Muslim Headscarves Test the Limits of German Tolerance

Many falsely feel wearing a hajib is a religious right but it is not. Just as screaming “fire” in a crowded theater is not protected as free speech, wearing a hajib can be declared as a radical symbol as opposed to a religious one and banned in public.

Hiding something under the banner of religion does not a right make. Authorities for example would never allow religious groups which use hallucinogenic compounds to do so in public.

No matter where you stand on the issue, this article does a good job of showing the complexity of the issue of muslim public symbols.

By Thomas Darnstädt, 20 June, 2008, Spiegal
For years, Germany’s legal experts have been arguing about whether Muslim public officials have the right to wear headscarves. The issue raises difficult questions about religious tolerance and constitutional rights in Germany.

“When you do something,” Brigitte Weiss says, “you need to do it right.”

It’s a motto she knows from home. She remembers people saying it where she comes from, a coal-mining area in Germany’s western Ruhr region. Later, as a grade school teacher in Mettmann, a small town near Düsseldorf, she tried to pass the homespun wisdom on to her students. Whether it was their homework in German, geography, home economics, or whatever else they were doing — the main thing was to do it right.

“All of my students,” Weiss says, “were happy to have me as their teacher.”

Now this is no longer entirely the case. The reason is Brigitte Weiss’s conversion to Islam. Now she has a new name, Maryam, and she dresses differently: She wears a headscarf.

The problem is that for nearly two years it has been against the rules for teachers in the state of North Rhine-Westphalia to wear headscarves in public schools. So Weiss has received a letter from the schools administration asking to know why she wore hers.

Yes, why? “Because I’m a Muslim,” she says.

But what does wearing the headscarf mean? Is it obedience to religion? Or submission to a man? Or is it a rebellion against the society shaped by Germany’s post-war constitution?

Nonsense, says Maryam Brigitte Weiss. For her, wearing a headscarf is something “typically German, 100 percent German” — just like herself. At home, at school, or as a Muslim, she applies the same rule — no half measures. “Whenever I do something, I do it right, dotting all the i’s and crossing all the t’s.”

The question of what the scarf on Maryam Brigitte’s head signifies is now being examined by the courts. She lost her case before the administrative court in Düsseldorf, but the judges allowed an appeal because of the case’s “fundamental importance.” It’s precisely because of this fundamental importance that Weiss, who is also women’s affairs representative for the Central Council of Muslims in Germany, has no intention to back down. She plans to fight this all the way to the nation’s highest court.

Question of the Day

She’s not the first Muslim woman to have this matter addressed in a court of law. Across Germany, judges in administrative courts and labor courts as well as constitutional experts are all struggling with the same question, one which would have been simple for the mothers and grandmothers of these legal experts to answer back in the 1960s: What is a headscarf?

The issue has become a major controversy ever since a 2003 decision handed down by Germany’s highest court, the Federal Constitutional Court in Karlsruhe. The judges ruled in favor of Fereshta Ludin, a teacher of Afghan origin, who was denied a job in the Baden-Württemberg school system because she wore a headscarf.

The judges were unable to agree on clear principles in their verdict. Whether all headscarves should be banned or only some, how to distinguish the bad ones from the good ones — it all grew too complicated for the judges. When is wearing a headscarf an expression of religious freedom? Can a teacher who wears a headscarf have a bad influence on her students? Or even on a free and democratic society?

Those weren’t questions for a court, the judges ruled; it was a matter for parliament. Since legislation on schools falls under the jurisdiction of individual states, the headscarf issue has landed on the agendas of Germany’s 16 state parliaments.

So what is a headscarf? Some states, like Rhineland-Palatinate, preferred to stay out of the controversy and didn’t pass any headscarf laws. Others, like Schleswig-Holstein, wanted to leave nothing open to interpretation and attempted a radical ban on all religious symbols from schools. This brought in complaints from churches, which worried about the right of a Christian teacher, say, to wear a crucifix. These states also wound up doing nothing.

