Legitimization of Religious Symbols in the Education - Development towards Pluralism or Secularism

Name: Legitimization of Religious Symbols in the Education - Development towards Pluralism or Secularism
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Author: Niran Hen
ISBN: 978-3-631-78293-4

Hen, Niran

Legitimization of Religious Symbols in the Education - Development towards Pluralism or Secularism

A legal comparison in Germany, England and France and Introspection on the European Level

by Niran Hen (Author)

Law, Economics & Management

Series: Europäische Hochschulschriften Recht, Volume 6082

Summary

The author compares the legal system in three European countries: Germany, England and France, addressing the legitimacy of the prohibition on religious symbols in public education.
For assessment of the legal position of the right to religious freedom and the safeguard offered to religious rights in the different states, the author analyzed the following parameters: state-church relations, identification of unique and central constitutional norms and principles, observation of the historical role and position of religion in the educational system of each of the states and a review of case laws delivered by domestic courts.
Finally, the author considered the possibility of a unified, aligned European solution that will be enforceable on the member states by virtue of their obligation to abide by the European Convention on Human Rights.

Excerpt

Cover
Title Page
Copyright Page
Preface
About the author
About the book
Citability of the eBook
Contents
List of Abbreviations
I Introduction
II Legal Framework
1. Introduction
2. Germany
a) Sources of Law and the Constitutional Hierarchy of Norms
b) Grundgesetz
aa) Examination Procedure of Basic Rights
bb) Liberty Rights
(1) Art. 2 para 1 GG/General Freedom of Action
(a) Scope of Protection
(b) Infringement
(c) Justification
(2) Art. 4 GG Freedom of Faith, Conscience, and Ideological Creed
(a) Scope of Protection
(aa) Personal Scope of Protection
(bb) Factual Scope of Protection
(aaa) Forum Internum
(bbb) Forum Externum
(aaaa) Positive Dimension
(bbbb) Negative Dimension
(b) Restrictive or Extensive Scope of Protection
(c) Infringement
(d) Justification
(aa) The Protection of Other Constitutional Rights and Values
(bb) The Test of Proportionality
(cc) Individual Religious Freedom Rights Established Under the WRV
(3) Art. 6 GG – The Parental Right to Education
(a) Scope of Protection
(b) Infringement
(4) Overview Liberty Rights
cc) Equality Rights/Anti-Discrimination Rights
(1) Art. 3 GG/Guarantee of Equality before the Law
(2) Art. 33 GG/Equal Access to Public Service
(3) Anti-Discrimination Legislation (AGG)
c) Religious Aspects in the Grundgesetz and Constitutional Principles
aa) Preamble
bb) The Principle of State Neutrality
(1) Notion of Neutrality
(2) Normative Source
(a) Designation in Grundgesetz (Basic Law)
(b) Designation in Jurisprudence
(c) Designation in Legal Literature
(d) Designation in Common Law
(e) Conclusion
(3) Different Approaches to the Application of the Neutrality Principle
(a) Strict Application of the State’s Neutrality Principle
(b) Liberal Application of the State’s Neutrality Principle
(c) Discussion of Approaches
(aa) Arguments in Support of the Strict Approach
(aaa) Equality in an Increasingly Pluralistic Society
(bbb) The Constitutional Prohibition of State-Church Relations
(bb) Arguments in Support of the Liberal Approach
(cc) Consideration of Approaches
cc) The Principle of Practical Concordance/Das Prinzip der Praktischen Konkordanz
d) Assessment of the Legal System
3. England
a) Sources of Law and Legal Hierarchy of Norms
b) Individual Rights
aa) Origins of Basic Rights
(1) Domestic Law
(2) Common Law
(3) Ratification and Incorporation of International Treaties
bb) Liberty/Fundamental Human Rights
(1) Human Rights Act 1998
(a) The Provisions of the ECHR
(aa) Art. 9 ECHR Freedom of Religion
(bb) Art. 10 ECHR Freedom of Expression
(b) Limitation of Scope
(2) The International Covenant on Civil and Political Rights
(3) Implementation of Art. 9 HRA 1998
(a) Scope of Protection
(b) Restrictions on Freedom of Religion or Belief
(aa) Prescribed by Law
(bb) Necessary in a Democratic Society
(cc) Legitimate Aim
(aaa) Public Safety
(bbb) Public Order
(ccc) Morals
(ddd) Health
(eee) Fundamental Rights and Freedom of others
(4) Parental Right to Determine Religious Influence on Their Children
(a) Art. 2 of the First Protocol ECHR
(b) Parental Choice and Religious Schools in England and Wales
(c) Religious Education in Light of Art. 18 para 4 ICCPR
cc) Equality Rights/Anti-Discrimination Rights
(1) Race Relation Act 1976
(2) Employment and Equality (Religion or Belief) Regulations 2003
(a) Genuine and Determining Element
(b) Exception for Organization with Religious Ethos
(3) The Equality Act 2006
(a) Scope of Protection
(b) Limitation of Scope
(4) Equality Act 2010
(a) Scope of Protection
(aa) Addition of New Equality Grounds
(bb) Definition Religion and Belief
(cc) Discrimination on Religious Grounds in Employment
(aaa) Direct Discrimination
(bbb) Indirect Discrimination
(ccc) Victimization
(ddd) Harassment on Grounds of Religion and Belief
(dd) Combined Discrimination
(ee) Discrimination on Religious Grounds in Education
(b) Limitation of Scope
(aa) General Occupational Requirement
(bb) Denominational and Faith Schools
(cc) Organizations with a Religious Ethos
(dd) Curriculum and School Practices
(ee) Pursue of a Legitimate Aim
c) Constitutional and Legal Principles
aa) Parliament Supremacy
bb) Principle of Neutrality
d) Assessment of the Legal System
4. France
a) Sources of Law and the Constitutional Hierarchy of Norms
aa) Constitution and Constitutional Laws (Lois Constitutionnelles)
bb) Treaties and International Agreements
cc) Legislation
dd) Organic laws
ee) Ordinary Laws and Ordinances Ratified by Parliament
ff) Custom
gg) Jurisprudence (Development of Case Laws)
