Justifiable Inequality? Five Attempts to Defend the Prohibition of the Veil

However, not all veiled Muslims profess Islamism by covering their hair. Not all veiled Muslims thereby aim at the same restrictive regulations for Germany as exist today in Saudi Arabia, Iran, or parts of Pakistan. A study by the Konrad-Ad- enauer-Stiftung, though it cannot claim to be representative, found clear indica­tions that Muslim women in Germany cover their hair for a variety of reasons?⁸ Despite all the inherent difficulties of assessing true motives, there is clear evi­dence that Islamist ambitions is only one of them — and probably not even the main one. Also, a significant number of women and girls credibly claim that their decision to don the veil was freely taken and that no coercion was in­volved. Against this finding, one might argue that families are likely to have more subtle methods of convincing women to conform to reactionary role models than the use of brute force. The very minimum however, that opponents of the veil and practitioners of ideological critiques more generally should take upon them­selves is the burden of proof: a false consciousness is surely not the norm among Muslim women.

Thus, the general suspicion of Islamist motivations behind veiling is not jus­tified. It may well be justified in individual cases, but these would have to be in­vestigated and proven case by case. Such a context-specific individual case ex­amination was not considered necessary, however, in the Ludin case in Stuttgart. The new Federal State School Law (§ 38 II) declares that an outward behavioral appearance is not permissible if it could generate the impression, amongst pupils or parents, that a teacher is acting against human dignity, against the equality of all as stated in article 3 of the Grundgesetz, or against the free and democratic order. It is noteworthy here that the law does not specify any reasons that might count in favour of such an impression. Could it not, in individual cases, be wholly unfounded? And could such a — wrong — impres­sion that the teacher was acting against the principles of human dignity even be used against her?

The state should not add authority to unfounded impressions by basing legal action on them. In the face of error, critical assessment is to be promoted. It would do pupils and some parents much good to realise that not every head covered by a veil contains dubious thoughts and evil intentions. The phrasing, however, of the new school law of Baden-Wurttemberg permits the interpretation that mere prejudice on the part of parents and pupils is sufficient to infringe upon the basic freedoms of teachers or even to prevent them from practicing their profession.

A Political Symbol?

The same basic response can be given for the argument that the Islamic veil is not a solely religious symbol, but that it expresses a certain political ethos as well. Who would deny that teachers in public schools have to accept infringe­ments to their basic rights to freedom, in order to avoid politically influencing pupils? Now, some opponents of the veil argue that in the case of Islam it is not possible to separate religious and political expressions. After all, they claim, since its inception Islam has not allowed room for mundane forces out­side religion.

Here, I would like to remain open as to what the disciplines of History and Islamic Studies have to say concerning these debates.^[326] Does the argument in­volve the claim that veiling is an expression of the desire for theocracy or of a legal system that is constructed along the lines of the Sharia? In either case, the same response as stated above, about the suspicion of fundamentalism, is applicable: this would have to be proven in individual cases. As a general sus­picion, it is surely untenable. In individual cases, the political associations of a woman with her veil are likely to be highly variable. There exist veiled women of a social democratic orientation as well as politically conservative ones. A unified political message does not automatically emit from the veil. So, how and to what could it be seducing pupils politically?

Pre-Political Bases

A fourth argument is based on the alleged ideological foundations of liberal de­mocracy. It states that both Christianity and Judaism have made significant con­tributions to this field, but Islam has not.^{[327] [328] On the contrary, according to this ar­gument, Islam contains many problematic clauses that are, at best, not suited to the foundation of a secular state. This applies, for example, to the already stated difficulty of separating worldly and religious powers. And it is a principle of self­preservation for a liberal democracy that it be concerned with its political pre­conditions. One of the few places it can still effectively do so is in the field of public school regulations.}

This argument contains two parts: a (self-)praise of Christianity — and for the purposes of political correctness, also of Judaism — and a judgment about the (im)possibility of uniting Islam and the secular state. Regarding the self­praise first, this undoubtedly deserves an extensive response that I cannot give here. I will limit myself to only a few comments.

It is remarkable how nonchalantly most of the proponents of the theory that liberal democracy would not have been possible without Christian roots ignore the history of this religious movement(s)Λ Practically all human rights and dem­ocratic achievements had to be painstakingly fought for in old Europe in a battle with the representatives of official Christianity. The Catholic Church in particular took its time in recognizing human rights; it did so no earlier than the 1960s. And even today, its understanding of human rights contains certain peculiarities that are inconsistent with the principle of equality in a democratic constitutional state. If we are to assume that Catholic bishops take their own rhetoric seriously, then women who perform abortions are still cast as murderers, and homosexuals are accused of having unnatural inclinations that necessitate legal penalisation.

