IV. State Bans on Religious Symbols in Public Employment

Eight of the 16 federal states in Germany-Baden-Württemberg, Bavaria, Berlin, Bremen, Hesse, Lower Saxony, North Rhine-Westphalia, and Saarland-have enacted legislation to prohibit teachers in public schools from wearing visible items of religious clothing and symbols. In Baden-Württemberg and Berlin similar legislation exists for kindergarten teachers also. In Hesse and Berlin the ban extends to cover some or all other civil servants in the field of justice[77] and law enforcement (including judges, prosecutors, police officers, and court and prison officials).

Exceptions are allowed in the context of religious education in Baden-Württemberg Lower Saxony, Hesse, Bavaria, Berlin, and North Rhine-Westphalia. Trainee teachers can generally be exempted from these bans,[78] because the state has the monopoly of training in this field and the freedom of profession would therefore be infringed, affirmed by a decision of the Federal Administrative Court in June 2008 (see section below on "Bans without explicit exceptions for Christian symbols").

Each of the eight states requires teachers to behave according to the principle of religious, political, and ideological neutrality. The Muslim headscarf is not mentioned explicitly in the laws, but has arisen in explanatory documents or parliamentary debates in all eight states, and all the legal challenges to the ban that have gone before the courts to date have concerned the headscarf: Since the introduction of the state laws, there have been at least 20 court decisions in 12 proceedings.

The plaintiffs in these cases include not only trainee teachers seeking teaching posts but also teachers and social workers specialized in education ("social pedagogues") already working in education (sometimes for decades). The vast majority of legal challenges to these laws have not been successful. Most of the rare decisions in favor of allowing the headscarf concern trainee teachers.

Bans Exempting Christian Symbols and Clothing

Five of the states with religious clothing bans-Baden-Württemberg, Saarland, Hesse, Bavaria, and North Rhine-Westphalia-contain an exception for Christian symbols and clothing, phrased in references to the exhibition or representation of Christian-Western educational values, beliefs, and traditions.

After the Ludin decision of the Federal Constitutional Court (see Chapter II), Baden-Württemberg was the first state to pass in April 2004 a new law amending its school act regulating the wearing of religious clothing and symbols by teachers in public schools.[79]

Under the amended school act, teachers at public schools are not allowed "to exercise political, religious, ideological or similar manifestations that may endanger or disturb the neutrality of the Land towards pupils or parents or the political, religious or ideological peace of the school."[80] The act deems as "particularly illegitimate" any "behaviour that can appear to pupils or parents to be a teacher's demonstration against human dignity, gender equality according to article 3 [of the Basic Law], the rights of freedom or the free and democratic order of the constitution."

The relevant section of the school act, however, goes on to say that "[t]he respective exhibition of Christian and western educational and cultural values or traditions do[es] not contradict [a teacher's] 'duty of behaviour,'" and correspond to educational objectives. By enacting this law, Baden-Württemberg intended to prohibit public school teachers from wearing the Islamic headscarf, while permitting teachers to continue to wear Christian religious clothing and symbols[81] such as the nun's habit. [82]

The regulation in North Rhine-Westphalia adopted in June 2006 mirrors the language of the law in Baden-Württemberg.[83]

Bavaria adopted its restriction on the headscarf in 2004.[84] Nuns' habits are allowed.[85]  In the Bavarian law teachers are not allowed to wear clothing that is incompatible "with fundamental constitutional values and educational objectives."[86]  But those values are said to include "Christian-Western" educational and cultural values.[87]

The regulation in Saarland adopted in June 2004 emphasises Christian values and traditions: "The School has to teach and educate pupils on the basis of Christian educational and cultural values showing due respect for the feelings of differently minded pupils."[88]

In Hesse, a very strict law was adopted in 2004, which bans all civil servants including public school teachers, from wearing religious clothing and symbols that may jeopardize the "neutrality of the administration and state" or endanger the "political and religious peace" in the state.[89] To determine what is banned under this law the "humanist- and Christian- influenced Western tradition of the Land of Hesse has to be taken into due account".

