The Equal Treatment Dimension of Contemporary Disputes over Religious Symbols in the Public Sphere

by Professor Dr. Jasper Finke*

A. Introduction

Over the past twenty years, we have witnessed an increasing number of legal disputes concerning religious symbols in the public sphere: crucifixes in classrooms of public schools,1 religiously motivated headscarves worn by teachers who are public employees,2 and several bans of symbols associated with Islam, such as the ‘minaret ban’ in Switzerland3 or the ‘ban of the veil’ in France and Belgium.4 At their core, these cases address fundamental questions of religious freedom. Especially the controversy over crucifixes in public schools exemplifies well what could be called the ‘standard dispute’: The right not to believe conflicts with the right of others to believe and to act accordingly; in other words, the negative dimension of religious freedom conflicts with its positive dimension. Controversies over religious symbols in the public sphere, particularly those about crucifixes in public schools, also raise the question of state neutrality, i.e. to what extent a state should be neutral, and to what extent religious neutrality differs from or is connected to secularism.

However, the rising social relevance of the Islamic faith in European countries, which in modern times have been predominantly Christian, adds a new and important dimension to this already tripartite conflict. To be sure, conflicts that result from the growing importance of Islam could also be seen as conflicts between those who want to express and practice their religious beliefs and those who argue that their right not to believe is impaired by that specific religious practice. Once states start treating different religious symbols in different ways, however, the core of the dispute shifts from religious freedom to religious equality and equal treatment.5 This holds particularly true when the state itself does not follow a strict secularist policy. What is the rationale for banning minarets, but allowing spires? What is the justification for allowing teachers (in their capacity as public employees) to wear Christian symbols such as a cross on a necklace, yet banning religiously motivated headscarves? Why may a state criminalize women for wearing a burqa or a niqab in public spaces while allowing other religiously motivated clothing like, for example, a habit?

In this article, I propose that ongoing legal disputes in Europe concerning religious symbols in the public sphere should be primarily evaluated as disputes about religious equality and equal treatment, and not primarily as disputes about religious freedom. Thus shifting the legal lens through which these disputes are analyzed not only begs the question whether treating different religious symbols in different ways is not in fact discriminatory.6 It also shows, as I argue, that current practice in Europe reflects what could be called a
very basic or weak understanding of (religious) tolerance that differs significantly from equality and equal treatment.7 On the following pages, I will first turn to what I described as a ‘standard dispute’, which may take two different forms that I call ‘category one’ and ‘category two’ disputes. The ‘category two’ dispute will then serve as the basis for addressing the religious equality and equal treatment dimension of current cases in more detail. In the concluding part, I will discuss the difference between tolerance and equality as it is applied in this article.

B. From Religious Freedom to Equal Treatment

It is hardly surprising that religious freedom and not equal treatment has thus far stood at the forefront of legal disputes regarding the place of religious symbols in the public sphere. For one, the European Court of Human Rights (ECtHR) was and

* The author is Junior Professor for Public Law (Öffentliches Recht, Völker- und Europarecht) at Bucerius Law School, Hamburg.

1 See for instance the two decisions by the European Court of Human Rights (ECtHR) in Lautsi; ECtHR, Application No. 30814/06, Lautsi v. Italy (Second Section), 2009, in which the Chamber found that a crucifix in public schools violates Article 2 Protocol 1 in conjunction with Article 9 of the European Convention on Human Rights (ECHR), while the Grand Chamber in its judgment of 18 March 2011 reversed that decision; from the growing literature see for example Beaman, 28 J. L. & Religion (2012/13), 67; Henrard, 6 Religion & Hum. Rts. (2011), 245; Itzcovich, 13 HRLR (2013), 287; McGoldrick, 11 HRLR (2011), 451. In the case of Germany, the Constitutional Court already decided in 1995 that mandatory crucifixes would violate Article 4 of the German Basic Law guaranteeing the freedom of religion; see BVerfGE 93, 1 (for an English translation see: german/case.php?id=615).

2 ECtHR, Application No. 42393/98, Dahlab v. Switzerland (Reports of Judgments and Decisions) 2001-V, 447 (online available at; for a more general and critical evaluation of Dahlab and similar decisions see Vakulenko, 7 HRLR (2007), 717; Dahlab is also discussed by Langlaude, 55 ICLQ (2006), 929; Gibson, 66 Cambridge L. J. (2007), 657; and Evans, 26 J. L. & Religion (2010/11), 345, 353.

3 Art. 72 para. 3 of the Federal Constitution of the Swiss Federation now reads „The construction of minarets is prohibited“; available at Article 72 para. 3 was adopted by popular vote on 29 November 2009.

4 The French and Belgian legislation – usually referred to as the ‘ban of the veil’ even though the prohibition applies to concealing or covering one’s face in public generally – gave rise to a
heated debate; see e.g. McCrea, 13 HRLR (2013), 57; Pei, 122 Yale L. J. (2013), 1089; Lemmens, 39 E. L. Rev. (2014), 47 with further references in note 7; Dunlap, 35 Fordham Int’l L. J. (2012), 968.

