By Fatima-Zahra Zaatan and Prof. Dr. Astrid Wallrabenstein

 

Introduction

In times of increasing pluralism of present-day societies such as the Federal Republic of Germany, public schools inevitably become places where individuals with different religious affiliations confront each other. Considering the constitutionally required neutrality of the German state in religious and ideological matters, sometimes this diversity provokes conflicts over the permissible scope of religious or ideological manifestations. If one takes a look at German case-law, it can be observed that especially the question of whether and to what extent religious symbols are admissible at school has been intensively disputed for now more than two decades: Starting with the conflict over the Christian crucifix in Bavarian classrooms, the controversy lastly reached a new stage focusing on the Islamic headscarf worn by devote female teachers. The fact that these cases have not only been a matter for the courts, but also for the broad public demonstrates their outstanding significance. Indeed, the debate surrounding religious manifestations in public places concerns much more than just complex legal questions: It is also about self-perception and social cohesion of a modern democratic society.

In the past, the German Federal Constitutional Court turned out to be a key actor when it came to sociopolitical issues such as the role of religion in public domains.^[1]The present contribution examines three of its landmark rulings concerning the status of religion in public schools. It is divided into three sections: The first part introduces into the dogma of the fundamental freedom of faith as enshrined in Article 4 of the Basic Law. The second section focuses on the case-law of the Federal Constitutional Court on this field. The contribution closes with a brief conclusion.

Constitutional Framework: Freedom of Faith in the Basic Law

The constitutional basis of the decisions of the Federal Constitutional Court on this subject is the freedom of faith as guaranteed in Article 4.1 and 4.2 of the German Basic Law. Article 4.1 provides that freedom of faith and of conscience and freedom to profess a religious or philosophical creed shall be inviolable. Paragraph 2 says that the undisturbed practice of religion shall be guaranteed. According to consistent case-law of the Federal Constitutional Court, these two subsections entail a uniform fundamental right which is to be understood comprehensively.^[2]It is also generally recognized that freedom of faith consists of two sides: The positive side includes the right to adhere to a faith (“forum internum”) and the right to act in conformity with the guidelines of one’s religious beliefs (“forum externum”), whereas the negative side protects the right not to share a faith.^[3]In contrast to most fundamental rights guaranteed by the Basic Law, freedom of faith is not subject to restriction by statute. This clearly reveals the particular significance the architects of the Basic Law attached to it. Nonetheless, it does not follow from this that freedom of faith cannot be subject to some sort of restrictions, but these would have to follow from the Basic Law itself.^[4]To put it more precisely, only conflicting fundamental rights and other interests protected by the Basic Law are capable of limiting the scope of one’s positive freedom of faith.^[5]Pursuant to German doctrine, conflicts among various bearers of a fundamental right or those between a fundamental right and other constitutionally protected interests are always to be resolved on the principle of “practical concordance”^[6]requiring that none of the conflicting constitutional positions “be preferred or maximally asserted, but all given as protective as possible an arrangement.”^[7]

It should further be pointed out that freedom of faith as designed in the Basic Law also has an anti-discriminatory dimension^[8]: According to Article 3.3 of the Basic Law, discrimination on religious grounds is prohibited. Article 33.3 of the Basic Law stipulates, “neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed”.

Case-Law on Freedom of Faith at School

The following part provides an overview of three landmark decisions of the Federal Constitutional Court concerning the scope of freedom of faith at school.

The “Classroom Crucifix Case” – Order of the First Senate of 16 May 1995

On May 1995, the Federal Constitutional Court struck down a Bavarian provision requiring crucifixes or crosses to be installed in each classroom in state elementary schools that are not denominational.^[9]  It should be noted that Bavaria, which at that time was the only state (Land) with such a provision, is particular to the other fifteen states (Laender) with regard to the public placement of this religious item. Crosses are not only present in classrooms, but also in many other areas of life, for example on roads, in hospitals, hotels and other dwellings. In a five-to-three decision, the Federal Constitutional Court found that the Bavarian regulation violated the provision in Article 4 of the Basic Law. This decision, broadly known as the “Crucifix Case”, caused massive protests and marked the beginning of the debate over the access of religious references to state classrooms.

Case Details 

Three school-age siblings and their parents had filed a constitutional complaint against an order of the Bavarian Higher Administrative Court which had approved the lawfulness of a provision of the Bavarian School Regulations for Elementary Schools according to which a crucifix or a cross is to be affixed in every classroom in state elementary schools. Following an anthroposophical philosophy of life, the parents had objected to their eldest child being confronted with a crucifix affixed directly in the field of view of the blackboard. They stated that this symbol, in particular the portrayal of a dying male body, influenced their children in a Christian direction which contravened their educational conceptions and philosophy of life.^[10]For this reason, the parents had requested for the crucifix to be removed and had refused to send their daughter to school as long as she was exposed to the view of the crucifix.^[11]The conflict between the parents and the school administration had been primarily settled by replacing the crucifix with a smaller cross without a body which had been placed over the door. The dispute, however, had erupted again when their two younger children had gone to school and when their elder daughter had changed class. Again, the parents had achieved a compromise according to which crucifixes were to be replaced by smaller crosses.^[12]In February 1991, the parents had brought an action against the Free State of Bavaria before the Administrative Court in their own behalf and that of their minor children aiming the removal of crosses from all classrooms visited or yet to be visited by their children while attending school.^[13]The Administrative Court had rejected the application and the Higher Administrative Court as the last instance had rejected the appeal against the first judgment.^[14]

