school. The Court noted that, in creating the respective laws, each Land could take into account its school traditions as well as the population’s denominational composition and its stronger or weaker religious rooting. It is particularly noteworthy that the Court explicitly allowed the Länder to create a statutory basis to treat as a breach of the duties of office or as evidence of unfitness for office the abstract danger of conflict arising from the religious clothing of the teacher. As a matter of fact, following the Court’s decision in 2003, eight Länder adopted legal provisions regulating religious clothing in schools.
The first and most obvious line of argument possibly able to cast some shadow on the Court’s 2015 decision directly relates to my previous paragraph. It concerns the question of consistency in the Court’s jurisprudence. In 2003, the Justices of the Second Senate somewhat backed away from finding a clear stance on the substantial constitutional questions and, more importantly, offered a broad margin of appreciation to the state legislative chambers. In contrast, the First Senate in 2015, in essence, did not much more than paying lip-service to the principle of legislative discretion. Rather, the Senate departed from the path taken by their fellow Justices and stated that a mere abstract danger of impairing the peace at school or the state’s duty of neutrality can never be enough to ban religious practices based on imperative commandments of faith. Dissenting Justices Schluckebier and Hermanns criticise this as unpredictable constitutional jurisprudence. They point to the fact that North Rhine-Westphalia as well as seven other Länder relied on the Court’s 2003 ruling when creating the new laws.
Indeed, the different approaches taken by the Court’s First and Second Senate can create the impression of inconsistency. However, I submit that 2003 and 2015 were different scenarios: In 2003, Baden-Württemberg simply lacked a legal basis for restricting the freedom of faith of its teachers. By 2005, North Rhine- Westphalia (alongside seven other Länder) had created the relevant provisions that were now put to the test of constitutionality. However, and this is of crucial importance, North Rhine-Westphalia’s law deliberately exempted Christian symbols from the ban. The Court holds that the “overall design” of the whole provision (§ 57 sec. 4 SchulG NW) was meant to provide an exemption for Christian symbols.
Maybe it was a form of rebuttal that the Court not only struck down the Christian privilege but interpreted the whole provision very restrictively. I speculate that, without the privilege for Christian beliefs, the law would probably have passed the test of constitutionality without additional restrictions. However, as North Rhine-Westphalia misused the legislator’s margin of appreciation granted by the 2003 ruling, the Court might have felt provoked and compelled to come up with a sharp response – a response, however, that deserves applause with regard to its strong position in favour of individual rights, in this case freedom of faith and religion.
The clear words describing public employees and civil servants not as anonymous instruments of the state but rather as individuals with individual personalities reflect the fundamental value of human dignity on which the Basic Law is built. Though a person who seeks public employment voluntary takes the “side of the state”, this person still enjoys his or her basic rights that need to be balanced with the principle of state neutrality. The Court, again, points out that neutrality under the German constitution must not be confused with laicism or “militant secularism” of, for example, France and Turkey. Rather, state neutrality is an open approach that fosters and supports religious beliefs and practices of all kinds.
The dissenting Justices of 2015 find a teacher wearing a headscarf hardly reconcilable with the notion of teachers as role models. Moreover, they attribute an “appellant character” to the headscarf – a term that the Court used in the 1995 “Crucifix decision” for the Christian cross. However, the fundamental difference is that it is the state that is responsible for a crucifix on a classroom wall. The decision to wear a headscarf, by contrast, is the purely individual decision of an individual teacher. The pupils will associate this religious symbol most likely with the personality of the teacher, not with the institution of the state. Consequently, there are two lines of argument that materially differentiate the crucifix from the headscarf: The wearing of a headscarf is backed by an individual right; and it is not directly associated with the educational mandate of the state.
As a result, the 2015 decision reflects the realities of a pluralist society. Whereas it is true that the preamble of the Basic Law mentions the “responsibility before God”, the Court’s ruling makes clear that there is no pro-Christianity bias when it comes to basic rights. In this regard, the 2015 ruling differs from the 2003 decision that left the Länder a considerable margin of appreciation based on regional traditions and the denominational convictions of the majority. By the same token, the present ruling differs from ECHR jurisprudence according to which the Council of Europe member states enjoy a broad margin of appreciation regarding the balance between state neutrality and religious freedom.
In Dahlab v. Switzerland (2001), the ECHR upheld a school authority order requesting a Muslim teacher to remove the headscarf while teaching. Among other arguments, the ECHR noted that the headscarf “appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.”
In the Grand Chamber decision Lautsi and others v. Italy (2011), the ECHR ruled in favour of Italy that wanted to keep crucifixes in classrooms. The ECHR noted, a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view, particularly having regard to the principle of neutrality (…). It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.
However, it has to be noted that the European Court of Human Rights is not a constitutional court, but rather supervises a multiplicity of constitutional orders. Therefore, it shall not surprise that the German Federal Constitutional Court can take a much clearer stance regarding the balance between state neutrality and religious freedom.
The Court’s present ruling shall be welcomed regarding its effort to reconcile two, (…), and as reality that is seen as affirmed by Christianity”, see Christian Joppke, Double Standards? Veils and Crucifixes in the European Legal Order, 54 European Journal of Sociology, (2013) 97, at 100; for a post-secular perspective, see Pablo Cristóbal Jiménez Lobeira, Veils, Crucifixes and the Public Sphere: What Kind of Secularism? Rethinking Neutrality in a Post-secular Europe, 35 Journal of Intercultural Studies (2014), 385.
on the first hand, opposing interests: a state’s neutral educational mandate versus a teachers’ individual freedom of religion. However, I would like to submit a certain caveat: By stipulating that, in order to justify a removal order, a teacher’s expression of religious views must constitute a sufficiently specific danger, the question is: How to prove it? The Court says, a situation of specific danger could arise if pupils or parents at a particular school or within a particular area hold very controversial or even contradictory views and, due to the visibility of religious symbols, promote these views at school in a way that endangers the school’s order as well as the educational mandate of the state.
