1. Background

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to wear religious clothing has never been called into question.31 As noted, Germany is a secular state, with no state religion and no alignment with a particular religion. However, the German system traditionally has taken a different approach to the relationship between the secular state and religion, conceiving of state neutrality as an open-ended concept that does not exclude all forms of religious life from the public sphere, accepting the notion that teachers as well as parents in public schools have certain religious needs. The examples of France and Germany show that questions of religious manifestations in the public sphere will be decided not on a uniform basis but, rather, in light of the variations in the different historical traditions governing the relationship between religion and the state.

31 It is understood, however, that in exceptional cases, where instruction is negatively influenced by the appearance of a pupil, a prohibition on such clothing may be compatible with the provisions of the law.

Germany: Freedom of conscience in public schools Oliver Gerstenberg*

The Constitutional Court’s “teacher-head scarf” decision—the question of “danger” to social cohesion—religious freedom—the majority and minority views—the challenge to democracy—freedom of conscience as a personal and political right.

1. Background Fereshta Ludin was born in Afghanistan in 1972 but moved to Germany in 1985 and, in 1995, became a German citizen.1 Her goal was to become a schoolteacher. Having passed two state exams that qualified her to teach German, English, and social studies in public elementary schools, she applied for a position as a teacher in a state school in Baden-Württemberg. When Ludin declared that she would wear the Muslim head scarf not only in private but also in the classroom, the school board rejected her application. * Reader in law, Leeds University (U.K.); LAPA fellow, Program in Law and Public Affairs, Princeton University (2004–2005). I wish to thank Seyla Benhabib, Joshua Cohen, Frank Michelman, Grainne de Burca, Pascale Fournier Gunther Teubner, and Joanne Scott for written comments and for discussion generally, as well as Karen Barrett for her editorial help. The usual disclaimer applies. 1

Bundesverfassungsgericht (BverfGE), 2 BverfGE 1436/02 Judgment of Sept. 24 2003 (“teacherhead scarf ” decision.)

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She explained that, with her hair uncovered in public, she would feel naked, and that to wear the head scarf was for her both a way of expressing her religious conviction as a Muslim woman and an expression of her personality. Ludin also explained that, although aware of public anxieties about the head scarf, she did not wear it as a political symbol or with the intent to influence her pupils in religious matters. In response, the school board pointed to tensions about the head scarf in German society and said that, in a state school, the head scarf must be considered a “danger” to social cohesion and to the pedagogical climate.2 From “an objective standpoint,” the board claimed, the head scarf was not merely a private religious symbol but must be understood as a symbol of cultural self-segregation and, thus, as an explicitly political symbol likely to provoke strong reactions of rejection and polarization. In elementary schools, pupils would be exposed to this symbol at a very early and impressionable age. And even though there had been no conflicts with either pupils or parents while Ludin was a teacher on probation, the board claimed that for her to wear the head scarf in class would have the “objective effect of cultural disintegration,” from which the children would have “no possibility of escape.”3 In Germany, religious freedom is guaranteed by article 4, sections I and II of the German Basic Law (Grundgesetz). In reaction to the Nazi past, the guarantees are both broad and emphatic. Section I reads: “Freedom of faith and conscience, and freedom of creed religious or ideological, are inviolable.” And section II adds: “The undisturbed practice of religion is guaranteed.”4 Thus, the right to freedom of religion and of conscience is guaranteed under the Basic Law as an absolute right, without reservation. On paper, this constitutional guarantee is much more stringent than what is conveyed in the European Convention on Human Rights (ECHR), which identifies freedom of conscience as a basic human right but qualifies it as follows: governments are entitled to abridge the right when necessary “for the protection of public order, health or morals.”5 Despite the absence of such qualification in the Basic Law, the German Constitutional Court held in a 1995 decision (concerning crucifixes in classrooms) that “some sort of restrictions” are permissible, but that they must “follow from the constitution itself ” and that the legislature could not impose limits beyond what was envisaged by the constitution.6 2

Id. at para. 2 ff.

