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Case:
Bundesverfassungsgericht Second Senate 2 BvR 1436/02
Date:
24 September 2003
Translated by:
Tony Weir
Copyright:
Sir Basil Markesinis

Majority Opinion (Judges Hassemer, Sommer, Broß, Osterloh, Lübbe-Wolff)

1. In the current law of the Land Baden-Württemberg there is no sufficient statutory basis for prohibiting schoolteachers from wearing the hijab.

2. In view of the social changes brought about by the increasing number of religions it may be right for the legislator to reconsider the question whether religious clothing should be worn in schools.

B.

[29] The constitutional complaint is admissible and well-founded. The decisions under attack infringe Art. 33(2) of the Constitution read with Art. 4(1) and (2) and 33(3).

[30] By wearing the hijab the complainant testifies to her membership of the Islamic religious community and her personal identification as a Muslim. In the absence of sufficiently specific statutory justification the decision to treat such conduct as disqualifying her to teach in primary and secondary schools infringed her right of equal access to public office under Art. 33(2) of the Constitution in association with the guarantee of religious freedom contained in Art. 4(1) and (2).

II.

[32] 1. Art. 33(2) of the Constitution makes every public office equally accessible to every German according to his aptitude, qualifications and professional achievements.

[33] a) Art. 33(2) of the Constitution guarantees, like a basic right, the freedom of choice of career (Art. 12(1)) within the limits of what is possible given the limited number of civil service positions made available by the relevant bodies. No one can as of right demand appointment to an office under Art. 33(2): specific personal qualities may have to be shown, so limiting the freedom to choose one¿s career.

[34] b) The lawmaker¿s discretion in drawing up the criteria of aptitude for various offices and specifying the duties involved is in principle a wide one, but it is subject to the fundamental rights of the individual. Officials also have their fundamental rights, notwithstanding that their exercise may be constrained by the range of their official duties (Art. 33(5)). ... But if access to a public office is refused because of what the applicant may do in the future in the exercise of a protected right, that right must be taken into account in any decision regarding unfitness for the office.

[35] c) A decision about an applicant¿s fitness for office clearly includes a prediction about whether the applicant will fulfil the duties of the position applied for. ... Those duties must be sufficiently specified by law and take account of the limits set by the applicant¿s fundamental rights.

[36] 2. It constitutes an infringement of a teacher¿s individual freedom of belief as guaranteed by Art. 4(1) and (2) to make it part of her official duty that she abstain from wearing the clothing indicated by her religious community and thereby showing her attachment to it. Such an official prohibition puts the person involved in the position of having to choose between quitting the office and ceasing to wear the clothes of her religion.

[37] Art. 4 (1) guarantees freedom of religion, conscience and ideology and Art. 4(2) proscribes interference with the practice of religion. The two provisions together constitute a single comprehensive fundamental right which includes not only the freedom privately to believe or not believe but also the freedom to proclaim and advertise one¿s belief to the world outside. This includes also the right of the individual to tailor his conduct to the tenets of his creed and to act in accordance with his inner beliefs.

[38] The freedom of belief in Art 4(1) and (2) is guaranteed unconditionally, and any limitations must be found in the Constitution itself, in the fundamental rights of others and social values of constitutional rank. Furthermore any limitation of this unconditionally guaranteed freedom of conscience must be based on a sufficiently specific statutory provision.

[39] 3. Art. 33(3) is also involved here. Under the first sentence, eligibility for public office is independent of religious denomination, and under the second no one is to suffer any disadvantage as a result of adhering or not adhering to any creed or belief....This does not make it impossible to lay down official duties which restrict the freedom of belief of officials or applicants for office and thereby impede or bar access to public office, but since they constrain the unconditionally guaranteed freedom of belief they must be very strictly justified. Furthermore, if such official duties are to be imposed or applied, strict equality between the various religions must be observed.