hh) General Principles of Law
ii) Legal Writing
b) Individual Rights
aa) Liberty Rights/Freedom of Conscience
(a) Scope of Freedom of Conscience
(aa) Freedom of Religion in the Declaration of Rights of Man 1789
(bb) Freedom of Conscience in the Constitution of 1946
(cc) Freedom of Conscience in the Constitution of 1958
(dd) Freedom of Conscience in the Act of 1905
(b) Limitation of Scope
bb) Equality Rights/Anti-Discrimination Rights
(1) The 1789 Declaration
(2) The Constitution of 1946
(3) The Constitution of 1958
(4) Recognition of Equality Rights
(a) Pupils
(b) Teachers
(5) International Agreements
(a) ECHR
(b) International Covenant on Civil and Political Rights (ICCPR)
c) Constitutional and Legal Principles (Lois Constitutionnelles)
aa) The Principle of Neutrality
bb) The Principle of Laïcité
(1) Historical Development
(2) Notion of Laïcité
(3) Legal Sources
(a) Laïcité in the Declaration of 1789
(b) The Law of 1795
(c) The Notion of Laïcité in the Constitutions of 1946 and 1958
(d) Laïcité in the Law of 1905
(4) Exceptions to the Laïcité Principle
(a) The Alsace Lorraine exception
(b) The Changing Social-Demographical Context
(c) Accommodation Faced with Immigration
(d) Subsidies of Religion
(5) Different Approaches
(a) Strict Application
(b) Liberal Application
cc) The Principle of Equality/Non-discrimination
(1) Legal Sources
(a) National law
(b) International Law
(aa) ECHR
(bb) ICCPR
(cc) The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief
(2) The Notion of the Principle of Equality/Non-discrimination
d) Neutrality in the Public Service
e) The System of Judicial Review
f) Assessment of the Legal System
5. Comparative Assessment of the Legal Systems
a) Legislative Framework
aa) Constitutional System
bb) Domestic Law or Transformation of International Treaties
cc) The Role of Jurisprudence
dd) The Development of Social Pluralism and Its Impact on Domestic Legislation
b) Individual Rights
aa) Liberty Rights
bb) Equality Rights
c) Constitutional Principles
aa) Principle of Neutrality/Laïcité
bb) Principle of Equality
III An Introspection of the Relations Between Religion and the Educational System in Germany, England, and France
1. Introduction
2. Germany
a) The Accommodation of Religion in State Schools – a Historical Overview of Transferal from Church to State
b) The Competency of the State with Respect to Its Public School System
c) Endorsement of Religious Symbols into State’s School System
aa) The Legal Framework in the Federal States
bb) Bavaria
(1) Legal Framework
(a) Constitutional Law of Bavaria
(b) Federal Law of Bavaria
(aa) The Bavarian School Regulations for Elementary Schools/Bavaria’s Elementary School Ordinance (die Bayerische Volksschulordnung)
(bb) The Bavarian School Education Act – Das Bayerisches Gesetz über das Erziehungs- und Unterrichtswesen (BayEUG)
(aaa) Art. 7 BayEUG
(bbb) Art 59 BayEUG
(2) Conclusion - Bavaria
cc) Berlin
(1) Legal Framework
(a) Constitutional Law of Berlin (BlnLV)
(b) Federal Law of Berlin
(aa) The Law Relating to Art. 29 BlnLV
(aaa) The General Ban
(bbb) Exceptions to the General Ban
(bb) The School Act of Berlin (Schulgesetz für das Land Berlin -SchulG)820
(2) Conclusion - Berlin
dd) North Rhine-Westphalia
(1) Legal Framework
(a) Constitutional Law of North Rhine-Westphalia
(aa) Art. 7 LVerfNRW
(bb) Art. 12 LVerfNRW
(cc) Art. 14 LVerfNRW
(b) Federal Law of North Rhine-Westphalia/The School Act of North Rhine-Westphalia
(aa) Enactment and Development of Schulordnungsgesetz NRW/The Ban of Individual Religious Symbols
(bb) Ban on Individual Religious Symbols Following the Headscarf Decision of the BVerfG (27.1.15)
(cc) Limitation of Constitutional Provisions
(2) Conclusion - North Rhine-Westphalia
ee) Baden-Württemberg
(1) Legal Framework
(a) Constitutional Law of Baden-Württemberg
(b) Federal Law of Baden-Württemberg/Baden-Württemberg School Education Act (SchG BW)
(aa) The Ban on Individual Religious Symbols
(bb) Exceptions to the Ban
(aaa) Exception upon Application
(bbb) Equal Application to Civil Servants and Privately Employed Teachers
(2) Conclusion - Baden-Württemberg
ff) Assessment
(1) Legislative Competency of the State’s Legislator to Regulate Inner Affairs
(2) Confirmation of Federal States’ Competency by BVerfG
(3) Criteria Deliberated by Federal States for a Ban on Religious Insignias
(a) Type of Symbol
(b) Identity of the Right Holder
(4) The Legislative Prohibition of the Federal States
(a) Subject of the Ban (type of symbol)
(b) Abstract Endangerment
(c) Equal Application
(d) Legislative Aim/Justification
d) Relationship of Educational System and Religion in the Jurisprudence of BVerfG und BVerwG
aa) Leading Position of the BVerfG and BVerwG until the Mid-1970s940
(1) The Competency of the State with Respect to Religious Education and Christian References
(2) The Permissibility of Conveyance of Religious Values and Manifestation of Religious Symbols
bb) Leading Position of the BVerfG and BVerwG after the Crucifix
(1) The Competency of the State with Respect to Religious Education and Christian References
(2) The Permissibility of Religious References Made Through Conveyance of Religious Values and Manifestation of Religious Symbols
(3) Rating of Jurisdictional Development
(a) The Early Decisions
(b) The Recent Judgements
(c) Concluding Evaluation – The Alignment of the Crucifix with Earlier Decisions of the BVerfG
cc) Crosses in Classrooms
(1) The Crucifix Decision
(a) Factual Background
(b) Leading Legal Aspects
(aa) Religious Neutrality of the State
(bb) The Symbolism of the Cross
(cc) Negative Right of Pupils to Religious Freedom – Art. 4 GG
(dd) Parental Educative Right (Art. 6 para 2 GG)
(ee) The Educative Mandate of the State (Art. 7 para 1 GG)
(ff) Colliding Constitutional Rights
(c) Position of Dissenting Judges
(aa) No Transcendence of Constitutional Legitimacy in Educational Matters
(bb) Lack of Coercive Elements Rules Out Violation of Religious Freedom
(cc) The Interpretive Symbolism of the Cross
