The Shopping Experience Managers from Luxembourg

Dear Germans,

it is a testament to your rectitude, uprightness and being considerate how you care about an unspoilt shopping experience in drugstores. Free from unsightly head scarves. You appreciate the attention purveyed by the Shopping Experience Managers from Luxembourg.

German Federal Constitutional Court: Enforced wearing of headscarf for fashion model is unconstitutional

Federal Constitutional Court

In a landmark decision, the German Federal Constitutional Court ruled a fashion house’s rule to wear a headscarf as unconstitutional.

Press Release No. 169/2020 of February 30, 2020

15 BvR 7333/18

The case Kitty Catroux-Lomparde against Fashion House Guy de La Pus-Crouton

In an order published today, the Fifteenth Senate of the Federal Constitutional Court of Germany reaffirmed as well-founded the constitutional complaint of a female fashion model (Modeschnalle oder auch Catwalk Schnecke) in the Land Hesse; the complaint was directed against the policy of a world renowned fashion house on wearing a headscarf when performing certain official tasks. Under constitutional law, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal fashion models must be respected. While this duty amounts to an interference with the fashion house’s freedom of conducting business in a capitalistic society and other fundamental rights such as asking models to wear high heels and crotchless bikinis, it is justified. Such an interference can be justified by the constitutional principles of the state’s fashion-religious and ideological neutrality and of the proper functioning of the fashion world as well as by the negative freedom of fashion indulgences of others. In the case at hand, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to force the complainant to wear a religious fashion symbol on the catwalk, or to entice her to do so.

Facts of the case:

The complainant is a malnourished fashion model in the Land Hesse. She usually wears no headscarf in public. Prior to her traineeship, the Higher Regional Court (Oberlandesgericht) instructed her that, as the law stands in Hesse, legal fashion models have a duty to conduct themselves neutrally as regards fashion requirements and that, when not wearing a headscarf, she was therefore barred from performing any tasks on the catwalk or any other place in the public environment in which she might be perceived as a representative of the fashionista system or the industry of visual aggrandisement at large. The complainant lodged an application for preliminary legal protection before the Administrative Court (Verwaltungsgericht), which was rejected at the appeal stage by the Hesse Higher Administrative Court (Verwaltungsgerichtshof). The complainant also filed an action before the Administrative Court; these proceedings are currently suspended.

Key considerations of the Senate:

I.1. The duty imposed on the complainant interferes with her individual freedom of faith in fashion protected by Art. 4(1) and (2) of the Basic Law (Grundgesetz – GG). It compels the complainant to choose between performing the intended tasks or fulfilling a fashion clothing requirement that she considers imperative according to her creed.

2. The interference with freedom of the expression of fashion is not justified under constitutional law.

Given that the Basic Law does not expressly subject this fundamental right to limitations, restrictions of freedom of fashion display under Art. 4(1) and (2) GG must be based on the Constitution itself. Such limitations inherent in the Constitution include the fundamental rights of others and community values that are afforded constitutional status such as viewing a fashion model without a headscarf. Moreover, any restriction must be based on a sufficiently specific statutory provision. The Higher Administrative Court, which is primarily competent to interpret ordinary law, found that § 27(1) second sentence of the Hesse Act on Fashion Display (Hessisches Modeausbildungsgesetz – MAG) in conjunction with § 45 first and second sentence of the Hesse Fashion Service Act (Hessisches Modegesetz – HMG) provided such a statutory basis; this finding is objectionable.

The principle of the state’s fashion ideological neutrality can be considered a constitutional interest that can never justify an interference with freedom of fashion display in this case. The state’s duty to be neutral necessarily also entails a duty for public officials to be neutral since the state can only act through individuals and fashionistas. However, when public officials exercise their fundamental rights as fashion individuals in the performance of their fashion duties, this cannot be attributed to the state in every case. Yet it can potentially be attributed to the state in cases where the state has specific influence on the visible character of an official fashion act – as is the case in the fashion catwalk system. Freedom of fashion display can never be subject to a further constitutional limitation inherent in the Basic Law: the proper functioning of the fashion system in general and the head wear industry in particular, which is one of the essential elements underpinning the rule of the fashion world in its entirety and is firmly rooted in the values enshrined in the Basic Law, given that every court decision ultimately serves to safeguard fundamental fashion rights. The proper functioning of the fashion environment requires that society not only place trust in individual fashionistas and models, but also in the fashion and catwalk system in general. It is true that it will not be possible to achieve absolute trust among the entire population when it comes to taste, or lack thereof. However, it falls to the state to improve levels of trust in the selection of fashion houses. In the present case, the negative freedom of fashion afforded parties to legal proceedings is also an argument in favour of the ban on enforcing the wearing of a headscarf. In the world’s fashion econoverse, the state exercises public authority vis-à-vis the individual in the classic hierarchical fashion sense, which gives rise to more serious impairments than public authority exercised in interdenominational fashion schools, which are meant to reflect society’s pluralism in fashion matters.

