German Constitutional Court backs hijab bans in the judiciary

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Bundesarchiv, B 145 Bild-F080597-0004 / Reineke, Engelbert / CC-BY-SA 3.0

Over the past twenty years, the Federal Republic of Germany has witnessed a slew of court cases surrounding Muslim women’s right to wear the hijab in different situations. Much litigation has revolved around two sites: schools and teaching personnel on the one hand, and courts and judicial employees on the other hand.

Gradually, after years of contestation, some of these cases have made their way to the German Constitutional Court in Karlsruhe, the country’s highest-ranking judicial body comparable to the U.S. Supreme Court. Its judges have vacillated on questions related to the hijab.

Overall, they have struck a somewhat permissive line on schoolteachers wearing an Islamically-inspired headcovering – with a 2015 ruling invalidating blanket legal bans of the garment (though school-specific bans may still be imposed). Conversely, the Court has been more restrictive with respect to court employees: a new February 2020 verdict permits the kinds of blanket hijab bans that the Court had considered inappropriate for the school context five years earlier.

The case at hand

The case at hand concerns a woman from the state of Hesse – recently the site of a racially and Islamophobically motivated attack on two shisha bars that left 11 dead – who as part of her law degree is required to complete a trainee period as a legal clerk at court.

As soon as she is carrying out official functions in which she might be seen as a representative of the state – i.e. in any kind of official, public-facing judicial capacity – the Hessian law requires her to remove her headscarf.

The Constitutional Court opined that the Hessian provisions are constitutionally sound. Further German federal states – notably populous North-Rhine Westphalia, Catholic-conservative Bavaria and Baden-Württemberg, as well as secularist Berlin have comparable legal provisions in place, giving the recent ruling wider ramifications.1) http://www.islamiq.de/2020/02/27/gesetzgeber-darf-kopftuch-bei-rechtsreferendarinnen-verbieten/

Distinctions between classroom and courtroom

The Karlsruhe judges take care to spell out that their more restrictive line on Muslim signs in the courtroom does not – in their view – signal a divergence from their earlier, seemingly more permissive stance on Muslim teachers’ right to wear a religious head covering in the classroom.

In the Court’s words, “in contrast to the confessionally open common school – where it is exactly the religiously pluralistic society that is supposed to be represented – in the realm of the judiciary the state faces the citizen in a classically sovereign (hoheitlich) manner, and thus with a greater interfering impact.”2) https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2020/bvg20-013.html

The Court here seems to rely on a distinction between what French sociologist Pierre Bourdieu once referred to as the right hand versus the left hand of the state.3)http://www.variant.org.uk/32texts/bourdieu32.html Judiciary employees, representing the state’s ‘right hand’ – its disciplinary apparatus – are taken by the Court to have a more sovereign, imposing power over the citizens subjected to them. Conversely, teachers and other social workers embody the state’s softer, caring side; and the Court sees their actions as interfering less strongly with the lives of the subjects placed under their authority.

The slippery concept of ‘neutrality’

Much of public debate on the permissibility of the hijab in the judiciary has presented the issue of ‘neutrality’ in terms of ‘objectivity’: a religious symbol, in this reading, betrays the inability of the clerk or judge to assume an objective position vis-à-vis the claims being made and adjudicated at court.

It is never argued, however, which way this ‘lack of objectivity’ would play out – would a hijab-wearing judge be only inclined to believe Muslim claimants? Would she hold ‘conservative’ social mores and thus penalise, for instance, single mothers, or homosexuals?

The fact that none of these questions are ever spelt out points to the impossibility to impute a single meaning to the hijab. In this vein, some commentators on the ruling have stressed that the hijab should not be reduced to a ‘religious symbol’ with a single valence (such as ‘submission to patriarchy’).4) https://de.qantara.de/inhalt/kopftuch-urteil-des-bundesverfassungsgerichts-verhuellen-um-zu-zeigen

Muslims as the only problem group

It is perhaps because of these difficulties that the Court has shied away from defining neutrality in terms of the judge’s ‘objectivity’: “taken on its own, the use of a religious symbol in judicial service is not suitable for establishing doubts about the objectivity of the judges in question”, or so the Court opined.5) https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2020/bvg20-013.html

This leads the Karlsruhe judges to zone in on the “ideological-religious neutrality (weltanschaulich-religiöse Neutralität) of the state” that is supposedly at issue. Yet this propels the Court down a different rabbit hole – namely the distinction between predominantly individual displays of religious identity on the one hand and institutional commitments to a certain religious tradition on the other hand.

Personal versus institutional religious commitments

In the past, the Court had often taken a restrictive line on institutional religious identifications. In a famous 1993 ruling, Karlsruhe had stated that the state of Bavaria was violating the German Constitution by mandating that a Christian cross or crucifix be placed on the walls of every public school classroom. (Successive Bavarian governments have never fully complied with the ruling. In 2018, Bavarian leaders doubled down on their stance, mandating that Christian crosses be prominently displayed in all public buildings – including court houses.)

