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—thechallenge 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 in1985 and, in 1995, became a German citizen.1 Her goal was to become aschoolteacher. Having passed two state exams that qualified her to teachGerman, English, and social studies in public elementary schools, she appliedfor a position as a teacher in a state school in Baden-Württemberg.

When Ludin declared that she would wear the Muslim head scarf not onlyin 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, PascaleFournier Gunther Teubner, and Joanne Scott for written comments and for discussion generally, as well asKaren Barrett for her editorial help. The usual disclaimer applies.

1 Bundesverfassungsgericht (BverfGE), 2 BverfGE 1436/02 Judgment of Sept. 24 2003 (“teacher-head scarf ” decision.)

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 aparticular religion. However, the German system traditionally has taken adifferent approach to the relationship between the secular state and religion,conceiving of state neutrality as an open-ended concept that does not excludeall forms of religious life from the public sphere, accepting the notion thatteachers as well as parents in public schools have certain religious needs. Theexamples of France and Germany show that questions of religious manifesta-tions in the public sphere will be decided not on a uniform basis but, rather, inlight of the variations in the different historical traditions governing therelationship between religion and the state.

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

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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 reli-gious conviction as a Muslim woman and an expression of her personality.Ludin also explained that, although aware of public anxieties about the headscarf, she did not wear it as a political symbol or with the intent to influenceher pupils in religious matters.

In response, the school board pointed to tensions about the head scarf inGerman society and said that, in a state school, the head scarf must be considereda “danger” to social cohesion and to the pedagogical climate.2 From “an objectivestandpoint,” the board claimed, the head scarf was not merely a private reli-gious symbol but must be understood as a symbol of cultural self-segregationand, thus, as an explicitly political symbol likely to provoke strong reactions ofrejection and polarization. In elementary schools, pupils would be exposed tothis symbol at a very early and impressionable age. And even though there hadbeen no conflicts with either pupils or parents while Ludin was a teacher onprobation, the board claimed that for her to wear the head scarf in class wouldhave the “objective effect of cultural disintegration,” from which the childrenwould have “no possibility of escape.”3

In Germany, religious freedom is guaranteed by article 4, sections I and II ofthe German Basic Law (Grundgesetz). In reaction to the Nazi past, the guar-antees are both broad and emphatic. Section I reads: “Freedom of faith andconscience, and freedom of creed religious or ideological, are inviolable.” Andsection II adds: “The undisturbed practice of religion is guaranteed.”4 Thus,the right to freedom of religion and of conscience is guaranteed under theBasic Law as an absolute right, without reservation.

On paper, this constitutional guarantee is much more stringent than whatis conveyed in the European Convention on Human Rights (ECHR), whichidentifies freedom of conscience as a basic human right but qualifies it asfollows: governments are entitled to abridge the right when necessary “for theprotection of public order, health or morals.”5 Despite the absence of suchqualification in the Basic Law, the German Constitutional Court held in a 1995decision (concerning crucifixes in classrooms) that “some sort of restrictions”are permissible, but that they must “follow from the constitution itself ” andthat the legislature could not impose limits beyond what was envisaged by theconstitution.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 inDECISIONS OF THE BUNDESVERFASSUNGSGERICHT—FEDERAL CONSTITUTIONAL COURT—FEDERAL REPUBLIC OF

GERMANY (vol. 2, Pt. I) 631 (Nomos, Baden-Baden 1998).

In a five-to-three judgment delivered in September 2003, the ConstitutionalCourt held that the school board’s rejection of Ludin’s application was uncon-stitutional. The Court’s opinion emphasizes the importance of freedom ofconscience not merely as an individual right, but as a principle. However, thatprinciple was not to be understood in terms of a “strict separation betweenstate and religion,”7 State involvement with religion is permissible, accordingto the Court, for the purpose of encouraging, protecting or sustaining religiousdiversity, in the wider society and in state schools.8

But the Court refused to say that the head scarf was not a “danger.” Andthis refusal has enormous legal and political consequences. In particular, itmakes the head scarf subject to state regulation. The majority opinion rejectedthe school board’s decision solely on the grounds that Baden-Württemberghad no statute in place at the time that explicitly authorized the board to banthe head scarf because of the danger it represented.9 The board had actedillegally only because it lacked a sufficiently clear legislative mandate. But theCourt explicitly left the legislatures of the Länder free to enact laws banningthe teacher’s head scarf and, within weeks of the decision, a majority ofGerman states announced plans to do just that.10