To avoid these angry reactions, Germany’s more pious states (like North Rhine-Westphalia) formulated laws in a way that did not apply to symbols of “Christian and Occidental culture” but did apply to headscarves.

Needless to say, these laws provoked anger, too. Legal complaints are piling up, and not just in North Rhine-Westphalia. A judicial zinger was handed down by an administrative court in Stuttgart in the state of Baden-Württemberg, where Doris Graber, a teacher in Bad Cannstatt, won permission to wear a headscarf. The judges refused to follow the state’s pious law, arguing that regulations that treat Christian symbols as good, but Muslim symbols as the devil’s work, were unacceptable under the German constitution. The case was referred to a higher court in Mannheim, which quicky overturned the brash decision of the court in Stuttgart.

None of these cases has yet landed in front of the nation’s highest court in Karlsruhe. But German experts agree that one of these plaintiffs — whether it’s Brigitte Weiss or Doris Graber — will wind up there eventually. The legal system in the Christian West is hermetically closed, something that members of the legal profession are proud of. “One wonders,” Aiman Mazyek, secretary general of the Central Council of Muslims in Germany, reflects self-critically, “whether we really needed to go to court over the headscarf issue.”

Defining a Symbol

But so far no one has answered the fundamental question: What does a headscarf mean? It’s not a legal question. The controversial piece of clothing has provoked a culture clash in Germany. It has become a fetish. The Christian majority has come to see it as an irritating religious symbol. The Muslim minority — which numbers in the millions — has come to see it as a symbol of emancipation and self-confidence. For both sides, the headscarf has become a test of conflicting guarantees of freedom — in a constitutional society where they want to live together.

So what is a headscarf? The question isn’t a trivial one. Ekin Deligöz, 36, a woman of Turkish origin and a member of the German parliament for the Green Party, received death threats after announcing that it might be better for Muslim women in Germany not to wear headscarves. She had to be placed under police protection. “The headscarf is a political symbol,” Deligöz said. But her particular faith, the Alevi branch of Islam, does not require women to wear headscarves.

So maybe a headscarf is a symbol of intolerance. Critics who see it that way charge Islamists with belligerence and arrogance in their claim to an exclusive religious truth. The European Court of Human Rights rejected a discrimination suit brought by a Swiss Muslim woman on the grounds that a headscarf “is very difficult to equate with a message of tolerance, equality, and nondiscrimination.”

Necla Kelek is a sociologist of Turkish descent and a participant in the so-called Islam Conference organized in recent years by German Interior Minister Wolfgang Schäuble. She sees the headscarf debate initiated by German Muslims as part of a “religiously motivated political offensive being waged under the veil of religious freedom.”

Islam, according to Kelek, is conducting a cultural war in pursuit of “a different set of political and social ideals.” She noted that the culture of Islam is “not tolerant itself, but takes advantage of the tolerance available to it through our legal system in order to grow.”

‘A Whipped Cream Topping’

But to Pinar Cetin, a young woman of Turkish origin in Berlin, a headscarf is nothing but “a whipped cream topping.” Her experience is that wearing a headscarf “reduces tensions” with other people and makes her more self-confident and relaxed. It makes her soul feel good, she says, something like the pleasure you get from eating whipped cream.

This statement is typical of a new generation of Turkish women, often referred to as “new Muslims,” who frequent the chic shopping districts of Berlin or Cologne. Many of them don’t like the label, asking: What’s so new about being a Muslim? They’re just young and don’t want to be told what they can or can’t do. If they want to be pious, why not?

These young women are educated, active and successful in their professions. Some wear headscarves with tight jeans and short tops that reveal their abdomen. They get a kick out of the contrast. Insisting on their right to wear a headscarf — sometimes against the will of parents who would rather be modern — can be a form of emancipation.

