The headscarf symbolises, not threatens, Germany’s constitutional order
Discussion on the headscarf continues in Germany and Austria as the controversy surrounding the piece of clothing grows. For supporters, it boils down to a sign of religious and social plurality. Opponents, on the other hand, see it as the creeping infiltration of the primarily Christian West by adherents of political Islam.
The factors determining the public debate are more complex than many realise. The conversation involves the very nature of a free and democratic constitutional state. More precisely, it is about the preservation of religious freedom and the prohibition of religion-related discrimination.
Let us begin with the role of constitutional law. The necessary neutrality of the state is premised on an awareness of the potential for conflict that can arise from different religious and ideological convictions. To avert conflict, the state aims to preserve a neutral position and thus only engage impartially as possible when required.
A multicultural society may be a sign of pluralistic richness. But there are major challenges associated with such diversity, and the state is accountable for administering them through legal regulation.
A liberal democratic and constitutional state, such as the Federal Republic of Germany and the Republic of Austria, aims to govern different religious and ideological convictions with a combination of freedom and repression intended to maintain its neutrality.
The German state's offer of neutrality can be traced back to the aftermath of the confessional civil war in the 16th and 17th centuries. Local sovereigns determined the religion of their subjects on a state level. The motto was: ‘whose region, whose religion’ (cuius regio, illius religio). This allowed the dispute over religious truth between Catholics and Protestants to be suspended at the imperial level. In turn, agreements in the political sphere meant common interests could be formulated, leading to mutual recognition and the formation of state unity. The German cooperative model of biconfessionalism began to slowly develop.
By the end of the First World War, the German state no longer considered itself Christian. State ecclesiasticism ended and the state religion was abolished. However, the Weimar Republic made no explicit provision for neutrality. Instead, just like the modern Federal Republic of Germany, its two important constitutional components were: the institutional separation between church and state, and a substantive - i.e. religious or ideological - ban on identification. In short, Germany commits itself to religious neutrality through a constitution that does not favour any religion.
In contrast, the Turkish state since 1925 has been seeking to actively intervene in religion through an alliance with the Hanefetic tradition of Sunni Islam. Apart from the Jewish and Christian minorities in Turkey, others - such as Alevis - are denied recognition. Even if the Turkish state defines itself as secular, its religious policy is not.
Let us now turn to day-to-day politics and the everyday world of citizens. The state's neutrality can be challenged by political parties, which by their nature operate on a partisan basis. Their idea of a political order, including neutrality, can differ substantially from the state. Right-wing populists, for example, can claim that "Islam is not a religion, but a political ideology". They can also demand, as the far-right Alternative for Germany (AFD) does, that religious freedom should not be granted to Muslims because Islam knows no freedom of religion.
As long as political parties remain within the framework of the constitution, they can promote new interpretations of the constitution that contradict the Federal Constitutional Court. Citizens of a liberal democratic and constitutional state can even favour beliefs that contradict the state and its law. For example, supporters of right-wing populists can argue that the headscarf symbolises political rather than religious beliefs.
Interestingly, right-wing populists also advocate traditional family values and often oppose quotas for women in the workforce. This suggests that they are not always concerned with gender equality in general. Moreover, many – not just right-wing populists - argue that the headscarf deprives women of their sexuality. This suggests that women are prevented from developing themselves by religious-patriarchal beliefs.
The lines of conflict outlined above are utilised differently by different parties and citizens. But the state in Germany and Austria is required to act within the framework of neutrality offered by its constitutional order. This means it must keep the democratic-political space open for supporters and opponents of the headscarf, and react with repression in the event of transgression.
It is not just in religious groups that enemies of a free, democratic, and constitutional state can be found.