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Tolerance Faces a Test in Germany

Constitutional Court leaves it to state lawmakers to decide whether a Muslim teacher has the right to wear a head scarf.

September 25, 2003|Jeffrey Fleishman | Times Staff Writer

BERLIN — In a case that highlights Germany's constant and sometimes tortuous quest for social and religious tolerance, its Constitutional Court ruled Wednesday that a state parliament must decide whether Muslim public employees have the right to wear head scarves at work.

The case of Fereshta Ludin, a German citizen of Afghan heritage, raises sensitive questions about religious expression in government institutions. She has been denied a teaching job, and her plight is intensifying the nation's struggle with nondiscrimination at a time when the country is growing wary of immigration and the role of Islam in Europe.

The court's split decision found that Ludin could wear a head scarf because the state of Baden-Wuerttemberg, which refused to hire her in 1998, lacked legislation on the issue. The court urged the state to pass such a law, a move certain to instigate public debate on religious tolerance toward the nation's nearly 3 million Muslims.

"This is quite a surprise. Everyone thought the Constitutional Court would make a final decision on this matter," said Christine Langenfeld, a law professor at Goettingen University. "I think the court was happy not to hand down a verdict on this now. There is a very heated debate in Germany over Muslims. The court gave the ball back to the legislature and the politics. Perhaps, it was a wise decision."

"This case is of great importance," said Werner Schiffauer, a cultural anthropologist at Europe University Viadrina in Frankfurt an der Oder.

"Germany is torn between two principles. One is religious freedom and the other is the neutrality of schools and other public institutions. I think what Germany is struggling with is allowing one's personal expression to be permitted in public places," he said.

Ludin said the ruling keeps her cause alive. "I'm happy the court reached this conclusion," she told German television after the hearing.

Ludin has stated that she wears a head scarf as a devout Muslim, adding that there is "no discrepancy between Islam and the values of freedom and democracy."

Cases such as Ludin's are viewed through the prism of German history.

This nation has long been burdened with racism and religious bigotry. In the aftermath of the Holocaust, the country's new constitution was crafted to ensure religious freedom and personal dignity.

These ideals have been tested since the Sept. 11 terrorist attacks in the United States, when Germany discovered it was home to pockets of radical Islamists -- especially in Hamburg, the port city where Mohamed Atta and other Al Qaeda hijackers once lived.

Baden-Wuerttemberg barred Ludin from a teaching job after the state's education minister complained that the head scarf symbolizes discrimination against women and would confuse students from other religious backgrounds.

German feminist organizations argued that Islamic groups funneling money to conservative causes around the world are manipulating women like Ludin.

"In the name of religion, women worldwide are forced to wear head scarves," the German human rights advocacy organization World of Women said in a statement.

"The head scarf is not a neutral piece of clothing."

The 5-3 Constitutional Court ruling was adamant that the Baden-Wuerttemberg parliament draft legislation that would decide whether to allow civil servants in public buildings to wear head scarves. The Constitutional Court sent the case back to a lower federal court, which can decide to deal with Ludin's religious rights or wait for the legislature to act.

"The state has to address the inevitable conflict between the freedom of faith of a teacher on the one hand and the obligation of the state for ideological and religious neutrality," according to the decision.

The motion also found that it was "merely an abstract danger" to conclude that a teacher in religious dress would "disturb the peace in school."

In a dissenting opinion, one judge wrote that the case centers not on religious freedom but on the obligations of a public employee: "The uncompromising request to wear a head scarf in school is incompatible with the demand on public servants for restraint and neutrality."

A court ruled last year that laws on religious freedom gave a Turkish woman the right to wear a head scarf to her job in a department store. The court found that a business did not have the burden of religious neutrality required in schools and other state institutions.

In 1997, a court in the state of Bavaria, which is 67% Roman Catholic, upheld a state law that allowed crucifixes to be displayed in public school classrooms.

Cardinal Karl Lehmann, the country's top Catholic prelate, told German television that Wednesday's court ruling recognizes the rights of religious freedom.

He added: "Now we'll have to wait and see what this ... will mean to Muslim integration."

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