By Soren Kern
Germany’s Federal Constitutional Court has ruled that the constitutionally guaranteed religious freedoms of Muslims can be curtailed if public displays of religiosity — in this case wearing Islamic headscarves in German courtrooms — endanger the ideological and religious neutrality of the state.
The court’s landmark ruling effectively smashes a backdoor effort to enshrine Sharia law into the German legal system. Islamic head coverings have been a recurring issue in Germany, where the Muslim population has surpassed six million to become approximately 7.2% of the overall population of 83 million, according to calculations by Gatestone Institute.
On February 3, 2020, the Hamburg Higher Administrative Court (Oberverwaltungsgericht) ruled that a 16-year-old German-Egyptian student was allowed to wear a niqab, a garment that covers the face, at a vocational school in Hammerbrook.
Hamburg education officials had ordered the girl not wear the veil at school. In a statement, the court explained that according to the Hamburg School Act as it is currently written: “Education officials cannot require the student to refrain from covering her face while at school. The student can claim the right to an unconditionally protected freedom of religion. Interferences with this fundamental right require a sufficiently defined legal basis.”
Hamburg politicians from across the political spectrum have vowed to change the law to ensure that full-face veils are banned in classrooms. Hamburg’s Senator for Education Ties Rabe, who belongs to the center-left Social Democrats, said:
The case involves a 38-year-old German-Moroccan law student who was born in Frankfurt and customarily wears a headscarf in public. In January 2017, she began legal training in the German state of Hesse, where the law bans any expression of religion in its courtrooms for judges, lawyers and legal trainees.
According to the law, legal trainees (Rechtsreferendar) are allowed to wear a headscarf — except when they are performing certain official tasks in which they serve as representatives of the judiciary or the state. This means, for instance, that trainee lawyers are not allowed to wear a headscarf when presiding over a hearing, taking evidence or representing the public prosecution office.
The complainant filed a lawsuit claiming that the headscarf ban interfered with her right to freedom of religion. She argued that she was being forced to choose between performing the intended tasks or fulfilling a religious clothing requirement that she considers imperative.
The Higher Regional Court (Oberlandesgericht) ruled that, according to the law in Hesse, legal trainees have a duty to conduct themselves neutrally with respect to religion and that, when wearing a headscarf, the complainant was therefore barred from performing any tasks in the course of which she might be perceived as being a representative of the justice system or the state.
The complainant filed an appeal, which was rejected by the Hesse Higher Administrative Court (Verwaltungsgerichtshof). She then filed an appeal with the Federal Constitutional Court, which affirmed the lower court rulings. In a statement published on February 27, 2020, the high court explained:
“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 (Grundgesetz): 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.