94

DEVELOPMENTS

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 Courts teacher-head scarf decisionthe question of danger

to social cohesionreligious freedomthe majority and minority viewsthe
challenge to democracyfreedom 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-Wrttemberg.
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
(20042005). 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.)

DEVELOPMENTS

95

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.

Id. at para. 11.

Grundqesetz fr die Bundesrepublik Deutschland vom 23 Mai 1949.

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

1 BverfGE 1087/91, May 16, 1995 (hereinafter Classroomcrucifix case.). English translation in
DECISIONS OF THE BUNDESVERFASSUNGSGERICHTFEDERAL CONSTITUTIONAL COURTFEDERAL REPUBLIC OF
GERMANY (vol. 2, Pt. I) 631 (Nomos, Baden-Baden 1998).

96

DEVELOPMENTS

In a five-to-three judgment delivered in September 2003, the Constitutional

Court held that the school boards rejection of Ludins application was unconstitutional. The Courts 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 boards decision solely on the grounds that Baden-Wrttemberg
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 Lnder free to enact laws banning
the teachers 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
boards decision was the only correct response to Ms. Ludins 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 entera 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 states 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

Teacherhead scarf decision, supra note 1 at para. 43.

Id. at para. 42 f.

Id. at para. 72.

10

E.G. Kopftuch-Gesetz of the Land Baden-Wrttemberg (GVBI- Baden-Wrttemberg) 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

Teacherhead scarf decision, supra note 1 at para 75 ff.

DEVELOPMENTS

97

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 notionof Christian culture on which social
cohesion is basedwhich 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

discriminationas guaranteed by articles 33.II and III of the Basic Law.

12

Classroomcrucifix 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

Teacherhead scarf decision, supra note 1 at para. 29 ff.

98

DEVELOPMENTS

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 ones religious commitments by not dressing in the way
mandated by ones religion would be an infringement of religious freedom.
For such a duty would confront its addressee with a stark choiceeither to
hold office or to comply with ones 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--vis the plurality of religious creedsan 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 church16seen as a distancing17 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 teachers expression of religious
commitment in the school setting may negatively affect the states fulfillment
16

Id. at para. 43.

17

Id.

18

Id.

19

Id. at para. 45

20

Id. at para. 46

DEVELOPMENTS

99

of its educational mandate as well as the parents and the pupils protected
interestspossibly influencing pupils or eliciting conflict with parentsand, 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 Ludins 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 Landa statute that enables the board
to intervene and sets forth the conditions under which it may do so. Because
there was, in Ludins 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 Lnder 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 statethey are devices for
maintaining the distance between citizen and state. A teacher in a public
schoolas part of the inner sphere of the state and as an organ . . .
through which the state actsis differently situated than a citizen who
invokes constitutional rights against the state. The extent to which the teacher,
21

Id. at para. 49.

100

DEVELOPMENTS

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 persons 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 opiniona vocabulary drawn from police lawis conceptually inappropriate. A school board
must be in a position to disallow a teacher candidates 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
bearers 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 classroomcrucifix 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 sheas a consequence of the commitment to
state neutralitymust monitor. That commitment does not force the teacher

22

Id. at para. 78 ff.

23

Classroomcrucifix case, supra note 6 at 647.

DEVELOPMENTS

101

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 Lnder 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 freedomnamely, 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
Courts 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 states 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.

102

DEVELOPMENTS

out in support of this argument.25 If pupils must not be exposed to the crucifix in classroomsmust not be forced to learn under the crossthen 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 states educational mandate, she is not simply a representative of the state.
She is constitutionally expected to act as a pedagoguea person with personal
authoritynot 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 Ludins 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 Raus 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 monks 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 advancedby Lutheran bishop Margot Kssmann,
25

See e.g. Karl-Hermann Kaestners annotation to the teacherhead 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.

DEVELOPMENTS

103

for example27namely 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 Kssmann 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 scarfwearing teacher may, out of
pedagogical and collegial responsibilityand because of constant (as opposed
to fleeting) eye contact with pupils and colleagueshave 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 societys pluralism.
Schools constitute a special environment, in John Deweys words, in which
new bases of mutual tolerance can be constructed through processes of defining and addressing common concerns.28 Schools put a head scarfwearing
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 schoolsnot 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).

104

DEVELOPMENTS

constitutional approach, of the normative link between religious freedom and

democracy. On the one hand is the emphasis on freedom of conscience as a
principleto 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 itselfpart of, as John Rawls forcefully argues, the domain of the political.29 The Courts view assumes that
the ethical and political self-understanding of citizens in a democratic
community must be taken as a historical-political a priorias the normative
baselineboth of democratic politics and of social cohesion. A deliberative
view, by contrast, emphasizes the ways in which the culture of liberal democracy
is subject toand legitimized byexposure 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-mindedand on the intrinsically
asymmetric usthem 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 equalas 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 anotherthat they can only be understood in
tandem. On the one hand, the decision by citizens to concede to one another
the right of religious freedomthe bar against establishmentserves 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 fairnessan 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).

DEVELOPMENTS

105

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 skeptics 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 Jrgen Habermas, Intolerance and discrimination, 1 INTL
J. CONST. L. (ICON) 2-12 (2003).

106

DEVELOPMENTS

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 regimes moral commitment to
(and pragmatic interest in) hearing from the other, from excluded voices
listening to the cries of the wounded32and thereby advances democratic
constitutionalisms 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 conflictto 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 Ludins 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 Ludins insistence on wearing the head scarf in the classroom, but the
Courts 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 womens 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.