The minority opinion was even more troubling; it said that the schoolboard’s decision was the only correct response to Ms. Ludin’s claim. Accordingto the dissent, her claim did not even present an issue of freedom of con-science, which would apply at the personal level but not in the “inner sphere ofthe state” that the claimant sought to enter—a sphere where private rights are“functionally limited.” Accordingly, the school board did not overstep thebounds of its administrative discretion but, rather, used that discretion in theonly 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,” onemust recall another aspect of German constitutional precedent. While a dis-tinctive feature of the German approach is the emphasis on freedom of con-science as a principle, another feature of the German approach is theassumption that Christian culture occupies a privileged place in Germanpublic life and is, indeed, a postulate of German political identity and social

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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 theBundesverwaltungsgericht (BverwG) BverwG 2 C 45.03, Jun. 24, 2004 available athttp://www.bverwg.de/enid/cz.html.

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

cohesion. Consequently, its explicit affirmation in the public schools contextis a compelling state interest. This latter assumption was articulated in the“classroom-crucifix” decision by which the Constitutional Court struck downa Bavarian statute prescribing the mounting of crosses on the walls of publicschool classrooms because it violated the negative freedom “to abstain fromthe rituals of a belief one does not share” and, further, because the state couldnot force pupils “to learn under the cross.”12 At the same time, however, theCourt identified a broader notion—of Christian culture “on which socialcohesion is based”—which it distinguished from Christianity in the narrowsense as a set of particular truths of faith, symbolized by the cross. It held thatChristian culture, in this broader sense, included the notion of “tolerance ofthe other-minded” and did not entail discriminatory denigration of non-Christian philosophies.13

The fundamental normative problems of such an approach are exemplifiedin the teacher head scarf context, in which the extension of freedom of con-science to be accorded to a Muslim woman in the public domain is at stake. Ihope to show that both majority and minority opinions of the teacher headscarf decision were misguided. If the reader is not persuaded, it is because of adisagreement over certain normative premises concerning the value and mag-nitude of freedom of conscience, over the role of the public/private-distinctionand over the very idea of constitutional patriotism. However fundamentalthose differences, my hope is to render them more transparent, to keep openthe 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 vari-ous interests represented in the case. To resolve the conflict among them, theCourt stressed, is ultimately the task of the “public process of will-formation.”15

• Ludin has a constitutionally protected interest in fair and equal accessto public sector employment on the basis of merit without religiousdiscrimination—as guaranteed by articles 33.II and III of the Basic Law.

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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 admin-istrative 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.

• Ludin is also guaranteed religious freedom and freedom of conscience, inaccordance with articles 4.I and II. The imposition by the state of a duty notto make visible one’s religious commitments by not dressing in the waymandated by one’s religion would be an infringement of religious freedom.For such a duty would confront its addressee with a stark choice—either tohold office or to comply with one’s religious dress code.

• The state, meanwhile, has an interest in maintaining the commitment toneutrality in religious and broader ideological matters, which qualifies itseducational mandate. This commitment reflects an attitude of openness vis-à-vis the plurality of religious creeds—an attitude grounded in respectfor human dignity. Moreover, the opinion emphasizes that neutrality can beunderstood in two different ways: the first in terms of a “strict separation ofstate and church”16—seen as a “distancing”17 of the state with respect toreligious matters. The second, by contrast, is manifested by the encourage-ment of religious plurality and diversity. While neutrality precludes the iden-tification of the state with a specific religious outlook and forbids the state toevaluate religious doctrines, it suggests a governmental interest in sustainingplurality and ensuring mutual openness. The opinion stresses that the latterunderstanding of religious neutrality is the one endorsed by German consti-tutional law. In particular, it harks back to the holding that public schoolswere not so much forbidden to make Christian references as they weremandated to remain open to other religious or philosophical beliefs, tenets,and values: “It is through this openness that the liberal [ freiheitliche] state ofthe Grundgesetz redeems its commitment to religious and philosophicalneutrality.”18

• The parents’ interest in the care and upbringing of their children is guaran-teed by article 6 of the Basic Law as “a natural right,” extending to educationin religious and philosophical matters and “imply[ing] the right to keep thechildren away from religious convictions that seem to the parents wrong orharmful.”19

• Finally, students have a “negative religious freedom” to stay removed fromthe exercise of religious freedom by others. While this does not provide ageneral right not to be exposed to other creeds, it comes into play in “a state-created situation created where the individual is exposed without possibilityof escape to the influence of a particular faith.”20

In the second part, the opinion holds that a teacher’s expression of religiouscommitment in the school setting may negatively affect the state’s fulfillment

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16 Id. at para. 43.