Justifications for the restrictions

The state governments in Baden-Württemberg, Bavaria, Saarland, and North Rhine-Westphalia have argued that exempting Christian clothing and symbols (notably nun's habits) from their bans does not privilege Christianity, because such clothing and symbols are in line with and preserve values expressed in their state constitutions (themselves influenced by Christianity).[90] They claim that Christian clothing and symbols do not therefore risk compromising the neutrality or peace of the school.

An official from the Bavarian Ministry of education outlined to Human Rights Watch that "the admittance of Christian clothing and symbols, such as a nun's habit, in school result from the interpretation of the law. It does not privilege Christianity, as such clothing and symbols are in line with the Bavarian constitution. Clothing and symbols of other religions which are not contrary to the goals and values of the constitution are also allowed."[91]

The governing parties introducing the draft laws in the North Rhine-Westphalia parliament emphasized the importance of the "Christian Western and European tradition," arguing that it is "not a breach of the neutrality requirement if a teacher commits to this tradition."[92] Accordingly, "the nun's habit and Jewish kippa remain therefore permissible."[93]

Aside from exceptions for Christian symbols, some of these laws prohibit at first view the wearing of any political and religious clothing and symbols of belief. But it is clear from explanatory documents, debates in state parliaments, and statements from state government officials that the measures are aimed at restricting the headscarf.

The intention of legislators is demonstrated in the accompanying explanations in 2004 to the draft laws in Bavaria and Saarland, and in 2005 to the draft law in North Rhine-Westphalia. The latter explain that the headscarf must not be allowed during teaching "because at least a not insubstantial part of its proponents link it to an inferior position of women in society, state and family or a fundamentalist statement for a theocratic political system in contradiction to the constitutional values."[94] Furthermore, the North Rhine-Westphalia explanation characterizes the headscarf as a political symbol[95] (as was also done by Christian conservative politicians in Baden-Württemberg),[96] and points to the jurisprudence of the European Court of Human Rights (as was also mentioned during the parliamentary debate in Hesse).[97]

Official hearings on the draft laws in the Bavarian parliament and the parliament of North Rhine-Westphalia referred to the "headscarf ban."[98]  Introducing the draft law "on the safeguarding of state neutrality" in the Hesse parliament, the chairman of the CDU party explained, "[w]ith the draft law introduced by us we want to forbid Hessian teachers and civil servants from wearing the Islamic headscarf."[99]

The debate over the law in the North Rhine-Westphalia parliament featured the following positions from the committee behind the draft: "The headscarf has meantime become worldwide a symbol of Islamic fundamentalism. … [It] can be regarded as political symbol of Islamic fundamentalism, which expresses the dissociation from values of the western society like individual self-determination and emancipation of women. …according to the federal constitutional court … it does not depend out of which motive the teacher is wearing the headscarf but how concerned parents and pupils perceive it."[100] Similar statements had been brought forward by the party that introduced the law in the parliament in Hesse, where in the explanatory statement the ban expressly relates to headscarves.[101]

In justifying bans on religious dress and symbols, lawmakers in Hesse and Bavaria have argued that a teacher wearing a headscarf is not in a position to provide and convey education according to the constitution, in particular as regards the principle of equality between men and women.[102]

Ministry officials in Hesse to whom Human Rights Watch spoke argued that the scope of application of the Hessian neutrality law must not be understood as limited to the headscarf. They stressed that in Hesse there were, for instance, individual cases of trainee lawyers participating in public court sessions and public prosecutions, who wore a ring through the nose or their hair in a brightly-dyed Mohawk and agreed to change this appearance when objections to it were raised. In other cases the assignment of chairing a session was refrained from or the hearing was followed from the seats for the spectators.[103]  Other theoretical examples the officials offered as falling under the scope of application of the law were cases of men in "Taliban" clothing, traditional clothing of the Indian Bhagwan movement,[104]or political expressions of opinion on buttons or t-shirts with statements like "foreigners out" or "against atomic energy."[105]

An official from the Bavarian Ministry of Education stated the symbols and clothing to which the law applies would be assessed on a concrete case by case basis.[106] The official suggested that the absence of disputes involving teachers affected by the ban was evidence that the law achieved its aim and functions smoothly.