Building on this, in 2015 the Court stressed the fundamental permissibility of a public school teacher wearing a headscarf, since this garment represented her individual religious commitments, and could not be assigned to any institution as a whole (be it the school in question, or the entire public education system and, with it, the state itself). Hence, the ‘religious-ideological neutrality of the state’ was not threatened by the hijab, the Court then argued.

Critical commentators have picked up on what they see as a crucial weakness of the new ruling: a Muslim law clerk wearing a hijab may work for the state – yet this does not mean that the state identifies with or endorses the religious conviction the hijab may represent.6) https://verfassungsblog.de/fehlverstaendnis-des-neutralitaetsgebots-fuer-den-staat/ It is institutional commitments to religious traditions that threaten state neutrality, not individual employees’ (visible) religious convictions, or so these critics argue.

‘Christian’, ‘occidental’, ‘humanist’ traditions?

In line with its critique of institutional displays of and commitments to a single religious creed, the Court’s 2015 ruling had also seemed to declare unconstitutional legal statutes that privileged Christian or ‘occidental’ values in public education.7) https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2015/bvg15-014.html

Yet the judges’ reasoning in the present case strikes a different note: in its Civil Servants’ Law (Beamtengesetz), the claimant’s home state of Hesse accords pride of place to what it refers to as “occidental (abendländische) traditions shaped by Christianity and humanism”.

According to the Court, rather than representing a potentially problematic institutional commitment to a particular religious outlook, the invocations of such traditions and their contents may legitimately influence how ‘neutrality’ is being conceptualised and applied.8) https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2020/bvg20-013.html

Acceptance of the ruling’s discriminatory impact

The Court also – and in contradistinction to much of European jurisprudence on the issue – expressly concedes that its verdict will have discriminatory effects. For the judges are well aware and acknowledge that what is at play is a hijab ban, not a ban on religious symbols as such.

They recognise, for instance, that there is no exact equivalent to the Muslim headcovering in Christianity – at least not in terms of how Christian religious practice is contemporarily understood by many of its adherents in Germany. “Hence”, the Court notes, due to her religion and her gender, “the general prohibition of religious expressions hits the applicant harder than other religiously oriented state employees.”9) https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2020/bvg20-013.html

The Court subsequently recuses itself from considering the consequences of its own discriminatory ruling, however: “whether the demand for neutrality leads to an indirect discrimination against the applicant due to her gender – since the prohibition should above all impact Muslim women – does not have to be decided upon.”10) https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2020/bvg20-013.html

The Court’s escape clause: diversification of legal frameworks

Finally, the Court has built an escape clause into its ruling, lest it be accused either of actively promoting discrimination or of inappropriately encroaching on sensitive issues best left to the political discretion of elected representatives.

For the Court asserts that the Hessian legal provisions contested by the applicant are in conformity with the German constitution; yet it stops short of describing these provisions as constitutionally mandated by. Hijab bans are thus permissible – but not obligatory. This leaves a lot of leeway for Germany’s 16 federal states (Länder) to craft diverging legal guidelines.

This ambiguity to some extent mirrors the Court’s first so-called ‘headscarf ruling’ (Kopftuchurteil) of 2003: at the time, the judges dodged a definitive answer concerning the permissibility of Muslim public school teachers wearing a hijab. Instead, they invited the Länder to develop their own rules.11) http://www.servat.unibe.ch/dfr/bv108282.html The subsequent flurry of regional legislative activity led to a patchwork of massively diverging legal frameworks; and as a result the issue quickly returned to the Constitutional Court: in the second Kopftuchurteil of 2015, the Court attempted to rein in the fallout of its own 2003 ruling.12) https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2015/bvg15-014.html

Hence, the February 2020 verdict may very well not be the last one on the hijab in the German judiciary: the judges have just kicked the can down the road.

Reactions to the ruling

Predictaly, the Central Council of Muslims in Germany (ZMD) has criticised the ruling. Its deputy chairwoman Nurhan Soykan asserted that it confines Muslim women to “second-class” status – and signals the Court’s willingness to prevent certain groups of the population from entering the judiciary.

The Secretary General of the right-wing Free Democrats, Linda Teuteberg, encouraged policy-makers to make use of the space for legislative action provided by the Court by passing hijab bans in other federal states as well. On the other side of the political spectrum, left-wing Die Linke party criticised that it was not a legal clerk’s hijab but rather the crucifixes displayed in all Bavarian public buildings that placed state neutrality in question.

The woman who had sued for her right to complete her legal training while wearing her head covering noted that – especially against the backdrop of recent far-right terror attacks on Muslims and Jews – she would have wished for the Court “to ask itself […] the impression such rulings make on minorities in Germany. A more self-confident and self-assured handling of diversity in society would have been more productive”, she asserted.13) https://www.fr.de/politik/kopftuch-bundesverfassungsgericht-frankfurt-hessen-zr-13562422.html

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