But a headscarf can also be a hindrance. Girls who wear them in German schools are normally kept (by their parents) from class trips with their friends — or from swimming, since wearing a swimsuit is close to nudity. At a German Web site called Muslim Markt, traditional parents can find anything from a recipe for orange cake with halal gelatin to a sample letter asking teachers to excuse their daughters from undesirable activity.

Some schools have pushed back against such conservative parents, out of concern that the girls won’t be well-integrated. But the higher administrative court in Münster — which is now responsible for the Brigitte Weiss case — has excused a girl from class trips, reasoning that the anxiety she could have experienced in removing her scarf would have been “comparable to (that of) a partially mentally handicapped person.”

Around a third of the Muslim girls at the Martin Luther Middle School in Herten, a town in the Ruhr district, wear headscarves. “And half of them are unhappy about it,” says former principal Marie-Luise Bock. “It’s really frustrating that there’s so little we can do to help these girls.”

A ‘Grace Kelly’ Solution

So a headscarf is a symbol of oppression? When Annette Schavan was minister of education and cultural affairs in Stuttgart, she called it “part of the history of the oppression of women.” Seyran Ates, a high-profile Berlin lawyer from a Turkish family, sees the headscarf as a way to incapacitate women. “The headscarf isn’t a source of physical pain, but it prevents a woman from exercising her free will,” she claims. “It creates a certain image of women that stands in contradiction to democracy and gender equality.”

The different meanings attributed to headscarves vary too widely to be accounted for by mere differences of opinion, or misunderstanding. The headscarf controversy is a symptom of Germany’s inability to deal with its latter-day role in the world as an immigrant nation. It’s no wonder that the capacity of institutions to handle the public challenge posed by headscarves has been stretched to the limit. What can you do with someone like Maryam Brigitte Weiss?

The school system certainly doesn’t want to hurt her. On the one hand, school officials have to follow regulations. On the other, they’d like to help her as a colleague. Maybe (went one suggestion) she should try wearing a wig instead?

The loyal Muslim explained that school administration inquisitors had already tried the wig maneuver on other teachers in her situation. She said a proposal had been discussed in court to the effect that the instructions given to women in the Koran to cover themselves might be satisfied by using a short-hair wig to hide their own hair.

Perhaps.

But that would only be permissible from the standpoint of the school administration if the teacher in question were to use a wig made with natural hair which wouldn’t be recognizable as a wig. And school regulations require that the teacher’s ears not be covered by the wig.

If something is forbidden, it needs to be forbidden completely. One rebellious Muslim teacher in North Rhine-Westphalia received a letter from her school administration telling her that the so-called “Grace Kelly option” would not be permitted either. This was the model proposed by members of the conservative Christian Democratic Union party and was inspired by the way the actress and princess of Monaco wore her headscarf — loose and knotted at the back, instead of pinned at the front.

The school administrators noted: “A Grace Kelly headscarf can also be identified as a headscarf from the way it looks.”

You certainly don’t want to lock horns with fundamentalist German administrators. A Muslim teacher came up with a pragmatic solution in the North Rhine-Westphalia school system. She wore a cap.

A written reprimand from the administration followed: “The fact of the matter is that you wear a head covering similar to a headscarf. You are currently using a woolen cap that completely covers your hair. By wearing a head covering similar to a headscarf for religious reasons you are actively violating Section 57, Paragraph 4 of the Schools Act. I am certain that the head covering you are currently using constitutes a substitute for the headscarf you have stopped wearing and that your wearing of a head covering similar to a headscarf is motivated just as much by religion as the wearing of a headscarf is.”

What, exactly, is a head covering “similar to a headscarf”? This riddle has Maryam Brigitte Weiss wondering what she should do when she has playground duty during the winter. Her Christian colleagues will be able to pull their fur caps down over their ears, while she — as a Ruhr district native with the wrong religious motivation — might have to stand bareheaded in the cold because of Section 57, Paragraph 4.