3

Id. at para. 11.

4

Grundqesetz für die Bundesrepublik Deutschland vom 23 Mai 1949.

5

Eur. Conv. on H.R. Nov. 4, 1950 at Art. 9.

6

1 BverfGE 1087/91, May 16, 1995 (hereinafter Classroom–crucifix case.). English translation in DECISIONS OF THE BUNDESVERFASSUNGSGERICHT—FEDERAL CONSTITUTIONAL COURT—FEDERAL REPUBLIC OF GERMANY (vol. 2, Pt. I) 631 (Nomos, Baden-Baden 1998).

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In a five-to-three judgment delivered in September 2003, the Constitutional Court held that the school board’s rejection of Ludin’s application was unconstitutional. The Court’s opinion emphasizes the importance of freedom of conscience not merely as an individual right, but as a principle. However, that principle was not to be understood in terms of a “strict separation between state and religion,”7 State involvement with religion is permissible, according to the Court, for the purpose of encouraging, protecting or sustaining religious diversity, in the wider society and in state schools.8 But the Court refused to say that the head scarf was not a “danger.” And this refusal has enormous legal and political consequences. In particular, it makes the head scarf subject to state regulation. The majority opinion rejected the school board’s decision solely on the grounds that Baden-Württemberg had no statute in place at the time that explicitly authorized the board to ban the head scarf because of the danger it represented.9 The board had acted illegally only because it lacked a sufficiently clear legislative mandate. But the Court explicitly left the legislatures of the Länder free to enact laws banning the teacher’s head scarf and, within weeks of the decision, a majority of German states announced plans to do just that.10 The minority opinion was even more troubling; it said that the school board’s decision was the only correct response to Ms. Ludin’s claim. According to the dissent, her claim did not even present an issue of freedom of conscience, which would apply at the personal level but not in the “inner sphere of the state” that the claimant sought to enter—a sphere where private rights are “functionally limited.” Accordingly, the school board did not overstep the bounds of its administrative discretion but, rather, used that discretion in the only possible way. The head scarf, on which Ludin “uncompromisingly” insisted, would provoke conflict, according to the dissent, and, in particular, ran counter to the state’s commitment to gender equality.11 To understand why the Court considered the head scarf a “threat,” one must recall another aspect of German constitutional precedent. While a distinctive feature of the German approach is the emphasis on freedom of conscience as a principle, another feature of the German approach is the assumption that Christian culture occupies a privileged place in German public life and is, indeed, a postulate of German political identity and social 7

Teacher–head scarf decision, supra note 1 at para. 43.

8

Id. at para. 42 f.

9

Id. at para. 72.

10

E.G. Kopftuch-Gesetz of the Land Baden-Württemberg (GVBI- Baden-Württemberg) April 1, 2003; of the Land Berlin (VerfGH Berlin) July 20, 2004 Cf. also the recent decision of the Bundesverwaltungsgericht (BverwG) BverwG 2 C 45.03, Jun. 24, 2004 available at http://www.bverwg.de/enid/cz.html. 11

Teacher–head scarf decision, supra note 1 at para 75 ff.

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cohesion. Consequently, its explicit affirmation in the public schools context is a compelling state interest. This latter assumption was articulated in the “classroom-crucifix” decision by which the Constitutional Court struck down a Bavarian statute prescribing the mounting of crosses on the walls of public school classrooms because it violated the negative freedom “to abstain from the rituals of a belief one does not share” and, further, because the state could not force pupils “to learn under the cross.”12 At the same time, however, the Court identified a broader notion—of Christian culture “on which social cohesion is based”—which it distinguished from Christianity in the narrow sense as a set of particular truths of faith, symbolized by the cross. It held that Christian culture, in this broader sense, included the notion of “tolerance of the other-minded” and did not entail discriminatory denigration of nonChristian philosophies.13 The fundamental normative problems of such an approach are exemplified in the teacher head scarf context, in which the extension of freedom of conscience to be accorded to a Muslim woman in the public domain is at stake. I hope to show that both majority and minority opinions of the teacher head scarf decision were misguided. If the reader is not persuaded, it is because of a disagreement over certain normative premises concerning the value and magnitude of freedom of conscience, over the role of the public/private-distinction and over the very idea of constitutional patriotism. However fundamental those differences, my hope is to render them more transparent, to keep open the possibility of discussion over this divisive issue.14

