Ban on wearing a headscarf for legal trainees is constitutional

Press Release No. 13/2020 of 27 February 2020

Order of 14 January 2020

2 BvR 1333/17

In an order published today, the Second Senate of the Federal Constitutional Court rejected as unfounded the constitutional complaint of a female legal trainee (Rechtsreferendarin) in the Land Hesse; the complaint was directed against the ban on wearing a headscarf when performing certain official tasks. Under constitutional law, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal trainees must be respected. While this duty amounts to an interference with the complainant’s freedom of faith and other fundamental rights, it is justified. Such an interference can be justified by the constitutional principles of the state’s religious and ideological neutrality and of the proper functioning of the justice system as well as by the negative freedom of religion of others. In the case at hand, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing religious symbols in the courtroom, or to allow her to do so.

Facts of the case:

The complainant was a legal trainee in the Land Hesse. She wears a headscarf in public. Prior to her traineeship, the Higher Regional Court (Oberlandesgericht) instructed her that, as the law stands in Hesse, legal trainees have a duty to conduct themselves neutrally as regards religion and that, when wearing a headscarf, she was therefore barred from performing any tasks in the course of which she might be perceived as a representative of the justice system or the state. The complainant lodged an application for preliminary legal protection before the Administrative Court (Verwaltungsgericht), which was rejected at the appeal stage by the Hesse Higher Administrative Court (Verwaltungsgerichtshof). The complainant also filed an action before the Administrative Court; these proceedings are currently suspended.

Key considerations of the Senate:

I.1. The duty imposed on the complainant interferes with her individual freedom of faith protected by Art. 4(1) and (2) of the Basic Law (Grundgesetz – GG). It compels the complainant to choose between performing the intended tasks or fulfilling a religious clothing requirement that she considers imperative.

2. The interference with freedom of religion is justified under constitutional law.

Given that the Basic Law does not expressly subject this fundamental right to limitations, restrictions of freedom of religion under Art. 4(1) and (2) GG must be based on the Constitution itself. Such limitations inherent in the Constitution include the fundamental rights of others and community values that are afforded constitutional status. Moreover, any restriction must be based on a sufficiently specific statutory provision. The Higher Administrative Court, which is primarily competent to interpret ordinary law, found that § 27(1) second sentence of the Hesse Act on Legal Training (Hessisches Juristenausbildungsgesetz – JAG) in conjunction with § 45 first and second sentence of the Hesse Civil Service Act (Hessisches Beamtengesetz – HBG) provided such a statutory basis; this finding is not objectionable.

The principle of the state’s religious and ideological neutrality can be considered a constitutional interest that may justify an interference with freedom of religion in this case. The state’s duty to be neutral necessarily also entails a duty for public officials to be neutral since the state can only act through individuals. However, when public officials exercise their fundamental rights as private individuals in the performance of their duties, this cannot be attributed to the state in every case. Yet it can potentially be attributed to the state in cases where the state has specific influence on the visible character of an official act – as is the case in the justice system. Freedom of religion can be subject to a further constitutional limitation inherent in the Basic Law: the proper functioning of the justice system in general, which is one of the essential elements underpinning the rule of law and is firmly rooted in the values enshrined in the Basic Law, given that every court decision ultimately serves to safeguard fundamental rights. The proper functioning of the justice system requires that society not only place trust in individual judges, but also in the justice system in general. It is true that it will not be possible to achieve absolute trust among the entire population. However, it falls to the state to improve levels of trust. In the present case, the negative freedom of religion afforded parties to legal proceedings is also an argument in favour of the ban on wearing a headscarf. In the justice system, the state exercises public authority vis-à-vis the individual in the classic hierarchical sense, which gives rise to more serious impairments than public authority exercised in interdenominational state schools, which are meant to reflect society’s pluralism in religious matters.

By contrast, neither the requirement of judicial impartiality nor the notion of safeguarding a peaceful religious and ideological environment can justify restrictions of freedom of religion. A judge who uses a religious symbol while performing their judicial duties does not, as such, give rise to doubts as to this judge’s objectivity.

It is primarily the legislature’s responsibility to resolve the tensions between the conflicting constitutional interests while taking into account the requirement of tolerance; in the public process of the formation of the political will (öffentlicher Willensbildungsprozess), the legislature must find a compromise that is reasonable (zumutbar) for everyone. However, the state must maintain an adequate balance between the weight and significance of the fundamental right to freedom of faith and freedom to profess a belief as well as the severity of the interference on the one hand, and the importance of the reasons justifying the interference on the other hand. In this respect, the freedom of faith of the affected public official is accorded a high value, particularly given that this freedom is closely linked to human dignity and that it must be interpreted broadly due to its great importance. Thus, whether the legislature’s decision is tenable must be determined via thorough judicial review. However, the legislature has a margin of appreciation when it comes to assessing the factual circumstances and developments; this assessment determines whether values with constitutional status justify provisions that impose a duty of strict restraint on the judicial service, regardless of belief, as regards the use of symbols related to religion.