Court’s Ruling and Key Considerations

The First Senate of the Federal Constitutional Court^[15]ruled that the affixation of a cross or crucifix in classrooms of a state compulsory school as prescribed in the Bavarian regulation infringed the parents’ fundamental rights under Article 4.1 taken together with Article 6.2 sentence 1 of the Basic Law^[16]and the children’s fundamental right under Article 4.1 of the Basic Law. Hence, it declared the regulation null and void.^[17]First, the Federal Constitutional Court precisely defined the scope of protection of freedom of faith: The decision for or against a faith is a private one. Therefore, the state is not allowed to prescribe or to forbid a faith or religion.^[18]Freedom of faith does both mean the freedom to have a faith and the freedom to act in harmony with one’s religious beliefs. Equally, this includes the freedom to absent oneself from acts of worship of a faith that is rejected.^[19]The Court made clear that this freedom also applies to symbols in which a faith or a religion is mirrored. Accordingly, Article 4.1 of the Basic Law leaves it to the individual to decide which religious symbols they recognize and which they reject.^[20]In a pluralist society, the individual generally has no right to be spared from manifestations of faith (in form of acts of worship or symbols) that are not shared. Nevertheless, according to the Court, this does not apply in a situation organized by the state in which the individual is confronted with a particular faith without a possibility of avoiding it.^[21]In this case, Article 4.1 of the Basic Law secures peaceful coexistence of adherents of different (or even opposing) religious and philosophical beliefs by compelling the state to commit itself to neutrality in these matters.^[22]

In conjunction with Article 6.2 of the Basic Law, which secures the parental care and upbringing of children as a natural right, Article 4 of the Basic Law also encompasses the right to determine religious and philosophical education.^[23]Rejecting the submission of the Bavarian government that the cross was merely a symbol of Western culture, the Federal Constitutional Court found that the cross is rather a specific symbol of Christianity.^[24]Due to the inevitability of the encounter with the cross during classes, the Court considered it to interfere with pupils’ negative freedom of faith who rejected the Christian belief.^[25]As education in primary schools is compulsory, these pupils were forced to study “under the cross”.^[26]Unlike the Higher Administrative Court, which had found that the cross had no effect on them,^[27]the Federal Constitutional Court regarded the cross as having a conspicuous character by declaring the symbolized religious principles to be superior.^[28]According to the Court, the interference with freedom of faith was not justified. It is true that Article 7.1 of the Basic Law^[29]provides the state’s educational mandate including the right to organize schooling and to determine the teaching goals, which is guaranteed to take place independently from parents.^[30]However, it must be taken into account that at school differing religious convictions of pupils and of their parents collide.^[31]This conflict is to be resolved in harmony with the principle of practical concordance.^[32]This does not mean that the state is utterly barred from introducing any sort of religious or philosophical references when it fulfills its duty to provide education under Article 7.1 of the Basic Law. Instead, the constitutionally required arrangement of conflicting interests demands the state to accomplish this task in a non-proselytizing manner and to observe the “indispensable minimum of elements of compulsion”.^[33]With regard to the crucifix, the Court concluded that its affixing surpasses this limitation.^[34]Finally, the Court pointed out that the parents’ and pupils’ positive religious freedom who share the Christian faith and form the majority cannot override the right of the minority as fundamental rights in a democratic system particularly aim to offer protection against majority decisions.^[35]Additionally, it would contravene the requirement of practical concordance if the religious feelings of the other-minded minority were subordinated so that Christian pupils have the possibility to study under the symbol of their faith.^[36]

Note

Three of the eight judges rendered a joint dissenting opinion arguing that the relevant provision of the Bavarian regulation did not violate the complainants’ freedom of faith.^[37]The mere presence of a cross in the classroom – according to the dissenting judges – did not compel pupils to particular modes of conduct nor did it convert school into a missionary place.^[38]Furthermore, they made clear that the psychic harm and mental burden that non-Christian pupils had to endure from the enforced installation of a cross in the classroom was only marginal.^[39]Neither are the schoolchildren forced to a certain behavior, nor were they forced to express their differing religious belief by non-participation.^[40]Moreover, the judges denied any direct influence on the content of teaching or educational objectives. Promotion of the Christian by the cross did not take place.^[41]In the academic literature, the order was criticized for several dogmatic faults,^[42]in particular for not solving the conflict between the negative freedom of faith and the positive freedom of faith.^[43] 

The “First Headscarf Case” – Judgment of the Second Senate of 24 September 2003

In 2003, the controversy over the scope of religious manifestations at school reached a new level. This time, the Federal Constitutional Court was seized to rule on whether a female Muslim teacher is entitled to wear a headscarf for religious reasons while on duty.^[44]Awaited with great public interest due to its particular significance for the social and professional integration of the biggest religious minority in Germany, the decision was reached by a slight majority of five votes to three. The present case differs from the earlier Crucifix Case in that this time not only the pupils’ negative freedom of faith had to be balanced with the state’s educational mandate, but also with the positive freedom of faith of an individual – the teacher concerned. 

