Academic journal article Brigham Young University Law Review

The German Headscarf Debate

Academic journal article Brigham Young University Law Review

The German Headscarf Debate

Article excerpt

I. INTRODUCTION

Nearly twenty years ago, teachers employed by the state in Germany began to wear the reddish-colored clothing of the Bhagwan (Osho) religious movement in obligatory state schools, thus silently yet highly visibly advertising for their religious community, which at that time was still considered a "youth sect" [Jugendsekte]. Many courts at the time prohibited this activity without much controversy.1 In contrast, with its Headscarf Decision2 of September 24, 2003, the German Federal Constitutional Court has unleashed an avalanche of controversy; that is, the court has needlessly raised a difficult political dispute. Specifically, although the court ruled that a prohibition on a Muslim teacher from wearing a headscarf-which has previously been held valid3-is indeed theoretically permissible, the court nevertheless declared the specific legal regulation at issue insufficient4 and therefore mandated elected legislatures to create a "sufficiently clear legal basis"5 on which to justify such a limitation of religious freedom, yet provided them with no guidance in doing so.

In Germany-a country largely unshaken by religious conflicts and where every individual enjoys full religious freedom under an overall satisfactorily functioning rule of law-the court has spoken in terms of religious freedom in the debate about the headscarf of a Muslim school teacher.6 In holding the administrative regulation prohibiting a Muslim school teacher, as a civil servant, from wearing a headscarf while teaching insufficient, the court nullified all related regulations immediately, with no transitional period.7 Now, laws in each of Germany's sixteen federal states [Bundesländer or Länder] must be amended if a particular state's law does not declare directly that the state [Bundesland or Land] prefers not to legislate on whether a Muslim teacher may or may not wear a headscarf while teaching, as in the case of the Land Northrhine-Westphalia.8 In response to the Headscarf Decision, the Länder BadenWürttemberg, Bavaria, and Lower Saxony have already submitted or announced draft laws to provide a legal basis for prohibiting teachers from wearing headscarves while teaching.

Prominent public figures-not jurists but experienced politicians who are also authorities on religion-have entered the constitutional fray, speaking against a prohibition on headscarves. For example, Hans Maier, the former Bavarian Minister of Education [Kultusminister], has supported the integration of Muslims in society through upbringing and education since the 1970s.9 In this effort, he has strived to promote dialogue in schools and colleges between the "Children of Abraham"10 who, despite their common roots, are all so different from each other. That is why he could "only be horrified at this blind zeal"11 behind the drive for a renewed prohibition following the Headscarf Decision. Maier is against a renewed prohibition on headscarves because he fears the undesired consequences it would have for all religious symbols.12 According to Maier, nothing is as important as equality in a secular state.13 Especially the younger generation of judges has learned this lesson, asserts Maier.14 Furthermore, much like the Federal Constitutional Court,15 Maier also pointed to the variety of interpretations of the headscarf:

[T]he headscarf does not have one single interpretation; rather, it can mean many things (as it did until recently for our own mothers, grandmothers, and aunts!): it can be an expression of tradition, heritage, religious affiliation but also a sign of sexual unavailability, a freely chosen way ... to lead a self-determined life without breaking with cultural heritage.16

Johannes Rau, the Federal President of Germany, has expressed a similar conclusion on the Headscarf Decision in public. First, the Federal President demanded in news interviews that the Islamic headscarf and a Christian amulet be treated equally as the Länder work out their new legislative schemes for prohibiting the headscarf following the Headscarf Decision. …

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