Das Kopftuch im Streit zwischen Parlamenten und Gerichten: Ein Drama in drei Akten

Christian Henkes and Sascha Kneip

Discussion Papers, Research Unit: Democracy and Democratization from WZB Berlin Social Science Center

Abstract: The ruling by the German Constitutional Court in the famous “Ludin” headscarf case permits the federal states (Bundesländer) to rearrange the treatment of religious symbols in public space (i.e. schools) and to adjust the complex relationship between state and religion in Germany. Based on a qualitative content analysis, the study at hand examines the arguments presented by different political and legal actors and displays the results of the legislative and judicial processes regarding the headscarf issue in Germany. Three major results are worthwhile to be highlighted: First of all, parties make a difference. Whether the headscarf for schoolteachers is forbidden or not depends on which party is in government. Because of the huge differences in the parties’ programmatic views regarding religion policies, it makes a difference whether the Christian (CDU) or the Social Democrats (SPD) are in power. Secondly, an unequal treatment of religions is non-enforceable under the settings of a liberal democracy. German courts prevented the CDU’s attempts to implement such unequal treatment. As an unintended consequence, the state-religion-paradigm in Germany has shifted from “open neutrality” to a more laicist model – at least in those federal states where an unequal treatment was attempted. Thirdly, this dealing with the headscarf issue by some political actors reveals that, in modern (heterogeneous) democratic societies, an efficient system of rule of law and judicial review is essential if citizens (and their religions) shall be truly treated as equals.

Date: 2009
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