Case Details

The Federal Constitutional Court had to decide on the constitutional complaint of a Muslim woman. Having just completed her teaching practice for the teaching profession, Fereshta Ludin had applied for a position as a primary school teacher in the LandBaden-Wuerttemberg. Her application for the civil service had been rejected by the competent school supervisory authority on grounds of lack of personal aptitude (Article 33.2 of the Basic Law) arising from her unwillingness to remove the headscarf at school.^[45]The school authority had argued that the Islamic headscarf was a symbol of cultural disintegration which ran counter to the state’s duty of neutrality, incumbent on the educational staff as representatives of the state.^[46]Besides, pupils could be easily influenced due to their young age.^[47]The complainant had objected that wearing a headscarf was not only part of her personal identity, but also the expression of her religious affiliation protected under Article 4.1 and 4.2 of the Basic Law.^[48]Although the state was obliged to stay neutral in religious questions, it was not completely barred from any religious or ideological references. Instead, the state had to achieve a carefully balanced arrangement between the colliding constitutionally protected interests.^[49]As the school authorities’ decision had been approved by the Administrative Courts of all instances,^[50]Ludin entered a constitutional complaint with the Federal Constitutional Court. 

Court’s Ruling and Key Considerations

The Second Senate of the Federal Constitutional Court^[51]ruled that the decisions challenged by the complainant had violated her right to equal access to public offices under Article 33.2 of the Basic Law in conjunction with Article 4.1 and 4.2 of the Basic Law and with Article 33.3 of the Basic Law.^[52]The Court based its view solely on the absence of a statutory basis indicating teachers’ official duty to refrain from religious characteristics at school.^[53]However, the Laenderare authorized to implement a regulation pursuant to which the mere religiously motivated appearance of a teacher can be regarded as a lack of aptitude and therefore impede the appointment to the civil service.^[54]Although the Court based its ruling on the state’s failure to create a legislative basis, it has issued some major considerations on the constitutionality of such a prohibition: In this respect, the Court reaffirmed that wearing an Islamic headscarf is covered by the fundamental freedom of faith, notwithstanding the dissent within the Muslim community on this matter.^[55]It is not necessary that wearing a headscarf is generally regarded as a dictated conduct. Instead, the subjective conviction of the complainant is decisive.^[56]Freedom of faith is guaranteed to everyone without reservation and can only be limited by other constitutionally protected values. Foremost among these values is the principle of neutrality in questions of religion which prohibits privileges given to any religion by the state. Moreover, the parents’ right to care and raise their children under Article 6.2 of the Basic Law and the children’s negative freedom of religion might be affected as well.^[57]According to the Court, the wearing of a headscarf might also entail an abstract endangerment^[58]of peace at school that could interfere with the state’s exercise of its educational mandate.^[59]The question of how to deal with such a danger posed to these constitutional values is one that must be decided by the democratically legitimated Landlegislature itself.^[60]Given the growing religious and cultural variety, the Court designed two possible scenarios: Either the legislature adopts a legal concept accepting religious manifestations at school in order to encourage the practice of mutual tolerance or, due to greater potential for possible conflicts between pupils, parents and teachers, it chooses a concept which attaches stricter importance to the state’s duty of neutrality leading to a ban of religious references.^[61]In this context, the Court admitted that the Laender^[62]– having a wide margin of appreciation – possibly arrive at different regulation as a result of different school traditions, confessional composition of the population or different degrees of religious roots.^[63]

Note

Judging the aforementioned constitutional complaint as well-founded due to a lack of a requisite statutory basis, the Court failed to put an end to the dispute surrounding the Islamic headscarf at school. Instead, the Court left it up to the Laenderto tackle this issue by affirming their competence to create legal prohibitions. Thereby the Court only partially dealt with the conflicting constitutionally protected interests by way of obiter dicta and missed a concrete judicial examination. One can assume that this happened for the sake of achieving a majority vote. In the academic literature, the Court’s ruling encountered heavy criticism for several reasons: Firstly, the decision was criticized for not being doctrinally consistent with the order of the First Senate in the earlier Crucifix Case.^[64]It was argued that if a cross is regarded as an encroachment upon the schoolchildren’s negative freedom of faith or the parents’ right of education, the same must apply to teachers as persons having a material molding effect on children.^[65]Secondly, it was held that the Court’s conclusion that the Laendermay implement different regulations because of regional differences did not comply with the conception of freedom of faith which is guaranteed unconditionally.^[66]Finally, the Court did not clearly explain why wearing a headscarf could not be classified as the exercise of civil service for which fundamental rights do not apply.^[67]Other scholars, on the contrary, rightly emphasize that teachers cannot be reduced to their function as representatives of the state, but also must be given the opportunity to realize their personal (religious) identity.^[68]

 

The “Second Headscarf Case” – Order of the First Senate of 27 January 2015

Following the reasoning of the Federal Constitutional Court in the First Headscarf Case, several Laenderimplemented provisions in their Education Acts prohibiting manifestations of religious nature which are likely to endanger the peace at school or the state’s duty of neutrality. Some Laenderalso included a clause privileging symbols of the Christian faith by excluding them from the prohibition. In 2015, the First Senate of the Federal Constitutional Court had to decide on the constitutionality of such regulation.^[69]The decision partly overturned the ruling of the Second Senate in the First Headscarf Case^[70]and gained particular public attention.