17 Id.

18 Id.

19 Id. at para. 45

20 Id. at para. 46

of its educational mandate as well as the parents’ and the pupils’ protectedinterests—possibly influencing pupils or eliciting conflict with parents—and, inthis 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 tryto influence or proselytize the pupils and so, in Ludin’s case, can only beabstract. Drawing on sociological expertise, the Court found that the meaningof the head scarf could not be reduced to an expression of the subjugation ofwomen but might also be a freely chosen symbol that would permit a Muslimwoman 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 inthe classroom, the teacher is in a position, nonetheless, to mitigate its influenceby explaining its significance to them. Wearing a head scarf, as the opinion putsit, poses no obstacle to showing allegiance and loyalty to the Grundgesetz.Absent a showing of “concrete danger,” the board was not authorized to makethe 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 justifypreventive action by the school board if there is a sufficiently clear statutoryauthorization by the legislature of the Land—a statute that enables the boardto intervene and sets forth the conditions under which it may do so. Becausethere was, in Ludin’s case, no such “head scarf statute” in place, the board wasnot 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 toenact statutes that specify the degree of religious manifestation to be permit-ted in public schools, taking into account factors such as religious and culturaldiversity and local context. The opinion notes that such a statute couldencourage the exploration of religious differences but also observes that statelegislatures could also come to quite different conclusions. They could, forexample, just as reasonably conclude that increased religious diversity hasgenerated a greater potential for conflict with which the schools are illequipped to cope. Thus, an equally reasonable legislative stance could be tounderstand the commitment to state neutrality in terms of a need to distancethe state further from religion than has been done in the past.

The crucial point of the minority opinion is that there is no freedom-of-religion issue at stake when someone seeks employment in the public sector,because religion is a private matter. The only constitutional interests at stakewithin a public school are those of pupils and parents. To be a teacher in thatschool means to be part of the state. But, the minority asserts, constitutionalguarantees are, by definition, directed against the state—they are devices formaintaining the distance between citizen and state. A teacher in a publicschool—as part of the “inner sphere of the state” and as an “organ . . .through which the state acts”—is differently situated than a citizen whoinvokes constitutional rights against the state. The extent to which the teacher,

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21 Id. at para. 49.

as a civil servant, can invoke constitutional rights is functionally limited andsubject to a special reservation regarding compatibility with the purpose andthe proper functioning of the state organ of which he or she is a part. Thisfunctional 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 wholevocabulary of danger prevention deployed by the majority opinion—a vocab-ulary drawn from police law—is conceptually inappropriate. A school boardmust be in a position to disallow a teacher candidate’s personal fitness (apartfrom technical competence) by a predictive decision, even without the level of“danger” having been reached. The very possibility of certain symbols provok-ing conflict, rejection, and protest is, therefore, sufficient reason to deny thebearer’s application.

As mentioned at the beginning, Ludin had always insisted that she wore thehead scarf not as a political provocation but as a personal symbol and therehad never been any conflicts or complaints during new employment as ateacher on probation. It is against this background that we must take a closerlook at the neuralgic points of both opinions.

First, through its dualistic approach to state and society, the minorityopinion disregards the way public schools are placed in between the two, assites where state and society meet. To be sure, article 6.II of the Basic Lawguarantees parents the care and upbringing of their children as a “naturalright.” But schools are not part of the family, and the terms of education arenot determined by parents. According to its educational mandate (Art. 7.I),the state, as observed in the classroom–crucifix decision, not only must set upand organize schools but may also establish the goals of education and thescope of training. To that extent, the state is “independent of parents” and mayeven come into conflict with them. It is, according to the Court, “inevitablethat at school the differing religious and philosophical convictions of pupilsand their parents confront each other particularly intensively.” Schools areplaces “where the cultural foundations of society are principally handed downand renewed.”23

If, however, schools are sites where state and society inevitably meet, thenthe situation of a schoolteacher is fundamentally different from that of otherpublic officials, such as judges or police officers. They may be viewed notmerely as obligees but as rights holders whose constitutional rights may con-flict with those of pupils and parents. A teacher, in other words, participates inthe very plurality that he or she—as a consequence of the commitment tostate neutrality—must monitor. That commitment does not force the teacher

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22 Id. at para. 78 ff.

