Bundesverfassungsgericht


But the challenged decisions of the labour courts were not based on it. The challenged decisions are based on that provision see III. The Basic Law also offers protection against de facto disadvantaging on the grounds of gender cf. From a constitutional point of view, the restrictive interpretation of the provision, according to which the prohibition in the instant situation requires a sufficiently specific danger to the legally protected interests, is not necessary. But this must be distinguished from a situation created by the state in which the individual is subjected, with no possibility of avoidance, to the influence of a specific faith, the acts in which that faith is manifested, and the symbols through which it presents itself cf.

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Tags This page has no custom tags. Classifications Translation status not set. Apply new tags to subpages? If it is understood as an outer indication of religious identity, it has the effect of an expression of a religious conviction without any need for a specific intent to make this known or any additional conduct to reinforce such an effect. The wearer of a headscarf tied in a typical way will usually also be aware of this.

Depending on the circumstances of the individual case, this effect may also occur for other forms of coverings for the head and neck. The complainants do not merely invoke a religious recommendation that individual adherents of the faith may dispense with or postpone obeying. Therefore, a ban on covering the head when teaching or working as an educator at state schools may even block their access to that profession Art. At the same time, there is a state of tension between the fact that at present this effectively means that mainly Muslim women are being kept away from qualified professions as teachers or other educational staff, and the requirement to achieve real equality of women in practice Art.

Such limitations inherent in the Basic Law include the fundamental rights of third parties, along with those community values of constitutional status cf. Resolving the normative tension among these constitutionally protected interests in consideration of the principle of tolerance is a task for the democratic legislature, which, within the public process of policy formulation, must seek a compromise that all can reasonably be expected to comply with.

The above requirements of the Basic Law must be viewed together, and their interpretation and fields of application must be coordinated with one another cf. These aims are clearly not objectionable under constitutional law. However, there is no need to decide here whether, in view of how widespread the Islamic headscarf has now become in German society, and the common understanding of its meaning, and also in view of the very different possible interpretations of why women are moved to wear it, especially in such an extensive and heavily populated Land as North Rhine-Westphalia, the mere abstract danger to the legally protected interests of the school peace and the neutrality of the state must be prevented without exception in all interdenominational state schools and with regard to all pupil age groups, so as to keep specific dangers to these protected interests from arising in the first place.

Religiously motivated clothing worn by educational staff, intended as an expression of a religious conviction, may also have these effects cf. However, none of the opposing interests enshrined in the Constitution is of such weight that the mere abstract danger that they might be interfered with can justify a ban, if on the other side the wearing of clothing or symbols with religious connotations is plausibly demonstrated to be attributable to a religious requirement that is perceived as imperative.

This also refers to rites and symbols through which a belief or religion present themselves. However, in a society that holds space for different religious convictions, individuals have no right to be spared from ever being confronted with expressions of faith, rituals and religious symbols that are alien to them. But this must be distinguished from a situation created by the state in which the individual is subjected, with no possibility of avoidance, to the influence of a specific faith, the acts in which that faith is manifested, and the symbols through which it presents itself cf.

It is true that pupils also find themselves in an unavoidable situation when, because of the general requirement of compulsory education, they are faced during a class, with no possibility of avoidance, with a state-employed teacher who wears an Islamic headscarf. The latter may invoke the individual freedom under Art. If a state allows the religious expression associated with wearing a headscarf on the part of a single teacher or educational staff member, it does not adopt that expression as its own simply by so allowing, and also does not have to accept that the expression is attributed to it as having been intended by it.

The pupils are only confronted with the positive freedom of faith as exercised by educational staff in the form of wearing clothing in compliance with their beliefs, which, furthermore, is usually relativized and counterbalanced by the conduct of other members of staff who adhere to other faiths or ideologies. In this respect, religiously pluralistic society is mirrored in interdenominational schools. This corresponds with the right to keep children away from religious convictions that the parents consider wrong or harmful cf.

The state, to which the responsibility for supervising the entire school system is assigned under Art. In cases of the present type, this applies precisely because these situations do not concern faith-based conduct attributable to the state, but a recognisably individual exercise of a fundamental right.