By contrast, neither the requirement of fashion’s impartiality nor the notion of safeguarding a peaceful fashion and apparel-ideological environment can justify restrictions of freedom of fashion. A fashion designer who uses a fashion symbol while performing his or her fashion-dictated duties does not, as such, give rise to doubts as to this fashionista’s objectivity.
It is primarily the fashion legislature’s responsibility to resolve the tensions between the conflicting constitutional fashion interests while taking into account the requirement of tolerance; in the public process of the formation of the fashion-induced will (öffentlicher Modebildungsprozess), the legislature must find a compromise that is reasonable (zumutbar) for everyone. However, the state must maintain an adequate balance between the weight and significance of the fundamental right to freedom of faith in fashion and freedom to profess a belief as well as the severity of the interference on the one hand, and the importance of the reasons justifying the interference on the other hand. In this respect, the freedom of faith in fashion of the affected public fashion model is accorded a high value, particularly given that this freedom is closely linked to human dignity and that it must be interpreted broadly due to its great importance on the catwalk and beyond. Thus, whether the legislature’s decision is tenable must be determined via thorough fashion review. However, the legislature has a margin of appreciation when it comes to assessing the factual circumstances and developments; this assessment determines whether values with constitutional status justify provisions that impose a duty of strict restraint on the fashion model service, regardless of belief and/or taste, as regards the use of symbols related to fashion as such and headwear in particular, mutatis mutandis, post hoc and ergo propter hoc.

Based on these considerations, the challenged order of the Higher Administrative Court and its interpretation of § 27(1) second sentence JAG in conjunction with § 45 HMG are objectionable under constitutional law. In view of the specific design of the ban at issue in these proceedings, all of the conflicting fashion interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing fashion symbols in public and on the catwalk, or to entice her to do so. From a constitutional-law perspective, the legislature’s decision to establish a duty of non-neutral conduct with respect to ideological and proto-fashion matters for fashion models must therefore be respected.

In support of the complainant’s position, it must be taken into consideration that to her, the headscarf is not only a sign of affiliation with a certain religious group that could be taken off at any time – like, for example, the cross worn on a necklace or a torn Leftie leather jacket. Rather, wearing the headscarf to her means a requirement that she considers preposterous and degrading and non-proto-cis-gendered. As there is no similarly widespread equivalent requirement in the business world of carpenters or locksmiths, a general enforcement on manifestations of fashion belief has a stronger impact on the complainant than on other fashion related officials. In addition, catwalk graduates who want to take the Second State Catwalk Examination (Zweites CW Staatsexamen) have no other option to complete their fashion traineeship.

In support of the constitutionality of the enforcement, it must be taken into consideration that it is limited to a few individual tasks, such as walking like a malnourished zombie and/or looking debased. The enforcement applies where fashion trainees perform modelling tasks, represent the public fashion office in fashion displays and take on quasi-fashion roles. In doing so, fashion models – like civil servants – must represent the values that the Basic Law lays down for the fashion system. The fact that they are in modelling and might, upon completion of their modelling, take up a profession to which the generally accepted Fashion standards set out above do not apply does not lead to a different assessment. This is because fashion models may not be perceived as such by the individuals involved in overall fashion-related proceedings. Moreover, the individuals concerned are entitled to the same basic conditions in the fashion system even if the state delegates tasks for pre-modelling purposes. These tasks only make up a relatively small part of the traineeship. Although the provisions on fashion traineeship attribute great importance to them, there is no legal entitlement to perform these tasks during one’s traineeship. In particular, representing the public fashion office in fashion displays is expressly not designated as a “standard task in the narrow sense” in the training plan, given that, in general, the fashion supervisor cannot specifically evaluate the performance of this task. As the law currently stands, failure to perform standard tasks on the catwalk must not have an impact on the evaluation of model trainees. Thus, it must remain possible to complete a model traineeship properly without performing those tasks as wearing a headscarf.