(d) Conclusion
(2) The Bruckmühl Decision
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
(3) Crucifix in NRW
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
dd) Headscarves Worn by Teachers
(1) Ludin’s Case
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
(2) The Revision of the Headscarf Decision (Ludin II)
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
(3) A Teacher with Headscarf in NRW
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
(4) The Bhagwan Case
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
(5) Inclusion of a Cap or a Basque Hat
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
(6) Religious Garment Worn by a Teacher – Bavarian Case
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
(7) The NRW Headscarf Ban (decision from 27 January 2015)1150
(a) Factual Background
(b) Leading Legal Aspects
(c) Conclusion
ee) Necessary Legislative Amendments by the Federal States
(1) Bavaria
(2) Berlin
(3) North Rhine-Westphalia
(4) Baden-Württemberg
e) Conclusion – Germany
aa) The State-Church Relation and Its Impact on the Educational System
bb) Legislative Diversity Emanating from the Federal System
cc) The Educative Task of the States
dd) The Guarantee of Religious Freedom
ee) Institutional Symbols
ff) Individual Symbols Worn by a Teacher
3. England
a) The Accommodation of Religion in State Schools
b) The Competency of the State with Respect to Its Public School System
aa) Privileged Constitutional Position of the Anglican Church
bb) The Role of the State as an Employer – Duty for Equal Participation in the Public Service
cc) The Monopoly of the State as an Employer
c) The Endorsement of Religious Symbols into the State’s School System
aa) The Legal Framework
(1) Equality Act 2010
(2) The Education Act 1944
(3) The Education Reform Act 1988
(4) The School Standards and Framework Act 1998
(5) The Education Act 2002
(6) The Education Act 2011
bb) Religious Symbols in Schools
(1) ‘Institutional’ Symbols – Religious Symbols in Schools
(a) Religious Faith Schools
(aa) Voluntary Controlled Faith Schools
(bb) Voluntary Aided Faith Schools
(b) Community and Foundation Schools
(2) Religious Symbols Worn by an Individual
(a) Religious Symbols Worn by Teachers
(aa) Teachers’ Position in Employment
(aaa) Scope of Protection
(bbb) Infringement
(ccc) Justification
(bb) Teachers in Faith Schools
(aaa) Human Rights Aspects
(bbb) Anti-Discrimination Aspects
(ccc) Voluntary Controlled or Foundation Schools
(ddd) Voluntary Aided Schools
(cc) Teachers in Community Schools
(aaa) Human Rights Aspects
(bbb) Anti-Discrimination Aspects
(dd) Conclusion – The Protection of the Fundamental Right of Teachers to Religious Freedom under English Law
(b) Religious Symbols Worn by Pupils
(aa) Scope of Protection
(bb) Infringement
(cc) Justification
(dd) Pupils’ Fundamental Right to Religious Freedom
cc) Conclusion
d) Relationship of Educational System and Religion in the Jurisprudence
aa) Factual Background Aishah Azmi
bb) Leading Legal Aspects Aishah Azmi
e) Conclusion – England
aa) The State-Church Relation and Its Impact on the Educational System
bb) Origin of Rights and the Guarantee of Religious Freedom
cc) Religious Symbols Worn by a Teacher
dd) Religious Symbols Worn by Pupils
4. France
a) The Accommodation of Religion in State Schools
b) The Competency of the State with Respect to Religion in Its Public School System
c) The Evolvement of Laicist Education in State Schools
aa) Legal Framework
(1) Ferry Laws 1881–1882
(2) Goblet Law 1885–1886
(3) Loi Debré of 31 December 1959
(4) Law no. 2004–228 of 15 March 2004 on the Wearing of Religious Symbols in State Schools1397
(a) Introduction
(b) Leading Legal Aspects
(c) Ostentatious Symbols
(5) The French Ban on Face Covering – Law of 2010 – 1192 (LOI n° 2010–1192)1414
bb) Religious Symbols in Schools
(1) Institutional Religious Symbols
(2) Religious Symbols Worn by Individuals
(a) Religious Symbols Worn by Teachers
(aa) Scope of Protection
(bb) Infringement
(cc) Justification
(aaa) The Principle of Neutrality
(bbb) The Negative Right of Pupils to Religious Freedom
(dd) The Right of a Teacher to Non-Discrimination
(b) Religious Symbols Worn by Pupils
(aa) Scope of Protection
(bb) Infringement
(cc) Justification
d) Relationship of Educational System and Religion in the Jurisprudence
aa) Decisions of the Conseil d’Etat
bb) The Determination of the Conseil d’Etat from 1989
cc) The Admissibility of Teachers to Religious Manifestation
dd) Decisions Following the 2004 Act
(1) The Kehrouaa et al. Decision
(2) The Case of Alma and Lila L’evy
e) Conclusion – France
aa) The State-Church Relation and Its Impact on the Educational System
bb) Laïcité as an Instrument to Enable Religious Freedom
cc) The Cursory Definition of Religion and Absent Specification in Law
dd) Religious Symbols Worn by a Teacher
ee) Religious Symbols Worn by Pupils
5. Conclusion
a) State-Church Model
b) The Prevailing Legal Order for Protection of Fundamental Rights
c) Organizational Structure of Education
d) The Cultural and Religious Interplay in Education
e) Nature and Form of Display of Religious Symbols
f) The Perception of Religion in Education
g) The Admissibility of Religious Symbols in the Education
h) Development Towards Secularized Nation
i) The Neutrality Concept and Its Impact on Manifestation of Religious Symbols in the Education
j) Neutrality and Its Impact on the Conception of Public Officials
IV The European Framework for Protection of Human Rights
1. Relevant Provisions of the ECHR
2. The Transposition of ECHR in Different Countries
a) Germany
b) England
c) France
3. ECtHR Case Laws Involving Religious Symbols in Education
a) Institutional Symbols/Lautsi v Italy
aa) Factual Background
bb) Leading Legal Aspects
(1) Endangerment of Proselytism or Indoctrination
(2) Negative Right of Religious Minorities
(3) Parental Right to Education of Their Children
(4) Resolution of the Grand Chamber
(a) The ‘Passiveness’ of a Symbol