5 Thus far, the ECHR has been rather reluctant to address question of equal treatment and anti-discrimination. In Lautsi the ECtHR held that it was not necessary to address a possible violation of Article 14 ECHR;

ECtHR, Lautsi v. Italy (Second Section), note 1, para. 62; see more generally Howard, Law and the Wearing of Religious Symbols, 2012, 94 et seq. According to her reading of the ECtHR’s case law, the Court “appears to say that, as long as a rule on the wearing of religious symbols is not aimed at a person’s religious affiliation or sex but has another legitimate aim, then it will not be discriminatory”; an approach she considers to be highly problematic.

6 The importance of an equal treatment perspective with regard to the ‘ban of the veil’ has also been emphasized by Pei, 122 Yale L. J. (2013), 1089, 1990.

7 For different notions of tolerance see Forst, Toleranz im Konflikt, 2003, p. 42 et seq., who distinguishes four different concepts or levels of tolerance, starting from merely allowing or permitting a certain behavior (first level), moving on to co-existence (second level) and respect for the other’s views and believes (third level), ending in in true appreciation and appraisal (fourth level). The last two levels are those that are considered to reflect a strong concept of equality and equal treatment for the purpose of this article.

Finke, The Equal Treatment Dimension of Contemporary Disputes over Religious Symbols in the Public Sphere (BLJ 2014, 46)47

still is reluctant to approach disputes from this perspective.8 In addition, most European states until recently were relatively homogeneous. Even though this does not imply that there were no religious conflicts at all, the structure of these conflicts was largely standardized. These disputes usually took two different forms: either religious individuals invoked their right to have and express their religious beliefs against a strictly secular state [‘category one’ dispute] or secular individuals insisted on their right not to believe within a state that did not embrace a strict neutral policy, but instead relied on its Christian tradition [‘category 2’ dispute].

I. ‘Category One’ Disputes

A paradigmatic ‘category one’ dispute is the case of Leyla Şahin against Turkey.9 Ms. Şahin argued that Turkey had violated her right to religious freedom as enshrined in Article 9 of the European Convention on Human Rights (ECHR), because she was prohibited from wearing the Islamic headscarf at Istanbul University even though she considered it her religious duty to do so.10 In order to determine whether the measure was appropriate and thus justified, the ECtHR’s Grand Chamber asked “what is at stake”, which it found to be “the need to protect the rights and freedoms of others, to preserve public order and to secure civil peace and true religious pluralism, which is vital to the survival of a democratic society.“11 This, however, can be achieved in different ways, given that the question whether banning religious symbols supports or undermines true religious pluralism can be answered in different ways.

Thus, the Court, instead of applying its own values, took into account the general approach of the Turkish Republic that had awarded the principle of secularism and laïcité constitutional status.12 One could, of course, challenge the wide margin of appreciation that the Court applied, particularly with regard to what has been described as “fundamentalist secularism” – a form of secularism that aims at removing religion from society altogether.13 It is, however, doubtful whether the ECtHR adopted this position as its own. Instead, it seems more convincing that the Court refrained from assuming that the ECHR requires states to adopt a specific approach to safeguard religious pluralism. They are therefore free to choose their policies in response to the social realities and historical experiences.

II. ‘Category Two’ Disputes

The most prominent example of a ‘category two’ dispute is the debate surrounding the display of crucifixes in public schools. The underlying constellation is in principle identical with that of a ‘category one’ dispute, only in reversed roles. ‘Category two’ disputes, however, contain an additional dimension that points to the difficult question of equal treatment and discrimination. It would, of course, be possible to understand these cases as a conflict between the right of students (or their parents) not to believe and the right of other students (or their parents) to do just that. This interpretation, however, neglects to take into account that the state, by allowing or even making crucifixes in public schools obligatory, endorses a specific religious tradition. The question to which extent a state must observe strict neutrality in all religious matters is therefore central for resolving a ‘category two’ dispute.14 Two prominent decisions concerning crucifixes in public school classrooms – the 1995 decision by the German Constitutional Court (GCC)15 and the 2011 judgment by the Grand Chamber of the ECtHR in Lautsi – illustrate the importance and relevance of this additional dimension.16

One could point to the many differences between both decisions, in particular given that both courts arrived at different outcomes: while the GCC held that mandatory crucifixes in public classrooms are incompatible with the right to religious freedom, the Grand Chamber of the ECtHR could not find a violation of Article 2 Protocol 1 to the ECHR. Yet the importance of these two decisions, at least for the purpose of this article, does not lie in their differences but in their similarities, especially with regard to the question of a state’s religious neutrality: even though the two courts arrived at different conclusions, they both rejected the assumption that a state must be religiously neutral. In the case of the ECtHR, this is hardly surprising. But even the GCC stated that

a State […] cannot divest itself of the culturally conveyed, historically rooted values, convictions and attitudes on which the cohesion of society is based […]. The Christian faith and the Christian churches have in this connection […] been of overwhelmingly decisive force. The traditions of thought, mental experiences and patterns of conduct deriving from them cannot be a matter of indifference for the State. This is particularly true for schools, where the cultural foundations of society are principally handed down and renewed. Moreover, a State that obliges parents to send their children to State schools may give consideration to the religious freedom of those parents who desire a religiously cast upbringing.”17