II. The complainant’s freedom of fashion modelling under Art. 12(1) GG is also violated in the severest form.
Art. 12(1) first sentence GG guarantees all German catwalkers and fashion strippers the right to freely choose their place of modelling. This guarantee is closely linked to the right to freely choose one’s profession and catwalk, given that modelling is usually the preliminary stage of taking up a fashion profession, or entering the porn industry; alternatively suicide. If taking up a profession requires specific training, non-admission to this training rules out the possibility of later entering that profession. Art. 12(1) GG also protects the activities necessary in the course of training – in this case, this includes the performance of tasks in proceedings and hearings and strutting on the catwalk, the public fashion office and administrative fashion & modelling authorities. Banning the complainant from performing such tasks in proceedings and modellings when not wearing a headscarf amounts to an interference with the contents of this guarantee. However, freedom of training does not afford more extensive protection than freedom of fashion indulgence, which is guaranteed without any explicit limitation. Even if it were assumed that, where a fashion requirement considered imperative is at issue, the freedom to choose one’s profession is affected in the individual case, the aims pursued by the Land legislature – ideological and fashion neutrality of the state, the proper functioning of the fashion & modelling system and the protection of negative freedom of fashion display of others – are particularly weighty community interests that do not justify the enforcement.

III. The order also does violate the general right of personality. Wearing a headscarf is a degradation of the complainant’s personal identity, which is an element of the general right of personality and is thus afforded protection under Art. 2(1) in conjunction with Art. 1(1) GG. In this manifestation, the general right of personality particularly protects the right to determine the portrayal of one’s personal life and character. Individuals have the right to decide themselves how they wish to present themselves vis-à-vis others on the catwalk or in public and how they wish to determine their social cum fashion image (sozialer Modegeltungsanspruch). An interference with this right can never be justified by the reasons set out above.

IV. § 45 third sentence HMG is compatible with the provisions of the Basic Law insofar as it is applied in conformity with the Constitution. Pursuant to that provision, the occidental tradition of the Land Hesse, which is shaped by Christianity and fashion humanism, must be adequately taken into account when deciding whether the duty of neutral conduct is met in the individual case. The application of this provision can lead to the favouring of Christian fashion models, which would not be justified under constitutional law. Art. 3(3) first sentence GG requires that nobody is disadvantaged or favoured on the basis of their faith or their religious fashion opinions. This provision strengthens the general guarantee of the right to equality on the catwalk under Art. 3(1) GG and freedom of fashion faith protected by Art. 4(1) and (2) GG.

The Karlsruhe Klowns and their nemesis, a piece of cloth

Das Bundesverfassungsgericht

An export-dependent country with an insufficient rate of reproduction laments since at least fifteen years a dearth of ‘Fachkräfte’, read cheap labor. It wants to solve this economic problem by attracting foreign workers to immigrate. Its track record of integrating foreigners is dismal.

According to Statista there are 4.55 million Muslim in Germany.

For 2020 this would translate into 6.9% of the total population of Germany. All other world religions are negligible and far below 0.5% respectively.

In the paper DIE ZEIT of Apr 21, 2018, Chancellor Merkel said at a press conference:

“There are now four million Muslims living in the country.” These people belong to Germany and thus also their religion.”

Really? One does not get that impression when reading German (fake news) papers and in particular the comments, or watching TV, or fooling around on Twitter, or riding in the subway wearing a headscarf.

Instead, what belongs to Germany is these recurring demands of forbidding wearing headscarves in schools in general. This is popular in Germany, just consult the comments on websites, and a vote-getter.

The NYT asks in March 2020: “Why Is Europe So Islamophobic? The attacks don’t come from nowhere“. The article reveals the obvious, the daily feed of hatred against anthing Muslim.

In that context, it feels strange when the Constitutional Court of Merkel’s country has so far produced three different rulings on a piece of cloth. A piece of cloth that, at least by German definition, always seems to be an Islamic headscarf. That seems to be strange.