Case Details

The judgment of the Federal Constitutional Court resulted from lawsuits brought by two female Muslim teachers from the LandNorth Rhine-Westphalia. Both wearing a headscarf during classes, the two women had been first warned and then dismissed by the competent school authority for not removing their headscarves while on duty. These sanctions had been had been based on § 57 sec. 4 sentence 1 of the Education Act of North Rhine-Westphalia which had been adopted in answer to the First Headscarf Decision.^[71]Pursuant to this provision, teachers may not publicly express their political, religious or ideological views which could jeopardize or interfere with the neutrality of the state with respect to pupils and their parents or endanger or disrupt the political, religious and ideological peace at school. Sentence 3 of § 57 sec. 4 of the Education Act, conversely, orders that the presenting of the Christian and occidental educational and cultural values does not violate the prohibition^[72]as regulated in sentence 1. The school authorities’ decisions had been declared lawful by the labor courts of all instances.^[73]The constitutional complaints directly challenged them and indirectly opposed the relevant provision of the Education Act of North Rhine-Westphalia.

Court’s Ruling and Key Considerations

The First Senate decided by a majority of six votes to two that an absolute ban on teachers wearing a headscarf at interdenominational schools is not compatible with their freedom of faith guaranteed in Article 4 .1 and 2 of the Basic Law.^[74]Furthermore, the Court found that § 57 sec. 4 sentence 3 of the Education Act was unconstitutional as it violated the principle of equal treatment in terms of religion under Article 3.3 and Article 33. 3 of the Basic Law.^[75]The first aspect the First Senate focused on was the essential question of how to determine which conduct can be assessed as exercise of religious beliefs.^[76]The Court affirmed this question as regards to the Islamic headscarf, stating that it does not matter that there are different interpretations of the Islamic sources among scholars as regards to the existence of a rule obliging women to cover themselves in public.^[77]Strengthening the individual side of freedom of faith, the Court emphasized that it is sufficient that the individual concerned regards the relevant rule as an imperative duty and has plausibly demonstrated its binding character to the state authorities.^[78]Taking their individual understanding into account, the Court considered the ban as a severe interference with their freedom of faith.^[79]In the final stage, the Court analyzed with regard to § 57 sec. 4 of the Education Act whether the legislature has struck a balance between the complainants’ positive freedom of faith and the conflicting constitutional interests as required by the principle of practical concordance.^[80]These are the pupils’ negative freedom of faith, the parents’ right to raise their children and the state’s educational mandate.^[81]With regard to the pupils’ negative freedom of faith the Court pointed out that a religiously motivated dress code does not per se constitute an interference with their fundamental right. As long as teachers do not expressly promote their religious conviction in a proselytizing fashion, pupils are merely confronted with the positive freedom of faith of an individual.^[82]Likewise, the Court rejected an interference with the parents’ fundamental right to educate their children in religious respects. It made clear that this fundamental right does not entitle them to isolate their children from the influence of teachers expressing their religious affiliation by outer appearance.^[83]According to the Court, this follows from the fact that wearing a headscarf is not imputable to the state. It rather constitutes an exercise of religious beliefs by an individual. In view of the state’s duty of neutrality in religious and ideological matters when carrying out the educational mandate arising from Article 7 of the Basic Law, the Court – referring to its consistent case-law – precisely defined the constitutional precept of state neutrality which is not to be understood as an obligation on the state to indifference or secularism.^[84]According to the Court, neutrality in the sense of Article 7 of the Basic Law does not require strict separation of state and church. On the contrary, it is open and respectful, encouraging freedom of faith equally for all beliefs.^[85]As repeatedly held by the Court, the religiously motivated dress code of individual members of the educational staff cannot be regarded as an identification of the state with a particular faith. The Court added that the situation in which an individual exercises their freedom of faith clearly differs from the Crucifix Case where the crucifix had been installed by the state itself.^[86]In the light of these considerations, the Court considered a strict prohibition of the expression of religious affiliation by outward appearance – for which a mere abstract endangerment to the peace at school or to the state neutrality is deemed sufficient – to be disproportionate.^[87]Taking into account that the dress code is perceived as mandatory by the teachers concerned, the Court demanded a restrictive interpretation of § 57 sec. 4 sentence 1 of the Education Act as meaning that the expression of religious beliefs must pose a specific endangerment to provoke a prohibition.^[88]On the other hand, the Court affirmed the option to generally prohibit expressions of religious belief by outer appearance or conduct for a certain time, if at certain schools or in certain school districts due to existing conflicts the threshold of sufficiently concrete endangerment of the peace at school or to state neutrality has been achieved.^[89]The Court, however, emphasized that the wearing of an Islamic headscarf itself generally does not constitute a concrete endangerment which would be necessary to justify a ban.^[90]