23 Classroom–crucifix case, supra note 6 at 647.

to adopt an insulated standpoint from nowhere; rather, it requires her to pro-mote mutual understanding and respect among heterogeneous and conflict-ing religious beliefs, her own included, and is vindicated precisely through thepedagogic practice that encourages dialogue.

Unlike the minority opinion, which fails to take into account the dualnature of schools as both state institutions concerned with governance and ascomponents of society existing as pluralistic microcosms, the majority opinionchose the correct starting point. It describes the complex array of interestsimplicated in the conflict and also strongly reaffirms the principle of religiousfreedom and freedom of conscience. However, the majority opinion fails todraw the conclusion that wearing a head scarf is not a threat. Its generousinterpretation of freedom of religion and conscience as an invitation todialogue stands in tension both with the decision to delegate to the Länder thesubstantive issue of how to understand these freedoms and, to an even greaterextent, with the unquestioned assumption that wearing the head scarf is a“danger.”24 The vocabulary of danger prevention translates constitutionalfreedom of conscience into an administrative issue of social order and control;it burdens an unconditional rights guarantee with policy reservations; andexposes religious freedom to a ubiquitous balancing with all kinds of gover-nance interests. Despite their professed mutual antagonism, the two opinionsare alike in that both treat an assumed status quo of public anxieties as thenormative baseline from which to decide what constitutes a violation of reli-gious freedom.

3. Democracy

Two fundamental questions demand to be addressed in this case: Why did themajority opinion resist the conclusion that naturally seems to flow from thegenerous interpretation of religious freedom—namely, that the head scarf isnot a threat? And what would it mean to draw this conclusion? What, in otherwords, is the normative link between religious freedom and democracy?

The German debate raised two objections to the generous reading of reli-gious freedom that would have permitted the teacher to wear the head scarf:

First, there is the objection that permitting the head scarf would entail afundamental contradiction, both in law and in the public perception, of theCourt’s 1995 decision that banned the cross from Bavarian classrooms: “If thecross in classrooms is constitutionally prohibited, then it cannot be right thatthe teacher head scarf is permitted.” Some constitutional lawyers have come

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24 For a related criticism, see BENHABIB, supra note 14: “The right to freedom of conscience, despiteall 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 culturalidentities and traditions. The Court failed to present a robust constitutional defense of pluralism.”

out in support of this argument.25 If pupils must not be exposed to the cruci-fix in classrooms—must not be forced to learn “under the cross”—then itcannot be right for pupils to be exposed to teacher head scarves, they argue.Accordingly, if the state cannot prescribe affixation of the crucifix, then itcannot permit the head scarf. The difference between the state requiringsomething and the state simply permitting something is irrelevant; what mat-ters is the effect that the symbol, be it cross or head scarf, may predictably haveon those who are exposed to it, as viewed from the standpoint of an objectiveobserver-participant. In a predominantly Christian legal culture, the symboliceffect of the head scarf is seen as more drastic and detrimental to social peacethan that of the more familiar cross.

But classroom crucifixes and teacher head scarves raise fundamentallydifferent issues; Ludin is a person, not a building decorated with a religioussymbol. At stake in the head scarf case is the exercise of a fundamental indi-vidual right. By contrast, what is at issue in the classroom-crucifix context is apolicy decision by the state (the Bavarian legislature), reflecting the preferencesof the majority. The decision to display the head scarf is attributable not to thestate but to the individual teacher, who wishes to exercise her constitutionallyguaranteed right to freedom of conscience. While the teacher acts pursuant tothe 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 personalauthority—not in abstraction from her personal authority as a character-mask of the state. Her role, as defined by the constitution, rules out any viewthat would try to depersonalize the teacher and regard her exclusively as anofficial, thereby missing the point and purpose of pedagogic activity.

A second, closely related objection to Ludin’s wearing of the head scarf hasbeen that its political symbolism cannot be separated from its religioussymbolism:26 the head scarf is an instrument of proselytising, an ultimateexpression of a fundamentalist attitude. This objection has gained particularprominence in reaction to former German president Johannes Rau’s pleas for“equal consideration of religions.” Rau had argued that if the head scarf wasimpermissible in schools, then this verdict must hold equally for Christianvestimentary 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 religiousdefiance of liberal democracy, for oppression and violence. A “vicarious”argument has even been advanced—by Lutheran bishop Margot Kässmann,

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25 See e.g. Karl-Hermann Kaestner’s annotation to the teacher–head scarf decision, in 23JURISTENZEITUNG, 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.

for example27—namely that young Muslim girls, who may be struggling againstthe head scarf imposed on them by their parents and local community, have anaffirmative claim against the state to the effect that public schools should remainplaces of refuge and freedom from the head scarf. The state must ensure, asbishop Kässmann formulates, that schools communicate a “climate of freedom.”

