Unlike the situation in France, this case in Germany deals with the question of how far public school teachers (who are state employees, even during their initial trial period) have the right to express visibly, in front of the students, their own religious identity, particularly a religion that contrasts with western traditions. No German school would prohibit a student from wearing the veil, as happens in France. The Constitutional Court's decision was rather aimed at highlighting the conflict between the teacher's fundamental right to religious freedom on one hand, and on the other, the state's educational function, the parents' right to education for their children and the "negative religious freedom" of the students, which means their right not to be influenced by the state in questions of religion without their own consent or that of their parents. Unlike in France, this is not about laicité, nor about the separation of Church and State, but rather about the duty of the state to assume «an open and pluralistic attitude, which equally favours the freedom of religion of all religious confessions». References to Christianity, the decision says, «are not prohibited tout court» in the school environment. The school however «must be open to other religious content and other visions of life». The wearing of the veil during lessons damages the students' freedom «to distance themselves from the cultural gestures of a faith they do not share». One can guess that at minimum «the students will be influenced by it and that it would generate conflict with parents which could compromise the fulfilment of the school's educational task». Nonetheless the Constitutional Court ruled in favour of the Muslim teacher, since the danger would be an «abstract» one and the legislation of Baden-Württemberg in the fields of instruction and state employment are insufficient to justify a ban on the veil. Legislators in each region (state schools of all types, including universities, in Germany are run by the regions and not by the federal government) are free, through legislation, to determine «the allowable measure of religious references in the schools» with respect to the Constitution. This means «giving the obligation of religious neutrality in the schools a more rigorous and far-reaching meaning than it currently has».
A wave of appeals
Baden-Württemberg, Baveria and the Hanseatic city of Brema (which has regional status) have meanwhile announced their intention to create laws of this type. But the difficulty lies in the fact that it is not the intention of such laws to prohibit absolutely, for example, a Franciscan monk from teaching in his robe, or a nun from being recognised as such by her habit, or even prohibit a Jewish teacher from wearing the yarmulke or hat during class. Up to now no law has been made public which could satisfactorily resolve this problem. Legislation will most likely refer to Judeo-Christian traditions in the West and underline that the prohibition of the Muslim veil is necessary because it could create conflict among students, parents or among colleagues in the teaching staff. However the law may be designed, it is foreseeable that there will be further recourse to the courts, this time directly to the Constitutional Court (which alone can decide the constitutionality of a law). Appeals to the court will likely be presented not only by Muslims, but also for example by atheists or by "humanistic" organizations which support a more rigid separation of Church and State.
The German Episcopal Conference, though it does not publicly take a position regarding the decision of the Constitutional Court and the legislation programme, has underlined in its general assembly of March 2004 that «Christian traditions and symbols, including the clergy's robes» are part «of the culture which has developed» in Germany and «are protected by order of constitutional values», thus it is necessary to reject strongly their «comparison with the veil worn by Muslim women and other Islamic symbols».
The public debate which has flared up around the Supreme Court of the Federal Republic of Germany's decision makes one suppose that a large majority of Germans (of whom 60% are Christians and only about 3.5% Muslims) would have hoped for a more explicit refusal of the Muslim teacher's request. This is due, among other reasons, to the fact that, in Germany, the Muslim veil is understood to be symbolic of Islam's oppression of women. It was also discovered that for many years the woman had been a member of a radical Islamic organization, raising doubts over whether she truly cared about her faith or whether it was nothing but a political provocation. It remains unclear among Muslims themselves whether the Koran really obliges women to wear the veil in public. On the other hand more than 70 Muslim organizations in Germany, in a common public declaration, have warned people that a ban on the veil for public school teachers could be used in order to «legitimise discrimination in the private sector».