More importantly, all attempts to find the roots of the constitutional state in Christianity are explanations ex post facto of the following type: a normative progress such as the separation of church and state, or the equality of human rights has first been achieved and gained broad recognition against the resist­ance of Christian authorities; as a response, the progress in question is traced back to elements of Christian doctrine even though they were originally under­stood in a completely different manner. For example, the idea of being created in God’s image might motivate Christians to acknowledge human rights today; but the idea in its original meaning was clearly not a predecessor of rights-oriented reasoning.^{[329] [330]}

Rather, the early idea of being created in God’s image was marked by a role­specific interpretation of equal respect for all humans. According to the Pauline interpretation, equal respect was limited to a common brotherhood in christo. Apart from one’s role within the religious community, individuals had to accept radical inequalities even including conditions of bondage, all with the explicit approval of the church. On the Protestant side, Martin Luther later established a clear distinction between the freedom of a Christian and the equality of the priesthood of all believers (Priestertum aller Glaubigen) on the one hand and questions of political-legal emancipation on the other?³ Also, in the tradition- al-Christian interpretation, the individual was not understood as a subject of rights that may first and foremost ground the duties of others. Rather, what he or she could normatively expect was the function of an objective order of things, governed by natural law.

In both regards, the human rights-based interpretation of human dignity has changed the picture completely. Humans no longer count as equal in only one respect, even if it is a religiously significant one. As equals they have valid claims that have consequences for all the roles they might play in life. Nobody today needs to endure torment or bondage in their business life, in scientific en­deavors, or even in professional sports. And this is because now all are morally owed respect and regard. Every human is seen as a self-validating source of claims.^{[331] [332] Neither one of these achievements was put into the cradle of Christian­ity, notwithstanding the idea of being created in God’s image. Both together they formed the precondition for Christianity to give this thought a new interpreta­tion, in which it may attempt, today, to anchor its own very specific interpreta­tion of human rights. But it would be anachronistic to take it as the root of any valid interpretation of human rights.}

As for Islam, it is claimed it cannot supply an independent ideological grounding for a secular, democratic constitutional state; or even further: it is claimed that Islam is conceptually opposed to such a state from the outset. One part of the argument appears much less suggestive if my above response is sound: Christianity did not make any indispensable contribution to the found­ing of the democratic constitutional state either. What it de facto did was to bring its doctrine into line after the fact, and this rather incompletely, as the example of Catholic attitudes towards women who abort and homosexuals illustrates.

This means that today a strict Catholic must perform the trick of considering women who perform abortions murderers, but without denying them the respect they are due as fellow citizens because of it. He must pay taxes to a state in which well-known homosexuals rank among the highest representatives. And he has to refrain from responding with violence to laws that give people free­doms which might lead them into eternal damnation. I do not wish to claim that these are easy tasks. But if we believe Catholics are able to perform them, then why not Muslims also? Like all other citizens, they too must distinguish be­tween ambitions they consider suitable, taken from their comprehensive doc­trines, and claims for which they may gain support, through public reasoning, by citizens with different ideological standpoints.2⁵ Only commonly shareable claims are permitted to co-determine the basic order of the political community.

What alternatives are there to trying to get Muslims to understand their citi­zen roles as equals among equals? One could hope for a mere modus vivendi: people with irreconcilable ideological standpoints agree on guidelines that are advantageous for everyone, calculated in an ego- or ethnocentric fashion. These rules would be justified for each person and each group, but not for all together, not out of a commonly shared ground.^[333] The problem with this solution is that it does not extend beyond a virtual state of war. Whenever one group be­lieves the power dynamics allows for for an improvement of their positionality, they will be rationally motivated to negate any potential common ground with the other group. It is no wonder then that conservatives who are pursuing no more than a modus vivendi with Muslims look at birth statistics with great con­cern.

A second and a third solution is only mentioned here for the sake of com­pleteness. To explicate them is tantamount to acknowledge their untenability. First, it is conceivable that all followers of the Muslim faith might emigrate away from Western societies. Second, it is conceivable that all Muslims living in the West might give up their faith. End of the thought experiment.

So, we stand confronted with the fact that Muslims are increasingly becom­ing citizens of Western democracies with no end in sight. If we do not wish to drive them into a condition of virtual war, we must offer them possibilities on how to perceive themselves as believers and as citizens simultaneously. I see no valid alternative to the attempt to win over as many as possible to the project of liberal democracy. What sense could it make to assume a priori, that this can­not be a project to which they can subscribe?

There is no doubt that the human rights battles fought by women such as Ayaan Hirsi Ali or Necla Kelek are admirable and carried out under great risk to their personal safety. However, they are doing a disservice to the democracy they seek to strengthen when they suggest that all Muslims must, consistent with their faith, perceive of themselves today in basically the same way as the fundamentalists among them. If there is no space in ‘Islam’ for anything other than strategically motivated participation in the public life of Western societies, then it stands to reason that many Muslims will privilege their faith over their role as members of the citizenry. This second role needs some form of grounding that is not inherently alien to Muslims from the outset. But that is incompatible with the claim that the grounding is and must forever be exclusively Christian- Occidental.