What constitutes the crucial difference between the two decisions is where they draw the line. The ECtHR, on the one hand, considered the crucifix to be a passive symbol of Christianity that “cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.”18 It therefore rejected the proposition that the mere presence of this religious symbol amounted to indoctrination, which it considered to be the benchmark for determining a breach of Article 2
Protocol No. 1 to the ECHR.19 The GCC, on the other hand, held that even though a state is not obliged to maintain strict religious neutrality, crucifixes in classrooms exceed the legitimate interest of a state to preserve its religious traditions.20 Thus, the two decisions do not differ on principle. Their differences are rather a matter of degree because both courts assumed that neither the German Basic Law nor the ECHR require a state to implement policies of strict secularism either in the public sphere in general or in public schools in particular.

8 See Howard (note 5), p. 95.

9 ECtHR, Application No 44778/98, Leyla Şahin v. Turkey, 2005.

10 ECtHR, Leyla Şahin v. Turkey (note 9), para. 79.

11 ECtHR, Leyla Şahin v. Turkey (note 9), para. 110.

12 ECtHR, Leyla Şahin v. Turkey (note 9), para. 30.

13 Gibson, 66 Cambridge L. J., 657, 688 et seq.

14 On the issue of neutrality, secularism, and laïcité see Langlaude, 55 ICLQ (2006), 929, 934 et seq; Gibson, 66 Cambridge L. J., 657, 681, distinguishing between ‘liberal secularism’ that “demonstrates neutrality towards religion on the part of the state” and ‘fundamentalist secularism’ that “carries a state prejudice against religion.”

15 BVerfGE 93, 1.

16 ECtHR, Lautsi v. Italy (Grand Chamber, note 1).

17 BVerfGE 93, 1, 22.

18 ECtHR, Lautsi v. Italy (Grand Chamber, note 1), para. 72.

19 For a critical perspective on the ECtHR’s understanding of what behavior amounts to or is considered to qualify as indoctrination see Henrard, 6 Religion & Hum. Rts. (2011), 245, 247 et seq.

20 BVerfGE 93, 1, 23 et seq.

Finke, The Equal Treatment Dimension of Contemporary Disputes over Religious Symbols in the Public Sphere (BLJ 2014, 46)48

III. The Equal Treatment Dimension of Lautsi

Nevertheless, Lautsi also signifies a potential conflict that is intrinsic to the Court’s reasoning. It is the conflict between the crucifix (as a symbol of Christianity) and other religious symbols, in particular the Islamic headscarf. The ECtHR described the effects of its judgment aptly when pointing out that “by prescribing the presence of crucifixes in State-school classrooms […] the regulations [of the Italian State] confer on the country’s majority religion predominant visibility in the school environment.”21 To be sure, the Grand Chamber did not have to address the question whether religious symbols must be treated equally – or at least this was not the core of the dispute, considering that the applicant’s goal was the removal of all crucifixes and, if present, other religious symbols from the classroom. If equal treatment were to entail a strict secular policy, then Lautsi would have been an equal treatment dispute. This was, however, not the case, given that equal treatment only argues against privileging a specific religious symbol or the symbols of a specific faith over the religious symbols of another faith. Still, the Grand Chamber could not get around addressing the question of what constitutes the difference between an Islamic headscarf worn by a teacher and a
crucifix on the wall of a public school classroom. This was so because in 2001, when deciding Dahlab, the ECtHR had held that Article 9 ECHR is not violated in cases in which a teacher is prohibited from wearing an Islamic headscarf in a public school because the headscarf, so the reasoning went, constitutes a powerful external symbol. On the basis of this assumption, the Court had concluded that

it cannot be denied outright that the wearing of a headscarf might have some kind of proselytising effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which, as the Federal Court noted, is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils.22

Consequently, the Chamber of the Second Section of the

ECtHR, which handed down the first decision in Lautsi before it was appealed by the Italian government to the Grand Chamber, held that the crucifix, like the headscarf, constituted a powerful external symbol: it is impossible not to notice it in a classroom and it thus constitutes an integral part of the school environment.23 The Grand Chamber, on the other hand, distinguished the two cases on the basis of facts.24 In addition, it took into account that firstly, the crucifix is not associated with compulsory teaching about Christianity,25 and secondly, that, according to the Italian government, Italy provides space for religious diversity in public schools. Students, for example, are not prohibited from wearing Islamic headscarves or other religious symbols.26