2. Religious freedom The majority opinion proceeds in three stages. The first is an analysis of the various interests represented in the case. To resolve the conflict among them, the Court stressed, is ultimately the task of the “public process of will-formation.”15 • Ludin has a constitutionally protected interest in fair and equal access

to public sector employment on the basis of merit without religious discrimination—as guaranteed by articles 33.II and III of the Basic Law.

12

Classroom–crucifix case, supra note 5 at 644.

13

Id. at p. 646 ff.

14

See generally Ernst-Wolfgang Boeckenfoerde, ‘Kopftuchstreit’ auf dem richtigen Weg? in 10 NEUE JURISTISCHE WOCHENSCHRIFT 723 ff (2001) (discussing sympathetically a decision by a lower administrative court that, contrary to the decision of the Bundesverfassungsgericht discussed herein, permits the teacher head scarf on substantive grounds of freedom of conscience). See also SEYLA BENHABIB, DEMOCRATIC ITERATIONS: THE LOCAL, THE NATIONAL, THE GLOBAL Ch. 5 (forthcoming 2004) (on file with author). 15

Teacher–head scarf decision, supra note 1 at para. 29 ff.

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• Ludin is also guaranteed religious freedom and freedom of conscience, in

accordance with articles 4.I and II. The imposition by the state of a duty not to make visible one’s religious commitments by not dressing in the way mandated by one’s religion would be an infringement of religious freedom. For such a duty would confront its addressee with a stark choice—either to hold office or to comply with one’s religious dress code. • The state, meanwhile, has an interest in maintaining the commitment to neutrality in religious and broader ideological matters, which qualifies its educational mandate. This commitment reflects an attitude of openness vis-à-vis the plurality of religious creeds—an attitude grounded in respect for human dignity. Moreover, the opinion emphasizes that neutrality can be understood in two different ways: the first in terms of a “strict separation of state and church”16—seen as a “distancing”17 of the state with respect to religious matters. The second, by contrast, is manifested by the encouragement of religious plurality and diversity. While neutrality precludes the identification of the state with a specific religious outlook and forbids the state to evaluate religious doctrines, it suggests a governmental interest in sustaining plurality and ensuring mutual openness. The opinion stresses that the latter understanding of religious neutrality is the one endorsed by German constitutional law. In particular, it harks back to the holding that public schools were not so much forbidden to make Christian references as they were mandated to remain open to other religious or philosophical beliefs, tenets, and values: “It is through this openness that the liberal [ freiheitliche] state of the Grundgesetz redeems its commitment to religious and philosophical neutrality.”18 • The parents’ interest in the care and upbringing of their children is guaranteed by article 6 of the Basic Law as “a natural right,” extending to education in religious and philosophical matters and “imply[ing] the right to keep the children away from religious convictions that seem to the parents wrong or harmful.”19 • Finally, students have a “negative religious freedom” to stay removed from the exercise of religious freedom by others. While this does not provide a general right not to be exposed to other creeds, it comes into play in “a statecreated situation created where the individual is exposed without possibility of escape to the influence of a particular faith.”20 In the second part, the opinion holds that a teacher’s expression of religious commitment in the school setting may negatively affect the state’s fulfillment 16

Id. at para. 43.

17

Id.

18

Id.

