Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Mixed Outcome
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The Second Senate of the Federal Constitutional Court of Germany held that the refusal to hire a teacher on the basis of her wearing of a religious headscarf in school constituted a violation of their rights to freedom of religion and to equal access to public office. The applicant, of the Muslim faith, had her schoolteacher application denied by the Higher School Authority of Stuttgart in 1998 on the grounds that she lacked ‘aptitude’ by refusing to take off her religious headscarf during lessons. The Court found that § 11.1 of the Baden Württemberg Land Civil Service Act, upon which the application’s refusal was based, did not provide a sufficient statutory basis to conclude that the complainant wearing a headscarf was at odds with her official duties as a civil servant. Nevertheless, the Court acknowledged that the state could still restrict freedom of religion within schools, as long as it fell within statutory definitions and was appropriately balanced against conflicting provisions of the German Basic Law.
The applicant, known as Ms L, was a German citizen and practicing Muslim who finished her teacher training in July 1998. Her application to the Higher School Authority of Stuttgart (the Authority) to become a public school teacher was denied because she lacked ‘aptitude’ by refusing to take off her religious headscarf during class. ‘Aptitude’ was a relevant criterion for hire per § 11.1 of the Baden Württemberg Land Civil Service Act (the Act). The Authority stated that a headscarf was an expression of cultural separation and a political symbol incompatible with their principles of religious neutrality. Further, the Authority contended that allowing Ms L to wear the headscarf could potentially influence pupils and disturb the peace between teachers and students. Ms L unsuccessfully appealed the decision to the Authority.
The applicant then lodged her case with the Stuttgart Administrative Court in March 2000, arguing that her headscarf was both an expression of her personality and of her religion, and that her freedom of religion under Articles 4(1) and (2) of the German Basic Law had been violated. While acknowledging that she had the requisite professional qualifications to hold the position, the Court nevertheless dismissed her application and agreed with the Authority’s earlier decision, on the basis that she lacked the requisite statutory ‘aptitude’ per § 11.1 of the Act. Although wearing a headscarf for religious reasons was protected by Article 4(1) of the Basic Law, the Court held that Ms L’s freedom conflicted with, and was limited by, the rights of her students to negative religious freedom, their parents’ right to decide if their children receive a religious education and the wider state obligation to preserve religious and ideological neutrality. Crucially, the Court held that the young students were easily influenced – particularly by a person in authority – and would not be able to ‘escape’ her expression of faith given their compulsory school attendance. Further, the Court stipulated that encouraging Muslim schoolgirls to follow her lead in wearing a headscarf contradicted the school’s duty to ‘integrate’ Muslim students.
The Baden Württemberg Higher Administrative Court dismissed Ms L’s appeal. Echoing the reasoning of the previous courts’, the Court reasoned that an element of ‘aptitude’ was whether the applicant could fulfil their duties as a civil servant (i.e. a public school teacher). As she intended to wear a religious headscarf, it was ‘unobjectionable’ to the Court that Ms L would lack the aptitude to be a teacher in a non-selective primary and secondary state school. The Court stated that the Authority was required to taken the applicant’s fundamental rights into account when assessing her application, and that the exercise of her religion and belief could not alone be a reason for rejection. However, the Court interpreted the applicant’s refusal to commit to the terms of Article 7 of the Basic Law (which covers school education) for religious reasons as a refusal to observe her duties as a civil servant. As such, the Authority had not rejected her application due to her religious affiliation (per Article 33.3 of the Basic Law) and her fundamental rights had not been violated.
The Federal Administrative Court also dismissed the applicant’s appeal. Here, the Court held that the applicant was indeed protected by the constitutional right to freedom of religion (and to not have her application rejected on the basis of her affiliation) – but that other conflicting constitutional rights could limit this freedom (here, a student’s fundamental right to attend school and their parents’ right to choose a religious education). Importantly, the Court found on balance that it was those aforementioned rights and the requirement of religious neutrality in state schools that overrode the rights of Ms L to wear her religious headwear during lessons. According to the Court, teachers were forced to accept certain restrictions on their fundamental rights per Article 33.5 of the Basic Law.
The applicant then appealed this decision by lodging a constitutional complaint, challenging the decisions made by both the preceding courts and the Authority.
On September 24, 2003, the Second Senate of the Federal Constitutional Court concluded with a 5:3 vote that the defendants had violated Basic Law by refusing the applicant’s job application. The main issue for the Court was whether the Authority’s rejection of the applicant’s application on the basis of her headscarf violated her rights to freedom of religion (Article 4) and eligibility for public office without religious disadvantage (Article 33).