From an equal treatment perspective and in the given context, however, the legal relevance of such examples of expressions of religious diversity is questionable. Even if students are allowed to wear non-Christian religious symbols in public schools, this cannot explain why a state may require crucifixes in classrooms but can dismiss a teacher who insists on wearing the Islamic headscarf at the same time. The ECtHR’s judgment, however, indicates that the Court was aware of the political implications of a ruling like Lautsi that addresses crucial aspects of the relationship between state, society and religion27. In addition, the case of the GCC’s decision on crucifixes in public schools stands out as an example of a court’s limited power concerning such a highly contested question, given that its decision appears to have had very little effect on the realities in Bavarian schools.28

The reasoning of the Grand Chamber may therefore illustrate the ECtHR’s general approach to cases that have an equal treatment implication, without requiring a true equal treatment assessment: the Court will not interfere as long as it can identify a positive trend that states adapt their policies to the increasing religious diversity of their citizens and do not eliminate other religions and their symbols from the public sphere. This would correspond to the Court’s general balancing approach in religious freedom cases, in which “religious belief is not a trump card; it is merely a factor to be taken into account when balancing up conflicting interests.”29 If, however, all factors weigh equally, then the question whether students may wear religious symbols other than those of Christianity does indeed become relevant, given that treating religious symbols equally is not what the Court’s balancing approach is primarily supposed to achieve. This could also explain the different outcomes in Lautsi and Dahlab, even though the decisions and their underlying rationale appear to be irreconcilable on an abstract level. Still, the ‘weighing all factors equally’ approach also illustrates the importance of an equal treatment perspective. If applied consistently, not all aspects that are taken into account in a regular balancing process will then be considered to have the same weight and relevance. Instead, their impact depends on whether or not they will result in unequal treatment.

IV. All Religious Symbols are Equal, but …: The Current Dispute over Headscarves in Public Schools in Germany

Lautsi and Dahlab represent cases that seemingly focus exclu-

21 ECtHR, Lautsi v. Italy (Grand Chamber, note 1), para. 71.

22 ECtHR, Dahlab v. Switzerland (note 2), 463.

23 ECtHR, Lautsi v. Italy (Grand Chamber, note 1), para 54 et seq.

24 ECtHR, Lautsi v. Italy (note 1), para. 73. In particular, the Court referred to the “tender age of the children” whom the applicant in Dahlab as a teacher in an elementary school had taught.

25 ECtHR, Lautsi v. Italy (Grand Chamber, note 1), para. 74.

26 ECtHR, Lautsi v. Italy (Grand Chamber, note 1), para. 74.

27 Lemmens, 39 E. L. Rev. (2014), 47, 61 et seq. even argues, at least in relation to the French ‘ban of the veil’, that balancing conflicting interests and determining the relationship between state, society and religion(s) is a political issue and not a legal one.

28 In response to the decision, Bavaria introduced a new provision according to which all classrooms in elementary and middle school have to be equipped with crucifixes. This default rule will not apply if – and only if – parents object to the crucifix and if they can provide serious and comprehensible reasons why the cross is incompatible with their religious beliefs or Weltanschauung. In such cases, the principal will try to negotiate a compromise. Should it fail, the school authorities will make a decision which will also take the interests of the majority (those who have a Christian background) into account, at least as far as possible; see Article 7 IV of the Bavarian Act on Education and Teaching (Bayrisches Gesetz über Erziehungs- und Unterrichtswesen (BayEUG), GVBl. 2000, 414). The new provision was challenged in court, but unsuccessfully so. The Bavarian Constitutional Court dismissed the claim that the provision violated the Bavarian Constitution because the provision provides for a conflict resolution mechanism in order to balance legal interests; VerfGH 50, 156. The German Federal Administrative Court held the provision to be constitutional as long as the administration does not apply an unreasonable standard for parents to illustrate that the cross contradicts their religious beliefs or Weltanschauung; see BVerwG, 109, 40, 44 et seq.

29 Evans in: Ghanea (ed.), The Challenge of Religious Discrimination at the Dawn of the New Millennium, 2004, p. 141.

Finke, The Equal Treatment Dimension of Contemporary Disputes over Religious Symbols in the Public Sphere (BLJ 2014, 46)49

sively on the right of religious freedom. The issue of equal treatment becomes, however, visible and relevant once we compare different cases and the standards that are applied to them. In more recent and still pending cases, the issue of equality is more conspicuous; indeed, it lies at the core of these disputes.

One of these cases is the so-called headscarf ban that several German states introduced after the GCC decided in 2003 that the existing provisions did not qualify as a sufficient legal basis for prohibiting religiously motivated headscarves.30 In response to this decision, some states introduced new legislation that provided for an explicit ban of displaying or demonstrating religious beliefs and political convictions that applies to teachers but not students. At first glance, the situation does not seem much different from the circumstances that the

ECtHR had addressed in Leyla and Dahlab. Seen in this light, the German case would constitute another example of a ‘category one’ conflict, in which the interests of a religious individual clash with the principle of laïcité. Given previous decisions, it seems reasonable to assume that neither the ECtHR nor the GCC would strike down these laws on the basis of Article 9 ECHR or Article 4 Basic Law, both of which provide for the freedom of religion. Put differently, if a state chooses to introduce a strict secular policy in the public school sector, in particular with regard to publicly employed teachers, it may do so without violating the right to religious freedom.