With regard to § 57 sec. 4 sentence 3 of the Education Act, which aims at conferring a privilege on presenting Christian-occidental educational and cultural values, the Court considered this an infringement of the principle of equal treatment in terms of religion under Article 3.3 and of Article 33.3 of the Basic Law.^[91]Unlike the Federal Labor Court which had approved the constitutionality of the clause by means of restrictive interpretation,^[92]the Court declared this clause void.^[93]

Note

This last decision provoked as well as the previous rulings quite different reactions. While some consider the decision “a sign of ignorance by a highest court”^[94], according to others, this step was long overdue^[95]. From a dogmatic point of view, the decision is highly arguable. A major point of critique expressed in academic literature centers upon the demand for a concrete endangerment.^[96]Although the Court emphasized – similar to its earlier decision on the headscarf issue – the broad scope of freedom of faith, it hesitates to approve the unrestricted allowance to wear a headscarf while on duty and again finds a way to limit the exercise of this fundamental right by making “concrete endangerment” an obstacle. At a closer look, one may have difficulties in imagining situations in which a concrete endangerment of the conflicting legal interests can be affirmed.^[97]As above mentioned, the Court stated that there might be conflict situations regarding the adequate religious conduct that could constitute a concrete endangerment of the peace at school or to state neutrality. In this case, prohibiting regulation could be of more general nature. This leads to the question as to whether the disapproval of third parties (opposing parents and/or pupils invoking their negative freedom of faith) is capable of limiting one’s individual freedom of faith.^[98]Notwithstanding these dogmatic inconsistencies, the ruling can be seen as a major step forward safeguarding the full effectiveness of the freedom of faith as a fundamental right.

 

Conclusion

The reactions to the Federal Constitutional Court’s rulings reveal the significance of this issue. The question of the role of religion in public places in times of religious diversity touches the identity of a society and thus has a sociopolitical dimension.^[99]Taking a look at the case-law of the Federal Constitutional Court, it is striking that the Court has been influenced by the growing number of non-Christians in the German society. Indeed, it emphasized several times that social change might induce the legislature to renew regulation.^[100]It also has become obvious that the Federal Constitutional Court has more and more attached strict importance to the individual freedom of faith: Firstly, by considering the self-perception of the individual concerned and secondly by favoring the individual’s exercise of a fundamental right as far as conflicting legal positions are not in concrete endangerment. As mentioned above, the decisions partly lack dogmatic consistence. Considering the political and social dimension of these rulings and the difficulties in achieving joint result, this is not astonishing. The Court’s tendency is, at any case, evident: School is a perfect place where the juxtaposition of opposing religious views has great effects. In particular, at school, tolerant coexistence with individuals with other religious beliefs can be easily trained. Instead of isolating members of religious minorities, society does rather well to integrate them into professional and social life.^[101]

 

[1]See from recent literature, Uwe Volkmann, Dimensionen des Kopftuchstreits[Dimensions of the Headscarf Dispute], JA 2015, 1083 (1091), who also refers to the counter-majoritarian difficulty as introduced into American constitutional theory by Alexander Bickel, The Least Dangerous Branch, 1962.

[2]Headscarf Decision, BVerfGE 108, 282 (297); 2 BvR 1436/02, para. 37.

[3]Crucifix Decision, BVerfGE 93, 1 (15); 1 BvR 1087/91, para. 34.

[4]Crucifix Decision, BVerfGE 93, 1 (21); 1 BvR 1087/91, para. 48.

[5]BVerfGE 28, 243 (261); 1 BvR 83/244, para. 70.

[6]Konrad Hesseintroduced the term “praktischeKonkordanz” into German constitutional law, see Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland [Fundamentals of the Constitutional Law of the Federal Republic of Germany], 1999.

[7]Crucifix Decision, BVerfGE 93, 1 (21); 1 BvR 1087/91, para. 51.

[8]cf. Crucifix Decision, BVerfGE 93, 1 (17); 1 BvR 1087/91, para. 35; Sacksofsky,Religiöse Freiheit als Gefahr?[Religious Freedom as a Danger?] VVDStRL 68 (2009), 9 (20 et seq.).

[9]Crucifix Decision, BVerfGE 93, 1; 1 BvR 1087/91.

[10]Crucifix Decision, BVerfGE 93, 1 (2); 1 BvR 1087/91, para. 4.

[11]Crucifix Decision, BVerfGE 93, 1 (3); 1 BvR 1087/91, para. 5.

[12]Crucifix Decision, BVerfGE 93, 1 (3); 1 BvR 1087/91, para. 5.

[13]Crucifix Decision, BVerfGE 93, 1 (3); 1 BvR 1087/91, para. 7.

[14]Order of the Bavarian Higher Administrative Court of 3 June 1991, 1991-7 CE 91.1014-; NVwZ 1991, 1099.

[15]The First Senate of the Federal Constitutional Court is primarily competent for fundamental-rights issues (cf. § 14 sec. 1 of the Federal Constitutional Court Act).