19

Id. at para. 45

20

Id. at para. 46

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of its educational mandate as well as the parents’ and the pupils’ protected interests—possibly influencing pupils or eliciting conflict with parents—and, in this sense, may pose an “abstract danger” to these interests. But the danger, according to the opinion, remains abstract so long as the teacher does not try to influence or proselytize the pupils and so, in Ludin’s case, can only be abstract. Drawing on sociological expertise, the Court found that the meaning of the head scarf could not be reduced to an expression of the subjugation of women but might also be a freely chosen symbol that would permit a Muslim woman to lead an autonomous life without rupture from her background. And while it is true that the pupils cannot avoid exposure to the head scarf in the classroom, the teacher is in a position, nonetheless, to mitigate its influence by explaining its significance to them. Wearing a head scarf, as the opinion puts it, poses no obstacle to showing allegiance and loyalty to the Grundgesetz. Absent a showing of “concrete danger,” the board was not authorized to make the head scarf a basis for denying Ludin employment as a teacher.21 A third part of the opinion explains that an abstract danger can only justify preventive action by the school board if there is a sufficiently clear statutory authorization by the legislature of the Land—a statute that enables the board to intervene and sets forth the conditions under which it may do so. Because there was, in Ludin’s case, no such “head scarf statute” in place, the board was not in a position to construe her head scarf as a lack of “personal aptitude.” The opinion goes on to say that the legislators of the Länder remain free to enact statutes that specify the degree of religious manifestation to be permitted in public schools, taking into account factors such as religious and cultural diversity and local context. The opinion notes that such a statute could encourage the exploration of religious differences but also observes that state legislatures could also come to quite different conclusions. They could, for example, just as reasonably conclude that increased religious diversity has generated a greater potential for conflict with which the schools are ill equipped to cope. Thus, an equally reasonable legislative stance could be to understand the commitment to state neutrality in terms of a need to distance the state further from religion than has been done in the past. The crucial point of the minority opinion is that there is no freedom-ofreligion issue at stake when someone seeks employment in the public sector, because religion is a private matter. The only constitutional interests at stake within a public school are those of pupils and parents. To be a teacher in that school means to be part of the state. But, the minority asserts, constitutional guarantees are, by definition, directed against the state—they are devices for maintaining the distance between citizen and state. A teacher in a public school—as part of the “inner sphere of the state” and as an “organ . . . through which the state acts”—is differently situated than a citizen who invokes constitutional rights against the state. The extent to which the teacher, 21

Id. at para. 49.

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as a civil servant, can invoke constitutional rights is functionally limited and subject to a special reservation regarding compatibility with the purpose and the proper functioning of the state organ of which he or she is a part. This functional limitation, or partial waiver, of constitutional rights is justifiable, according to the minority opinion, by the voluntariness of a person’s decision “to cross the line from society to state.”22 Moreover, the minority opinion takes pains to emphasize that the whole vocabulary of danger prevention deployed by the majority opinion—a vocabulary drawn from police law—is conceptually inappropriate. A school board must be in a position to disallow a teacher candidate’s personal fitness (apart from technical competence) by a predictive decision, even without the level of “danger” having been reached. The very possibility of certain symbols provoking conflict, rejection, and protest is, therefore, sufficient reason to deny the bearer’s application. As mentioned at the beginning, Ludin had always insisted that she wore the head scarf not as a political provocation but as a personal symbol and there had never been any conflicts or complaints during new employment as a teacher on probation. It is against this background that we must take a closer look at the neuralgic points of both opinions. First, through its dualistic approach to state and society, the minority opinion disregards the way public schools are placed in between the two, as sites where state and society meet. To be sure, article 6.II of the Basic Law guarantees parents the care and upbringing of their children as a “natural right.” But schools are not part of the family, and the terms of education are not determined by parents. According to its educational mandate (Art. 7.I), the state, as observed in the classroom–crucifix decision, not only must set up and organize schools but may also establish the goals of education and the scope of training. To that extent, the state is “independent of parents” and may even come into conflict with them. It is, according to the Court, “inevitable that at school the differing religious and philosophical convictions of pupils and their parents confront each other particularly intensively.” Schools are places “where the cultural foundations of society are principally handed down and renewed.”23 If, however, schools are sites where state and society inevitably meet, then the situation of a schoolteacher is fundamentally different from that of other public officials, such as judges or police officers. They may be viewed not merely as obligees but as rights holders whose constitutional rights may conflict with those of pupils and parents. A teacher, in other words, participates in the very plurality that he or she—as a consequence of the commitment to state neutrality—must monitor. That commitment does not force the teacher