The picture, however, is more complicated. The relevant education acts such as, for example, those of Baden-Wuerttemberg31 and North Rhine-Westphalia32, do not ban religious symbols per se. Rather, they hierarchize them in a highly problematic fashion. For one, the education acts prohibit any conduct (which includes the display of religious symbols) that could be interpreted by either parents or students as an expression of a teacher’s objection to democratic order, human dignity, gender equality, or civil liberties.33 Such conduct is defined as violating a teacher’s obligation not to act in any way that may threaten the state’s neutrality in relation to students and parents.34 Even though the education acts neither mention the headscarf nor explicitly state that Islamic religious symbols would meet these criteria, the provision was included for that purpose and in practice affects in particular Muslim women who wear the headscarf. 35 Moreover, these acts do not only suggest that every woman who wears a headscarf for religious reasons thereby reveals her anti-democratic and anti-liberal attitudes. They also focus exclusively on how these symbols can in general and potentially be perceived by either students or parents – and not how they are actually perceived in a specific situation. The latter is as irrelevant as the perspective, intentions and political beliefs of those who wear such symbols. In short, it is general bias and prejudice against the headscarf (and what it is assumed to stand for) that determines the scope of individual rights and liberties, and not the actual behavior of a specific teacher and her political opinions.36

The Christian faith, in contrast, is treated quite differently. § 38 II of the Education Act of Baden-Wuerttemberg states that any behavior or conduct in realization of the educational mandate to educate students in ‘reverence for god’ (see Article 12 of the Constitution of Baden-Wuerttemberg) does not violate the obligation not to demonstrate religious beliefs and political or other non-religious convictions (Weltanschauungen). To be sure, this provision does not refer to religious symbols in particular. Still, it applies to them. Thus, it also covers Christian symbols worn by teachers, which do not have an immediate connection to the content of the teaching itself. A
nun who teaches regular classes in a public school may therefore wear her habit, while a Muslim teacher may not wear a headscarf. The (alleged) justification for this distinction can be found in the provision itself: Christian symbols are not considered to be symbols of a specific religion. Instead, the Baden-Wuerttemberg Education Act states that they merely manifest the values of Christianity and Western civilization and are therefore exempt from the requirement of religious and political neutrality.37 As Western civilization is often equated with moral standards such as freedom, human dignity, and tolerance,38 the Baden-Wuerttemberg Education Act implies that Christian symbols stand for and represent these values. And apparently they do so irrespective of Christianity’s controversial past, including anti-Semitism, the crusades, or the inquisition, and irrespective of the fact that the Catholic Church still prevents women from becoming priest – a policy that is difficult

30 BVerfGE 108, 282; since 2003, an extensive literature has emerged that discusses the decision of the German Constitutional Court or more generally the headscarf ban for teachers in public school; see e.g. Baer/Wrase, KritV 2006, 401, who in particular address the issue of gender equality (403 et seq.); von Campenhausen, 2 BYU L. Rev. (2004), 665; Mahlmann, 4 GLJ (2003), 1099; each with further references; see also Oebbecke, ZfP 2008, 49, 52, who maintains that the states concerned will not succeed in banning headscarves while at the same time continuing to allow Christian and Jewish religious symbols worn by teachers in public schools.

31 § 38 II Baden-Wuerttemberg Education Act (SchG), GBl. Baden Wuerttemberg 2012, 209.

32 § 57 IV North Rhine-Westphalia Education Act, 13 (SchulG), GV. NRW 2012, 514 (the provision is identical to that of Baden-Wuerttemberg).

33 § 38 II 2 (SchG) „Insbesondere ist ein äußeres Verhalten unzulässig, welches bei Schülern oder Eltern den Eindruck hervorrufen kann, dass eine Lehrkraft gegen die Menschenwürde, die Gleichberechtigung der Menschen nach Artikel 3 des Grundgesetzes, die Freiheitsgrundrechte oder die freiheitlich-demokratische Grundordnung auftritt.“

34 § 38 II 1 (SchG) „Lehrkräfte an öffentlichen Schulen nach § 2 Abs. 1 dürfen in der Schule keine politischen, religiösen, weltanschaulichen oder ähnliche äußeren Bekundungen abgeben, die geeignet sind, die Neutralität des Landes gegenüber Schülern und Eltern oder den politischen, religiösen oder weltanschaulichen Schulfrieden zu gefährden oder zu stören.“

35 It is remarkable how the German wording matches the ECtHR’s phrase in ECtHR, Dahlab v. Switzerland (note 2), 463, where the court holds that it is “hard to square [the wearing of a headscarf] with the principle of gender equality. It therefore appears difficult to reconcile [it] with the message of tolerance, respect for others and, above all, equality and non-discrimination […].” That the provision affects Muslim women in particular is highlighted by Baer/Wrase, KritV 2006, 406.