Using a “wrong religious motivation” as a reason for disciplinary measures against a subordinate is not new in Europe, but the last prominent example came in the 16th century, when the Spanish Inquisition burned intellectuals and artists at the stake for heresy. Those who recanted were granted the luxury of being garroted before they were burned.

Tolerance and Heresy

The Germans, possibly, have never been pettier in a dispute over religious freedom. How far does religious tolerance extend? How should a free society deal with its own fears, or those of immigrants? How open is the secular state, as defined by the constitution, for people with other beliefs, other concepts of society, or simply other values?

There were times in the past when schools were not allowed to give tests on Saturdays out of respect for the Sabbath observed by Jewish students. That was in 19th-century Prussia. In some parts of Germany this regulation remained in place until the general elimination of Saturday classes at the end of the 1980s.

Non-Christians in Germany today can no longer expect even this level of tolerance. Robert Zollitsch, President of the German Bishops’ Conference, explains why: A teacher who wears a headscarf — in contrast to a teacher who wears a nun’s habit — raises “doubts about her willingness to stand up for fundamental values as defined by the constitution.”

Leading clergymen, though, have no official say in questions of loyalty to the German constitution. And Zollitsch is at odds with the former senior Vatican authority for matters of dogma, Cardinal Joseph Ratzinger, now Pope Benedict XVI. In a sermon given in Regensburg Cathedral at the end of 2003, Ratzinger said, “I would not forbid a Muslim woman to wear a headscarf — but even less will we let anyone forbid us to use the cross as a public symbol of a culture of reconciliation.”

Freedom for the Enemies of Freedom

His predecessor, John Paul II, expressed it with a bit more urbi et orbi. “In a modern state it must be possible for every religious community to live its faith freely and also to express it in public life.”

Does the same apply with regard to German teachers? Aren’t they supposed to set examples for their students, including in the self-confident and open expression of their faith and personality? Yes — moderately, and in a considerate way, given that they are subject to the provisions of the German Civil Service Act.

This may have the ring of heresy now in German public life, but it’s the sort of opinion that streams every day from constitutional law expert (and active Catholic) Ernst-Wolfgang Böckenförde. In lectures and essays, the former Constitutional Court justice regularly calls for tolerance toward headscarves in school.

And What About Beards?

But what if the headscarf is seen as a signal against emancipation, and a consequent danger to students? Böckenförde: “Every headscarf-wearing Muslim teacher who works independently and responsibly in her profession disproves through her very existence the cliché of a woman oppressed by Islam.”

And what if the teacher is involved in intrigues, instead of integration? What if she’s a remote-controlled Islamist who wants to indoctrinate children? What if she wants to make subservience to men and medieval values an example for modern girls?

In that case she would be as unsuited for teaching as any other ideologue, Christian fundamentalist, political radical or corrupter of children, says Böckenförde. After all, isn’t that why we have our bloated school administration with lots of bureaucrats and laws, to filter candidates of this kind out from among the applicants for teaching positions? Or — if they are not identified until much later — to take harsh disciplinary action?

Perhaps it has nothing to do with headscarves per se. When the school system starts judging the aptitude of its teachers on the basis of outward, religious appearances, then the next group that is likely to run into trouble is teachers with beards. Former Constitutional Court Justice Bertold Sommer noted several years ago that no one ever asked “about the full beards of Muslim men.”

It is difficult for a politician to make clear-cut statements on this topic, since no provision is made for it in the German constitution. It would seem that there is no constitutional guarantee of freedom that would make the right to wear or ban a headscarf absolute. It’s not just the pope, it is also Article 4 of the German constitution that guarantees freedom of religion, whether Jewish, Christian or Muslim. As the school administration in Düsseldorf is probably aware, Article 4 is one of the few fundamental rights without any provisos — even under the section on the wearing of caps contained in the Schools Act of the state of North Rhine-Westphalia.