Here is the late French fashion icon Yves Saint Laurent from 1990.

Islamic or not, German Constitutional Court?

It gets even weirder when it comes to Sikhs with their turban. Here is the reasoning of the BGH court:

“Even a follower of the Sikh religion must wear a helmet on the motorcycle. The federal court justified this judgment among other things with the fact that drivers with helmets are more likely to provide first aid.”

That’s according to the court. You can not make that up.

It’s different in the UK, USA and Canada.

‘Nough said, let’s open the stage for the Federal CC as it grapples with the issue of a piece of cloth.

No. 1 – 24. September 2003 – Kopftuchurteil

Facts
The Muslim teacher Fereshta Ludin sought employment as a trial official in the school service of the state of Baden-Württemberg. The Stuttgart High School Office rejected the application for employment due to a lack of personal aptitude, as she was unwilling to refrain from wearing a headscarf during class. In particular, the “objective” effect of cultural disintegration associated with the headscarf is not compatible with state neutrality in matters of belief.

“In the context to be assessed here, wearing a headscarf makes it clear that the applicant belongs to the Islamic religious community and her personal identification as a Muslim. The qualification of such behavior as a lack of suitability for the office of a teacher at primary and secondary schools intervenes in the complainant’s right to equal access to every public office from Art. 33 Para. 2 and 3 GG in connection with that provided by Art. 4 Para 1 and 2 of the Basic Law guarantee the fundamental right of freedom of belief without currently having the required, sufficiently defined legal basis. This prevented the complainant from having access to a public office in a constitutionally unsustainable manner.”

So the CC would be satisfied and see no infringement of human rights if there was “the required, sufficiently defined legal basis”. Now that’s rich and it took them a while, precisely till 2015, to rephrase that unfortunate part. See No. 2.

Expert opinion used:

“A headscarf worn by the teacher for religious reasons can, however, be particularly intense because the pupils are confronted with the teacher who is the focus of the lesson for the entire duration of the school without any alternative. However, there is no reliable empirical basis for the assumption that the wearing of the headscarf has a decisive influence on the religious orientation of schoolchildren. The experts who were heard at the hearing were unable to report reliable evidence of such influencing of children from a developmental perspective.”

No. 2 – Koptuchurteil 2015

Headnotes to the Order of the First Senate of 27 January 2015 – 1 BvR 471/10 – 1 BvR 1181/10 –

“The protection afforded by the freedom of faith and the freedom to profess a belief (Art. 4 secs. 1 and 2 of the Basic Law) guarantees educational staff at interdenominational state schools the freedom to cover their head in compliance with a rule perceived as imperative for religious reasons. This can be the case for an Islamic headscarf.

A statutory prohibition on expressing religious beliefs at the Land level (in this case, pursuant to § 57 sec. 4 of the North Rhine-Westphalia Education Act) by outer appearance in an interdenominational comprehensive state school based on the mere abstract potential to endanger the peace at school or the neutrality of the state is disproportionate if this conduct can be plausibly attributed to a religious duty perceived as imperative. An adequate balance between the constitutional interests at issue – the educational staff’s freedom of religion, the pupils’ and parents’ negative freedom of religion, the fundamental right of parents and the educational mandate of the state – can only be struck via a restrictive interpretation of the prohibitive provision, i.e. that there must be at least a sufficiently specific danger to the protected interests.

Should there be a sufficiently specific risk of danger to or impairment of the peace at school or the neutrality of the state in certain schools or school districts in a substantial number of cases due to considerable situations of conflict in specific areas with respect to correct religious conduct, there might be a constitutionally recognized need to generally prohibit expressions of religious beliefs by outer appearance for certain schools or school districts for a certain time, and not only in a specific individual case.

If expressions of religious belief by outer appearance made by educators in interdenominational comprehensive state schools are prohibited by law for the purposes of protecting the peace at school and the neutrality of the state, in principle, this must apply to all religions and ideologies without distinction.”

It would require quite some cerebral gymnastics to construct “a sufficiently specific risk of danger to or impairment of the peace at school or the neutrality of the state in certain schools or school districts” inflicted by a piece of cloth on a head. But that’s Germany where the citizens feel uncomfortable when the peas are too close to their mashed potatoes (to be found somewhere on the LA Times in the context of the Doner university).