[16]Article 6.2 of the Basic Law reads as follows: “The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.“

[17]Crucifix Decision, BVerfGE 93, 1 (15); 1 BvR 1087/91, para. 33.

[18]Crucifix Decision, BVerfGE 93, 1 (15); 1 BvR 1087/91, para. 34.

[19]Crucifix Decision, BVerfGE 93, 1 (15); 1 BvR 1087/91, para. 34.

[20]Crucifix Decision, BVerfGE 93, 1 (16), see also BVerfGE 35, 366. In this case the Federal Constitutional Court had to decide on the constitutionality of the installation of crucifixes in courtrooms.

[21]Crucifix Decision, BVerfGE 93, 1 (16); 1 BvR 1087/91, para. 34.

[22]BVerfGE 41, 29 (44, 47 et seq.); Crucifix Decision, BVerfGE 93, 1 (16); 1 BvR 1087/91, para. 35.

[23]Crucifix Decision, BVerfGE 93, 1 (17); 1 BvR 1087/91, para. 36.

[24]Crucifix Decision, BVerfGE 93, 1 (19); 1 BvR 1087/91, para. 42 et seq.

[25]See also BVerfGE 35, 366; 1 BvR 308/69 where the Court decided in favor of the Jewish complainant who had objected to participate in legal proceedings which take place in a courtroom equipped with a cross.

[26]Crucifix Decision, BVerfGE 93, 1 (18); 1 BvR 1087/91, para. 39. According to the Court, the degree of inescapability was higher than the encounter with religious symbols in the street.

[27]Crucifix Decision, BVerfGE 93, 1 (5); 1 BvR 1087/91, para. 10.

[28]Crucifix Decision, BVerfGE 93, 1 (20); 1 BvR 1087/91, para. 46. The Court pointed out that the influence is even more intensive towards persons who due to their age are not yet fixed in their views and can therefore be easily influenced, see also School Prayer Decision, BVerfGE 52, 223 (249); 1 BvR 647/70, para. 67.

[29]Article 7.1 of the Basic Law reads as follows: “The entire school system shall be under the supervision of the state.”

[30]Crucifix Decision, BVerfGE 93, 1 (21); 1 BvR 1087/91, para. 50; see also: Sexual Education Decision, BVerfGE 47, 46 (71 et seq.); 1 BvL 1/75, para. 99.

[31]Crucifix Decision, BVerfGE 93, 1 (21); 1 BvR 1087/91, para. 50.

[32]Crucifix Decision, BVerfGE 93, 1 (21); 1 BvR 1087/91, para. 51.

[33]BVerfGE 41, 29 (51); 1 BvR 63/68, para. 104; Crucifix Decision, BVerfGE 93, 1 (23); 1 BvR 1087/91, para. 55. 

[34]Crucifix Decision, BVerfGE 93, 1 (24); 1 BvR 1087/91, para. 56.

[35]Crucifix Decision, BVerfGE 93, 1 (24); 1 BvR 1087/91, para. 57.

[36]Crucifix Decision, BVerfGE 93, 1 (24); 1 BvR 1087/91, para. 57.

[37]Crucifix Decision, BVerfGE 93, 1 (25 et seq.); 1 BvR 1087/91, para. 59 et seq. 

[38]Crucifix Decision, BVerfGE 93, 1 (29); 1 BvR 1087/91, para. 79. 

[39]Crucifix Decision, BVerfGE 93, 1 (33); 1 BvR 1087/91, para. 89.

[40]In this context, the dissenting opinion refers to the School Prayer Decision, BVerfGE 52, 223 (245 et seq.).

[41]Crucifix Decision, BVerfGE 93, 1 (33); 1 BvR 1087/91, para. 90.

[42]JosefIsensee,Bildersturm durch Grundrechtsinterpretation, ZRP 1996, 10.

[43]Christoph Link, Stat Crux? Die “Kruzifix”-Entscheidung des Bundesverfassungsgerichts[Stat Crux? The „Crucifix“ Decision of the Federal Constitutional Court], NJW 1995, 3353.

[44]First Headscarf Decision, BVerfGE 108, 282; 2 BvR 1436/02. 

[45]In Germany the access to the civil service is constitutionally regulated in Article 33 of the Basic Law which reads as follows: “(2) Every German shall be equally eligible for any public office according to his aptitude, qualifications and professional achievements. (3) Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed.”

[46]First Headscarf Decision, BVerfGE 108, 282 (284); 2 BvR 1436/02, para. 3. 

[47]First Headscarf Decision, BVerfGE 108, 282 (285); 2 BvR 1436/02, para. 5.

[48]First Headscarf Decision, BVerfGE 108, 282 (284); 2 BvR 1436/02, para. 4.

[49]First Headscarf Decision, BVerfGE 108, 282 (284); 2 BvR 1436/02, para. 4.

[50]Judgment of the Federal Administrative Court of 4 July 2002, BVerwG 2 C 21.01-; NJW 2002, 3344; judgment of the Baden-Wuerttemberg Higher Administrative Court of 26 June 2001, 4 S 1439/00; NJW 2001, 2899.

[51]Concerning constitutional complaints, the Second Senate of the Federal Constitutional Court is competent for disputes in connection with public employment law.