[40] 4 a). The complainant¿s right to wear a hijab at school is protected by the right of free belief embodied in Art. 4(1) and (2) of the Constitution. She regards the wearing of a hijab as required by her religion and obedience to this dress code as an expression of her faith. The extent to which the rules of Islam require women to be veiled is not relevant here, though the common understanding of the relevant religious community must be taken into account since one cannot treat every individual caprice as an expression of the protected freedom of belief: ...

[41] b) The view that because the complainant wishes, contrary to an official rule, to wear the hijab as evidence of her adherence to the Islamic religion she is unsuited to the tasks of a school teacher and can consequently be denied access to public office could possibly be justified as consistent with Art. 4(1) and (2) of the Constitution if such an exercise of her freedom of religion conflicted with other constitutional rights and values and the restriction could be based on a sufficiently specific statutory provision. Constitutional values which might be raised here include not only the state¿s educational function (Art. 7(1)) which must be exercised neutrally as regards religion and ideology, the parents¿ right to bring up their children (Art. 6(2)) and the right of schoolchildren to be free from religious indoctrination (negative freedom of belief)(Art. 4(1)).

[42] aa) The Constitution imposes on the state a duty to behave neutrally as regards religion and ideology, . ..

[43] a neutrality which should not to be seen as merely confirming strict separation of church and state, but rather as an open-minded and comprehensive attitude of support for all faiths equally. Art. 4(1) and (2) have a positive effect, and require room to be given for the active expression of one¿s beliefs and thus the realisation of the autonomy of the individual in the area of religious faith....

[44] This applies especially where the state, in the exercise of its welfare function, has made it compulsory to attend school, a place where by its very nature religion and views about life have always been relevant. Thus while Christian symbols are not forbidden in public schools they must also be open to other religious views and values.

[45] bb) Under Art. 6(2)(1) of the Constitution parents are recognised to have the natural right to bring up and educate their children and this, along with Art. 4(1) and (2), includes the right to educate their children in matters of religion and ways of looking at life. It is primarily for the parents to educate their children in the views they hold to be correct, and they have a corresponding right to right to protect their children from being exposed to beliefs which they hold to be false or harmful. Even so, this right of the parents to educate their children is not exclusive under Art. 6(2), for alongside the parents, independently and of equal weight in its own area, stands the state, which is empowered by Art. 7(1) to supervise the whole school system and has its own independent educational task. ...

[46] cc) Finally there is a connection between the freedom, asserted by the complainant, to testify to her religious convictions by wearing a hijab and the "negative" freedom of belief of the schoolchildren. Art. 4(1) and (2) protects equally the freedom to believe and the freedom not to believe: its guarantee of the right to abstain from participation in the rites of a religion one does not share extends to pratices and symbols which express a particular belief or religion. Under Art. 4 it is for the individual to decide which religious symbols to recognize and respect and which to ignore. In a society which affords room for different faiths he certainly has no right to be spared the sight or sound of statements of belief, cultic practices and symbols of religions he does not share, but when as a result of state action a person is placed in a situation in which he has no means of escaping the influence of a particular belief expressed in acts and symbols, it may be different. ...

[47] dd) ... There is an unavoidable tension between the teacher¿s positive freedom of religion on the one hand and, on the other, the state¿s duty to observe neutrality in matters of religion and ideology and the parents¿ right to educate their children and the schoolchildren¿s freedom not to believe. It is for the democratic legislator in the Länder to resolve this tension in the tolerant spirit of the requisite evenhandedness.

[49] 5. The wearing in class of clothing indicative of the teacher¿s religion or faith may affect not only the state¿s duty to observe neutrality in its task of education and the parents¿ right to educate their children but also the schoolchildren¿s right to believe or not to believe. At the very least it could lead to influence on the pupils and conflicts with their parents, it could disrupt of the tranquillity of the school and make it difficult for the school to perform its educational role, but although these effects could indeed result from teachers¿ wearing clothing which bespeaks religious affiliation, the risk of it actually happening is fairly remote. A sufficient and specific statutory basis would be needed before it could be right to treat as a breach of the duties of office or as evidence of unfitness for office the mere possibility of danger or conflict arising from the presence of the teacher or conduct on her part which could be presented as an attempt to influence or even convert the children entrusted to her charge. There is no such law here....