According to officials in the Baden-Württemberg Ministry of Education, Youth and Sport interviewed by Human Rights Watch, no concrete disruption of the school peace is needed to justify the ban in that state-abstract endangerment is sufficient.[107] The officials suggested that the only acceptable alternative to a headscarf would be a wig looking like a normal hairstyle.[108]  According to the law trainee teachers can be exempted from the ban, which they are in practice, and in cases where trainee teachers wearing the headscarf would face problems at school, there would be a change of school.[109]

Approach of the courts

Restrictions on the headscarf for teachers have been upheld by courts in Baden-Württemberg and North Rhine-Westphalia in several cases involving individual challenges to the bans. In addition, courts in Baden-Württemberg, Bavaria, Hesse, and North Rhine-Westphalia have issued rulings upholding or clarifying the bans.

Baden-Württemberg

Baden-Württemberg's law was the first to be tested in the courts. As noted above, the Federal Administrative Court considered the new law in the context of Fereshta Ludin's case in June 2004.[110] The court upheld the decision by the Supervisory School Authority of Stuttgart to deny her employment on the ground that her wearing of the headscarf made her, under the terms of the new law, "unqualified" for a civil servant public school teaching position.

In the view of the court, Baden-Württemberg's law trying to ban an abstract danger struck an acceptable balance between the competing interests of Ludin's fundamental constitutional rights and those of students and their parents, and the principle of neutrality.

The attorney (and drafter of the law)[111] for Baden-Württemberg argued before the Federal Administrative Court that an Islamic headscarf falls under the law's prohibition against religious symbols but a nun's habit does not, since the latter constitutes "work attire"[112] and falls under the law's language excluding displays of Christian and Western traditions and values from Baden-Württemberg's law's restrictions.[113]

The Federal Administrative Court noted the Federal Constitutional Court's position that any law must treat different religions with strict equality, holding that "[e]xceptions for particular forms of religiously motivated clothing, as contended by the attorney [for Baden-Württemberg] during oral proceedings, are therefore not permissible."

But it failed to follow the logic of this position when assessing whether Baden-Württemberg's exception for the "exhibition of Christian and occidental educational and cultural values or traditions"violates these equal treatment principles.[114]

The court reasoned that the reference to Christian and Western values in Baden-Württemberg's law does not create an illegal preferential treatment of the Christian religion, because this is not, in fact, the display of an individual religious denomination. "Christian" values and virtues are actually detached from their religious meaning and should be seen instead as part of the fundamental values of the Basic Law.  In the court's view, Christian educational and cultural values are ones with which every public servant should be able to agree, irrespective of his or her religious persuasion.

The effect of this reasoning is to uphold such laws that give exemptions from bans to the display of Christian and Western values and traditions, despite the clear intention of the legislator in order to be in conformity with equal treatment and the Basic Law.

The Federal Administrative Court also held that Baden-Württemberg's law "does not excessively affect the Islamic religious community" because "the prohibition is limited to teachers in public schools," and thus affects neither the right of students at public schools, nor the right of teachers at private schools to wear an Islamic headscarf.[115]

Courts in Baden-Württemberg have considered a second case involving the state's headscarf ban. The case was brought by Doris Graber, a Muslim convert, who served as a primary and secondary teacher for over 30 years at the same school in Stuttgart. Graber, who converted to Islam in 1984, began to wear a headscarf during classes in 1995. In 2004 the school board ordered her to remove the headscarf in the classroom, or be dismissed from her post.

Graber challenged the decision in the Administrative Court of Stuttgart. In July 2006 the court ruled that the order for Graber to remove her headscarf constituted a violation of the principle of equal treatment, since nuns wearing habits were permitted in a public school in Baden-Württemberg.[116] It held that the state could not ban the headscarf from Baden-Württemberg's public schools if nuns were permitted to teach wearing habits.