Based on these considerations, the challenged order of the Higher Administrative Court and its interpretation of § 27(1) second sentence JAG in conjunction with § 45 HBG are not objectionable under constitutional law. In view of the specific design of the ban at issue in these proceedings, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing religious symbols in the courtroom, or to allow her to do so. From a constitutional-law perspective, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal trainees must therefore be respected.

In support of the complainant’s position, it must be taken into consideration that to her, the headscarf is not only a sign of affiliation with a certain religious group that could be taken off at any time – like, for example, the cross worn on a necklace. Rather, wearing the headscarf to her means fulfilling a requirement that she considers imperative. As there is no similarly widespread equivalent requirement in the Christian faith, a general ban on manifestations of religious belief has a stronger impact on the complainant than on other religious public officials. In addition, law graduates who want to take the Second State Examination (Zweites Staatsexamen) have no other option than to complete their legal traineeship.

In support of the constitutionality of the ban, it must be taken into consideration that it is limited to a few individual tasks. The ban applies where legal trainees perform judicial tasks represent the public prosecution office in trial hearings and take on quasi-judicial roles. In doing so, legal trainees – like civil servants – must represent the values that the Basic Law lays down for the justice system. The fact that they are in training and might, upon completion of their training, take up a profession to which the constitutional-law standards set out above do not apply does not lead to a different assessment. This is because legal trainees may not be perceived as such by the individuals involved in legal proceedings. Moreover, the individuals concerned are entitled to the same basic conditions in the justice system even if the state delegates tasks for training purposes. These tasks only make up a relatively small part of the traineeship. Although the provisions on legal traineeship attribute great importance to them, there is no legal entitlement to perform these tasks during one’s traineeship. In particular, representing the public prosecution office in trial hearings is expressly not designated as a “standard task in the narrow sense” in the training plan, given that, in general, the training supervisor cannot specifically evaluate the performance of this task. As the law currently stands, failure to perform standard tasks must not have an impact on the evaluation of trainees. Thus, it remains possible to complete a legal traineeship properly without performing those tasks.

II. The complainant’s freedom of training under Art. 12(1) GG is also not violated.

Art. 12(1) first sentence GG guarantees all Germans the right to freely choose their place of training. This guarantee is closely linked to the right to freely choose one’s profession, given that training is usually the preliminary stage of taking up a profession. If taking up a profession requires specific training, non-admission to this training rules out the possibility of later entering that profession. Art. 12(1) GG also protects the activities necessary in the course of training – in this case, this includes the performance of tasks in proceedings and hearings at the court, the public prosecution office and administrative authorities. Banning the complainant from performing such tasks in proceedings and hearings when wearing a headscarf amounts to an interference with the contents of this guarantee. However, freedom of training does not afford more extensive protection than freedom of religion, which is guaranteed without any explicit limitation. Even if it were assumed that, where a religious requirement considered imperative is at issue, the freedom to choose one’s profession is affected in the individual case, the aims pursued by the Land legislature – ideological and religious neutrality of the state, the proper functioning of the justice system and the protection of negative freedom of religion of others – are particularly weighty community interests that justify the ban.

III. The order also does not violate the general right of personality. Wearing a headscarf is a manifestation of the complainant’s personal identity, which is an element of the general right of personality and is thus afforded protection under Art. 2(1) in conjunction with Art. 1(1) GG. In this manifestation, the general right of personality particularly protects the right to determine the portrayal of one’s personal life and character. Individuals have the right to decide themselves how they wish to present themselves vis-à-vis others or in public and how they wish to determine their social image (sozialer Geltungsanspruch). However, an interference with this right, too, can be justified by the reasons set out above.

IV. There is no need to decide whether the duty of neutrality leads to indirect disadvantaging of the complainant on the basis of sex or gender since the ban mainly affects Muslim women. Insofar as the provisions were considered to be indirectly discriminatory, such indirect discrimination could be justified by the same reasons as the interference with Art. 4 GG.