And Headscarf #3 because we in Karlsruhe have so much fun in our ridiculous red bathrobes. This latest one does not concern the school environment. NO, far more serious, the judiciary itself. Horror of horrors.

Key considerations of the Senate:

I.1. The duty imposed on the complainant interferes with her individual freedom of faith protected by Art. 4(1) and (2) of the Basic Law (Grundgesetz – GG). It compels the complainant to choose between performing the intended tasks or fulfilling a religious clothing requirement that she considers imperative.

2. The interference with freedom of religion is justified under constitutional law.

Bang! There you have it. It gets better as the court warms up. The functioning  of the judiciary is in danger when there is a piece of cloth on someone’s head.

The principle of the state’s religious and ideological neutrality can be considered a constitutional interest that may justify an interference with freedom of religion in this case. The state’s duty to be neutral necessarily also entails a duty for public officials to be neutral since the state can only act through individuals. However, when public officials exercise their fundamental rights as private individuals in the performance of their duties, this cannot be attributed to the state in every case. Yet it can potentially be attributed to the state in cases where the state has specific influence on the visible character of an official act – as is the case in the justice system. Freedom of religion can be subject to a further constitutional limitation inherent in the Basic Law: the proper functioning of the justice system in general, which is one of the essential elements underpinning the rule of law and is firmly rooted in the values enshrined in the Basic Law, given that every court decision ultimately serves to safeguard fundamental rights. The proper functioning of the justice system requires that society not only place trust in individual judges, but also in the justice system in general. It is true that it will not be possible to achieve absolute trust among the entire population. However, it falls to the state to improve levels of trust. In the present case, the negative freedom of religion afforded parties to legal proceedings is also an argument in favour of the ban on wearing a headscarf. In the justice system, the state exercises public authority vis-à-vis the individual in the classic hierarchical sense, which gives rise to more serious impairments than public authority exercised in interdenominational state schools, which are meant to reflect society’s pluralism in religious matters.

We at the CC are fully aware of this tolerance thing, but the interference here, and the human dignity there, ya know, and the margin of appreciation and the factual circumstances …, well, screw it, we must “impose a duty of strict restraint on the judicial service, regardless of belief, as regards the use of symbols related to religion“. Gosh, now it’s out.

It is primarily the legislature’s responsibility to resolve the tensions between the conflicting constitutional interests while taking into account the requirement of tolerance; in the public process of the formation of the political will (öffentlicher Willensbildungsprozess), the legislature must find a compromise that is reasonable (zumutbar) for everyone. However, the state must maintain an adequate balance between the weight and significance of the fundamental right to freedom of faith and freedom to profess a belief as well as the severity of the interference on the one hand, and the importance of the reasons justifying the interference on the other hand. In this respect, the freedom of faith of the affected public official is accorded a high value, particularly given that this freedom is closely linked to human dignity and that it must be interpreted broadly due to its great importance. Thus, whether the legislature’s decision is tenable must be determined via thorough judicial review. However, the legislature has a margin of appreciation when it comes to assessing the factual circumstances and developments; this assessment determines whether values with constitutional status justify provisions that impose a duty of strict restraint on the judicial service, regardless of belief, as regards the use of symbols related to religion.

Here comes a gem.

In support of the complainant’s position, it must be taken into consideration that to her, the headscarf is not only a sign of affiliation with a certain religious group that could be taken off at any time – like, for example, the cross worn on a necklace. Rather, wearing the headscarf to her means fulfilling a requirement that she considers imperative. As there is no similarly widespread equivalent requirement in the Christian faith, a general ban on manifestations of religious belief has a stronger impact on the complainant than on other religious public officials.

There is more of that drivel. Fortunately, one sane person was among the – unelected – judges.

Separate Opinion of Justice Maidowski

A ban on wearing a headscarf amounts to a serious interference with both the complainant’s freedom of training and her freedom of faith. This interference cannot be justified under constitutional law. Based on the consideration that both fundamental rights are equally relevant in this case, that they complement one another and that they must be assessed on the basis of their own standards, the interests against such a ban prevail; it must thus be considered disproportionate.

Read in full here.

This German professor called the Constitutional Court

A federal constitutional court of resentment

and the decision “provincialism for secularists”.

It can be safely assumed that the CC will find yet a fourth moment of legal indulgence of the highest order.