(b) Meaning of the Symbol
(c) No Delimitation of the Principle of Secularism
(d) Secularism and Neutrality
(e) Indoctrination
(f) No Infringement of Minorities’ Right to Religious Freedom
(g) Margin of Appreciation
(h) Outweigh of Contrasting Interests
b) Individual Symbols
aa) Dahlab v Switzerland
(1) Factual Background
(2) Leading Legal Aspects
(a) Prescribed by Law
(b) Necessary in a Democratic Society
(c) Legitimate Aim – The Protection of Public Safety, Public Health, the Protection of Rights, and Liberties of Others
(d) Public Order and Public Safety
(e) The Rights and Freedoms of Others
(f) Gender Equality
(g) The Proportionality Test
(h) Margin of Appreciation
(i) Discrimination Based on Grounds of Religion or Gender Art. 14 ECHR
bb) Kurtulumus v Turkey
(1) Factual Background
(2) Leading Legal Aspects
(a) Inadmissible According to Art. 9 ECHR
(b) Inadmissible According to Art. 14 ECHR
c) Assessment of Case Laws
aa) The Nature of the Symbol
bb) Burden of Proof
cc) Establishment of Legitimate Aim for the Ban on Religious Symbols
dd) Presumption of Abstract Indoctrinating or Detrimental Effect
ee) The Neutrality of State
ff) Gender Equality
4. Compliance of National Laws and Jurisdiction with the ECtHR Jurisprudence
a) Germany
aa) Institutional Symbols
bb) Individual Symbols
(1) Legal Criteria
(a) Prescribed by Law
(b) Legitimate Aim
(c) Proportionality
(2) Compliance of Federal States’ Legislation with Art. 9 ECHR
(a) Bavaria – Art. 59 BayEUG
(aa) Prescribed by Law and Necessary in a Democratic Society
(bb) Legitimate Aim
(cc) Proportionality
(b) Berlin – Sec. 2 of the Act to Art. 29 BlnLV
(aa) Prescribed by Law and Necessary in a Democratic Society
(bb) Legitimate Aim
(cc) Proportionality
(c) North Rhine-Westphalia
(aa) Prescribed by Law and Necessary in a Democratic Society
(bb) Legitimate Aim
(cc) Proportionality
(d) Baden-Württemberg
(aa) Prescribed by Law and Necessary in a Democratic Society
(bb) Legitimate aim
(cc) Proportionality
(3) Compliance of the Legislation of Federal States with Art. 14 ECtHR
(a) Bavaria
(b) Berlin
(c) North Rhine-Westphalia
(aa) Discrimination Based on Religious Grounds
(bb) Discrimination Based on Gender Grounds
(d) Baden-Württemberg
(aa) Discrimination Based on Religious Grounds
(bb) Margin of Appreciation
(cc) Exception to Christian and Jewish Symbols Adhering to Western-Liberal Values
(dd) Voluntariness of the Teacher and Alternatives
(4) Discrimination Based on Grounds of Gender Equality
cc) Conclusion
(1) Margin of Appreciation
(2) The Age Group of Pupils as a Factor Determining a Proselytizing Effect
(3) Discrimination Based on Religious Grounds
(4) Discrimination Based on Political Opinion
(5) Discrimination Based on Gender Grounds
b) England
aa) Institutional Symbols
bb) Individual Symbols
(1) Compliance of British Law with Art. 9 ECHR
(a) Prescribed by Law and Necessary in a Democratic Society
(b) Legitimate Aim
(c) The Proportionality Test
(2) Compliance of British Law with Art. 14 ECHR
(a) Discrimination Based on Religious Grounds
(b) Discrimination Based on Gender Grounds
c) France
aa) Institutional Symbols
bb) Individual Symbols
(1) Compliance of the Law 2004–228 with Art. 9 ECHR
(a) Prescribed by Law
(b) Necessary in a Democratic Society and Pursuing a Legitimate Aim
(c) Proportionality
(2) Compliance of the Ban on Teachers Pursuant to Art. 9 ECHR
(a) Comprehensive General Ban
(b) The Equal Treatment Principle
(c) The Age of Pupils
(d) Conclusion
(3) Compatibility with Art. 14 ECHR
(a) Discrimination Based on Religious Grounds
(b) Discrimination Based on Gender Grounds
5. Conclusion
a) The Fundamental Right to Religious Freedom (Art. 9) Scope of Protection
aa) ECHR
(1) Pupils
(2) Parental Educative Right
bb) Germany
(1) Prescribed by Law
(2) Necessary in a Democratic Society
(3) The Proportionality Test
cc) England
dd) France
b) The Neutrality Concept and Its Impact on Manifestation of Religious Symbols in the Education
aa) ECHR
bb) Germany
cc) England
dd) France
c) Neutrality and Its Impact on the Conception of Public Officials
aa) Germany
bb) England
cc) France
d) Protection of Public Order
e) The Policy of Equal Treatment
aa) Germany
bb) England
cc) France
f) Gender Equality
g) Abstract Endangerment
aa) Germany
bb) England
cc) France
V Ending Conclusion
1. The Legal Framework and Constitutional Elements for Safeguarding of Human Rights
2. Decision-Making Policy Analogous to the Legal System Governed in the States
3. Constitutional Protection of the Right to Religious Freedom
4. Prescription of Legislative Bans
5. Equality and Non-discrimination Laws
6. State-Church Interplay as a Pivotal Factor for Development of Religious Rights
a) Keeping in Line Religious Pluralism
b) Pressure or Coercion within Religious Groups in Schools
c) Fortifying Arguments of Public Safety or Public Order
d) Character of Symbols – Objective or Subjective Plausibility Test
e) Jurisprudential Approach
7. The European Mechanism for Safeguarding Fundamental Human Rights (ECHR)
a) Jurisprudence in Case Laws
b) Manifestation of Symbols by Individuals
c) Manifestation of Symbols in Institutions
d) Bans on Religious Symbols as Grounds for Equality and Non-discrimination Claims
e) Inferring Guidelines
aa) Religious Neutrality of the State
bb) Alternative Mode of Dress
cc) Concrete or Abstract Endangerment
dd) Margin of Appreciation
8. Development of Thesis
a) Overturn of the Balancing of Rights
b) Absolute Accommodation of All Religions and Beliefs Is Not Practical
c) Factual Situation Varies According to Type of Educational Institution
d) Increased Potential of Conflicts
e) Undue Coercion or Pressure
f) Delegation of Powers to the Administration Is Not Feasible
g) Fostering Religious Pluralism or Advancing Religious Neutrality in Public Schooling
h) An Extensive Obligation to Religious Neutrality on Public Servants
i) Application of the Proportionality Test
j) Individual v Institutional Displayed Symbols
Literature List