However, the judgment was overruled by the State Administrative Court of Baden-Württemberg in March 2008. The court held that the order was lawful.[117] According to the court, wearing a headscarf during classes amounted to the display of a religious symbol contrary to the obligation to keep religious expression out of the classroom. According to the court, the decision to allow nuns to wear their habits was "a historic special case under a unique special contract basis." However, the court went on to find that even if one would have to consider it an unequal implementation of the law, this would not entitle Graber to wear her religiously motivated headwear as there is no entitlement to "equal treatment in unjustness."

North Rhine-Westphalia

Among the five states with bans that carve out exceptions for Christianity, North Rhine-Westphalia has seen the greatest number of cases of women challenging the ban, not all of which have resulted in litigation. There are currently at least seven initial proceedings and lawsuits which have lead to various court decisions.

According to a February 2007 statement from the state's school minister, there were at the time 12 teachers wearing the headscarf employed in the state, some of them with the status of civil servants (permanent career state employees).

The Administrative Court of Düsseldorf[118] judged in June 2007 in first instance that a trainee teacher who refused to remove her headscarf could not become a teacher in the state. In a decision that defies logic, the court held that while the exception clause of North Rhine-Westphalia cannot be a justification for Christian or Jewish clothes or symbols worn by teachers, the ban did not need to apply to nuns teaching in public schools in the state, since these were rare exceptions and therefore did not constitute a so-called 'deficit of execution' (Vollzugsdefizit) of the law.

The Düsseldorf court reached a similar conclusion in August 2007 in the case of Mariam Brigitte Weiss, determining that it did not make a difference that she wore her headscarf in the 'Grace Kelly style'[119] (and she was still perceived as obviously manifesting her religion by doing so).

Similar  arguments to those of the  judgments of the Administrative Court of Düsseldorf can be also found in rulings in other cases decided by administrative or labor courts in the state (for example Administrative Court Aachen, November 2007; Administrative Court Gelsenkirchen, February 2008; Labor Court Düsseldorf, June 2007;[120] Labor Court Herne, March 2007 (and State Labor Court, October 2008).[121] In addition, in July 2008, the Labor Court Wuppertal threw out the case of a Muslim teacher, previously employed since 2002 and who had been fired after refusing to take off her headscarf during teaching (having received a previous warning).[122]

A June 2007 ruling by the first instance labor court in Düsseldorf drew a lot of public attention. It concerned a social worker specializing in education who had worn a headscarf for some years while working in a school, replacing it with a rose-colored "beret" which fully covers her hair and ears, following the new school act. The court judged that the function of the beret was the same as the function of a headscarf. In April 2008 the State Labor Court affirmed the lower court's ruling in the case.[123] According to the State Labor Court, the teacher expressed her religious belief by wearing the hat, thereby violating neutrality and the "negative" religious freedom of pupils. The teacher refused a proposed settlement to wear a wig instead. The first instance administrative court in Cologne employed similar reasoning in an October 2008 judgment in the case of a Muslim teacher who had worn a beret while teaching since 2006 (and previously a headscarf).

As is evident from the above cases, courts in North Rhine-Westphalia have applied the prohibition on the headscarf for teachers in a strict way that does not tolerate substitutes that cover the hair, shoulders and ears like a Muslim headscarf, and still consider them a religious symbol. The courts' rulings declare essentially that no options are available to the observant Muslim woman who wants to abide by what she considers a religious duty, even if the method used is not a recognizable religious symbol or has no conceivable associations of fundamentalism, such as a pink woolen hat.

Bavaria, Hesse, and Saarland

The Constitutional Court of Bavaria upheld the state's law restricting religious dress in schools as compatible in principle with the Bavarian Constitution in January 2007.[124] It determined that detailed interpretation on its application in individual cases would have to be done by the specialized courts. However the court also stated that the legislature can allow certain symbols and clothing expressing religious or ideological belief, subject to their being compatible with the basic values and educational goals of the Constitution.

On December 10, 2007, a six-to-five majority of the Constitutional Court of Hesse upheld the state's law restricting religious symbols as compatible with its constitution.[125] The ban was challenged in April 2005 by the Landesanwältin, the lawyer responsible for verifying the constitutional compliance of all legislation enacted in the state. She argued that the ban was in violation of the freedom of religion as well as discriminatory and called for it to be lifted.