The Basic Law establishes an obligation for the state, as the home of all its citizens, to maintain religious and ideological neutrality in Art.

It prohibits the introduction of any legal entity of the nature of a state church and bars privileging any particular denomination, or excluding persons of other faiths cf. The state must ensure that the treatment of the various religious and ideological communities is guided by the principle of equality cf. The religious and ideological neutrality required of the state is not to be understood as a distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs.

The state is only barred from exerting a targeted influence in the service of a specific political, ideological or philosophical direction, or, through measures originating from the state or being attributable to it, from identifying itself with a specific faith or a specific ideology and thus on its own initiative endangering religious peace in a society cf.

The principle of religious and ideological neutrality also prohibits the state from judging the faith and doctrine of a religious community as such cf. Accordingly, for example, to allow for or permit Christian references in the state schools is not precluded; however, the school must also be open to other religious and ideological content and values cf. As references to various religions and ideologies are possible in organising a state school, the mere visibility, apparent in their outer appearance, of the religious or ideological affiliation of individual members of educational staff — irrespective of what religion or ideology is concerned in the specific case — is not precluded as such by the neutrality required of the state in religious and ideological matters.

It is through this openness that the free state under the Basic Law preserves its religious and ideological neutrality cf. It suppresses their fundamental right to freedom of faith in a manner that is not appropriate. If individual members of educational staff wear a headscarf, this does not entail identification of the state with a particular faith — quite different from the case of a cross or crucifix in the classroom that has been installed by state authorities cf. In addition, the complainants follow a commandment of faith which they have plausibly shown to perceive as imperative.

But even in such a case, in the interest of protecting the fundamental rights of those concerned, the employer will have to first consider whether it would be possible to employ the person concerned in other educational environments.

In this respect, the legislature may also take due account of such a situation preventively cf. In so doing, especially in large Laender, it must provide for differentiated solutions, for example limited in place and time, possibly with the aid of a sufficiently specific authorisation to issue regulations Verordnungsermächtigung.

Also in the case of such a regulation, in the interest of the fundamental rights of those concerned, it would have to be considered at first whether it would be possible to employ the person concerned in other educational environments.

As long as the legislature has not established a more differentiated regime, a restriction on the freedom of faith of educational staff can only be an appropriate result of the balancing of the relevant constitutionally protected legal interests if it can be shown that there is at least a sufficiently specific danger to the neutrality of the state or to the peace at school.

It must also be possible, in the interest of a balancing and effective exercise of fundamental rights at an interdenominational school, to lead a life according to this ideal. The existence of that specific danger must be proven and substantiated. In general, wearing an Islamic headscarf does not substantiate a sufficiently specific danger. Wearing such a head covering as such does not have the effect of promoting a belief, still less proselytising for one.

Even if a majority of Muslim women do not wear an Islamic headscarf, this is not uncommon in Germany cf. It is often reflected in everyday social life and within student bodies. Its being merely visually perceptible, as a consequence of the individual exercise of fundamental rights, must be accepted in the schools just as there is also generally no constitutional right to be spared from being exposed to other religious or ideological convictions.

It serves to prevent voiding the law, and is therefore required from the point of view of preserving the legislation so far as possible. It respects the fact that the norm has other applications that diverge from the case at hand. These may involve verbal expressions, for example, or openly promotional conduct.

In such cases, the prohibition may also have significance in an interpretation that even includes an abstract danger. It does not stand to oppose this restrictive interpretation that in the legislative history, the legislature contemplated a prohibition of wearing a headscarf as a typical application of the provision. The norm is merely accorded a less far-reaching application.

The presupposed ability of outer conduct to give pupils and parents the impression that an educator advocates against human dignity, the principle of equal treatment under Art. However, with respect to the guarantees of fundamental rights under Art. This generalisation is impermissible.