But the head scarf, and its character and symbolic effect, cannot, forconstitutional reasons, be assessed in the abstract, without reference to theperson of the teacher who herself invokes freedom of conscience. The teacher,as a rights holder, cannot be subsumed under the head scarf and symbolicmeaning cannot be ascribed to the head scarf by the state. It matters whetherthe teacher who wishes to wear the head scarf credibly expresses loyalty andallegiance to the Constitution. A head scarf–wearing teacher may, out ofpedagogical and collegial responsibility—and because of constant (as opposedto fleeting) eye contact with pupils and colleagues—have a duty of care tocounter existing prejudices. The position of a teacher as a role model withconsiderable influence on young pupils does not militate against a generousapproach but rather argues in its favor. Public schools protect and insulatepupils from sundry pressures of society, economy, and the family but, by thesame token, they mirror society’s pluralism.

Schools constitute a “special environment,” in John Dewey’s words, in whichnew bases of mutual tolerance can be constructed through processes of defin-ing and addressing common concerns.28 Schools put a head scarf–wearingteacher in a position to explain to pupils, parents and colleagues both the mean-ing(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 toLudin and to themselves their concerns with immanent restrictions on or lim-its of religious freedom and tolerance, with gender equality and secularizationmore generally. Ultimately, schools put pupils in a position to explain to teach-ers and parents alike their need for orientation and guidance regarding thedifficult choice between conformity and rebellion. Exposure in school toreligious commitment can foster an understanding of the reality of a modernmulticultural society and help pupils, from an early age, to learn the impor-tance and techniques of mutual tolerance. The protective function of the stateis to promote dialogue within schools—not by prohibitions, but by helpingschools to construct themselves as self-organizing and autonomous spheres ofdeliberative encounter and critical contention, as schools of tolerance.

Thus, the difficulties of the German debate stem ultimately from an unre-solved conflict between two competing conceptions, within the German

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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).

constitutional approach, of the normative link between religious freedom anddemocracy. On the one hand is the emphasis on freedom of conscience as aprinciple—to be understood not in terms of a blanket constitutional rule ofchurch-state separation but, rather, as permitting state involvement withreligion for the purpose of promoting religious diversity and a climate ofmutual openness and dialogue among faiths, in state schools and in the widersociety. On the other hand, the German approach also embraces the belief thatChristian culture occupies a privileged place as a substantive premise both ofGerman political identity and of values of constitutional magnitude, such asreligious tolerance, non-discrimination, and democracy itself.

To my mind, theories of political liberalism and of deliberative democracyhave made a powerful and convincing case for the argument that religious tol-eration is part of the concept of democracy itself—part of, as John Rawls force-fully argues, “the domain of the political.”29 The Court’s view assumes thatthe ethical and political self-understanding of citizens in a democraticcommunity must be taken as a historical-political a priori—as the normativebaseline—both of democratic politics and of social cohesion. A deliberativeview, by contrast, emphasizes the ways in which the culture of liberal democracyis subject to—and legitimized by—exposure to constant revision in the crucibleof deliberative politics. The meaning of religious toleration is not premised on,and cannot be defined by, the internal capacity of a comprehensive outlookwithin society for “tolerance of the other-minded”—and on the intrinsicallyasymmetric “us–them” distinction drawn and deployed by such a view in thefirst place. A liberal democracy cannot delegate the question of what level oftolerance we, as citizens, legally owe to one another to a comprehensive out-look within a pluralistic society, however dominant, benevolent or enlightenedthis outlook takes itself to be, according to its own standards, but must retainthat question within the realm of liberal constitutional dialogue itself, inwhich we confront each other symmetrically as free and equal—as partners ina 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 democ-racy mutually presuppose one another—that they can only be understood intandem. On the one hand, the decision by citizens to concede to one anotherthe right of religious freedom—the bar against establishment—serves not onlyindividual liberty but also democracy, because this decision shifts the entireburden of democratic political legitimation away from partisan religious andcultural views to the process of free and public deliberation among citizens asequals. Built into this idea of deliberation is an idealization that moral judg-ments can be justified to all citizens on the basis of fairness—an idealizationthat accounts for the push for better answers, the search for mutually acceptablelimits of toleration, and the maintenance of an open and participatory

