Internationally, a case at the Federal Constitutional Court surrounding German authorities’ ability to prohibit Friday prayers in the context of the Covid-19 outbreak has caused a bit of a stir. At issue is the question as to whether public authorities have the legal right to ban Friday prayers and other religious services during the so-called ‘lockdowns’ that have been implemented in response to the spread of the virus. https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2020/04/qk20200429_1bvq004420.html
A victory over the German government?
The verdict responded to a suit brought by a mosque association in Lower Saxony, who argued that such a prohibition was disproportionate: the plaintiffs claimed that by developing a comprehensive hygiene plan – which included limiting admissions to the mosque, placing worshippers on allocated positions at a distance from each other, as well as prescribing the wearing of masks – they would be able to enforce the same kinds of social distancing measures as shops and supermarkets, which (in contrast to houses of worship) were allowed to remain open during the ‘lockdown’.
On the English-speaking website islam21c.com, Marcel Krass wrote that Muslims had obtained a significant victory over the German government, whose infringements on religious freedom had been condemned. https://www.islam21c.com/news-views/islamic-union-wins-case-against-german-government-on-behalf-of-places-of-worship/
It is indeed true that the Court opined that blanket bans of religious services – no matter whether in mosques or elsewhere – were unconstitutional. Yet Krass’ article – he is a leading representative of the ‘Federal Islamic Union’ association that brought the lawsuit – smacks of self-promotion, and it misrepresents the facts of the case somewhat. https://islamische-union.de/ueber-uns/
Contextualising the verdict
To begin with, contrary to what the article intimates, the verdict does not represent a condemnation of the policy of the German federal government: the competence to pass and enforce ‘lockdown’ measures resides not at the federal level but with the country’s 16 states, or Länder. This federalism has caused a certain degree of friction in the current crisis – as different states have moved at a different pace when it comes to implementing social distancing measures. And federalism also means that the court’s verdict only censored authorities in the state of Lower Saxony, rather than in Germany as a whole.
What is more, the Court did not order that places of worship be reopened. Rather, it merely obliged authorities to amend their executive lockdown decrees so as to allow for a ‘case by case’ assessment of individual places of worship – so that there is a procedure in place for holding religious services under ‘exceptional’ circumstances, such as Friday prayers during Ramadan. At the same time, however, the right to weigh competing public goods – religious freedom vs. public health – remains with local authorities, granting them a comparatively large degree of discretion.
Finally, the Constitutional Court’s decision was to some extent rendered moot by the fact that on the day of the verdict Lower Saxon authorities struck an agreement with religious figures to re-open places of worship from May 6 onwards. https://www.ndr.de/nachrichten/niedersachsen/Gottesdienste-ab-6-Mai-wieder-moeglich,gottesdienst644.html This mirrored similar measures taken by the country’s other federal states. Nevertheless, authorities’ fear of intensified judicial scrutiny may have played a role in compelling local administrations to move faster on this issue.
‘Fighting for Muslim rights’
Thus, the Court took a much less confrontational stance vis-à-vis executive power than Krass intimates. Nevertheless, the case highlights at least two interesting dynamics.
The first pertains to the plaintiffs – Krass and the Federal Islamic Union organisation – that brought the suit against the restrictive lockdown provisions. Marcel Krass himself is categorised by German domestic intelligence agencies as a leading preacher of the German Salafi movement, with strong ties to a range of other Salafi-inspired actors and institutions. This has led to much political and judicial wrangling surrounding Krass’ persona. https://www.welt.de/regionales/hamburg/article206652305/Verfassungsschutz-warnt-vor-Institut-Prediger-befuerwortet-Gewalt-gegen-Frauen.html
Krass and fellow preacher Dennis Rathkamp – who co-organised a controversial campaign for the distribution of Qurans,https://www.haz.de/Hannover/Aus-der-Stadt/Uebersicht/Radikale-Muslime-verteilen-den-Koran seen by some as the intellectual avantgarde of the so-called Islamic State in Germanyhttps://www.derwesten.de/region/muslimen-gruppe-12thmemorise-demonstriert-gegen-salafisten-id10953001.html – are the leaders of the Federal Islamic Union. In spite of its grand name and glossy website, the Union is only a minor player on the splintered Islamic associational scene in Germany.
Nevertheless, the Union presents itself as being able to transcend its comparatively minor clout by bringing high-profile lawsuits that aim to safeguard and expand Muslims’ rights and freedoms in the country: a strategy of juridical claims-making is to enhance both the Union’s visibility and its support among Muslims. Given the realities of institutional racism and discrimination that affect German Muslims, there is considerable scope for action in this regard.
Growing social tensions amidst a rush to exit ‘lockdowns’
A second noteworthy dynamic revealed by the court case is that it underscores the growing social tensions surrounding the ‘lockdown’ measures. To be sure, this is not at all confined to Islamic or other religious matters: rather, the permissive consensus that allowed political leaders across Europe to impose sweeping executive action to curb the spread of the virus is slowly fracturing on many fronts.
Against this backdrop, it is surprising that the verdict of the Constitutional Court received such scant attention in the German media: beyond local broadcaster NDR, which reports on Lower Saxon affairs, https://www.ndr.de/nachrichten/niedersachsen/Gottesdienste-ab-6-Mai-wieder-moeglich,gottesdienst644.html and a small number of Islamically-oriented niche publications, https://www.islamiq.de/2020/04/30/freitagsgebete-duerfen-nicht-generell-verboten-werden/ the judgement was hardly noticed.
Perhaps this is not only due to the fact that – as noted – the significance of the case was more local and more limited than it might at first appear. As different German federal states battled over how much and how fast to reopen and as different sectors of society rushed to exit the lockdown at the end of April, the Constitutional Court’s judgement rendered – rendered on April 29 – may simply have been submerged by breaking news.