[52]First Headscarf Decision, BVerfGE 108, 282 (294); 2 BvR 1436/02, para. 29.

[53]First Headscarf Decision, BVerfGE 108, 282 (294); 2 BvR 1436/02, para. 30.

[54]First Headscarf Decision, BVerfGE 108, 282 (302, 303, 309); 2 BvR 1436/02, para. 47, 48, 62.   

[55]First Headscarf Decision, BVerfGE 108, 282 (298); 2 BvR 1436/02, para. 40.

[56]First Headscarf Decision, BVerfGE 108, 282 (299); 2 BvR 1436/02, para. 40.

[57]First Headscarf Decision, BVerfGE 108, 282 (303); 2 BvR 1436/02, para. 47.

[58]The concept of “abstract danger” and “concrete danger” is used to describe the threshold of state interference and comes from the police law.

[59]First Headscarf Decision, BVerfGE 108, 282 (303); 2 BvR 1436/02, para. 49. The Court noted before that there was no tangible evidence of a concrete danger.

[60]First Headscarf Decision, BVerfGE 108, 282 (302); 2 BvR 1436/02, para. 47.

[61]First Headscarf Decision, BVerfGE 108, 282 (310); 2 BvR 1436/02, para. 65.

[62]According to the federal conception of the Basic Law, school legislation is a matter for the Laender(Article 30, 70.1 of the Basic Law).

[63]First Headscarf Decision, BVerfGE 108, 282 (302, 303); 2 BvR 1436/02, para. 47.

[64]JörnIpsen, Karlsruhe locuta, causa non finita, Das BVerfG im so genannten “Kopftuch-Streit”[Karlsruhe locuta, causa non finita, the FCC in the so called “Headscarf Dispute“ ], NVwZ 2003, 1210; Ronald Pofalla, Kopftuch ja – Kruzifix nein? – Zu den Widersprüchen der Rechtsprechung des BVerfG [Headscarf Yes – Crucifix No? Contradictions of the Case-law of the FCC], NJW 2004, 1218. 

[65]JörnIpsen, NVwZ 2003, 1210.

[66]UteSacksofsky, Die Kopftuch-Entscheidung – von der religiösen zur föderalen Vielfalt[The Headscarf Decision – from Religious to Federal Diversity], NJW 2003, 3297.

[67]The dissenting opinion seems to take this line, see First Headscarf Decision, BVerfGE 108, 282 (315 et seq.); 2 BvR 1436/02, para.76 et seq. From literature see: Michael Bertrams,Lehrerin mit Kopftuch? Islamismus und Menschenbild des Grundgesetzes[Teacher with a Headscarf? Islamism and Image of Man of the Basic Law], DVBl. 2003, 1225; Helmut Goerlich,Distanz und Neutralität im Lehrberuf – zum Kopftuch und anderen religiösen Symbolen[Distance und Neutrality in the Teaching Profession – Headscarf and Other Religious Symbols], NJW 1999, 2929, as regards the Second Headscarf Decision, see Jürgen Schwabe, DVBl. 2015, 570.   

[68]Ernst-WolfgangBöckenförde,Kopftuchstreit auf dem richtigen Weg?[Headscarf Dispute on the Right Track?], NJW 2001, 723 (727). In his words, a teacher cannot be „depersonalized“.

[69]Second Headscarf Decision, BVerfGE 138, 296; 1 BvR 471/10. 

[70]In the academic literature, this provoked the discussion of whether the matter had to be decided by the Plenary of the Court (cf. § 16 of the Federal Constitutional Court Act), see Mathias Hong, Ein Gericht oder zwei Gerichte?[One Court or two Courts?], Der Staat 54, 2015, 409 . Other scholars, however, conclude that the Second Headscarf Decision fits well with First Headscarf Decision, see Tonio Klein, Das Kopftuch im Klassenzimmer: konkrete, abstrakte, gefühlte Gefahr?[The Headscarf in Classrooms: Concrete, Abstract, Felt Danger?], DÖV 2015, 464. 

[71]Second Headscarf Decision, BVerfGE 138, 296 (296); 1 BvR 471/10, para. 1.

[72]Only the LaenderBerlin and Bremen did not implement such a statutory privilege in favor of the Christian faith.

[73]Second Headscarf Decision, BVerfGE 138, 296 (302); 1 BvR 471/10, para. 9; judgment of the Federal Labor Court of 20 August 2009, 2 AZR 499/08-; judgment of the Labor Court of North Rhine-Westphalia, 5 Sa 1836/07.

[74]Second Headscarf Decision, BVerfGE 138, 296 (327); 1 BvR 471/10, para. 80.

[75]Second Headscarf Decision, BVerfGE 138, 296 (326); 1 BvR 471/10, para. 78.

[76]Second Headscarf Decision, BVerfGE 138, 296 (329); 1 BvR 471/10, para. 86.

[77]Second Headscarf Decision, BVerfGE 138, 296 (330); 1 BvR 471/10, para. 87 et seq.

[78]Second Headscarf Decision, BVerfGE 138, 296 (329); 1 BvR 471/10, para. 86.

