Religious Symbols in German Schools
Law, Religion and Education: Religious Freedom in the Sphere of
Education Conference, Oxford, 8-9 October 2010
Dr Tobias Lock, Faculty of Laws, University College London
Legal Framework I: Guarantees in the Basic Law
Article 4
(1) Freedom of faith and of conscience, and freedom to
profess a religious or philosophical creed, shall be
inviolable.
(2) The undisturbed practice of religion shall be guaranteed.
Article 6 (2)
The care and upbringing of children is the natural right of
parents and a duty primarily incumbent upon them. The
state shall watch over them in the performance of this duty.
Article 7 (1)
The entire school system shall be under the supervision of
the state.
Legal Framework II
• Federalism: organization of schools in Länder
(state) competence
• Neutrality of the state in matters of religion and
philosophy of life
– No state church
– But: no laïcité either
– rather: ‘open neutrality’
• Decisions by Federal Constitutional Court (FCC) on Christian
state schools (Baden-Württemberg) and education according to
Christian principles (Bavaria): accepted as constitutional
• Also accepted: school prayer
• BUT: no identification with a religion
Part I: Symbols Installed by the State: the
Crucifix decision
• Bavarian Regulation: ‘In every classroom a cross
shall be affixed’
• Constitutional complaint by pupils and their
parents: violation of Article 4 (negative freedom)
• FCC:
– The cross as a Christian symbol
– Definition of negative freedom of religion
– Interference with that freedom by a symbol
Part I: Symbols Installed by the State: the
Crucifix decision
• Dissenting opinion
• Criticism voiced by commentators
• Follow-up:
– Amendment to Bavarian legislation
– Teachers demanding removal of the cross
Part II: Symbols Worn by Teachers:
the Ludin Saga
• Facts:
– female Muslim primary school teacher (German
national) insisted on wearing a headscarf at school
– Was applying for her first job
– Authority refused to employ her for lack of aptitude
• Legal Background
– Teachers employed as civil servants (Beamte)
– Article 33 (2) Basic Law
Every German shall be equally eligible for any public
office according to his aptitude, qualifications and
professional achievements.
Part II: Symbols Worn by Teachers:
the Ludin Saga
• Federal Administrative Court
– Confirmed authority’s decision
– Aptitude requires prognosis whether candidate will fulfil
their duties
– Wearing of headscarf protected by Article 4
– But restrictions possible
• Neutrality of the state
• Negative freedom of religion of pupils
• Federal Constitutional Court
– Successful complaint
– Technical argument: denial to employ a teacher for the
reasons stated requires explicit legislative basis, which
was missing
Part II: Symbols Worn by Teachers:
the Ludin Saga
• FCC (cont’d.)
– On the headscarf as a religious symbol: subjective test
– On interference with negative freedom of pupils:
objective test
– Explicitly distinguished the crucifix decision
• Criticism
– Dissenting opinion
• Interesting that it was not questioned that there could be an
interference
– Commentators
• Distinction to crucifix not convincing
Part II: Symbols Worn by Teachers:
the Ludin Saga
• Ludin follow-up:
– Legislation passed in Baden-Württemberg to ban
headscarf
– Ludin lost in Federal Administrative Court
– No further complaint made
• Legislation: in 8 out of 16 Länder: ban
– In 6 Länder: privileging of Christianity? ‘the [...] portrayal
of Christian and Western cultural and educational
values does not contradict the conduct required of
teachers’
– Federal Administrative Court:
Part III: Symbols Worn by Students
• Difference to teacher: forced to attend school
• Interference with student‘s right to religious
freedom would hardly be justifiable