22

Id. at para. 78 ff.

23

Classroom–crucifix case, supra note 6 at 647.

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to adopt an insulated standpoint from nowhere; rather, it requires her to promote mutual understanding and respect among heterogeneous and conflicting religious beliefs, her own included, and is vindicated precisely through the pedagogic practice that encourages dialogue. Unlike the minority opinion, which fails to take into account the dual nature of schools as both state institutions concerned with governance and as components of society existing as pluralistic microcosms, the majority opinion chose the correct starting point. It describes the complex array of interests implicated in the conflict and also strongly reaffirms the principle of religious freedom and freedom of conscience. However, the majority opinion fails to draw the conclusion that wearing a head scarf is not a threat. Its generous interpretation of freedom of religion and conscience as an invitation to dialogue stands in tension both with the decision to delegate to the Länder the substantive issue of how to understand these freedoms and, to an even greater extent, with the unquestioned assumption that wearing the head scarf is a “danger.”24 The vocabulary of danger prevention translates constitutional freedom of conscience into an administrative issue of social order and control; it burdens an unconditional rights guarantee with policy reservations; and exposes religious freedom to a ubiquitous balancing with all kinds of governance interests. Despite their professed mutual antagonism, the two opinions are alike in that both treat an assumed status quo of public anxieties as the normative baseline from which to decide what constitutes a violation of religious freedom.

3. Democracy Two fundamental questions demand to be addressed in this case: Why did the majority opinion resist the conclusion that naturally seems to flow from the generous interpretation of religious freedom—namely, that the head scarf is not a threat? And what would it mean to draw this conclusion? What, in other words, is the normative link between religious freedom and democracy? The German debate raised two objections to the generous reading of religious freedom that would have permitted the teacher to wear the head scarf: First, there is the objection that permitting the head scarf would entail a fundamental contradiction, both in law and in the public perception, of the Court’s 1995 decision that banned the cross from Bavarian classrooms: “If the cross in classrooms is constitutionally prohibited, then it cannot be right that the teacher head scarf is permitted.” Some constitutional lawyers have come 24 For a related criticism, see BENHABIB, supra note 14: “The right to freedom of conscience, despite all acknowledgment of the state’s neutrality toward religious and other world-views, was [. . .] subordinated to the interests of the democratic people in maintaining their specific cultural identities and traditions. The Court failed to present a robust constitutional defense of pluralism.”

