Headscarf judgment

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Headscarf judgment
Logo of the Federal Constitutional Court on its decisions
announced
September 24, 2003
Case designation: Constitutional complaint against the decision of the administrative courts
Reference: BVerfGE 108, 282
statement
A prohibition for teachers to wear a headscarf in school and class requires a sufficiently specific legal basis. The executive branch of a country may not reject an applicant on its own authority.
Judge
Hassemer , Sommer , Jentsch , Broß , Osterloh , Di Fabio , Mellinghoff , Lübbe-Wolff
dissenting opinions
Jentsch , Di Fabio , Mellinghoff
Applied Law
Art. 4 , Art. 33 Paragraph 3  GG

The so-called headscarf ruling is a ruling by the Federal Constitutional Court of September 24, 2003, which concerned whether a prospective Muslim teacher may be refused entry into the school service because she intends to wear an Islamically motivated headscarf in school and during lessons to wear.

facts

The Muslim teacher Fereshta Ludin wanted to be employed as a probationary officer in the school service of the state of Baden-Württemberg . The Stuttgart High School Authority rejected the application for employment due to insufficient personal suitability, as she was not prepared to forego wearing a headscarf during class. In particular, the “objective” effect of cultural disintegration associated with the headscarf cannot be reconciled with state neutrality in matters of faith.

The complaints filed by Ms. Ludins against the rejection of the appointment before the Administrative Court of Stuttgart , the Administrative Court of Baden-Württemberg and the Federal Administrative Court were dismissed.

judgment

The Second Senate of the Federal Constitutional Court that was called upon to overturn the judgment of the Federal Administrative Court and referred the matter back there.

The opposing decisions of the administrative courts and the responsible authorities of the state of Baden-Württemberg - according to the judgment - violate the teacher's basic rights . The court continued: “In the context to be assessed here, wearing a headscarf makes it clear that the complainant belongs to the Islamic religious community and that she personally identifies as a Muslim. The qualification of such conduct as a lack of aptitude for the post of a teacher at primary and secondary schools reaches into the applicant's right to equal access to any public office from Art. 33 para. 2 and 3 GG in connection with it by Art. 4 para 1 and 2 of the Basic Law guaranteed the fundamental right of freedom of belief without the necessary, sufficiently defined legal basis currently in existence. The complainant was thus denied access to a public office in a constitutionally unsustainable manner. "

According to the judgment, a ban on teachers from wearing an Islamic headscarf in school and class would require a legal regulation in the relevant federal state : The social change associated with increasing religious plurality could give the legislature reason to redefine the permissible extent of religious references in schools be. - Since in this case different norms of fundamental rights compete with each other, the concrete form of a headscarf ban should be put on a legal basis (similar to an authorization to intervene in a fundamental right).

The decision was made with five against three votes.

Special votes

The judges, who did not support the decision, criticized the fact that the Senate majority had accepted that certain official duties of an official (which are related to freedom of religion or belief) could only be justified by parliamentary law. In their view, the civil servant's duty to serve is not an interference with a state-free society, but instead the flip side of the freedom of the citizen who faces public authority in the person of the civil servant.

Assessment

In the judgment, the assessments of an expert who was heard at the hearing, Dr. Yasemin Karakaşoğlu gives a lecture. She stated

“That the headscarf is also worn by young women in order to preserve their own identity in a diaspora situation and at the same time to take into account the traditions of their parents; Another reason given for wearing the headscarf was the desire to gain more independent protection through a sign of sexual unavailability and to integrate oneself in a self-determined manner. Wearing the headscarf is supposed to document the importance of religious orientation in one's own life plan in public, but is understood as an expression of individual decision and does not contradict a modern way of life. According to the women surveyed, maintaining their difference is a prerequisite for their integration. On the basis of the qualitative interviews conducted and evaluated by the expert, no representative statements can be made for all Muslim women living in Germany; However, the research results show that in view of the variety of motifs, the interpretation of the headscarf should not be reduced to a symbol of social oppression of women. Rather, the headscarf can also be a freely chosen means for young Muslim women to lead a self-determined life without breaking with their culture of origin. Against this background, it has not been proven that the complainant would make it more difficult for Muslim schoolgirls, for example, to develop an image of women that corresponds to the values ​​of the Basic Law or to implement it in their own lives simply by wearing a headscarf. "

The press release of the Federal Constitutional Court says about other expert opinions obtained:

“A headscarf worn by the teacher for religious reasons can, however, have a particularly intense effect because the pupils are confronted with the teacher who is the focus of the lesson without any alternative for the entire duration of the school visit. However, there is no reliable empirical basis for the assumption that wearing the headscarf has a determining influence on the religious orientation of school children. The experts who were heard at the hearing could not report any reliable findings about such an influence on children from a developmental point of view. "

Meaning and reactions

Before the decision was made, it was eagerly awaited whether the court would provide a path that would point in the direction of strict state secularism , as practiced in France since 1906 , or whether religions should continue to be given a visible presence and scope for action in public spaces ready. In the latter case, it would also remain questionable whether and how the court will sound out the relationship between the different religions and the German state, which has historically been shaped by its particularly close relationship to Christianity as the majority religion.