36 For a critical perspective see Ladwig, Archiv für Rechts- und Sozialphilosophie (2010), 17, 24 et seq. That the ban may indeed be unrelated to a teacher’s behavior is exemplified by the case of Ms. Dahlab. As an elementary school teacher, she wore a headscarf. The students’ parents, however, did not complain about it. Still, for the court it sufficed that the headscarf could be interpreted to contrast gender equality and civil liberties even though Ms. Dahlab had not voiced any of these opinions; ECtHR, Dahlab v. Switzerland (note 2), 454; see also Langlaude, 55 ICLQ (2006), 929, 930 et seq.

37 § 38 II 3 SchG „Die Wahrnehmung des Erziehungsauftrags nach Artikel 12 Abs. 1, Artikel 15 Abs. 1 und Artikel 16 Abs. 1 der Verfassung des Landes Baden-Württemberg und die entsprechende Darstellung christlicher und abendländischer Bildungs- und Kulturwerte oder Traditionen widerspricht nicht dem Verhaltensgebot nach Satz 1.“

38 See for example the reasoning of the Italian Court in Lautsi, which is reproduced in the decision of the Grand Chamber. The Italian court argues that “with the benefit of hindsight, it is easy to identify in the constant core of Christian faith […] the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundation of the secular State.” ECtHR, Lautsi (Grand Chamber, note 1), para. 15.

Finke, The Equal Treatment Dimension of Contemporary Disputes over Religious Symbols in the Public Sphere (BLJ 2014, 46)50

to reconcile with gender equality.39 What other religious symbols stand for, in particular the Islamic headscarf, is, however, not determined by the education act in a one-sided and overly positive way. Rather, when it comes to religious symbols that do not belong to the Christian tradition, it is the perception of others and their abstract fears that decide what these symbols represent.

It has been argued, inter alia by the German Supreme Administrative Court, that § 38 II SchG does not privilege any Christian confession, because the term “Christianity” is detached from specific contents of Christian faith and merely reflects Germany’s cultural and historical background.40 This is, of course, true – at least to some extent. The symbols of a specific religion that has dominated a region’s history for many centuries are deeply enshrined in a
society’s cultural fabric and collective memory. Still, a religious symbol, irrespective of how much it is rooted in a particular state’s history and culture, is also only that: a religious symbol – especially for those who hold a different faith or for atheists in general. Maintaining that Christian religious symbols reflect, above all, cultural values and principles of Western civilization means treating non-Christian religions and their symbols as the ‘other’, and thus not part of the tradition and culture of the West. This also explains why, at least according to some of the German education acts, the meaning of non-Christian symbols is not determined by those who wear them, but by those who are exposed to them.

That a
headscarf allegedly communicates an anti-democratic, anti-liberal world-view which rejects all notions of gender equality reflects the understanding that the non-Muslim majority attaches to this religious symbol. At the same time, it is also this majority-perspective that defines well-known symbols of the Christian faith as not being religious, but of a cultural value.

Moreover, the assumption that non-Christian religious symbols represent the ‘other’ is also reflected in the idea that a headscarf is a strong religious symbol that might influence children, even proselytize them,41 whereas the crucifix has allegedly little to no effect on the students that are exposed to it on a daily basis in the classroom. The headscarf, however, is really not that different from the crucifix, in the sense that it can carry multiple meanings to different people. What distinguishes it from a crucifix is the fact that it is worn and thus attached to a person. Whether a teacher advocates anti-democratic and anti-liberal values or may even seek to convert students is therefore not determined by a symbol, but by her behavior.42 Put differently, I maintain that what a headscarf stands for should not be evaluated on a supposedly abstract or general level, at least not given the bias and prejudice that so far informs it. Instead, it must be based on an assessment of an individual’s behavior and teaching – which should then apply not only to the headscarf, but also to all religious symbols worn by teachers in public schools.

V. Equal Treatment and the ‘Ban of the Veil’

Another case that illustrates well why it is necessary to focus on questions of equal treatment in addition to the well-known freedom of religion paradigm is the so-called ‘ban of the veil’ in France and Belgium,43 which has led to a heated and at times emotional debate. While critics of the French and Belgian legislation argue that it constitutes an outright violation of the right to express one’s religious beliefs in the public sphere,44 its supporters point to the principle of laïcité, women’s rights, and “what it means to live together in a society” as possible justifications.45 At least with regard to the aim of protecting women’s rights and their dignity the ban is at the same time under- and over-inclusive,46 which casts serious doubts on the ban’s proportionality if that was the only basis for its justification. Particularly interesting are the supporters’ references to the French tradition of laïcité and “what it means to live together in a society”47, because they create the impression that the decision to ban the veil is actually of the same nature as the decision of the Turkish Republic to prohibit headscarves in public universities. As the ECtHR apparently concedes a wide margin of appreciation with regard to a state’s basic decision of how to promote and secure order and true religious pluralism, one could therefore argue that the provision falls exactly within this margin.