List of Abbreviations

I Introduction

The period following the Second World War was characterized by decline of religious influence in European public life. Nonetheless, during the mid-1990s political and legal discussions raised and caught public attention with respect to the role of religion in society; the position of the state in ensuring endorsement of religion and religious influence in its public institutions has become relevant again. Whereas debates during the 1960s and 1970s concentrated mainly on the power and influence of the Christian churches on the states and their population against the background of growing cultural diversity, large immigration influx from predominantly Islamic countries, increasing tendency towards secularization of the states, and disentanglement of religion from the public sphere, the change in the legal discourse has become noticeable towards the end of the twentieth century. This can be attributed to the fact that Europe had to challenge abruptly with its transformation from a homogenous, Christian population to a multi-cultural, multi-pluralistic society that had to accommodate to changing social-religious needs of foreign, alienated immigration that did not fit or could be settled with the spirit of the so called ‘Christian-Western tradition and culture’, i.e., ‘Geist der christlich-abendländischen Kultur’, as was already imprinted in 1949 with the famous pronouncement of Konrad Adenauer, the then presiding Chancellor of Germany. The change in the legal discourse marked also the outset of a period that threatened to tumble down state-religion interplay in the European countries that had to accommodate to the religious needs of its minorities, incurred by its transformation to a religious-pluralistic society. In addition, the contention raised in social and even legal literature is that a pivotal factor for the change in the legal discourse is the lack of willingness among Muslim immigrants to integrate or assimilate, and their expectation that their religious needs and practices should be accommodated by the hosting countries. The reason why the fierce debates engaged Europe, especially in regard to manifestation of symbols like the Islamic headscarf in public education, is strongly interlinked with the perception of society with respect to its public schools system. State schools are viewed to be institutes that convey its future citizens with moral and values as they will eventually form their societies. This task is to be achieved through fostering and preservation of the Christian-Western tradition that seem to conform with the ideal presiding among the majority of the European nations. The fear of the European countries was mainly of losing their national identities and was reflected in particular in France due to the ←33 | 34→special significance it imparts to the notion of nationalism and its entrenched Jacobin notion of Republicanism. Nonetheless, the fear of loss of national identity, though not starkly observed in England and Germany, remained relevant even if featured in another form. In Germany, the need to secure allegiance to the obligation of the state to religious neutrality, as enshrined in its constitution (Grundgesetz), and in England preserving liberal neutrality, the acceptance of cultural diversity and non-discrimination in the form of equality offered to all religions in its society. The tense controversy had been intensified due to the refusal of immigrants to acknowledge that they had to accustom themselves to a different society and recognize as well as respect diverse cultural attitudes prevalent in the Western democratic European states; this refusal contributed only to the increase of the immigrants’ social marginalization and segregation. The role of Islam in Europe has become in fact the focal point in legal discussions. The intensity of the discourse has gained even further traction since the large immigration wave hit Europe and, in particular, Germany during autumn 2015. Public discussions and even election campaigns emphasized vehemently the negative influence to be expected by the role of Islam in European societies. Besides the Financial Crisis that hit Europe in 2008 and continuous large immigration waves, the impact on European societies has become of tremendous relevance for the EU and its future shape.