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out in support of this argument.25 If pupils must not be exposed to the crucifix in classrooms—must not be forced to learn “under the cross”—then it cannot be right for pupils to be exposed to teacher head scarves, they argue. Accordingly, if the state cannot prescribe affixation of the crucifix, then it cannot permit the head scarf. The difference between the state requiring something and the state simply permitting something is irrelevant; what matters is the effect that the symbol, be it cross or head scarf, may predictably have on those who are exposed to it, as viewed from the standpoint of an objective observer-participant. In a predominantly Christian legal culture, the symbolic effect of the head scarf is seen as more drastic and detrimental to social peace than that of the more familiar cross. But classroom crucifixes and teacher head scarves raise fundamentally different issues; Ludin is a person, not a building decorated with a religious symbol. At stake in the head scarf case is the exercise of a fundamental individual right. By contrast, what is at issue in the classroom-crucifix context is a policy decision by the state (the Bavarian legislature), reflecting the preferences of the majority. The decision to display the head scarf is attributable not to the state but to the individual teacher, who wishes to exercise her constitutionally guaranteed right to freedom of conscience. While the teacher acts pursuant to the state’s educational mandate, she is not simply a representative of the state. She is constitutionally expected to act as a pedagogue—a person with personal authority—not in abstraction from her personal authority as a charactermask of the state. Her role, as defined by the constitution, rules out any view that would try to depersonalize the teacher and regard her exclusively as an official, thereby missing the point and purpose of pedagogic activity. A second, closely related objection to Ludin’s wearing of the head scarf has been that its political symbolism cannot be separated from its religious symbolism:26 the head scarf is an instrument of proselytising, an ultimate expression of a fundamentalist attitude. This objection has gained particular prominence in reaction to former German president Johannes Rau’s pleas for “equal consideration of religions.” Rau had argued that if the head scarf was impermissible in schools, then this verdict must hold equally for Christian vestimentary symbols, such as the monk’s capuche. But, as the objection goes, the head scarf is intrinsically not comparable to the cross or the Star of David. Whereas the cross represents reconciliation and a commitment to non-violence, the head scarf, according to this view, is political in that it stands for religious defiance of liberal democracy, for oppression and violence. A “vicarious” argument has even been advanced—by Lutheran bishop Margot Kässmann, 25

See e.g. Karl-Hermann Kaestner’s annotation to the teacher–head scarf decision, in 23 JURISTENZEITUNG, 1178 f. (2003). 26

See Kaestner, supra note 25; see also Friedhelm Hufen, case annotation in 12 JURISTISCHE SCHULUNG, 1220 ff. (2003). Both contain references to further literature in Germany.

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for example27—namely that young Muslim girls, who may be struggling against the head scarf imposed on them by their parents and local community, have an affirmative claim against the state to the effect that public schools should remain places of refuge and freedom from the head scarf. The state must ensure, as bishop Kässmann formulates, that schools communicate a “climate of freedom.” But the head scarf, and its character and symbolic effect, cannot, for constitutional reasons, be assessed in the abstract, without reference to the person of the teacher who herself invokes freedom of conscience. The teacher, as a rights holder, cannot be subsumed under the head scarf and symbolic meaning cannot be ascribed to the head scarf by the state. It matters whether the teacher who wishes to wear the head scarf credibly expresses loyalty and allegiance to the Constitution. A head scarf–wearing teacher may, out of pedagogical and collegial responsibility—and because of constant (as opposed to fleeting) eye contact with pupils and colleagues—have a duty of care to counter existing prejudices. The position of a teacher as a role model with considerable influence on young pupils does not militate against a generous approach but rather argues in its favor. Public schools protect and insulate pupils from sundry pressures of society, economy, and the family but, by the same token, they mirror society’s pluralism. Schools constitute a “special environment,” in John Dewey’s words, in which new bases of mutual tolerance can be constructed through processes of defining and addressing common concerns.28 Schools put a head scarf–wearing teacher in a position to explain to pupils, parents and colleagues both the meaning(s) of the head scarf and the great good of mutual respect and tolerance. Schools, at the same time, put parents and colleagues in a position to explain to Ludin and to themselves their concerns with immanent restrictions on or limits of religious freedom and tolerance, with gender equality and secularization more generally. Ultimately, schools put pupils in a position to explain to teachers and parents alike their need for orientation and guidance regarding the difficult choice between conformity and rebellion. Exposure in school to religious commitment can foster an understanding of the reality of a modern multicultural society and help pupils, from an early age, to learn the importance and techniques of mutual tolerance. The protective function of the state is to promote dialogue within schools—not by prohibitions, but by helping schools to construct themselves as self-organizing and autonomous spheres of deliberative encounter and critical contention, as schools of tolerance. Thus, the difficulties of the German debate stem ultimately from an unresolved conflict between two competing conceptions, within the German 27

Public Interview in Die Tagesschau from 24.09.2003, available at http://www.tagesschau.de/ thema/0,1186,OID2359270_NAVSPM3~2764984_REF3,00.html.

