The German Constitutional Court Says Yes to the Islamic Veil

David Fernandez-Rojo |

Yesterday, BBC online reported on the new ruling made by the German Constitutional Court (GCC), which specifically held that prohibiting teachers from wearing the Islamic Veil in public schools is not compatible with the German Constitution. This ruling affects eight federal states (Baden – Württemberg, Bavaria, Berlin, Bremen, Hesse, Lower Saxony, North Rhine Westphalia and Saarland), which had previously passed laws that prohibited individuals from wearing the Islamic headscarf. Such a ruling shifts from the GCC’s previous finding, published on 24th September 2003 (Ludin Case), which allowed German states to pass laws balancing religious freedom and state neutrality.

1280px-Karlsruhe_bundesverfassungsgerichtIn the Ludin case, a teacher insisted on wearing the headscarf while in a high school classroom. The GCC did not view that the principle of state neutrality was affected, pointing out that the fundamental right to religious freedom could only be limited if other constitutional principles and rights, sufficiently determined, were compromised. The GCC admitted that the veil could be banned only if the legislature had reasonably justified the existence of an actual conflict, not just a potential one. To determine whether a real conflict, not merely a potential one, existed, the GCC looked into research that had been conducted on the significance of the headscarf and the reasons behind its use. Per these findings, the GCC established that wearing the veil in a school setting did not interfere in the education of the students. Three years after the Ludin case, the German Islam Conference was established, with the aim of encouraging the Muslim community to express their opinions and concerns. One of the main points of discussion was the issue of the veil and how to integrate it into German society.

Muslim_woman_hijabThe new ruling of the GCC states that a ban on the Islamic headscarf is only viable if its use implicates a “real danger” that would alter the school order or would violate the principle of religious neutrality. According to the GCC, a simple “abstract danger” should not give reason to veto the headscarf or other garments that may be interpreted as an expression of belonging to a predetermined religion.

To conclude, the GCC has introduced a system of balancing, to guarantee reedom of religion and other legitimate rights as much as possible. Additionally, Germany has encouraged an open dialogue with the Muslim population through empirical data and the creation of the German Islam Conference. This approach contrasts with the highly debatable and recent interpretation made by the European Court of Human Rights (ECtHR) last July 2014 in “S.A.S v. France”.

In my point of view, generalized prohibitions will not eradicate the tradition of wearing the Islamic Veil, which has strong cultural and religious roots among Muslim women. Hidden under the disguise of a general prohibition is not only a fear of discrimination, but an apprehension to pluralism at its deepest core, which makes uncovering the veil a more comfortable option for westerners. Therefore, in my next post, I plan to develop this idea even further, suggesting that instead of restricting such a manifestation of religion (like the ECtHR has recently done), efforts should shift toward a more inclusive approach to strengthen dialogue between countries and the Muslim organizations. Such an approach would encourage communication and understanding of wearing the Islamic Veil throughout countries, promoting values of respect, acceptance, and coexistence in a social, plural, and democratic state.