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Germany's High Court Allows Teacher to Wear Muslim Headscarf
By Veysel Oezcan
Humboldt University Berlin
In a bellwether case for personal expression, secularism, and immigrant integration in Germany, the Constitutional Court has ruled that a teacher who wears a Muslim headscarf is not violating the current law on freedom of religion and religious neutrality of educators.
But the court's ruling in September explicitly declared that individual states are free to ban or approve the wearing of headscarves or other such religious symbols in the school system. The judges said the states have to find "arrangements acceptable to everyone" when balancing religious liberty and the neutrality requirement.
The teacher in the recent case, Fereshta Ludin, is an Afghan-born naturalized German Muslim.
She was barred from teaching in a headscarf by the state of Baden-Wuerttemberg in 1998, on the
grounds that a civil servant must be neutral on religious matters. Ludin filed a suit against state
authorities demanding the right to wear the scarf, lost the case and subsequent appeals, and
appealed to the highest court last year (see related article).
The recent ruling declared that the state was wrong to ban Ludin from teaching, because the ban "has no sufficient legal basis in Baden-Wuerttemberg's applicable law."
According to the judges, it is the legislators, not the courts and unelected public authorities, should decide on the headscarf issue. The judges based their decision on what they described as the public's right to weigh in on the issue, and on the need for lawmakers to explain the urgency of such measures and the extent of government encroachment on citizens' basic rights.
The court emphasized that individual states have a wide window of opportunity with regard to decisions affecting the school system. On the one hand, they noted, there might be compelling reasons to allow Muslim teachers to wear headscarves so as to "make a contribution to integration efforts." On the other, because religious plurality could also be connected with conflicts, it might also be legitimate for legislators to "attach stricter importance to the neutrality requirement in schools."
The judges urged state officials to arrive at solutions by taking into consideration the religious freedom of the teacher, the educator neutrality requirement, the right of parents to bring up their children, and the right of schoolchildren not to be exposed to religious influences without prior consent.
German press reports show a mixed response to the ruling. Nadeem Elyas, chairman of the Central Council of Muslims, one of several such organizations in Germany, was quoted as calling the decision "a source of discontent for all parties," since the matter in dispute has not been resolved once and for all.
Lale Akgün, a Social Democrat (SPD) and parliamentarian of Turkish origin, stated that wearing a headscarf is "not a religious obligation." She also called for teachers to be neutral in religious and political matters. Angelika Beer, chairwoman of the SPD's coalition partner, the Green Party, welcomed the decision as an opportunity for a political solution. Beer argued for the integration of Muslims by taking into account the liberties and limits of the German Constitution.
In their meeting October 9-10 after the court's decision, the education ministers of Germany's 16 states could not agree on uniform rules for headscarves. The ministers of several states, among Hamburg, North Rhine-Westphalia, and Rhineland-Palatine, said there is no need for a new law. Hamburg's minister noted that Muslim teachers in his state have been wearing the headscarf since 2000 without provoking problems.
As of the meeting, seven of the 16 states have declared that they plan to ban the headscarf: Baden-Wuertemberg, Brandenburg, Hesse, Bavaria, Berlin, Lower Saxony, and Saarland.
The headscarf issue has long earned headlines in Germany. The issue is a flashpoint at the intersection of religious freedom and secularism, and in this case, women are the most affected. As Islam is popularly practiced, women alone are responsible for covering their heads in public as a sign of modesty. The increasing number of immigrants in Germany, and the rise in the number of Muslims, has set up a clash between devout Muslim women and their supporters on the one hand, and determinedly secular German authorities on the other.
The struggle takes place against a backdrop of rising Muslim immigration to Germany, whose population is overwhelmingly Christian. Immigration to Germany in past decades has seen the arrival of more foreign citizens and more religious communities. At the end of 2001, there were 7.3 million foreigners living in Germany, a share of eight percent of the total population. The largest religious minority in the country is now made up of Muslims. According to Ministry of Interior estimates, about 3.2 million Muslims were living in Germany as of the end of 2000, some 450,000 of them with German citizenship (see related article on German immigration).
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