28

Quoted in MICHAEL WALZER, SPHERES OF JUSTICE. A DEFENSE OF PLURALISM AND EQUALITY 199. (1983). Compare with MICHAEL, WALZER, ON TOLERATION 71ff (1997).

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constitutional approach, of the normative link between religious freedom and democracy. On the one hand is the emphasis on freedom of conscience as a principle—to be understood not in terms of a blanket constitutional rule of church-state separation but, rather, as permitting state involvement with religion for the purpose of promoting religious diversity and a climate of mutual openness and dialogue among faiths, in state schools and in the wider society. On the other hand, the German approach also embraces the belief that Christian culture occupies a privileged place as a substantive premise both of German political identity and of values of constitutional magnitude, such as religious tolerance, non-discrimination, and democracy itself. To my mind, theories of political liberalism and of deliberative democracy have made a powerful and convincing case for the argument that religious toleration is part of the concept of democracy itself—part of, as John Rawls forcefully argues, “the domain of the political.”29 The Court’s view assumes that the ethical and political self-understanding of citizens in a democratic community must be taken as a historical-political a priori—as the normative baseline—both of democratic politics and of social cohesion. A deliberative view, by contrast, emphasizes the ways in which the culture of liberal democracy is subject to—and legitimized by—exposure to constant revision in the crucible of deliberative politics. The meaning of religious toleration is not premised on, and cannot be defined by, the internal capacity of a comprehensive outlook within society for “tolerance of the other-minded”—and on the intrinsically asymmetric “us–them” distinction drawn and deployed by such a view in the first place. A liberal democracy cannot delegate the question of what level of tolerance we, as citizens, legally owe to one another to a comprehensive outlook within a pluralistic society, however dominant, benevolent or enlightened this outlook takes itself to be, according to its own standards, but must retain that question within the realm of liberal constitutional dialogue itself, in which we confront each other symmetrically as free and equal—as partners in a shared constitutional project, not asymmetrically as “us” and “them” (or the “other-minded”). The broader point, here, is that the ideas of religious tolerance and democracy mutually presuppose one another—that they can only be understood in tandem. On the one hand, the decision by citizens to concede to one another the right of religious freedom—the bar against establishment—serves not only individual liberty but also democracy, because this decision shifts the entire burden of democratic political legitimation away from partisan religious and cultural views to the process of free and public deliberation among citizens as equals. Built into this idea of deliberation is an idealization that moral judgments can be justified to all citizens on the basis of fairness—an idealization that accounts for the push for better answers, the search for mutually acceptable limits of toleration, and the maintenance of an open and participatory 29

JOHN RAWLS, POLITICAL LIBERALISM (1996).