However, the court did not dissolve this alternative, but instead assigned the decision on any bans to the state legislators responsible for culture and education in the federalist system. Critics said that the court had evaded the actual constitutional issue and "avoided" a clearer decision.

With its decision of January 27, 2015, the First Senate of the Federal Constitutional Court has now specified the decision from 2003 and, with a certain tension, made it clear to the line followed by the Second Senate at the time: “The ideological-religious neutrality offered to the state is not a distancing one to be understood in the sense of a strict separation of state and church, but as an open and overarching attitude that equally promotes freedom of belief for all creeds. ”In this sense, the court has in its assessment of the regulation from § 57 para. 4 sentences 1 and 2 of the North Rhine-Westphalian School Act proclaims the guiding principle with six votes against two: "A blanket headscarf ban for teachers in public schools is not compatible with the constitution."

Effects

Reactions from the countries, new regulations

With the ruling of the Federal Constitutional Court , a new legal regulation was required in those federal states that had legally enshrined a headscarf ban. The regulations differ in the individual federal states.

Despite a legal prohibition since then for teachers at state schools in Baden-Württemberg to make political, religious, ideological or similar external statements that are likely to endanger or endanger the neutrality of the state towards students and parents or the political, religious or ideological peace at school To disturb, a teacher who had converted to Islam was initially allowed to keep her headgear there in class. This was decided by the Stuttgart Administrative Court on July 7, 2006. A Stuttgart secondary school teacher was right who invoked the principle of equal treatment . The teacher turned against a directive from the Stuttgart Higher School Office, which prohibited her from wearing a headscarf in class. she was

“Of the opinion that by wearing the headscarf, which is tied like a cap and does not cover the neck area, she does not make any statements with political, religious or ideological content. The headgear does not carry any abstract danger of disturbing the peace of the school or even endanger the neutrality of the state. Furthermore, the instruction violates the principle of equality, according to which no one should be disadvantaged or favored because of their belief, religious or political beliefs, because the defendant country is stepping among other things. a. not against religious sisters who taught general subjects at the state elementary school in Baden-Baden Lichtental in traditional costume. "

The state of Baden-Wuerttemberg was of the opinion that the religious costume represented a Christian tradition, because the orders had a creative effect in the historical development of Europe, especially in the field of education and welfare. Section 38 (2) sentence 3 SchulG, which exempts the perception of the educational mandate according to the constitution of the state of Baden-Württemberg and the corresponding presentation of Christian and occidental educational and cultural values ​​or traditions from the prohibition of religious manifestations by teachers in class, is according to the will of the Legislative just to apply to the religious costume. In response to an appeal by the state, the VGH Baden-Württemberg confirmed the original instructions from the Stuttgart Higher School Office on March 14, 2008 and overturned the decision of the Stuttgart Administrative Court. The teacher violates an obligation under the school law, the instruction is lawful. The court did not see a violation of the principle of equality because the school law forbids religiously motivated clothing or other external religious expressions regardless of the gender of the teacher concerned and is not specifically directed against the Islamic headscarf or head covering worn by women.

The Bavarian Constitutional Court ruled on January 15, 2007 that the ban on wearing certain external symbols and items of clothing in class interferes with the freedom of belief and religion of teachers guaranteed by Art. 107 Para. 1 and 2 BV , but this legal position does the freedom of belief and religion of the pupils and their parents, the parental rights of upbringing as well as the state educational mandate would be opposed. The legislature resolved the tension with Art. 59, Paragraph 2, Clause 3 of the Bavarian Law on Education and Instruction (BayEUG) in a manner that was constitutionally unobjectionable. According to this, external symbols and items of clothing that express a religious or ideological conviction may not be worn by teachers in class, provided that the symbols or items of clothing can also be understood by the pupils or parents as an expression of an attitude that is in line with the basic constitutional values and the educational goals of the constitution, including the Christian-Western educational and cultural values. This provision also does not result in an inadmissible preference for the Christian denominations.