The Parties’ Submissions
The applicant argued that the Authority’s assumption that she lacked the ‘aptitude’ to serve as a state school teacher was in violation of various fundamental rights under the Basic Law, namely: her human dignity, free development of personality, equality before the law, freedom from religious discrimination and freedom of religion. Further, she contended that any Muslim applicant wearing a religious headscarf had a constitutional right under the Basic Law to be eligible for a civil service position without religious disadvantage – and thus, wearing a headscarf could not be considered a lack of aptitude per the Act. Finally, Ms L contended that the courts’ interpretation of religious neutrality in schools was not the ‘comprehensive, open and respectful’ neutrality that the Basic Law intended. Rather, a public school’s duty to provide education should include preparing children for things they may encounter in society. Indeed, the applicant noted that none of her students in her teaching practice classes had conflicts or serious difficulties with her headwear and that the Authority’s concerns were abstract and theoretical.
Conversely, the Federal Government and the Land Baden Württemberg (the defendants) submitted that the right to be appointed to a public office relied on a discretionary assessment according to the Authority’s best judgment. Assessing ‘aptitude’ depended on the filling of a specific post and was a predictive decision based on the whole personality of the applicant – including their ability to comply objectively and neutrally with their official civic duties. This scope of evaluation was permitted under the Act and, further, illustrated that Ms L’s rejection was based on her lack of neutrality, rather than a violation of her constitutional right to religious freedoms. The defendants also raised concerns that the continuous sight of her headscarf and expression of a ‘foreign religious belief’ may disturb the peace at school and influence the schoolchildren. Finally, the defendants contended that religious neutrality was only increasing in importance at state level, particularly given the pluralism of religions in German society.
The Need for a Statutory Basis
The Court noted that the Act gave wide discretion to the definition of ‘aptitude’ and to the ways in which the Authority were to assess teaching applications. Although constitutional rights such as Article 33 (providing equal access to public office, without religious disadvantage) naturally limit this discretion, the exercise of those rights can be limited by “general standards imposed on the civil service or from particular requirements of … public office” [para. 34]. As such, the Court found that if there were any official duties the applicant had to fulfil, those duties must have been explicitly specified in the Act and must compliment her rights under Basic Law.
Limits to the Constitutional Protection of Freedom of Religion
The Court began by confirming that Article 4 of the German Basic Law was both a uniform and comprehensive fundamental freedom to believe (or not to believe) and to express and act according to one’s belief. This naturally included the right of every individual “to orientate his or her whole conduct to the teachings of his or her faith and to act in accordance with his or her inner religious convictions” [para. 37]. As such, officially banning teachers outwardly showing their personal affiliation to a religious community by observing their religious dress code would encroach upon that constitutionally protected freedom. The Court noted that such persons would be unfairly confronted with the choice of either “exercis[ing] the public office they are applying for or obeying the religious requirements as to dress, which they regard as binding” [para. 36].
Indeed, the Court found that Article 33 of the Basic Law expressly prohibited religious discrimination when it came to eligibility to public office. Nevertheless, such constitutional protection would not exclude the state from creating official duties and responsibilities for public office holders that may encroach upon freedom of religion by “mak[ing] it harder or impossible for religious applicants to enter the civil service” – although strict requirements of justification would need to apply [para. 39]. For example, the Authority’s assumption that the applicant lacked the necessary ‘aptitude’ because she wanted to wear a headscarf (which was contrary to her existing official duties) would not necessarily violate any of her religious freedoms under Basic Law if that freedom conflicted with other constitutionally enshrined rights (such as a religious neutrality and a parent’s choice of religious education) – and the restrictions had a sufficiently definite statutory foundation.
Religious Freedom and Education
The Court reasoned the state’s duty to provide education (Article 7) alongside constitutional guarantees of religious neutrality and a parent’s choice of religious education naturally conflicts with the applicant’s freedom of religion. The Court interpreted religious neutrality as an “open and comprehensive” attitude that encourages religious freedom of all beliefs and fosters safe spaces for them – but disallows any deliberate influence of them [para. 43]. As such, it had to balance the equality of religious ideas and tensions with collectively teaching pupils with different beliefs. As above, these restrictions and their balance against the applicant’s fundamental rights would need to be outlined in the statute [para. 41].
For example, the right to freedom of religion under Article 4 extends as much to “stay[ing] away from cultic acts of a religion that is not shared” (including symbols) [para. 46] as it does to practicing or believing in that religion. Although there is no right in German law to be spared from religious expressions, the Court found that in this case the state had created a compulsory schooling environment in which students would be exposed to Ms L’s religious symbol without any alternative [para. 46]. As such, a teacher’s religious dress and/or expression could at least open up “the possibility of influence in the pupils and of conflicts with parents that may lead to a disturbance of the peace of the school and may endanger the carrying out of the school’s duty to provide education” [para. 49]. Nevertheless, the Act required a sufficiently defined statutory basis permitting the assessment of those dangers as proof of ‘lack of aptitude’.