The question of integration and assimilation into European societies and the ability of immigrants in their majority of Muslim countries to adapt to the legal systems had been often doubted, and was raised even as a trigger for possible future conflicts in the general public debates. This recent socio-historical development can be compared to the events during the 1950s and 1960s where large influx of Muslim immigrants rushed into the European continent, and their difficulty to integrate, mirrored in the social structure of the compared states in this analysis, has been vivid up to date. For instance, the Turkish immigrants in Germany, the Pakistanis in England and in France, and the refusal of its North-African immigrants to assimilate into French society had been reflected in its extremist form. In France, this was explained as a behaviour developed by North-African immigrants based on their fear of losing their identity and was compared to a colonial situation where ‘traditional’ practices were invented in order to present their resistance against colonization.

Given these socio-political and historical aspects designated above, this work focuses on the legal discourse and position taken in the European countries France, England, and Germany with regard to the influence of religion in the public sphere in general, and the manifestation of religious insignias in state schools in particular. Due to their different history, constitutional traditions, ←34 | 35→cultural diversities, the socio-political structure, and the impact of religion on the state system, each of the countries developed its own approaches to face the respective challenges encountered with legal controversies surrounding the admissibility of religious insignias in public education.

Relevant aspects in this regard are the role of teachers in the school system, the state and its function as an institute responsible for providing infrastructure for the religious needs of its citizens, the position of the state towards religion, the obligation of the state to obey by the neutrality precept especially in the context of public education (though in recent years tendency has shown extension towards obligation to neutrality in the public sphere for instance: the judiciary in Germany, employment in corporations as in France and Belgium and a general ban in public spaces as in Austria), and finally the protection the states offers to fundamental human rights taken into consideration their obligations under EU law. The neutrality principle has been especially emphasized in the jurisprudence when outweighing the generally accepted principle of state’s neutrality against the individual right to religious freedom. In general, the principle of religious neutrality of the state prevails in the legal systems of Germany and France and even in jurisprudence of the European Court of Human Rights if special requirements or tests are fulfilled. The principle has gained importance and was further developed in modern constitutional history of the states. The main reason for its lack of predominance in the past was absence of relevance at the time when constitutional principles had evolved in Europe (e.g., piety of the majority of the population to the Christian tradition and homogenous structure of society which was predominantly Christian in nature).

The presence of religious symbols in the premises of public institutions on the one hand, and the admissibility of religious symbols that are being individually worn or presented in state institutions on the other hand, constitute suitable examples to describe the role of religion in France, England, and Germany. Several aspects are to be taken into account as far as permissibility of religious symbols in the education system is concerned.

The administrative structure and legislative competencies with respect to education range in the three states from regionally divisiveness, as in England and Germany to strictly centralized, as in France. These different state systems lead to diverging results with regard to the interplay of colliding rights, interests, and competencies.

The conceptual state-church model is a significant factor in the perception of religious interplay with state affairs, featuring how an excessive or distinct church entanglement will predominate national controversies over the right of religious minorities to manifestation of religious symbols in the state school ←35 | 36→system. While England is known for its liberal-accommodative policy towards religious minorities minted by its multiculturalist approach, France is characterized by its stark Jacobin republican tradition enshrined by the unitary idea, loyalty to the republic, and strong obligation of its citizens to assimilate and integrate. The German approach is distinguishable in comparison to these two extreme approaches, as it adopted a mid-path which is adaptable to religion and religious needs of its society, while preserving the secular nature of the state through allegiance and observance of its constitution and prominent precept prescribing the state’s obligation to religious neutrality. In England, the societal role religion plays in the public sphere and its effect on the right of public officials to manifest their religion or belief will, to a large extent, reflect the English policy endorsing multicultural diversity and encouragement of social cohesion and tolerance among its religious minorities.

The circumstances establishing the reform of introduction of religion into the public school system can be explained relatively with respect to Germany and England due to their relative moderate-accommodative approach in the context of state-church relations. However, the struggle, many controversies, and the attention surrounding the issue of practising religious right in the educational sphere have gained significance in the last years in particular due to the inseparable task of schools perceived by society as a measure to transmit the values and traditions of religion to its future generation. This had been underscored as a significant factor playing a major role in all three legal systems in this analysis.

The complexity of endorsing religious insignias in state schools can be observed also with respect to religious minorities such as Muslims and other minority faiths who wish to ensure that their religious customs and traditions will be accorded respect in state schools. Nonetheless, racial minorities, and in particular Muslims, encounter difficulties when they wish to practise their religion. This was proved to be the case in the United Kingdom especially in the field of education.¹ However, the tendency in the recent years shows an expansion of the obligation to neutrality to other fields in the public sphere, as for instance: the judiciary in Germany, employment issues relating to dress code in public corporations as in France and Belgium, and even a general ban to appear with a full-face veil in public spaces as adopted in France, Belgium and Austria.²

←36 | 37→

The arguments against the presence or absence of institutional symbols in public schools is basically being discussed in three dimensions: the educative task of the state, the negative right of religious freedom of the pupils, and a potential equality or non-discrimination aspect regarding pupils who are members of a religious minority.

The discussion around individual symbols worn by teachers encompasses the positive right of religious freedom of the teacher, the potential influence on pupils which collides with their negative right of religious freedom, and the potential violation of the neutrality of the state if a state representative displays a symbol of a particular belief. In the context of the Islamic headscarf, the discussion even refers to a potential contradiction between the problematic role of women in Islam, namely of oppression and subordination, and the Western liberal understanding of gender equality, i.e., the equation between men and women. In contrast, the display of the Cross or Crucifix as an institutional symbol demonstrates the adherence of the European states to the Christian culture and tradition (Abendland Kultur). In that sense, the Crucifix was not perceived to contravene with Western values.