If wearing the headscarf, for example, appears as the expression of an individual clothing decision, tradition or identity cf. Nor can it be assumed that those schools of Islam that require a headscarf to be worn to fulfil the requirement to cover oneself, but also consider this sufficient, are requiring, expecting or even merely hoping that believers will advocate against human dignity, the principle of equal treatment under Art.

The challenged decisions of the regular courts, particularly of the Federal Labour Court, do not meet the requirements of the necessary restrictive interpretation in conformity with the Constitution; in their view, such an interpretation was not necessary. Neither the findings of the labour courts in the proceedings on the facts nor the assessment in law by the Federal Labour Court reveal any circumstances that might illustrate a sufficiently specific danger to the legal interests protected by the norm.

On the contrary, complainant II had even applied for her position with a photograph showing her in a headscarf. Her employment contract, initially for a fixed term, was later changed to a permanent position. By her account, which has not been contradicted, she always performed her work wearing a headscarf covering her hair, without this causing any objections. The partial requirement under section 3 of the provision, which is intended by the legislature to confer a privilege on presenting Christian and occidental educational and cultural values or traditions, constitutes a disadvantaging on the grounds of faith and religious beliefs that is contrary to equal treatment Art.

This violation of the Constitution is reflected in the challenged decisions. However, it is precisely the exclusion from the privilege provided in sentence 3 that leads to the unconstitutional disadvantaging of the complainants by the very two decisions to be reviewed here too. The norm reinforces the general principle of equality under Art. The concept of public employment as used in Art. The provision also includes a ban on disadvantaging in the civil service above and beyond the question of admission to public employment cf.

The provision forbids barring persons from admission to public employment on grounds that are incompatible with the freedom of faith protected in Art. This does not exclude establishing official duties that interfere with the freedom of faith of employees and applicants for civil service, and that thus impede or even exclude applicants who are adherents of a certain faith from having access to civil service.

Any such duties, however, are subject to the strict justification requirements that apply for restrictions on the freedom of faith, which is guaranteed without reservation; moreover, the requirement of strict equal treatment of different faiths must be observed in both the establishment and the practice of enforcing such official duties cf.

This assessment is supported by the aforementioned background materials from the legislative process see d below. If expressions of religious belief by the outer appearance or conduct of educational staff at school are to be prohibited, this must, as a general rule, be done without distinctions. There are no apparent nor sound reasons to justify disadvantaging those expressions of religious belief by outer appearance or conduct that cannot be traced back to Christian-occidental cultural values and traditions.

In addition, such a purported justification must fail, as, under a generalising perspective, it can by no means provide a reason for treating all non-Christian-occidental cultural values and traditions differently.

Likewise, there are no tenable justifications for favouring expressions relating to Christian or Jewish faith. The educational mandate of the state, as described in Art. Insofar as such provisions of the constitutions of the Laender may be interpreted to contain references to Christian values in the state school system, this should refer to secularised values of Christianity.

Furthermore, under what is presumably the predominant interpretation, the educational objective stated in Art. Festschrift für Wolfgang Zeidler, vol. For that reason, in this case it is not relevant that Art. This would overstep the limits of an interpretation of the law in conformity with the Constitution, and would be incompatible with the principle that the judiciary is bound by the law Art. The limit to an interpretation in conformity with the Constitution is where contradiction with the wording and the clearly recognisable intent of the legislature arises.

Respect for the democratically legitimated legislature forbids attributing an opposite sense to a law that is clear in its purpose and wording, or fundamentally redefining the normative content of a provision cf.

The Land legislature was also aware of a possible restrictive interpretation in this sense during the further course of the legislative project: Meanwhile, the openness to other religious and ideological convictions that is in addition expressly mentioned in the wording of Art. All this makes it clear that the restrictive interpretation of the provision reached by the Federal Labour Court factually redefines its normative content and thus also no longer coincides with the legislative intent that became clearly evident in the legislative process.

In this interpretation, the presentation of Christian and occidental cultural values is something that is already inherently different from the outer expression of an individual religious view as prohibited in sentence 1.