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29 JOHN RAWLS, POLITICAL LIBERALISM (1996).

dialogue that transcends the boundaries of vocabularies of religion or culture.Disregard for religious freedom, then, not only undermines individual libertybut blocks and diminishes democracy. By giving precedence in the publicsphere to reasons (or vocabularies) that do not envisage universal, equal,reciprocal membership, one denies to those whose religious freedom isnegatively affected the standing (and the voice) of equal members of a consti-tutional regime.30 And the attempt to ground a collective commitment toreligious tolerance not in the idea of deliberative democracy but, rather, in aprepolitical comprehensive view, has a similar effect of a denial of equal stand-ing; 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, per-sistent and reasonable disagreement as to the “right answer” in a divisivemoral conflict over the limits of toleration, but the acknowledgement of thatdisagreement must not be conflated with the skeptic’s claim that (a) moralquestions can never have answers that are equally fair and thus acceptable toeveryone; and (b) we must therefore resort to some “embedded” view in ordernot to endanger “social cohesion.” There is no insulation or escape fromexposure to multiple pluralism.

On the other hand, religious views can only benefit from democratic tolerationif they endorse the idea of the equal reciprocal membership of all as part oftheir particular outlook.31 Reasonable pluralism of religious views, in turn, isnot a threat to democracy but, instead, a catalyst of democracy. Its specialimportance explains why religious freedom is not merely a private right butalso a political one. Let us say that religious liberty has simultaneously aninward-looking and an outward-looking dimension. In the former, the pointand purpose of religious freedom and of freedom of conscience is to protectand assign value to the forum internum of the individual. Religion, in con-tradistinction to the political, addresses the person and promises to save him orher from overwhelming feelings of anguish and guilt through its concepts ofsin, 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 guaranteeof freedom of religion and of conscience expresses respect for the perspectivesof outsiders and hitherto marginalized groups as contributors to public dia-logue and not as obstacles to the pursuit and realization of public democraticideals. The constitutional rationale behind broad guarantees of religious

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30 For a related point see Joshua Cohen, Procedure and Substance in Deliberative Democracy inDEMOCRACY 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’LJ. CONST. L. (I·CON) 2-12 (2003).

freedom is thus not merely to impose a barrier against the state (by providingprivate spaces of withdrawal and escape) but to create the possibility for newviews to undermine false forms of social cohesion and to empower individualsand groups to challenge existing constitutional settlements. Freedom ofconscience, 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 democraticconstitutionalism’s universalistic core.

The head scarf decision is, therefore, extremely problematic because it hasfailed to capture the ways in which freedom of conscience is simultaneously aprivate and a political right. To argue, as the Court did, that the head scarfposes a “danger” (if only an “abstract” one) is to tell Ludin (and those of us notin her position) that we cannot intelligibly communicate with her as a Muslimwoman 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 withChristianity, but to construe it as an object of so-called danger prevention by thestate. 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, thehead scarf conflict–to experiment dialogically with regimes of tolerance. Thissolution would shift the unwieldy task of balancing conflicting interests awayfrom the courts and the legislators and back to the schools themselves. It wouldstrengthen the schools’ capacity to help democracy meet its need for citizenswho 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 ofconscience is both a personal and a political right. For this reason, as thedrafters of the Grundgesetz knew, and the authors of the Draft TreatyEstablishing a Constitution for Europe also understood,33 freedom of con-science is not burdened with qualifications and must not be compromised byconsiderations of policy, police, and state. What was “uncompromising” wasnot Ludin’s insistence on wearing the head scarf in the classroom, but theCourt’s insistence that the head scarf posed a danger and was necessarily apolitical symbol. Despite their lip service to gender equality, both opinionscontribute to, and threaten to entrench further, Muslim women’s state ofpolitical speechlessness. German society is, in point of fact, a multicultural,immigrant society. In a failed attempt to speak for this society as a whole, theCourt has transformed a fear of otherness into a jurisprudence of fear.

106 DEVELOPMENTS

32 HILARY PUTNAM, THE COLLAPSE OF THE FACT/VALUE DICHOTOMY and OTHER ESSAYS 130 (2002) (quot-ing William James).

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