In response, the two dissenting Justices submit that substantial problems regarding evidence and proof will arise in this regard, with the additional danger of “personalising” the conflict to an extent that might in itself cause disruption of the school order. I tend to side with the dissenting Justices in this question, considering the difficulty of how to set the threshold of intensity that needs to be reached in order to justify a removal order.
Moreover, the prerequisite of a specific danger implies that there need to be pupils or parents who complain about the teacher’s “inappropriate” religious practice. If these complaints result in a fierce conflict disrupting the school order, the school authority could command the removal of the religious symbol. But: Should the right to exercise a basic right – like freedom of faith – depend on the opinions and reactions of third parties? Shall a barking mob have the power to deprive individuals of their basic rights? The realistic answer is: Yes, probably the need for order would prevail.
However, this scenario seems highly theoretical as, until now, there have not been any known incidents of this kind. It appears therefore that the vast majority of the German population has already accepted the realities of life in a pluralist society.
 Federal Constitutional Court of Germany, Order of 27 January 2015, 1 BvR 471/10, 1 BvR 1181/10. The order (in German) as well as an English press release are available at http://www.bundesverfassungsgericht.de.
 Order, para. 84.
 Order, para. 87.
 Order, para. 94.
 Order, para. 96.
 Order, para. 102.
 Order, paras. 103, 113.
 Order, para. 104.
 Order, para. 105.
 Order, paras. 109, 110.
 Order, para. 113.
 Order, para. 118.
 Order, para. 135.
 Federal Constitutional Court of Germany, Judgment of 24 September 2003, 2 BvR 1436/02, BVerfGE 108, 282.
 Regina Mönch, “Eine Gefahr für die offene Gesellschaft“ (“A threat for the open society”), Frankfurter
Allgemeine Zeitung Online, 16 March 2015, available via http://www.faz.net.
 Heribert Prantl, “Mehr Kopftuch wagen” (“Dare more headscarf”), Süddeutsche Zeitung Online, 13 March 2015, available via http://www.sueddeutsche.de.
 Parvin Sadigh, “Vorbild mit Kopftuch” (“Role model with headscarf”), DIE ZEIT Online, 13 March 2015, available via http://www.zeit.de.
 Christian Wulff, Speech to mark the Twentieth Anniversary of German Unity, 3 October 2010, official English translation available at http://www.bundespraesident.de/SharedDocs/Reden/DE/Christian- Wulff/UebersetzteReden/2010/101003-Deutsche-Einheit- englisch.html;jsessionid=9BF7AC9A87E8A5F8DC57BF4D848873B5.2_cid379?nn=2748000.
 Federal Constitutional Court of Germany, Order of 17 July 1973, 1 BvR 308/69, BVerfGE 35, 366.
 BVerfGE 35, 366, at 376, para. 28.
 Federal Constitutional Court of Germany, Order of 16 May 1995, 1 BvR 1087/91, BVerfGE 93, 1; an English translation can be found on the website of the Institute for Transnational Law, The University of Texas at Austin, School of Law: http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=615.
 BVerfGE 93, 1, at 20, para. 46.
 BVerfGE 93, 1, at 19, 20, paras. 44, 46; English translation adopted from the Institute for Transnational Law, The University of Texas at Austin, School of Law.
 See supra note 14.
 BVerfGE 108, 282, at 309, para. 62.
 BVerfGE 108, 282, at 303, para. 47.
 BVerfGE 108, 282, at 303, para. 49.
 Bavaria, Berlin, Bremen, Hesse, Lower Saxony, North Rhine-Westphalia, Saarland, Thuringia; for a critical assessment of the Berlin Neutrality Law, see Joyce Marie Mushaben, Women Between a Rock and a Hard Place: State Neutrality vs. EU Anti-Discrimination Mandates in the German Headscarf Debate, 14 German Law Journal (2013), 1757-1785.
 Dissenting opinion of Justices Schluckebier and Hermanns, para. 7. 30 Order, para. 127.
 Order, para. 127.
 This was the argument of the dissenting minority in the first headscarf decision, see Dissenting Opinion of Justices Jentsch, Di Fabio, Mellinghoff, BVerfGE 108, 282, at 315, para. 77.
 Dominic McGoldrick, Religion in the European Public Square and in the European Public Life – Crucifixes in the Classroom?, Human Rights Law Review 11 (2011), 452, at 454.
 Order, paras. 109, 110.
 Dissenting opinion of Justices Schluckebier and Hermanns, para. 12.
 However, this form of judicial self-restraint, resulted in a number of pro-Christianity but anti-Islam rulings.
Joppke criticises the using of the notion of pluralism “as a norm to be defended from an assumed threat of Islam
 ECHR, Dahlab v. Switzerland, decision of 15 February 2001, 42393/98.
 ECHR, Dahlab v. Switzerland, English translation, at 13; as Joppke sharply notes: “the opposite of ‘tolerance’, a prohibition, is justified in reference to ‘tolerance’.”, Joppke, supra note 35, at 102.
 ECHR, Lautsi and others v. Italy, decision of 18 March 2011, 30814/06; this decision reversed a preceding Chamber judgment (Lautsi v. Italy) of 3 November 2009.
 ECHR, Lautsi and others v. Italy, para. 72.
 McGoldrick, supra note 32, at 500.
 Dissenting opinion of Justices Schluckebier and Hermanns, para. 16.