However, the two decisions, i.e. banning the veil in France and Belgium and banning the headscarf in Turkey, are fundamentally different, at least from an equal treatment perspective.48

39 See e.g. the comment by Heinig, who stresses the symbolic ambivalence of Christian symbols, particularly the crucifix. „Auch um die ‚eigentliche‘ Bedeutung des Kreuzes lässt sich trefflich streiten: steht es für Leiden und Sterben Jesu Christi oder für die Kulturgeschichte des Abendlandes, ist es Ausdruck antiker Grausamkeit und Gewalt oder Hoffnungszeichen und Friedensbotschaft, repräsentiert es die Ideen von Menschenwürde und Individualität oder die Entgleisung der Hexenverbrennung und Ketzerverfolgung?“, see Heinig, Zeitschrift für evangelisches Kirchenrecht (ZevKR) 2012, 82, 85.

40 BVerwG 2 C 45.03, 13 ( 04U2C45.03.0.pdf).

41 See again the assumption of the ECtHR, Dahlab v. Switzerland (note 2), 463.

42 This aspect has been highlighted in a 2001 decision by the administrative court of Lüneburg concerning the headscarf worn by a
teacher in a public school; see VG Lüneburg, NJW 2001, 767, 770. It was also emphasized by Böckenförde in his annotation of said decision; see Böckenförde, NJW 2001, 723, 727. It seems that this important aspect has since then been increasingly neglected, in particular by the judiciary.

43 The national laws enacted in France and Belgium that are generally referred to as the ‘ban of the veil’ are in fact broader in scope than this label implies, given that they generally prohibit any face covering in public. At the same time, however, they provide a number of exceptions including helmets and carnival masks; see Lemmens, 39 E. L. Rev. (2014), 47, 50. Still, he admits that “it would […] be unfair to claim that the face veil bans, despite their general wording, do not have anything to do with religion.”

44 For a critical perspective see inter alia Barton, 9 Essex Human Rights Review (EHRR) (2012), 1; Nanwani, 25 Emroy Int’l L. Rev. (2011), 1431; van der Schyff/Overbeeke, 7 E.C.L. Rev. (2011), 424; Winet, 35 Hastings Int’l & Comp. L. Rev (2011), 217; Davis, 45 B.C. Int’l & Comp. L. Rev. (2011), 117; Hunter-Henin, 61 ICLQ (2012), 613; Finke, NVwZ 2010, 1127.

45 See in general Dunlap, 35 Fordham Int’l L. J. (2012), 968, whereas Lemmens rejects the women’s rights argument and the reference to laïcité, but argues that the ban touches not on a legal, but on the fundamentally political question of “what it means to live together in a society”; see Lemmens, 39 E. L. Rev. (2014), 49. See also McCrea who stipulates that “a ban that applies to public face-covering in general […] that relates to the specific […] context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve”; McCrea, 13 HRLR (2013), 60.

46 The ban is under-inclusive because it does not support women who are actually suppressed because it is unlikely that they will be able to take off the burqa and nicab after the ban becomes effective. Instead, it is more likely that they will be forced to stay at home. Thus, they will be excluded from the public even more, which will render state help close to impossible. Women who are not suppressed but wear the burqa or niqab following their free will do not need any protection; see Finke, NVwZ 2010, 1129.

47 Lemmens, 39 E. L. Rev. (2014), 49.

48 See Pei, 122 Yale L. J. (2013), 1092, who also argues that the freedom of religion paradigm “remains a doctrinally unsatisfying means to address the laws.”

Finke, The Equal Treatment Dimension of Contemporary Disputes over Religious Symbols in the Public Sphere (BLJ 2014, 46)51

In order to justify the ban of the veil, the concept of laïcité must first be detached from its original context, in which it only requires the strict separation of the state and the church, and be given a more general meaning that would not only consider public institutions, but also the public sphere as such to be religiously neutral places. In addition, and so as to be persuasive, the ban would also have to include all religious symbols and garments. This was, however, not the intention of either the French or Belgian legislation. Invoking the principle of laïcité as a justification is thus inconsistent because banning the veil was never about creating a religiously neutral public space. Instead, the ban reflects a
conviction that in order to be able to be a full member of society and to participate in its life, one cannot conceal one’s face in public.

If a state has the power to demand that its citizens shall not wear a face veil in public, then it thereby implicitly, but effectively excludes individuals from society, given that those who do not want to adhere to the ban of the veil find themselves outside the group of people that is defined as and therefore constitutes society. This also entails that those individuals who are no longer considered part of society lose its protection. From an equal treatment perspective, one therefore has to ask if a state actually has or should have the power to define “what it means to live together in a society.”49 Such power would correspond to and require an obligation of individuals to actually be part of that society.

