Cablegate: Headscarf Laws Withstand Challenge in Germany

DE RUEHFT #5291/01 3530854
R 190854Z DEC 07





E.O. 12958: N/A
SUBJECT: Headscarf Laws Withstand Challenge in Germany

Sensitive but unclassified; not for internet distribution.

1. Summary: The Hesse State Constitutional Court upheld a state law
last week that prohibits civil servants from wearing religious
symbols and attire. One of eight similar laws in effect in
Germany's federal states, the law as applied allows state
institutions to prevent civil servants, including public school
teachers, from wearing Muslim religious attire such as headscarves
while making exceptions for Christian symbols. The verdict can only
be challenged now by individuals in local courts on the basis of
whether or not certain forms of attire constitute religious or
political symbols. End Summary.

Hesse's Head Scarf Ban

2. The State of Hesse passed a law in October 2004 prohibiting
civil servants, including public school teachers, from wearing
symbols or attire that express a religious or political affiliation.
Hesse State Attorney Ute Sacksofsky challenged the law in August
2007 arguing that it discriminated against head-scarf wearers by
violating their religious freedom, their right to hold public
office, and their right to equal treatment under the law. On
December 11, the court ruled against the challenge, arguing that the
law does not mention the head scarf in particular and applies to all
religious symbols and attire which suggest that civil servants are
not entirely "neutral" in the eyes of the law (meaning ones that
show a religious or political affiliation).

3. According to the law, the ultimate decision on which religious
symbols and attire are permitted is left up to the administrator of
each institution. Moreover, these decisions have to take into
consideration "the Christian and Western tradition of Hesse," which
creates a large loophole for certain symbols. Hesse Commissioner
for Foreigners, Hans-Achim Michna, told Pol Specialist that in
practice both Jewish and Christian symbols would be allowed.
Sacksofsky challenged the loophole, saying that the law did not
treat religions equally, and applied a privileged status to
Christianity. Going forward, the law can only be challenged on a
case-by-case basis by individuals in local courts.

The Head Scarf and the Election

4. At the time of its passage in 2004, the law was supported by an
absolute majority of the Christian Democratic Union (CDU) in the
state parliament over strong objections from the Free Democratic
Party (FDP), the Social Democratic Party (SPD) and the Greens. The
CDU has characterized the court's decision upholding the law as a
political victory. Notably, the six judges originally nominated by
the CDU and the FDP formed the majority who rejected Sacksofsky's
challenge, while the five nominated by the SPD and the Greens
supported it.

5. In a debate in the state parliament after the court's ruling,
CDU majority leader Christean Wagner called the decision a great
success for the party, which faces re-election on January 27, 2008,
and hopes to form a coalition with the FDP. Wagner asserted that
Germany was a country with a Christian heritage, and that therefore
these symbols convey values independent of faith. In an interview
with Focus magazine December 16, Hesse Minister President Roland
Koch (CDU) called for the banning of full-body coverings (so-called
burkhas) worn by Muslim schoolchildren, although few, if any, Muslim
schoolchildren wear such attire. Nancy Faeser (SPD) criticized the
court's decision, saying that it opened up the possibility of
numerous legal challenges in local courts and left individuals at
the mercy of their supervisors with no legal protection.

Head Scarf Bans in Other States

6. Eight of the sixteen federal states have passed head scarf bans
for civil servants since 2004: Hesse, Baden-Wuerttemberg, Lower
Saxony, Saarland, Bavaria, Berlin, Bremen and North-Rhine Westphalia
(NRW). State parliaments in Brandenburg and Rheinland-Pfalz are
currently considering such legislation. The six states with no bans
or proposed legislation (Schleswig-Holstein, Hamburg,
Mecklenburg-Vorpommern, Saxony, Sachsen-Anhalt and Thuringia) are
areas where fewer Muslims live, with the notable exception of

7. In NRW, the law has faced repeated challenges, but has been
confirmed on four separate occasions in various courts. Most
recently, in an August 14, 2007 decision, the Duesseldorf
Administrative Court determined that the headscarf was a
"demonstrative" religious symbol, violating NRW school law which
declares such "religious manifestations" at state-run schools
illegal. The complainant announced she will appeal the court
decision, indicating that if her plea were to be rejected also by
the Higher Administrative Court in Muenster and the Federal
Administrative Court in Leipzig, she would file a constitutional

FRANKFURT 00005291 002 OF 002

complaint with the Federal Constitutional Court in Karlsruhe.

8. Just a few weeks before the August decision, on June 29, 2007, a
Duesseldorf court ruled that teachers in NRW could not wear any head
covering or hat that acts as a surrogate for the headscarf. A
teacher who had previously sued to be able to wear her headscarf was
trying to get around a ruling that forbids the wearing of
headscarves in schools by wearing a type of beret, which covered her
ears and hair. The court disallowed this.

9. Comment: The ruling in Hesse continues the questionable
precedent that head scarf laws set in state constitutional law by
seemingly holding Christian and Muslim symbols and traditions to
different standards and strengthening the impression of
discrimination against Islam in Germany. Civil servants in Hesse
are left in an ambiguous position, heavily dependent on the
willingness of their superiors to allow them to wear their
traditional symbols and dress. The question is highly politicized
in the state and will undoubtedly be exploited by both sides in next
month's election campaign. END COMMENT.

10. This message was coordinated with Embassy Berlin and ConGen

© Scoop Media

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