V. § 45 third sentence HBG is compatible with the provisions of the Basic Law insofar as it is applied in conformity with the Constitution. Pursuant to that provision, the occidental tradition of the Land Hesse, which is shaped by Christianity and humanism, must be adequately taken into account when deciding whether the duty of neutral conduct is met in the individual case. The application of this provision can lead to the favouring of Christian civil servants, which would not be justified under constitutional law. Art. 3(3) first sentence GG requires that nobody is disadvantaged or favoured on the basis of their faith or their religious opinions. This provision strengthens the general guarantee of the right to equality under Art. 3(1) GG and freedom of faith protected by Art. 4(1) and (2) GG. An interpretation that entirely exempted Christian symbols from the duty of neutrality would not be compatible with this standard. Yet the provision can be interpreted restrictively, in a manner that is in conformity with the Constitution. This is because § 45 third sentence HBG in fact does not have any such exemption clause. Rather, when applying the provision, the occidental tradition of the Land Hesse, which is shaped by Christianity and humanism, is merely one interest that must be adequately taken into account when deciding whether the duty of neutral conduct has been breached. The provision still requires an assessment of whether a manifestation of religious belief can be reconciled with the principle of the state’s ideological and religious neutrality in the individual case. This makes it possible to treat different situations involving religion equally where it is necessary under constitutional law – such as in the justice system. The legislature may have considered it possible to privilege manifestations of Christian faith; yet it left the decision as to which symbols are permissible in any specific case to public authorities and showed that it also considers a ban on Christian symbols to be permissible.

Separate Opinion of Justice Maidowski

A ban on wearing a headscarf amounts to a serious interference with both the complainant’s freedom of training and her freedom of faith. This interference cannot be justified under constitutional law. Based on the consideration that both fundamental rights are equally relevant in this case, that they complement one another and that they must be assessed on the basis of their own standards, the interests against such a ban prevail; it must thus be considered disproportionate.

It is already doubtful whether the scope of the headscarf ban at issue in these proceedings can be limited, in legal terms, to the four specific training tasks considered by the Senate majority (presiding over a hearing, conducting the taking of evidence, representing the public prosecution office in a hearing as well as presiding over a committee conducting hearings under administrative law (Anhörungsausschuss)) or whether such a ban actually goes far beyond those tasks. The relevant statutory bases require that legal trainees working in an official capacity generally conduct themselves in a religiously neutral manner, without limiting the scope of application of this requirement to certain tasks.

Yet above all, the interests emphasised in the order – ideological and religious neutrality of the state, proper functioning of the justice system, negative freedom of religion afforded parties to proceedings – are significantly less weighty in the context of freedom of training than the Senate assumes. At the same time, significantly more weight must be attached to the restrictions entailed by a ban on the complainant’s freedom protected by fundamental rights. It may be conceivable that the trust parties to proceedings or by the public in the neutral and impartial administration of justice might be undermined if they faced judges or prosecutors who show their religious belief by wearing a headscarf. However, this does not equally apply if these persons are not judges, but legal trainees and it is evident that they are performing practical tasks at the court only for training purposes and thus only temporarily. Trainees are not accorded judicial independence or the responsibility of a public prosecutor; rather, they are subject to constant oversight by their training supervisors. Thus, they may not be held to entirely the same standards as members of the judiciary, who hold a position that legal trainees are not yet entitled to hold. Judges and public prosecutors voluntarily entered the justice system, thus subjecting themselves to the applicable requirements, while legal trainees who want to complete their training to become a fully trained lawyer (Volljuristin) are required to complete the state-monopolised traineeship without having access to an equivalent alternative.

At the same time, the ban on wearing a headscarf concerns precisely those situations in which a legal trainee has direct contact with parties to proceedings and acts, for the most part, autonomously. Even if the affected tasks are not central to the legal traineeship in quantitative terms, they are particularly significant for the training objective in qualitative terms. The traineeship is designed to prepare legal trainees for their future role as fully trained lawyers in a variety of professional contexts. For that purpose, legal trainees are meant to learn the practical skills required for performing the tasks of judges and public prosecutors; this personal experience is intended to raise awareness of the strict requirements of neutrality and impartiality inherent in these positions. If precisely these tasks are excluded from their training, the training objectives – which are not only in the personal interest of legal trainees, but also in the interest of society – can only be achieved to a limited extent.

A proportionality assessment conducted on the basis of these considerations leads to the conclusion that the ban on wearing a headscarf directed against the complainant is not tenable under constitutional law, at least in situations where it is evident for parties to proceedings and the public that the person they are facing is not a judge or public prosecutor, but someone in training. In addition, legal trainees are barred from actively promoting their religion in any way that goes beyond wearing a headscarf due to the duty of neutrality that also applies to them. Under these circumstances, the interest in fulfilling a religious requirement and in being able to complete, in full, the necessary training that is monopolised by the state prevails over the conflicting interests.

However, as the underlying statutory provisions can be interpreted and applied in conformity with the Constitution, they do not have to be declared unconstitutional on the grounds that the ban on wearing a headscarf at issue in these proceedings violates the complainant’s fundamental rights under Art. 12(1) GG and Art. 4(1) and (2) GG.