German hijab debate: court vetoes current restrictions on the hijab in the Bavarian justice system – with a caveat

New case brought by an aspiring lawyer

A 25-year-old junior lawyer, Aqilah Sandhu, won a court case against the Bavarian state regarding her right to wear her headscarf while at work¹. In July 2014, the Munich Higher Regional Court had denied Sandhu, at the time a legal intern at the court, the right to wear a hijab while hearing a witness or while participating in court proceedings as judge or prosecutor.

When questioned by Sandhu, her superiors justified this move by pointing to the need for the judiciary to remain religiously and ideologically neutral. The ensuing restrictions not only had an adverse impact on Sandhu’s training but also dimmed her prospects of finding employment in the judicial sector. The Augsburg Administrative Court ruled that the demand that Sandhu remove her hijab had been unlawful.

Debate on the hijab still not settled

However, the reason given for the verdict in Sandhu’s favour were above all formal: when prohibiting the legal intern to wear a hijab, her employer had acted on the basis of customary practice and of an administrative order from the Bavarian Ministry of Justice – not on the basis of a formal law debated and enacted by the Bavarian parliament. Yet it is such a law that would be necessary in order to legitimise any restriction placed on the freedom of religion and the freedom of education, or so the Administrative Court argued.

Thus, the ruling is only a further chapter in the German hijab debate rather than the debate’s conclusion: the Bavarian Ministry of Justice already announced that it would seek to overturn the verdict. And even if future court decisions are again in Sandhu’s favour, the ruling of the administrative court still leaves the Bavarian state the possibility to formally ban religious symbols from the judicial system through the enactment of a new law – a law that the conservative majority in the Bavarian state parliament might very well be willing to pass.

Constitutional question marks

In fact, the state of Berlin opted for such a legislative route: in the capital, a ‘neutrality law’ bans all religious symbols from public institutions. In April 2016, a Muslim teacher, who had sued the authorities after they prohibited her from working in primary school with her hijab, had her case rejected by the Berlin Labour Court: the court argued that the relevant Berlin law treats all religions equally, and that claims of religious discrimination were therefore unfounded².

But even the Berlin case is not clear-cut, since its relationship to a March 2015 judgement by the German Constitutional Court remains ambiguous: the country’s supreme court had argued in 2015 that teachers at public schools had to be allowed to wear a headscarf – unless the hijab causes ‘major disturbances’ in the school’s daily operation, a somewhat vague addendum³.

However, the supreme court’s verdict was passed in response to a specific ‘hijab ban’ in the state of North Rhine-Westphalia. In contrast to the North Rhine-Westphalian law, Berllin’s ‘neutrality law’ does not single out Muslim symbols for prohibition and thus does not privilege Judeo-Christian or any other religious worldviews. The judges at the Labour Court took this to be a decisive difference that legitimised their rejection of the Muslim teacher’s case.

Accepting the hijab or turning towards laicism?

At least current Bavarian practice does not appear to follow a Berlin-style ‘neutrality’, however: one of Aqilah Sandhu’s fellow law students was quoted in the Süddeutsche Zeitung newspaper as saying that “I always were a cross necklace, also when I’m working. The cross has always been visible and no one ever said anything. That’s just unfair.”⁴

Thus, legislators in traditionally strongly Catholic Bavaria may soon have to decide whether their objections to the visibility of the hijab are so strong that legislators are willing to enact a kind of ‘laic’ neutrality law that also curbs not just the public expression of Muslim religiosity but also the state’s Catholic heritage.

Sources

1. http://www.sueddeutsche.de/bayern/kopftuch-verbot-jura-studentin-besiegt-den-freistaat-1.3056761 ↩

2. http://www.zeit.de/gesellschaft/zeitgeschehen/2016-04/kopftuchverbot-berlin-urteil-arbeitsgericht-lehrerinnen ↩

3. https://www.euro-islam.info/2016/03/23/the-lifting-of-the-headscarf-ban-one-year-on-german-state-laws-and-practices-slow-to-change/ ↩

4. http://www.sueddeutsche.de/bayern/kopftuch-verbot-jura-studentin-besiegt-den-freistaat-1.3056761 ↩