The Case of Ludin and its Consequences: Some Fundamental Questions

Fereshta Ludin, a German national of Muslim belief, wanted to become a teacher in the federal state of Baden-Wurttemberg. She was not prepared, however, to remove her veil in the classroom; the item of clothing, she claimed, formed part of her Islamic identity.

Taking her case to specialised courts — from the Higher Administrative Court in Stuttgart, all the way up to the Federal Administrative Court — the federal state maintained that it was in the right against the plaintiff Ludin. The tone of the rulings was to the effect that the veil was a conspicuous symbol, that it was likely to confuse pupils religiously and to make them feel insecure, even if worn with no missionary intent. None of the courts even presumed Miss Ludin to harbor such intentions. They did, however, all refer to the ‘objective ef­fect’ of the veil: they ruled that the item of clothing in question was open to re­ligious and political interpretations. The fact of its being worn by a person hold­ing a position of authority whom students have no choice but to be in contact with, bears the potential of bringing conflict into the classroom as well as into the relationship between teacher and parents.

Miss Ludin finally took her case to the Federal Constitutional Court. The sec­ond senate voted five to three in her favour. It ruled that the federal state of Baden-Wurttemberg may not bar Miss Ludin from the teaching profession with­out a relevant legal basis^[314] and that no such basis was in place at the time of rul­ing.

The Federal Constitutional Court based its ruling on the principle of ‘open neutrality’. The Federal Republic, the court reasoned, is a secular — and not a laic — state. It not only respects, but also promotes freedom of belief. The state is not permitted to equate itself with any particular community of belief or religious conviction. It must, however, provide space for religious and spiritu­al convictions to be lived, even when these seek to appear publicly. And thus, the Federal Constitutional Court ruled that any legal prescriptions concerning cloth­ing regulations in public service that might infringe upon expressions of reli­gious belief must have a justification that does justice to the normative impor­tance of the basic right to freedom of belief.

The judges added that a change in the general societal framework could speak for a re-formulation of the principle of neutrality. They reasoned it would in principle be permissible for the state to re-interpret its obligation to neutrality in stricter terms, since increased social diversity also means increased risk of religious conflict. Thus, it could be permissible for the state to forbid re­ligious symbols that were previously permitted. In order to do so, however, it would require a sufficiently explicit legal basis.

Following the ruling many federal states passed new laws concerning the veil. States with conservative governments, such as Baden-Wurttemberg, em­phasised the state’s obligation to neutrality, while maintaining, however, a dis­tinction between strictly religious symbols and Christian-Occidental symbols that express educational and cultural value. According to this reasoning, Chris­tianity occupies two roles, a religious and a cultural one; consequently, due to its cultural importance, it should be accrued certain privileges. In practice this means a veil can be forbidden on the grounds that it is a religiously imprinted item of clothing; a crucifix, or even a nun’s habit, on the other hand, not neces­sarily. Or at least that is what the federal legislators must have envisioned. At the other end of the spectrum is the law based on article 29 of the Constitution of Berlin. It prohibits any visible religious symbols or religiously imprinted items of clothing at public schools except during religion class. Berlin’s response to the fact of religious plurality is almost laic.

The ruling of the federal constitutional court and the laws passed in its after­math throw up a number of fundamental questions. Why does the state need to be religiously neutral in the first place? Is it permissible for state legislators to prevent veiled women from teaching, while permitting nuns to teach in their habit, without violating the legal requirement of strict equality, as upheld and reaffirmed by the Federal Constitutional Court? And if not, then should the state keep all religiously toned items of clothing away from schools? Or should it generally permit them all? To answer this last question, it is also necessary to clearly define what makes an item of clothing religiously significant.

As I will demonstrate, the Federal Constitutional Court should have at least clarified that state legislators who are permitted to favour Christianity under the pretext of cultural preservation, are acting in violation of the constitution of a secular state. The Court should have set clearly defined guidelines for state leg­islators. Setting aside for a moment any concrete danger, prohibiting the veil while permitting the Jewish skull-cap, the cross, or even a nun’s habit is clearly discriminatory. It is not in line with the requirement of strict equality of all reli­gious persuasions.

Two possible solutions remain. One is the more laic of a general prohibition of any religious attire. The second is moderately multi-cultural: generally to per­mit these items of clothing. Of the two, the latter appears to be preferable to me. A general authorization of veiling, even in public office, is the best answer a sec­ular state may offer in response to religious pluralism, because it is the fairest possible solution. In addition there are also a number of pragmatic considera­tions that favour such a response. Further, the state would still be permitted to prohibit teachers from wearing the jersey of Bayern Munchen, or that of any team for that matter. The intuition I appealed to in my introductory example re­mains intact.

This opinion is not only in opposition to the conservative position that priv­ileges for Christianity could be justified by appealing to its general cultural sig­nificance. I am also opposing those liberals who do not distinguish between expressions of religious conviction and mere fashion accessories or fan para­phernalia. The liberalism I hold to be plausible is an ethical liberalism that ac­knowledges the importance of particular values to personal identity formation. Acknowledging the importance of these values means favouring approaches that are moderately multicultural with regard to peoples* need for expressions of religious belief.