Freedom for the Enemies of Freedom

And still the feeling of unease remains. It was Ernst Wolfgang-Böckenförde, the most respected constitutional scholar in the Christian camp, who very carefully thought through the “dilemma” posed by the more than 3 million Muslims in Germany for their Christian fellow citizens. “Can the government guarantee full freedom of religion without the cultural base on which it rests becoming increasingly divided, with an accompanying loss of cohesion?” What would then become of the peaceful nature of this constitutional society?

In the course of history, conflicts deriving from religious differences have frequently led to long and bloody wars. The secularization of the state and the development of its own power independent of the church is, not least of all, a result of the fact that secular leaders at some point became sick and tired of fighting religious wars for the church.

This is why strongly secular states, such as France, systematically separate themselves from religious matters. Religion is not a public matter. In France’s public schools, headscarves are strictly prohibited — as are prominent symbols of the Christian faith.

The French are lucky, in a way: Their revolution cemented nation and state so powerfully that no additional bond is needed to give its society a cultural identity. The glorious history of la Grande Nation doesn’t require the assistance of gods: The French are sufficient unto themselves.

Constitutional patriots have a harder time of it. Countries like Germany or the United States are not based on a firmly established national identity. They are the expression of a joint project. The basis of their existence is a piece of paper, their constitution. It is doubtful whether that, in itself, can provide sufficient cohesion.

What holds German society together is what Böckenförde refers to as its “cultural base.” That foundation does not only consist of the literature of Goethe and the school system established by Wilhelm von Humboldt, however — it also, so the argument goes, includes Christian values and their secular implementation in the form of human rights and constitutional principles.

From this point of view, the crucifix is nearer the constitution that the headscarf. So it wouldn’t be a violation of the secular principle to protect certain religious elements by law, e.g., Sunday as a Christian day of worship, Easter as a holiday and Christmas’ receiving the chancellor’s blessing. “Even in its secular forms, our culture is — at least for now — influenced by Christianity in many ways,” Böckenförde notes.

The matter is not made easier by the fact that the Christian faith includes recognition of religious freedom for others. The pope and constitutional law scholars are in agreement that freedom of religion includes the existence of this same freedom for others.

But what if the others see things quite differently? This question arose during the Cold War, in the threat posed by militant communists to German institutions. How much freedom do you grant to the enemies of freedom? It’s no different with respect to intolerant Muslims: How much freedom can the secular state afford to give the followers of a different religion who are suspected of wanting to ruin our cultural foundations with their beliefs, or even call into question the separation of church and state? How much tolerance can we afford to show them?

For Böckenförde, the answer is clear: None — because giving them freedom would post a threat to the very foundations of the constitutional state.

But this apparently radical answer shifts the limits of the acceptable in favor of immigrants. How much assimilation has to be demanded of them so our country will continue to function as a free society? Only the absolute bare minimum that is necessary to ensure its functioning.

It would constitute a violation of religious freedom and the principle of tolerance that is part and parcel of our society to demand that immigrants become like Germans and adopt their beliefs. It would be much too much to demand a commitment to the values of our constitution. It’s enough if they agree to respect these values.

It would be nonsense to introduce rules that apply to everyone if they were only intended to prevent individual instances of abuse. Using the same logic applied in cases where total prohibitions of headscarves have been imposed, it would be possible to silence all church bells.

No one can be freed from the requirement to obey the law — not even for religious reasons. But German law must be made in the spirit of a tolerant Christian society that grants religious freedom to others. The law must apply to everyone, without exception.

If it was possible to introduce a regulation in the Prussian school system that ensured tests were never given on Saturdays out of respect for Jewish pupils, then it ought to be possible for us under our constitution today to organize swimming classes in a way that no one, including Muslim girls, should feel embarrassed to take part.

If there is no objection to school teachers wearing a small cross around their neck, then it should also be possible for every woman who wants to cover her hair with a headscarf to do so.

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