Religious Symbols and a ‘Lack of Aptitude’
When considering whether a certain type of religious dress or symbol may constitute a lack of ‘aptitude’ under the Act, the Court held that the Authority must consider “the effect of the means of expression used and to all possibilities of interpretation that are possible” [para. 50]. Firstly, it noted that an Islamic headscarf could be perceived as in multiple, differing ways – from observing binding religious dress rules and upholding a societal tradition, to being a political symbol of Islamic fundamentalism and the separation from Western societal values [para. 51]. Secondly, it was relevant that an individual teacher had decided to wear a religious symbol – as opposed to the Court’s earlier decision of Kruzifix (1995) 1 BvR 1087/91 where state law had imposed a religious symbol (crucifixes in classrooms) itself in violation of Basic Law. Thirdly, the Court acknowledged the defendants’ arguments that a teacher wearing a religious headscarf could have a “particularly intense” effect on pupils, given that a teacher is the “focal point of lessons for the whole time when they are at school without a possibility of escape”. Nevertheless, a teacher could still explain to their pupils the effect of that religious statement, which may weaken its influential effect [para. 54].
Balancing each of these relevant factors, the Court concluded that the Authority’s decision to reject the applicant’s application based on an assumed lack of aptitude (and preventative action against the mere possibilities of danger or conflict) did not justify the violation of Ms L’s constitutional rights to freedom of religion and equal access to public office. Crucially, the Act did not appropriately indicate the official statutory duty on teachers to refrain from outwardly displaying their religious beliefs in school in order to prevent possible dangers or conflicts. Whilst a state legislator could conceivably fill in the statutory gaps to define the “permissible degree” of religious dress/ symbols in schools within the limits of the constitution, it had not done so here [para. 67].
Consequently, the applicant’s application to the Authority was unjustly refused and assessed in a manner that lacked an appropriate statutory basis and thus infringed the applicant’s fundamental rights under Basic Law. Ms L was also entitled to a reimbursement of her legal expenses.
Dissenting opinion of the Judges Jentsch, Di Fabio and Mellinghoff
Judges Jentsch, Di Fabio and Mellinghoff delivered a dissenting opinion.
Crucially, they argued that the conflicting fundamental rights had been wrongly balanced in favour of the encroachment on the applicant’s freedom of religion, given the essential importance of fundamental rights of students and their parents at school. The judges stipulated that that civil servants “place themselves by a free act of will on the side of the state” by teaching on the instructions of the public with the responsibility to the state, not in the “exercise of their own freedom” – and thus cannot enjoy the same extent of fundamental rights and freedoms at school in the way pupils and their parents might [para. 92]. Any official duties imposed on the applicant thus are for the protection of the citizen confronted by state authority, in compliance with statute and the Basic Law.
Moreover, the dissenting Judges held that the civil servants’ duty to neutrality and moderation would be inherent in the constitution itself and thus would not require additional state-level legislation. By virtue of Article 33 (5) of the Basic Law, the civil servant needs to provide for a personal guarantee of neutral conduct, both now and in the future, when first joining the civil service. Therefore, if the appointing authority has reasonable doubts as to the applicant’s aptitude or there is a risk of a violation of legal duties, this is sufficient to reject an applicant on the basis of his/her personal aptitude. In this case, a teacher would violate their official duties when wearing religious symbols in class, as they “are objectively likely to result in obstacles at school or even constitutionally significant conflicts in relation to school” [para. 102]. The complainant’s intention to uncompromisingly wear a headscarf in class would not be compatible with the requirement of civil servants’ neutrality and moderation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case has a mixed outcome for freedom of expression. The Court’s decision is surely a win for the expression of religious beliefs by teachers in schools, in its protection of the fundamental right to freedom of religion and its expression through symbols and/or dress within positions of public office. However, the Court nevertheless expressed an opinion that the applicant’s expression of her religious beliefs could have been restricted via an appropriate statutory basis. Further, in the future, prohibitions could legally be imposed on those seeking to outwardly express their religious beliefs (so long as they were appropriately balanced against other constitutional rights and were justified in statute). Although the balance between religious neutrality, rights to education and the right to freedom of religion is undoubtedly a tough one to manage, the Court’s decision does raise concerns as to the state’s ability to prohibit the freedom of religious expression – or at least, to view it as secondary to the rights of pupils and their parents in a school environment.
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