But if that interpretation were correct, there would have been no need for the exception stated in sentence 3 that such a presentation does not contradict the ban on conduct under sentence 1. In the interpretation given by the Federal Labour Court, sentence 3 no longer appears to have any meaningful regulatory content within the given normative context. Irrespective of that aspect, this interpretation allows a provision to remain in force which, under a possible broad reading of its wording, could be understood as leaving an opening for discriminatory administrative practices, and whose vagueness in this regard was deliberately retained in the legislative process.

The challenged decisions are based on that provision see III. Even assuming that the freedom to choose an occupation Art. But on that basis, at present, the ban on expression, if it applies irrespective of any specific danger, affects men only in vanishingly small numbers, such as in the case of Sikhs wearing turbans. On that basis, in Germany, at present, the challenged provision de facto quite predominantly affects Muslim women who wear a headscarf for religious reasons.

The Basic Law also offers protection against de facto disadvantaging on the grounds of gender cf. It is true that, as a rule, de facto disadvantaging may be justified. But with regard to the challenged provision in the interpretation also intended by the legislature cf. Nor does the argument hold up that a ban on headscarves protects women against the discrimination that is already inherent in a religious requirement to cover oneself, because in fact this protection proves to place the persons concerned at a disadvantage cf.

Nor, again, can the disadvantaging be justified by the argument that the headscarf signals a rejection of the equal treatment of men and women, because this is neither automatically nor consistently the case on this see B. By contrast, insofar as under the required restrictive reading the norm does result in the de facto disadvantaging of women, this can be justified by the reasons that can also justify an interference with Art.

Under this interpretation, the provision is consistent both with Art. This attribution of rank means that German courts must observe and apply the Convention just as other federal statutory law if such an interpretation is methodologically tenable.

Furthermore — so far as is methodologically tenable — the European Convention on Human Rights must also be consulted as a guide to interpretation in interpreting the fundamental rights and principles of the rule of law under the Basic Law cf. Statutes as well must be interpreted and applied in accordance with the obligations of international law under the Human Rights Convention cf.

However, in the German legal system, the guarantees under the European Convention on Human Rights and its Protocols do not constitute a directly applicable standard for constitutional review cf. Therefore, in a constitutional complaint to the Federal Constitutional Court, a complainant cannot directly assert a violation of human rights contained in the European Convention on Human Rights cf.

However, the situation is different if a constitutional complaint indirectly also challenges Land law. The Convention, since it ranks as federal law, takes precedence over Land law. It is therefore included in the standard of review by way of Art. Switzerland, decision of 15 February , no. Turkey, judgment of 10 November , no.

Turkey, decision of 24 January , no. UK, judgment of 15 January , no. France, decision of 30 June , no. A prohibition of religious symbols that is not specifically directed against adherence to a particular religion is also unobjectionable in the light of the ban on discrimination under Art.

That is the case here, because the prohibition applies to all religious expressions equally, and goes far beyond those expressed through outer appearance or conduct, and in particular also includes verbal expressions. On the basis of this case-law of the Court of Human Rights, which must form the starting point for the assessment here cf. The question of whether the Federal Labour Court, as the final regular court of appeal, deprived the complainants of their lawful judge Art.

The decisions of the Federal Labour Court already prove to be incompatible with the Basic Law on other grounds. The decision was reached by a majority of 6 votes to 2. We are unable to concur with large parts of the results of the decision and its reasoning. Thus, the Senate also departs from the criteria and guidelines developed in what is known as the Headscarf Decision pronounced by the Second Senate on 24 September BVerfGE , In that decision, the Second Senate held that the Land legislature, legislating on the school system, has the task, specifically with regard to state schools, of defining by law to what extent religious references are permitted in schools or must be kept out of schools due to a stricter understanding of the principle of neutrality.

In our opinion, there is no constitutional objection to the ban which the North Rhine-Westphalian legislature, legislating on the school system, intended with regard to those expressions by education staff of religious belief by outer appearance or conduct that are able, even in the abstract, to endanger the peace at schools and state neutrality.

However, in order for an expression by means of clothing with religious connotations to be able to endanger the protected interests, those expressions must be strong religious statements see I.





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