Germany’s long-running judicial wrangling over the ability of Muslim women to wear the hijab in public employment has been enriched by a further episode. The Bavarian Administrative Court in Munich decreed that prohibitions banning court personnel from wearing the Islamic headcovering were permissible.
Decisions based on formal criteria
The case concerns a legal trainee who, over the course of her studies in law, needs to complete a series of internships – including one at a court. She had been forbidden from donning her hijab; a restriction over which she took legal action.
The court of lower instance had initially validated her complaint; yet it had done so mainly on formal grounds, arguing that the hijab ban had not had a solid basis in law. In some ways, the superior administrative court repeated this approach: It also ruled on purely formal grounds rather than offering a conclusive clarification of the question of religious freedom vs. state neutrality in the courtroom.(( http://www.sueddeutsche.de/bayern/kopftuchverbot-bayern-urteil-1.3895506 ))
The plaintiff Aqilah Sandhu and her lawyer Frederik von Harbou expressed dismay over the verdict. “At the heart of the matter lies the issue that a legal trainee in Bavaria is completing her education ‘beneath the cross’ in the courtroom but is still supposed to remove her hijab”, von Harbou noted. Sandhu asserted that the Court had “chickened out” by adjudicating on purely formal bases.(( http://www.sueddeutsche.de/bayern/kopftuchverbot-bayern-urteil-1.3895506 ))
The hijab in public employment: a legal minefield
Indeed, the legal terrain concerning matters of ‘state neutrality’ in general and the permissibility of the headscarf in German public service in particular is extremely complex. Germany’s constitutional court, the Bundesverfassungsgericht, has repeatedly opined on the issue; yet legal clarity has remained elusive. Generally, legal contention has revolved around the ability of Muslim women to wear the hijab while teaching in public schools.
In 2003, the Constitutional Court issued a first verdict on this matter, basically providing Germany’s 16 federal states with two options: either permit all religious symbols worn by individual teachers in schools – or prohibit all, on the basis of a non-discriminatory law prescribing absolute ‘neutrality’ for public school employees.
In 2015, the Court was asked to adjudicate on another case. It substantially revised its position, placing greater emphasis on teachers’ right to exercise their religious freedom, also by wearing a hijab. Blanket prohibitions of the headscarf (and all other religious symbols) were thus invalidated; instead, school authorities can only invoke ‘state neutrality’ in order to ban religious clothing in concrete on a case-by-case basis if ‘school peace’ (in the Court’s wording) is placed at risk by a teacher’s display of his/ her religious affiliation.
Restrictive laws in the Länder
However, since 2003, various German Länder had passed a host of legal regulations on religious symbols in the school context, many of whom are comparatively restrictive. The constitutionality of these laws has been in doubt since the Constitutional Court’s 2015 ruling.
The most contentious of these legal provisions is the so-called Neutrality Act (Neutralitätsgesetz) in the state of Berlin. This legal text has inspired a plethora of court cases; the political debate surrounding its constitutionality has been recently renewed.
Hijab in the courtroom
Moving beyond the legal questions concerning the hijab in schools, the Constitutional Court has taken a slightly different approach however – in particular when it comes to the judicial sphere. In a 2017 verdict, it stressed the particular need for courtrooms to stay ‘neutral’ – in contradistinction to classrooms. Hence, employees tasked with any kind of adjudicating activity had to refrain from showing signs of religious affiliation.
On the basis of this reasoning, the Court upheld provisions in force in the state of Hesse, which barred Muslim women from wearing the hijab while exercising official court functions. Although the Munich Administrative Court has yet to release the full written version of its recent verdict in the case of Aqilah Sandhu, this stance of the Constitutional Court seems highly relevant to the present case.
The constitutional court’s stance on religious symbols
Finally, while the hijab has been the most significant bone of contention, it is not the only religious symbol whose presence in public institutions has been contested at the German Constitutional Court. In its internationally noted so-called ‘Crucifix Verdict’ of 1995, the Court stated that the mandatory display of Christian crosses in all Bavarian classrooms was unconstitutional.
In its 2015 judgement on the hijab, the Court returned to the issue, stressing that the presence of a crucifix on every classroom wall signalled an institutional commitment to a certain religious doctrine – whereas the wearing of a hijab by a single teacher was a sign of individual religious convictions; and even if the teacher in question was a state employee state neutrality was not imperilled by it.
Legal rulings – and political practice
Yet while the ‘Crucifix Verdict’ initially appears clear in its implications, actual practice has been much more uneven. Most notably, following the Court’s decision the state of Bavaria passed a new law that kept the Christian cross in all classrooms but provided a kind of individual dispute solution mechanism.
Should individual pupils or their parents take issue with the cross, they can file a complaint and the cross can be removed on a case-by-case basis.
As Sandhu’s lawyer noted, the cross remains present in Bavarian courtrooms too. The state of Bavaria, in line with its strong Catholic traditions, has thus managed to evade both the Constitutional Court’s permissive rulings on the hijab and its more restrictive ruling on the Christian cross. High-level legal argument and political practice are two separate beasts.