[54] b) Some religious emblems are instituted by the school authorities and others arise from the decision of an individual teacher who can invoke the freedom of Art. 4(1) and (2). A distinction must be drawn. To allow teachers to choose to wear clothes betokening religious affiliation is one thing: for the state to ordain the use of religious symbols in schools is quite another. Acceptance of an individual teacher¿s right to express her religion by wearing a hijab is not at all an expression of the state¿s own opinion and should not be taken as such. It is true that if a teacher wearing a hijab stands all day in front of the class, that may have an effect on the children who cannot avoid the sight, but the effect can always be weakened if the teacher explains its religious significance...

[57] d) The dismissal of the complainant as unfit for office by reason of her refusal to abandon the hijab at school or when teaching lacks any sufficient specific statutory basis....

[60] Under §70(1)(1) of the Landesbeamtengesetz the official serves the whole population and must under the second sentence perform his duties in an unprejudiced and just manner as well as with consideration for the general good. Under §70(2) his entire conduct must show that he supports and upholds the free and democratic basis of the Constitution and uphold it. The complainant is obviously not prevented from doing this just by wearing a hijab. Nor is the wearing of a hijab covered by the rule which requires the official to exercise in any political activity the moderation and restraint befitting his public position and due to respect for the duties of his office. The same is true of the official¿s duty to devote himself fully to the duties of his position (§73(1)), and to be disinterested and conscientious in all he does (§73(2)) and so to conduct himself inside and outside his office as to deserve the respect and trust required by his position.(§73(3)). ... Finally there is no regulation which prescribes particular dress for teachers. ..

[61] ...Accordingly there is at present no sufficiently specific statutory basis such as is required in order to justify a decision that teachers of the Islamic faith who are determined to wear the hijab at school are thereby unfit to teach in primary and secondary schools -- a decision which would infringe their right under Art. 4(1) and (2) of the Constitution.

[62] 6. It remains open to the provincial legislator to provide the statutory basis presently lacking by specifying, consistently with its constitutional role, the extent to which religious clothing may be worn at school. In doing so, it must take due account of the freedom of belief of teacher and pupils alike, of the educational rights of the parents and the duty of the state to stay neutral in matters of religion and belief. ...

[64] The increasing multiculturalism of society could generate a reappraisal of the extent to which of religious clothing should be permitted in schools, and any regulation of the teacher¿s general duties could refer to the way they choose to appear...

[65] There are good reasons why schools should reflect the increasing variety of belief and thereby contribute to the integration of society by inducing mutual tolerance, notwithstanding that this could well provoke conflict. It would therefore be wise for the state in its school policy to adhere to a very strict position of neutrality, even more restrained than heretofore, and so forestall conflicts with pupils, parents and other teachers when schoolchildren are faced with teachers wearing religious insignia. ...

[66] b) The right response to these changes is not a matter for executive decision , but rather for regulation by the democratically legitimated legislator of the Land. ... If the legislator, as part of its educational policy regarding the relationship of religion and state, decided to ban the wearing of the hijab in schools this would be an acceptable limitation of the freedom of religion and would not be inconsistent with Art. 9 of the European Convention on Human Rights.

[67] aa) The constitutional requirement of statutory regulation here follows from the principle of Parliamentary sovereignty. The principle of the Rechtsstaat and the dictates of democracy require the legislator to lay down rules regarding the respect due to basic rights. The range of options open to the legislator in this area of life depends on this connection with basic rights, and its duty to act arises when basic rights and freedoms are in conflict and their respective limits are fluid and hard to ascertain. This is especially true when the rights in question ... are unconditionally guaranteed by the very words of the Constitution: any measure designed to regulate this area of life must inevitably delimit and concretise the limits implicit in the Constitution ...