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dialogue that transcends the boundaries of vocabularies of religion or culture. Disregard for religious freedom, then, not only undermines individual liberty but blocks and diminishes democracy. By giving precedence in the public sphere to reasons (or vocabularies) that do not envisage universal, equal, reciprocal membership, one denies to those whose religious freedom is negatively affected the standing (and the voice) of equal members of a constitutional regime.30 And the attempt to ground a collective commitment to religious tolerance not in the idea of deliberative democracy but, rather, in a prepolitical comprehensive view, has a similar effect of a denial of equal standing; it reduces an individual right to a revocable privilege, which, by its nature, is subject to an index or rider, such as “according to our cultural standards” or “according to our interest in social cohesion.” Indeed, there may be, in the domain of constitutional interpretation, persistent and reasonable disagreement as to the “right answer” in a divisive moral conflict over the limits of toleration, but the acknowledgement of that disagreement must not be conflated with the skeptic’s claim that (a) moral questions can never have answers that are equally fair and thus acceptable to everyone; and (b) we must therefore resort to some “embedded” view in order not to endanger “social cohesion.” There is no insulation or escape from exposure to multiple pluralism. On the other hand, religious views can only benefit from democratic toleration if they endorse the idea of the equal reciprocal membership of all as part of their particular outlook.31 Reasonable pluralism of religious views, in turn, is not a threat to democracy but, instead, a catalyst of democracy. Its special importance explains why religious freedom is not merely a private right but also a political one. Let us say that religious liberty has simultaneously an inward-looking and an outward-looking dimension. In the former, the point and purpose of religious freedom and of freedom of conscience is to protect and assign value to the forum internum of the individual. Religion, in contradistinction to the political, addresses the person and promises to save him or her from overwhelming feelings of anguish and guilt through its concepts of sin, repentance, and salvation and through a promise of a “charitable” perspective in which all reality, including human reason, is rooted in God. In its outward-looking dimension, by contrast, the constitutional guarantee of freedom of religion and of conscience expresses respect for the perspectives of outsiders and hitherto marginalized groups as contributors to public dialogue and not as obstacles to the pursuit and realization of public democratic ideals. The constitutional rationale behind broad guarantees of religious 30 For a related point see Joshua Cohen, Procedure and Substance in Deliberative Democracy in DEMOCRACY AND DIFFERENCE. CONTESTING THE BOUNDARIES OF THE POLITICAL 104 (Seyla Benhabib, ed., 1996). 31

This aspect is rigorously emphasized by Jürgen Habermas, Intolerance and discrimination, 1 INT’L J. CONST. L. (I·CON) 2-12 (2003).

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freedom is thus not merely to impose a barrier against the state (by providing private spaces of withdrawal and escape) but to create the possibility for new views to undermine false forms of social cohesion and to empower individuals and groups to challenge existing constitutional settlements. Freedom of conscience, thus, expresses a constitutional regime’s moral commitment to (and pragmatic interest in) hearing from the other, from excluded voices— “listening to the cries of the wounded”32—and thereby advances democratic constitutionalism’s universalistic core. The head scarf decision is, therefore, extremely problematic because it has failed to capture the ways in which freedom of conscience is simultaneously a private and a political right. To argue, as the Court did, that the head scarf poses a “danger” (if only an “abstract” one) is to tell Ludin (and those of us not in her position) that we cannot intelligibly communicate with her as a Muslim woman and, therefore, need not listen to her interpretation of the head scarf. It is an attempt, in other words, not to place Islam on an equal footing with Christianity, but to construe it as an object of so-called danger prevention by the state. The pragmatic solution I have sought to advocate here, by contrast, appeals to and reinforces the capacity of schools to deal with, and to absorb, the head scarf conflict–to experiment dialogically with regimes of tolerance. This solution would shift the unwieldy task of balancing conflicting interests away from the courts and the legislators and back to the schools themselves. It would strengthen the schools’ capacity to help democracy meet its need for citizens who understand themselves as members of a pluralist and tolerant society.

4. Coda What the Court failed to appreciate in Ludin’s case was that freedom of conscience is both a personal and a political right. For this reason, as the drafters of the Grundgesetz knew, and the authors of the Draft Treaty Establishing a Constitution for Europe also understood,33 freedom of conscience is not burdened with qualifications and must not be compromised by considerations of policy, police, and state. What was “uncompromising” was not Ludin’s insistence on wearing the head scarf in the classroom, but the Court’s insistence that the head scarf posed a danger and was necessarily a political symbol. Despite their lip service to gender equality, both opinions contribute to, and threaten to entrench further, Muslim women’s state of political speechlessness. German society is, in point of fact, a multicultural, immigrant society. In a failed attempt to speak for this society as a whole, the Court has transformed a fear of otherness into a jurisprudence of fear. 32

HILARY PUTNAM, THE COLLAPSE OF THE FACT/VALUE DICHOTOMY and OTHER ESSAYS 130 (2002) (quoting William James). 33

Draft Treaty Establishing a Constitution for Europe, Art. II-10.