Yet such an obligation does not exist, at least not a legal one. Wearing a burqa or niqab in public would therefore have to amount to more than being a mere symbol of its wearer being allegedly opposed to the majority’s democratic and liberal values. Rather, it would have to constitute a substantial threat to society, individuals, and the state, which would have to originate from the veil itself and not from how it is interpreted and understood by others who do not wear it. The absence of veils like the burqa or niqab from the public sphere would then actually have to increase public safety and security. Thus far, however, there is no evidence for that – which is why excluding women who wear a burqa or niqab from the public sphere and therefore from society is not justified.

All these reasons are, however, irrelevant if the ban of the veil is primarily a political and not a legal issue.50 Focusing on the equal treatment dimension inherent to this issue illustrates the societal consequences that this approach in effect has, namely conferring upon the state the power to decide who belongs and who does not belong to society. In other words: it would allow the majority to dominate and exclude the minority.

C. Some Concluding Thoughts on the Difference between Tolerance and Equality

Tolerance is often mentioned as one of the cornerstones of liberal democracies and thus Western civilization. At the same time, ‘tolerance’ is a rather vague notion whose meaning depends very much on the context in which it is used. The present approach to the issue of religious symbols in the public sphere, and more specifically of symbols of the Islamic faith, is heavily governed, I argue, by a specific understanding of tolerance that means merely allowing, but not accepting or respecting behavior that is deemed different from the behavior of the majority. One could call this type of tolerance a weak or very basic one,51 which is fundamentally different from equal treatment. Especially with regard to the expression of religious freedom, it tends to relegate the tolerated faith to the private sphere.

To be clear, the relationship between the Christian and non-Christian faith is in general not governed by this concept. Yet, the difference between this very basic understanding of tolerance (tolerance as merely allowing) and equality can explain the inconsistencies that can be detected in current legal practice and that I analyzed in part B of this article. These inconsistencies, however, contradict the equal treatment obligation of states because there is no categorical difference between a headscarf worn by Muslim women and Christian religious symbols or garment. To be sure, there have been many attempts to construct differences between a headscarf and a crucifix. These differences are, however, not categorical ones, but differences in perception alone.

The fact that it is the perception of those who tolerate that determines the meaning of religious symbols also illustrates how this very basic notion of tolerance governs current practice. Tolerating, in the sense of merely allowing, requires determining which practices are in fact allowed. It is the perspective of the tolerating majority that determines what constitutes permissible conduct – while those who are being tolerated have little to no influence on that process. This pattern can also be observed in cases where it is debated whether a certain practice or symbol should be protected by the right to freedom of religion in the first place: while no one would deny that wearing or displaying a crucifix is a conduct protected by the freedom of religion, it has been argued that wearing a headscarf or a burqa is not a religious but a social or cultural practice that has no immediate connection to the Islamic faith.52

The ECtHR has yet to rule on the legality of the French ‘ban of the veil’.53 Similarly, the GCC has still to decide on the constitutionality of the Education Act of North-Rhine Westphalia (the case is currently pending before the court).54 Instead of continuing the practice of applying a very basic or weak understanding of tolerance, both courts now have the opportunity to ensure the equal treatment of religious symbols. They should seize upon that chance – which would mean either allowing all or none.

49 Lemmens, 39 E. L. Rev. (2014), 49.

50 Lemmens, 39 E. L. Rev. (2014), 61.

51 See Forst (note 7), 42 et seq., who distinguishes four different concepts or levels of tolerance. On the first level the tolerated behavior is merely allowed or permitted, but not respected or even accepted.

52 Lemmens, 39 E. L. Rev. (2014), 51, for whom the burqa is not a religious symbol but primarily a ‘cultural device’; similarly Bennoune, 45 Colum. J. Transnat’l L. (2007), 367, 388 et seq., who stresses that wearing the burqa is not prescribed by Islam. It also seems to be highly contested among Muslims whether the burqa constitutes an Islamic symbol; Assemblée Nationale, No. 2262, Report d’information fait un nom de la mission d’information sur la practique du port du voile intégral sur le territoire national, 2010, p. 38-41 (so-called Gerin Report). While it is true that Islam does not oblige women to wear a burqa, and while it may also be that the burqa is highly contested among Muslims, the question remains whether these factors are decisive in answering the question whether or not these practices are protected by the freedom of religion. It is, for example, also disputed whether Islam obliges women to wear any kind of headscarf. Still, in ECtHR, Leyla Şahin v. Turkey (note 9), para. 78, the Grand Chamber agreed with the Chamber that it was sufficient that “her decision to wear the headscarf may be regarded as motivated or inspired by a religion or belief.” Thus the ECtHR did not find it necessary to decide “whether such decisions are in every case taken to fulfill a religious duty.” Accordingly, it is the individual perspective of the person who wears the symbol that determines its religious character, not how others perceive it.

53 In ECtHR, Application No. 43835/11, S.A.S. v. France, the Grand Chamber had heard oral arguments on 27 November 2013, but has not yet handed down its decision.

54 See GCC, 1 BvR 471/10 and 1 BvR 1181/10; neither a date for oral proceedings nor the decision itself has yet been scheduled.