[68] ...A regulation is not necessarily essential just because it is politically contested; it is for Parliament to effect a reconciliation when basic rights and freedoms are in conflict, by limiting them in a constitutional manner.

[69] The crucial decisions in educational policy are to be taken by the legislator, in accordance with the requirements of the Rechtsstaat and the principle of democracy in the Constitution: it is not to be left to those in charge of the schools. ...

[71] Finally, explicit legislation is required if the duties of office are to include abstinence from demonstrating one¿s religious affiliation by visible means, since the enforcement of any such duty would only be constitutional -- under Art. 33(3) among others -- if members of different religions were all treated equally, and this cannot be assured if the authorities and courts are free to determine its existence or scope on a case-by-case basis depending on their view of the likelihood of influence or conflict if teachers wear such insignia.

Dissenting Opinion (Judges Jentsch, Di Fabio and Mellinghoff)

[75] The majority opinion holds that only legislation can impose on an official duties that involve his freedom of religion and belief, a view which even the complainant did not propose and which has never been espoused in either jurisprudence or doctrine. ...

I.

[76] The majority is wrong to justify its invocation of the requirement for legislation on the ground that the complainant has suffered a severe infringement of her freedom of religion and belief. Herein it ignores the fact that the protection of the basic rights of officials is constrained by the functions of the office.

[77] 1. Since those who become officials voluntarily and intentionally take the side of the state, they cannot invoke the freedoms protected by fundamental rights in the same way as those who have not become members of the state organisation. When exercising his office the official can invoke against the state only those freedoms incorporated in basic rights as are not constrained by the particular exigencies of his functions. A teacher has his own educational responsibilities, but he is also an official who teaches as a public task and is responsible to the state. Such teachers therefore do not have the same protection for their basic rights as do parents and pupils: rather it is that teachers are bound by basic rights, as participating in the exercise of the public power. ...

[79] ...The voluntary entry into office is a free decision to bind oneself to the public good and to faithful service to a superior who, in a democracy, acts for the people and is controlled by the people. A person who wishes to become an official cannot abjure the requirement of moderation and professional neutrality, either generally or in particular instances inside or outside the service. A teacher who treats his position as a platform for the display of his beliefs and uses it as a stage on which to develop his basic rights is acting inconsistently with these duties.

[80] 2.There are some citizens to whom the public power attributes a special status, without, however, incorporating them in the state apparatus, such as pupils who are bound to attend state schools, parents bound to send them there or convicts in detention. Officials are fundamentally different, and it is therefore a mistake to believe that by emphasising the operation of basic rights in the relationship of official and state one can strike a further blow for constitutional ideas of freedom in the battle against the institution of the special power relationship. The opposite is the case. By treating the teacher as entitled to basic rights when he is bound by them, and consequently able to invoke them against pupils and parents, one actually infringes the rights of the latter for whose benefit the requirement of legislation in education was extended by Wesentlichkeitstheorie, whereby matters of principle are for the legislator and not the administration.

II.

[90] The official¿s duty of evenhandedness is inherent in the Constitution itself and requires no further provincial statutory basis.

[97] 3. The duty of officials to act moderately and evenhandedly is one of the principles of the official career (Art. 33(5) of the Constitution), simply reproduced in §§35 (1) and (2), and 36 BRRG and in the laws relating to officials in the Länder (such as §72 of the Law of Baden-Württemberg). This ties in with the duty of the state to be neutral as regards matters of religion and belief which emerges directly from Art. 4 read along with Art 3(3), Art. 33(3) of the Constitution as well as Art. 140 read with Art. 136(1) and (4) and 137 (1) of the Weimar Constitution. To this extent the principles of official conduct under Art. 33(5) constitute a direct constitutional limitation on the freedom of officials to invoke basic rights -- and one which redounds to the protection of the basic rights of those who are not enmeshed in the state apparatus.

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