[79]Second Headscarf Decision, BVerfGE 138, 296 (330 et seq.); 1 BvR 471/10, para. 90, 95 et seq.

[80]Second Headscarf Decision, BVerfGE 138, 296 (333 et seq.); 1 BvR 471/10, para. 99 et seq.

[81]Second Headscarf Decision, BVerfGE 138, 296 (333); 1 BvR 471/10, para. 98.

[82]Second Headscarf Decision, BVerfGE 138, 296 (337); 1 BvR 471/10, para. 105.

[83]Second Headscarf Decision, BVerfGE 138, 296 (337); 1 BvR 471/10, para. 106 et seq.

[84]Second Headscarf Decision, BVerfGE 138, 296 (338); 1 BvR 471/10, para. 109 et seq.; see also BVerfGE 52, 223. In this case the Federal Constitutional Court had to decide on the constitutionality of school prayers as part of the school day. In this case the Court emphasized the state’s openness towards religious elements at school for the first time.

[85]Second Headscarf Decision, BVerfGE 138, 296 (339); 1 BvR 471/10, para. 110.

[86]Second Headscarf Decision, BVerfGE 138, 296 (340); 1 BvR 471/10, para. 112.

[87]Second Headscarf Decision, BVerfGE 138, 296 (340); 1 BvR 471/10, para. 112; Ernst-WolfgangBöckenförde,Kopftuchstreit auf dem richtigen Weg?[Headscarf Dispute on the Right Track?], NJW 2001, 723.

[88]Second Headscarf Decision, BVerfGE 138, 296 (341); 1 BvR 471/10, para. 113.

[89]Second Headscarf Decision, BVerfGE 138, 296 (341); 1 BvR 471/10, para. 114.

[90]Second Headscarf Decision, BVerfGE 138, 296 (342); 1 BvR 471/10, para. 116.

[91]Second Headscarf Decision, BVerfGE 138, 296 (346 et seq.); 1 BvR 471/10, para. 123 et seq. In literature, it was stated that this discrimination was justified since the Islamic headscarf was a symbol of oppression of women, see FriedhelmHufen, Der Regelungsspielraum des Landesgesetzgebers im “Kopftuchstreit”[The Regulatory Scope of the State Legislature in the Headscarf Debate], NVwZ 2004, 575 (576); MichaelBertrams, Lehrerin mit Kopftuch? Islamismus und Menschenbild des Grundgesetzes[Teacher with a Headscarf? Islamism and Image of Man of the Basic Law], DVBl 2003, 1225 (1232 et seq.) The Federal Constitutional Court expressly opposed to this view, see para. 129 of the Second Headscarf Decision.

[92]The Federal Labor Court held the term „Christian“ to mean a set of values originating from the tradition of Christian-occidental culture, but not associated with Christian beliefs. See also the ruling of the Federal Administrative Court on a similar clause of the LandBaden-Wuerttemberg, BVerwGE 121, 140 (147, 150), criticized by Susanne Baer/Michael Wrase, Staatliche Neutralität und Toleranz in der christliche-abendländischen Wertewelt[State Neutrality and Tolerance and Christian-occidantal Cultural Values and Traditions], DÖV 2005, 243 .

[93]Second Headscarf Decision, BVerfGE 138, 296 (352); 1 BvR 471/10, para. 138.

[94]MichaelBertrams, interview in Frankfurter Rundschauof 17 March 2015, 5.

[95]ChristianGeyer, Frankfurt Allgemeine Zeitungof 13 March 2015, http://www.faz.net/aktuell/feuilleton/karlsruher-beschluss-kopftuch-na-und-13481717.html;BetülUlusoy, Die Weltof 16 March 2015, 21.

[96]UteSacksofsky,Kopftuch als Gefahr – ein dogmatischer Irrweg[Headscarf as a Danger – A Dogmatic Aberration], DVBl. 2015, 801; Uwe Volkmann, Dimensionen des Kopftuchstreits[Dimensions of the Headscarf Dispute], JA 2015, 1083.

[97]Stefan Muckel, Pauschales Kopftuchverbot an öffentlichen Schulen verletzt die Religionsfreiheit[A General Ban on Headscarves in Public Schools Violates Freedom of Faith], JA 2015, 476; UteSacksofsky,Kopftuch als Gefahr – ein dogmatischer Irrweg[Headscarf as a Danger – A Dogmatic Aberration], DVBl. 2015, 801.

[98]UteSacksofsky,Kopftuch als Gefahr – ein dogmatischer Irrweg[Headscarf as a Danger – A Dogmatic Aberration], DVBl. 2015, 801.

[99]see also Uwe Volkmann, Dimensionen des Kopftuchstreits[Dimensions of the Headscarf Dispute], JA 2015, 1083.

[100]cf. First Headscarf Decision, BVerfGE 108, 282 (310); 2 BvR 1436/02, para. 65, see also Martin Thormann, Kreuz, Kopftuch und Bekenntnisschule[Crosses, Headscarves and Denominational Schools], DÖV 2011, 945.

[101]Uwe Volkmann, Dimensionen des Kopftuchstreits[Dimensions of the Headscarf Dispute], JA 2015, 1083.