The Cultural Significance of Christianity

This brings me directly to the fifth and last argument for privileging Christianity. It finds expression in all those veiling laws that make exceptions for Christianity based on its cultural importance. In contrast to the last argument however, it does not presume that the liberal constitutional state has a particular ideological origin. Rather, it claims that symbols and expressions of Christian origin are, in contrast to the veil, separable from their religious meaning and thus generally acceptable. They merely symbolise the historically configured space that any citi­zen of the country inhabits. Crucifixes in offices and hanging from walls in schools, crosses on the necks of teachers, maybe even nuns in their habits, all are just as much a part of the occidental community as the holiday calendar which is also formed by Christianity.

The argument evokes two responses. First, it does not take seriously what Christian items of clothing and symbols mean to those wearing them. It assumes the position of a detached outsider who can perform a supposedly objective cul­tural scientific evaluation. It is only from this perspective that the religious con­tent of these symbols can be moved as far into the background as the argument needs it to be. But a nun does surely attach a religious meaning to her habit, as does a Muslim to her veil. To each of them these items of clothing signify differ­ent things, and for each of them they are likely to represent more than some blur­red cultural oppositional boundaries of Occident versus Orient. At the same time, the specific meaning of each item also makes it exclusive. The cross will appear to a Muslim as Christian, in the same way that a veil will appear Islamic to a nun. That is after all, how they are intended to be perceived.

Of course, one could try to make all symbols or expressions at stake com­pletely devoid of their religious content. However, this would raise the question why we need them at all. Why the cross and not the German flag? Surely religious persons will not agree with this interpretation of the symbols that carry such im­portance for them. Alternatively, we could take seriously the religious content of these symbols. But then we have to accept that they are also exclusionary. One cannot have both, specific statements through means of expression that have di­rect religious connotations, and the inclusion of all citizens, across all religious and ideological divides. The price of specificity is exclusion; the price of inclu­sion, vagueness.

The second response is that symbols that are already expressive of a hegem­onic culture do not need reinforcement in the form of legal favouritism in the public space. A Muslim woman living here will in any case already be confronted with testimonies of the Christian Occident wherever she goes. The typical town­scape is one of church towers whose bells toll at predetermined hours. Every community will be formed by its specific history, and the resulting cultural dom­inance will generally be that of the majority population. Thus, complete cultural neutrality is already an illusion. We need not be concerned for the Christian her­itage of this country anytime soon. It does not stand and fall with the readiness to reinforce it in those spaces that are supposed to be equally accessible to all citizens, regardless of origin and conviction.

Thus, if someone can raise truly impartial justifications for exceptions, it is the Muslim and not the Christian woman. A Muslim woman can make the case that renouncing the veil would be especially hard on her since she is already forced to inhabit a culturally foreign world, surrounded by beliefs and practices of a different cultural universe. An understanding of equal respect and regard that is somewhat sensitive to differences will thus be moderately multi-cultural. It will allow for members of minorities to also wear their symbols in public spaces.^[334] Their complete cultural neutralization, even if it were achievable, would only magnify the cultural inequality in the pre-political sphere.

As a result, a basic objection to the quasi-laic solution, as put forth by the federal state of Berlin, can be raised. Its charm of apparent neutrality conceals its decisive disadvantage. It demands people who already have to overcome strong feelings of alienation to renounce all those symbols that could permit them to be themselves in public space. It would be a form of equal treatment, but at the price of regarding members of minorities not really as equals.

Another objection to the quasi-laic solution is a pragmatic one: such a sol­ution forces Muslim women into avoidable conflicts of loyalty: they would have to decide between their belief and their desire for employment. However, pre­cisely those people who are afraid of increased fundamentalist influence among Muslims in the country should be happiest about any Muslim woman tak­ing up employment that is both demanding and entails her visibility in public space. Fundamentalists, after all, fear nothing more than confident and finan­cially independent women. However, the path chosen by the state of Berlin will most likely result in some women who would have liked to become teachers deciding against that for reasons of faith. Additionally, the ‘Berlin solution’ sig­nals to other employers that women who wear the veil cannot be trusted. This could have the further non-intended consequence of making it particularly diffi­cult or even impossible for Muslim women to find employment in the private sec­tor, even though this would have been likely to strengthen their personal inde­pendence.

Both arguments, the principled and the pragmatic one, speak in favour of permitting veiled women to work as teachers. For exceptions, there would have to be proof of a concrete danger, which, however, could not simply consist in the possibility that pupils or parents, be it out of ignorance or resentment, re­ject a teacher whose appearance is unfamiliar to them. In such cases, enlight­ened consideration and the duty of equal regard and respect are called for; not the retreat of the state from this task through the exclusion of the teacher.