Unveiling Judicial Neutrality: Do Headscarves belong in German Courtrooms?

ohrh.law.ox.ac.uk:  In 2015, the FCC declared a general headscarf ban for teachers in public schools unconstitutional and held that the mere wearing of a headscarf on behalf of a State official (a teacher in that case) does not jeopardise the neutrality of the state. Yet, the FCC, justifying its recent rejection of interim relief, emphasises the requirement of “absolute neutrality” in the realm of judicial activity. The decision not to grant interim legal protection to a headscarf wearing legal trainee raises questions regarding the underlying, possibly divergent notions and demands of neutrality that apply in different public facilities.

The understanding of state neutrality in German constitutional law is different to the French concept of laïcité, requiring a strict separation of state and religion. The German Basic Law (BL) endorses an open, comprehensive and pluralistic understanding of neutrality, encouraging freedom of faith equally for all beliefs. Art. 33(3) BLexplicitly states that the “eligibility for public office […] shall [not] be dependent upon religious affiliation”. Are there, then, particular requirements of neutrality, unique to the judicial context which may justify a headscarf ban in court? A demand of “absolute neutrality” towards the parties to the proceedings may result from the immediate nature of sovereign power exercised in the courtroom. Further, there are special regulations of neutrality for judges: Art. 97 BL provides for judicial independence and particular dress codes exist that require the wearing of a robe, symbolizing the commitment to fairness and neutrality.

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