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
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.
- 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.