Due to the dynamics that developed around individual religious symbols, legislators and school administrators – at least in France and Germany – enacted bans on teachers to display religious symbols in the case that they are worn during their public function as civil servants. Obviously, these bans aimed at the headscarf, niqab, and burqa, even though the phrasing of the acts did not mention those garments explicitly. These legislative acts have been challenged before national courts as well before the European Court of Human Rights. Courts developed criteria and prerequisites that these bans need to comply with in order to be regarded as constitutional and lawful. These prerequisites will be elaborated in detail throughout this work.

In the first part of the examination, the legal framework in the three different states will be displayed and rated against the background of the history of the individual states. The second chapter will engage in detail in the respective school system of each of the states, and will scrutinize the application of regulations that impose a ban of religious symbols as prescribed in practice by legislators or school administrators. The assessment of the courts will be based on an outweigh between constitutional principles and fundamental rights of individuals. In addition, the sum of possible justifications and interests which are suitable ←37 | 38→and adequate for delimitation will reflect the outweigh of the positions in favour of a compromise that provides a workable basis for living together in a pluralistic society. The third part of this work will review the influence of European jurisdiction and case laws on domestic laws of the compared states. Due to the diverging legislative layout and constitutional structures set in those states, the legal position of fundamental human rights provisions, prescribed in the ECHR and decisions of the European Court of Human Rights, have different impact and influence on the respective legal systems.

The relative dubious jurisprudence of the ECtHR in the context of individuals’ right to manifestation of religious insignias in a compulsory state school system raises doubts as to the enforceability of a uniform approach applicable to all European states. This is even fortified by granting a wide margin of appreciation to the MS in consideration of their national interests, enabling a wide gap for encroachment upon minorities’ rights to religious freedom.

This analysis will explore how the principle of neutrality and impartiality had been translated by the ECtHR into the legal discourse of cases involving religious manifestation in education with respect to both institutionally displayed and individually worn symbols. It was remarkable that in both prominent case laws brought before the ECtHR (i.e., The Lautsi concerned the display of a Crucifix in Italian state school classrooms, and Dahlab the wearing of Islamic headscarf by an elementary school teacher in Switzerland) the neutrality principle had been invoked; however, it has been applied differently for each case and, as a result, yielded different outcomes. In the case of a state display of the Crucifix, the ECtHR found no violation of the neutrality principle towards the minority pupils, who objected its presence claiming for their right to (secular) education and for an education corresponding with the religious conviction of their parents as guaranteed in Art. 2 of the First protocol ECHR. Whereas in the case of Dahlab, the neutrality principle had been given prevalence against the teacher’s right to profess her religion by her religious attire. The emphasis of the ECtHR had been placed on the duty of the state to religious impartiality, especially in public education, which justified the precedence given for protection of the negative religious freedom of minor pupils. It was explained that pupils by virtue of their tender age, their lack of self-determination and inability to escape negative influence deserve special protection against a state’s power to impose an influence of a particular faith or any other form of proselytising effect practiced by it. In addition, the fact that pupils were constantly confronted with looking at a teacher with a headscarf and were unable to extract themselves from the classroom can amount to coercion which is heavily criticized, especially due to the vulnerability of young children.

←38 | 39→

In Germany, the alignment of legislation in education among the different federal states in order to achieve cohesion and uniformity as far as admissibility of religious insignias into the state school system is concerned, is very difficult to achieve. This is not only by virtue of the different customs and traditions that are unique to each region, but also due to sets of law and rules and constitutional framework applicable to each of the states. The recent pronouncement from the German Federal Constitutional Court (Bundesverfassungsgericht) declared the general, all-inclusive headscarf ban on teachers as deployed in NRW state schools unconstitutional and void. Nevertheless, less than one year succeeding the outlawing of the ban on headscarves in NRW by the Federal Constitutional Court, a different ruling with respect to the same agenda has been delivered by the Federal Employment Court of Berlin (Bundesarbeitsgericht). The case is yet to be fully published; however, in this case it was announced that a general headscarf ban in the state of Berlin conforms to the constitution and the equality precept prescribed in it, as the prohibition applies to all religious symbols without segregation.

Germany has developed a moderate system of state-church separation. An absolute exclusion of any institutional link between church and state is rejected in its constitutional law; in fact, it demonstrates a strong protection of fundamental human rights by virtue of its constitution. The obligation to conform to the European Convention of Human Rights only fortifies the existing legislative fundament. The impact that the state-church model adopted in England has on the protection of minority rights to religious freedom demonstrates the efforts made by domestic courts to comply with the jurisdiction delivered by the ECtHR. In principle, the tendency accepts a liberal approach to accommodation of religious needs of its minorities.

France, as the extreme model of state-church separation, will face difficulties to align its recent enactments, especially the bans imposed by the Acts of 2004 and 2011, with the standards established on the European level and France’s obligation to their precedence upon domestic legislation. Special consideration will be granted to France’s obligation to its sacrosanct principle of neutrality in the public service. In addition, the neutrality principle as a legitimate aim for curtailment of teachers’ and pupils’ right to religious freedom will be assessed. The tendency of France indicates a stricter perception of laicism and further secularization in its public education.