The majority in the Hesse Constitutional Court held that taking into account the Christian/Western tradition of Hesse in rulings on religious symbols would not represent a privilege for the Christian religion, but would simply reflect the fact that clothing and symbols in line with those values expressed in the constitution do not threaten neutrality or peace in school.  The ruling applies only to the actual text of the law rather than to its application and does not state whether Islamic headwear is within the scope of the law. As in Bavaria, the application of the law is left to courts dealing with actual cases.

Neither judgment offers a clear answer as to whether Christian clothing would in fact be exempt, a matter left for lower courts in each state.  Both courts affirm the duty of civil servants to behave neutrally, even at the expense of the right to religious freedom and of a private life.

At this writing, there have been no court cases in Hesse involving teachers. Human Rights Watch is aware of five cases involving trainee teachers who wear the headscarf where objections have been raised. According to officials in Hesse, in each case schools have been found to enable the women to carry out the practical part of their education.[126]

At this writing, there have been no court cases in Saarland.

Bans without Explicit Exceptions for Christian Symbols

The laws in Bremen and Lower Saxony rely on the preservation of the neutrality of the school and the peace in school as the basis for restricting religious dress in schools.  But unlike the laws in the five states above, the laws in Bremen and Lower Saxony state do not contain explicit exceptions for the Christian faith or western traditions and values.

Bremen's law, introduced in 2005, provides that "the outer appearance of the teaching and caring staff in school may not be such as to disturb religious and ideological feelings of pupils and parents or to carry tensions into school [that] endanger its peace through a violation of religious and ideological neutrality."[127] This applies to teachers in preparatory service as long as they teach, that is, to trainee teachers when they are in the classroom.

Lower Saxony's 2004 amendment of its School Act states that "the outer appearance of schoolteachers, even if chosen by a teacher due to religious or ideological reasons, may not create any doubts concerning the teachers' qualification to convincingly fulfill the educational mandate of the schools."[128] This also applies for trainee teachers who have been put in charge of a classroom, although in individual cases exceptions may be granted.

Despite the ostensible difference between these laws and those in the five states with explicit exceptions for Christian symbols, the parliamentary debates and explanatory documents in Bremen and Lower Saxony when the laws were introduced focused predominantly on the headscarf and mentioned the recognition of the western cultural tradition shaped by Christianity (and Judaism).[129]

Furthermore, it should also be noted that although the law in Lower Saxony only refers to the state's responsibility for education and appears on first sight neutral, article 2 of the School Act on the state's mandate for education names Christianity at the top of the list of the bases for developing further the personality of the pupils following preschool education. According to the explanatory section of the draft law the wearing of Christian and Jewish symbols remains possible.[130]

The state of Berlin takes another approach.[131] Its law, introduced in 2005, and which applies widely to civil servants in the state, contains a strict secular interpretation of neutrality. The act prohibits "any visible religious or ideological symbols that signal [to] the spectator an affiliation to a specific religious or ideological group and any noticeably religious or ideological imbued garments." It treats all religions alike, at least as a matter of law.

The law categorically bars all public school teachers (including kindergarten teachers in the case of parental objections),  as well as police officers, judges, court officials, prison guards, district attorneys and civil servants working in the justice system, from wearing visible religious or ideological symbols or garments (with the exception of small pieces of jewelry).[132] The latter exception thereby would exclude from the ban, for instance, small crucifixes as jewelry (although this is a very common way Christians display their religion.)

Approach of the courts

There have been no cases in Lower Saxony[133] or Berlin[134] under their laws. The only court case in Bremen to date concerns a woman wearing a headscarf whose application for teacher training was rejected.[135] (As noted above, Bremen does not allow trainee teachers to wear religious dress in the classroom. With the exception of Saarland's legislation, the other states that restrict religious dress in schools allow individual exceptions for trainee teachers[136]).

