Religious Symbols in German Schools

Law, Religion and Education: Religious Freedom in the Sphere of Education Conference, Oxford, 8-9 October 2010

Dr Tobias Lock, Faculty of Laws, University College London

Legal Framework I: Guarantees in the Basic Law

Article 4 (1) Freedom of faith and of conscience, and freedom to

profess a religious or philosophical creed, shall be inviolable.

(2) The undisturbed practice of religion shall be guaranteed.

Article 6 (2)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.

Article 7 (1)The entire school system shall be under the supervision of

the state.

Legal Framework II

• Federalism: organization of schools in Länder (state) competence

• Neutrality of the state in matters of religion and philosophy of life– No state church– But: no laïcité either– rather: ‘open neutrality’

• Decisions by Federal Constitutional Court (FCC) on Christian state schools (Baden-Württemberg) and education according to Christian principles (Bavaria): accepted as constitutional

• Also accepted: school prayer• BUT: no identification with a religion

Part I: Symbols Installed by the State: the Crucifix decision

• Bavarian Regulation: ‘In every classroom a cross shall be affixed’

• Constitutional complaint by pupils and their parents: violation of Article 4 (negative freedom)

• FCC:– The cross as a Christian symbol– Definition of negative freedom of religion– Interference with that freedom by a symbol

Part I: Symbols Installed by the State: the Crucifix decision

• Dissenting opinion• Criticism voiced by commentators• Follow-up:

– Amendment to Bavarian legislation– Teachers demanding removal of the cross

Part II: Symbols Worn by Teachers: the Ludin Saga

• Facts: – female Muslim primary school teacher (German

national) insisted on wearing a headscarf at school– Was applying for her first job– Authority refused to employ her for lack of aptitude

• Legal Background– Teachers employed as civil servants (Beamte)– Article 33 (2) Basic Law

Every German shall be equally eligible for any public office according to his aptitude, qualifications and professional achievements.

Part II: Symbols Worn by Teachers: the Ludin Saga

• Federal Administrative Court– Confirmed authority’s decision– Aptitude requires prognosis whether candidate will fulfil

their duties– Wearing of headscarf protected by Article 4– But restrictions possible

• Neutrality of the state• Negative freedom of religion of pupils

• Federal Constitutional Court– Successful complaint– Technical argument: denial to employ a teacher for the

reasons stated requires explicit legislative basis, which was missing

Part II: Symbols Worn by Teachers: the Ludin Saga

• FCC (cont’d.)– On the headscarf as a religious symbol: subjective test– On interference with negative freedom of pupils:

objective test– Explicitly distinguished the crucifix decision

• Criticism– Dissenting opinion

• Interesting that it was not questioned that there could be an interference

– Commentators• Distinction to crucifix not convincing

Part II: Symbols Worn by Teachers: the Ludin Saga

• Ludin follow-up:– Legislation passed in Baden-Württemberg to ban

headscarf– Ludin lost in Federal Administrative Court– No further complaint made

• Legislation: in 8 out of 16 Länder: ban– In 6 Länder: privileging of Christianity? ‘the [...] portrayal

of Christian and Western cultural and educational values does not contradict the conduct required of teachers’

– Federal Administrative Court:

Part III: Symbols Worn by Students

• Difference to teacher: forced to attend school

• Interference with student‘s right to religious freedom would hardly be justifiable