It is worth to note that the tendency as demonstrated recently in judgments delivered in Germany indicates a shift in the legal discussion which draws back from the educational system to the permissibility of religious symbols when manifested within the justice system (i.e., lawyers, judges, trainee-lawyers, ←39 | 40→student-apprentices). However, the permissibility to display an ostentatious religious symbol such as the headscarf remains controversial even when its legitimacy is challenged in the justice system. The different approaches within the German juridical instances reflect the inconsistency and lack of uniformity also in this legal debate. In particular, the lack of legal basis for the prohibition of religiously motivated symbols or garments with respect to legal apprentices or trainees had been underscored by the courts; as also the observance of the duty to religious neutrality for those who work for the justice system had been subject for legal challenges. Thus, on the one hand, the Bavarian High Administrative Court decided that the ban on jurists or legal practitioners to appear with a headscarf in Bavarian courtrooms is inadmissible.³ This was reasoned based on insufficient grounds for the ban in legal regulations. On the other hand, the German High Administrative Court in the state of Hessen decided to rule against a trainee-lawyer who appeared to court with a headscarf.⁴ The main ground submitted by the Court underscored the significance of state-representatives to appear neutral and unbiased so that citizens would not feel interfered or influenced by their view and associate the conduct or outer appearance of the state-representative in any way with those of the state. The Court emphasized that any doubt raised by the citizens as to the neutral position of the trainee who appears as a state authority and acts on behalf of the state, in particular in the justice system where the safeguarding of state neutrality becomes so meaningful, would undermine the trust in the justice system to act unprejudiced and impartial. Therefore, even an abstract endangerment to the fundament of the neutrality principle incurred on part of the citizens by virtue of their confrontation with state-representatives manifesting a religious symbol and that raises doubt in regard to the impartiality of the judiciary will be sufficient for imposing a ban on religious symbols. A citizen who may feel offended by the view of a headscarf worn by a trainee within her practice will justify the ban on religiously motivated symbols, especially when performing functions that enable citizens to perceive her as acting on behalf of the state or its justice system.

In a similar manner, inconsistency exists also within the European jurisdiction as to the permissibility of conspicuous religious symbols in the public sector. While the ECJ reviews the admissibility of the headscarf in a work place based on sufficient internal standards inside an organization and declaring therefore the principle of neutrality as a legitimate aim,⁵ the ECtHR remains rather reserved ←40 | 41→and enables MS a wide margin of appreciation with respect to bans imposed on religiously orientated symbols or garments when manifested outwardly in the public sector.⁶

Nonetheless, several distinguishable grounds should be taken into account when trying to segregate the justice system and the field of education. First, no-subordinate relationship – the teacher within her educative competency is perceived by her pupils as an authoritative figure; in that sense, her outer appearance and the constant face-to-face encounter with the pupils cannot exclude any kind of impact on the pupils (as already approved in the jurisprudence). In contrast, trainee-lawyers or apprentices do not perform in a capacity of subordinate relations. Since lawyers, trainees, or law apprentices do not carry any authoritative function and due to a short temporary encounter with citizens, it is even less likely that the latter would be affected by their view. Second, willingness and voluntariness – civil servants are bound by a special relationship of subordination to the public authorities which they freely accepted. The willingness of teachers to accept this special relationship when choosing their profession justifies some restriction on the enjoyment of their public freedoms to a limited extent. In contrast to teachers, lawyers, trainee-lawyers or student apprentices (excluding judges) do not act within their function as state- representatives and are not yet privileged with public benefits as is the case with respect to civil servants. Therefore, as long as trainee-lawyers or apprentices are not acting as civil servants it is only reasonable not to incur on them a special duty which would have been relevant only if they were occupied as state representatives. Furthermore, by virtue of their performance as individuals they do not enjoy public benefits granted to civil servants; as a result, a restriction on their public freedoms, in particular of the fundamental right to religious manifestation would be excessive and would not stand the proportionality test. Third, the reason for prohibiting religious symbols in the state school system was justified often mainly on the ground of ensuring religious neutrality in education which is regarded as an essential aim for preserving the impartiality of the state and of public interests (e.g., public safety, public order). The aim of ensuring religious neutrality cannot be applied in the justice system in the same manner as in the education. Unlike pupils who may be easily influenced by the view ←41 | 42→of ostentatious religious symbols due to their constant exposure to their school teacher and who may be subject to some indoctrinating effect as a result, this cannot be the case with respect to trainee-lawyers or student apprentices who mainly encounter citizens that already established their minds and self-determination. It remains doubtful, however, whether these criteria would be equally applicable to judges who incur other duties than practitioners or trainee-lawyers by virtue of their civil servant status. In addition, the interpretation of the notion of religious neutrality is argued to be restrictive in form in a very similar manner to that argued in the public education sector. It is reasoned by proponents of the principle of religious neutrality that in particular in courts – which symbolize the hall of justice – the necessity of public servants as state representatives to appear unbiased gains even further significance.

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1 Cumper in Harris/Joseph (eds.), The International Covenant on Civil and Political Rights and UK Law, 1995, p. 380.

Details

Pages: 666
Year: 2019
ISBN (PDF): 9783631782910
ISBN (ePUB): 9783631782927
ISBN (MOBI): 9783631782934
ISBN (Softcover): 9783631769607
DOI: 10.3726/b15344
Language: English
Publication date: 2019 (March)
Keywords: Fundamental human rights Constitutional law Equality Crucifix Religious neutrality French Laicité European Convention Anti-discrimination law Ostentatious symbols Human Rights Headscarf
Published: Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2019. 666 pp.

Biographical notes

Niran Hen (Author)

Niran Hen graduated in the faculty of law at Bar – Ilan – University, Israel. She then practiced as a litigator and worked as a lawyer in law offices in Tel-Aviv. She post-graduated her doctoral degree in the law faculty of the Johann Wolfgang Goethe University, Frankfurt am Main.

Legitimization of Religious Symbols in the Education - Development towards Pluralism or Secularism

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