In North Rhine-Westphalia , according to Section 57 (4) of the School Act as amended in 2006, teachers are not allowed to make any political, religious or ideological statements in the school that are likely to endanger the neutrality of the state towards students and parents or the peace of the school disturb. According to the wording of the law, the representation of Christian and occidental educational and cultural values ​​or traditions does not contradict this requirement of conduct. Two Muslim school employees took unsuccessful action in the labor courts against the school authority's ban on wearing a headscarf or comparable headgear in class for religious reasons, justified by this regulation . At the beginning of 2015, your constitutional complaint led to the Federal Constitutional Court being referred to the question again.

In May 2018, the Berlin Labor Court held the so-called Neutrality Act to be constitutional. According to this, wearing religious symbols and items of clothing in the public service is generally not permitted.

Trainee lawyers

A provision in the Bremen Schools Act, which, in the opinion of the lower court, also banned trainee teachers from wearing the headscarf, was declared by the Federal Administrative Court to be constitutionally inapplicable unless the school peace was specifically disturbed. For teachers, the state has a monopoly on training, although the profession, for example in private schools, is also practiced outside the state. In the context of Art. 12 GG, this should be taken into account in favor of the prospective teacher, as well as the fact that the school administration supervises trainees more closely and can react faster and more effectively in the event of conflicts than with civil servants.

See also

literature

  • Ulrich Battis , Peter Friedrich Bultmann: What follows for the legislature from the headscarf ruling of the BVerfG? In: JZ . Vol. 59, 2004, pp. 581-588.
  • Robert Dübbers, Zemfira Dlovani: The "headscarf dispute" before the Federal Constitutional Court - an interlude . In: Labor and Law. Journal for Labor Law Practice (AuR) . 52nd volume , 2004, ISSN  0003-7648 , pp. 6-11.
  • Klaas Engelken: After the headscarf ruling by the Federal Constitutional Court - binding effect of the ruling and decision-making options for the states . In: BayVBl. Vol. 50, 2004, pp. 97-101.
  • Silke Laskowski: The dispute over the headscarf continues - why the ban on discrimination because of religion is becoming more and more important under national and European law. In: KJ . 2003, pp. 421-444.
  • Martin Morlok : It is the legislature's turn - on the headscarf ruling by the Federal Constitutional Court . In: Law of Youth and Education (RdJB) . Volume 51, 2003, ISSN  0034-1312 , pp. 381-392.
  • Robert Christian van Ooyen: The "headscarf decision" of the Federal Constitutional Court between pluralism theory (Kelsen / Fraenkel) and state theology (Hegel / Schmitt) . In: JöR . New Series, Vol. 56, 2008, pp. 125-140.
  • Ronald Pofalla : Headscarf yes - crucifix no? On the contradictions of the case law of the BVerfG . In: NJW . 57th vol., 2004, pp. 1218-1220.
  • Michael Sachs : Reviving the special relationship of violence? In: North Rhine-Westphalia administrative sheets (NWVBl.) . Volume 18, 2004, ISSN  0932-710X , pp. 209-214.

Web links

Individual evidence

  1. ↑ BVerfG, judgment of September 24, 2003, Az. 2 BvR 1436/02; BVerfGE 108, 282 - headscarf.
  2. ↑ VG Stuttgart, judgment of March 24, 2000 ( Memento of the original of July 18, 2014 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 15 K 532/99, full text. @1@ 2Template: Webachiv / IABot / www.ejura-examensexpress.de
  3. ↑ VGH Baden-Württemberg, judgment of June 26, 2001 , Az. 4 S 1439/00, full text.
  4. ↑ BVerfG press release 71/2003 ( Memento of the original from December 15, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. dated September 24, 2003. @1@ 2Template: Webachiv / IABot / www.bverfg.de
  5. ↑ a b Press Release No. 14/2015 of March 13, 2015 (Ref. 1 BvR 471/10, 1 BvR 1181/10).
  6. ↑ On the situation of teachers wearing headscarves in selected federal states (PDF) Scientific Services of the German Bundestag , September 15, 2017
  7. ^ VG Stuttgart, judgment of July 7, 2006 , Az. 18 K 3562/05, full text.
  8. ^ VG Stuttgart, press release of July 7, 2006 .
  9. ^ VGH Baden-Württemberg, judgment of March 14, 2008 , Az. 4 S 516/07, full text.
  10. ↑ VerfGH Bayern, decision of January 15, 2007 (PDF) Az. Vf. 11-VII-05, full text
  11. ↑ Law on Article 29 of the Berlin Constitution of January 27, 2005, GVBl. 2005, 92
  12. ^ Judgment in Berlin: Teacher is not allowed to teach with a headscarf . Spiegel Online , May 9, 2018
  13. ↑ BVerwG, judgment of June 26, 2008 , Az. 2 C 22.07, full text and BVerwG, press release no. 38 ( Memento of the original of March 3, 2009 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . @1@ 2Template: Webachiv / IABot / bundesverwaltungsgericht.de