The trainee teacher won her appeal in the first instance administrative court in Bremen in 2005.[137] But the decision was overturned on appeal in the Higher Administrative Court (Oberverwaltungsgericht) of Bremen.[138] That decision was reversed in turn by the Federal Administrative Court in June 2008.[139] Germany's higher administrative court decided that since the state exercises a monopoly on teacher training, it would amount to disproportionate interference in freedom to choose one's employment to require persons to remove religious symbols in order to undergo such training, unless there was shown to be a concrete danger in relation to school peace and the rights of pupils and parents.

The positive impact of this ruling will depend on the extent to which there are meaningful opportunities at private schools for trainee teachers barred from working as public school teachers because they chose to wear religious symbols.

States without Bans

At present, eight states in Germany have no special legislation relating to religious clothing or symbols in employment. Three of states-Brandenburg, Rhineland-Palatinate, and Schleswig-Holstein-drafted laws.  Brandenburg's and Rhineland-Palatinate's failed to pass and Schleswig-Holstein's was abandoned by the legislature.[140] The other five states-Hamburg, Mecklenburg-Lower Pomerania, Saxony, Saxony-Anhalt, and Thuringia-decided to not enact special legislation.

In each of these states, the wearing of religious symbols can be prohibited on a case-by-case basis if there is evidence that a person's actions contravene the neutrality of the school, using existing public services law that allows for sanctions in well-founded cases.

There have been no relevant court cases in any of the eight states.

According to several teachers and a civil society representative interviewed by Human Rights Watch, there have been several cases where women wearing the headscarf in Hamburg and Rhineland-Palatinate have faced difficulty finding traineeships or places in schools and have been asked whether they would take the headscarf off. [141]

It is notable that five of the states that lack bans were formerly part of the German Democratic Republic (GDR).[142] These states generally seek to avoid the issue of church-state relations because of a history of anti-Christian and anti-religious indoctrination and attacks on religious freedom during the Communist period.[143] There are also a low number of Muslim migrants living in Germany's East, which partly explains the lack of disputes involving Muslim teachers wearing the headscarf.

In Schleswig-Holstein, the SPD/CDU coalition government considered introducing a regulation banning religious symbols in school at the beginning of 2006.[144] It was convinced to withdraw the draft legislation after consulting with legal experts who pointed out that equal treatment of all religions in such a case would mean a ban of Christian symbols, and with church representatives who favored the maintenance of religious symbols in schools.[145]

After withdrawing the bill in September 2006, the government proclaimed that although the duty of religious neutrality for teachers prevails there should be space for wearing religious clothes including the headscarf. A CDU contact person from Schleswig-Holstein told Human Rights Watch that there have been no disputes involving teachers wearing the headscarf in the state, and that the issue was "not a subject of discussion." [146] Were there to be concrete problematic cases of proselytizing, he said, the civil service law would be applied, but this would be based on the person's behavior not their attire. In his view, the neutrality of the state is not endangered by the appearance of a headscarf, and in the balance of rights, the headscarf alone does not justify interference or restrictions.

In Hamburg, the first teacher who wore a headscarf in class, stating this was because of religious reasons, was employed in 1999.[147] An official in the education department in Hamburg told Human Rights Watch that this teacher was employed following an individual case assessment. In addition, the official said, there had been 2-3 cases where a teacher had converted to Islam in the course of their professional life. The school authority took no action in these cases.[148]

There has been an increase in recent years in applications and expressions of interest from trainee teachers wearing the headscarf wishing to come to Hamburg from other parts of Germany.  The school authority official reported a dozen applications by trainee teachers with headscarves for the last due date (none of whom ultimately took up their positions). No trainee teacher with a headscarf has been refused according to the school authority official, adding that if there were to be problems in one school, the authority would search for another school. In the search for schools, the school authority had so far no problems with parents, with the exception of one single Muslim parent who opposed a teacher with a headscarf. However after a conversation a solution was found. There are currently two teachers with headscarves working in the area of Hamburg (one of whom is the teacher referred to above who started in 1999). There are no cases of teachers with kippa or nuns' habit, nor known cases of other civil servants.[149]