At present, the German Constitution does not ban citizens from wearing religious symbols. Only in Berlin does a ban exist for employees of city authorities (see below).
But two judicial organisations – the Association of German Administrative Judges and the German Association of Judges – as well as the Ministers for Justice in the states of Baden-Württemberg and Mecklenburg-Western Pomerania, are suggesting that judges and junior lawyers should be prevented from wearing the headscarf when they are in court.
They argue that the external expression of religious conviction means that the judicial duty of neutrality is not upheld in the courtroom.
The current debate surrounding the wearing of headscarves by judges and trainee lawyers was sparked off by a case in the Bavarian town of Augsburg in June earlier this year during which a 25-year-old trainee lawyer took the Bavarian legal system to court because they banned her from wearing a headscarf. She subsequently won the case.
The Augsburg Administrative Court declared that the headscarf ban for legal trainees, which had been issued by the Federal Ministry of Justice in 2008, was an attack on religious freedom and had no legal basis, as Bavaria does not have a law which prevents trainees from wearing symbols of their faith.
This was the first complaint of its kind against the headscarf ban for judges and trainee lawyers in Bavarian law courts.
Advocates of the headscarf ban
Following the Augsburg there have been several calls to impose a headscarf ban in courts.
Guido Wolf, Minister for Justice in the state of Baden-Württemberg and member of Angela Merkel's conservative Christian Democratic Union (CDU), is currently working on a law to ban judges and trainee lawyers from wearing a headscarf.
Additionally, Uta-Maria Kuder, Minister for Justice in the state of Mecklenburg-Western Pomerania and also a member of the CDU, said that obvious expressions of religion in court are inappropriate, because judges and prosecutors represent the state.
“Because there is a particularly strict requirement for state neutrality in the courtroom, every external indication of a lack of objectivity should be avoided,” Kuder added.
Neutral clothing is a symbol of impartiality
So, why are a number of judges' associations advocating the headscarf ban for judges and trainee lawyers at the moment?
Ministries of justice throughout Germany currently require judges to wear a standard uniform consisting of a black robe with a white shirt or blouse underneath, as well as a white bow tie, cravat or neckerchief.
The fact that “male and female judges are all dressed the same indicates to the parties involved that […] it [the outcome of the case] does not depend on the person, but solely on what the law says”, maintains Chairman of the Association of German Administrative Judges, Robert Seegmüller.
In cases where the litigants have other religious convictions than Islam, it is especially important that neutrality of clothing is maintained, he went on to say.
If judges were to wear headscarves in addition to their basic uniform, people’s trust in the impartiality of the justice system could be shaken, the German Federation of Administrative Judges also stated.
But this isn’t the first time that the headscarf question has been debated.
Back in September 2013, a Muslim lawyer was forbidden from wearing a headscarf in a Berlin courtroom, the reason being that she should show religious neutrality when working as “an organ of the legal system”.
Under the Neutralitätsgesetz (Neutrality Law) in Berlin, employees of any of the city authorities are banned from wearing any kind of religious or ideological symbol. However, discrimination on religious grounds is not permitted at all.
“The Neutrality Law has nothing to do with indifference to religion or limitation of religious freedom. […] It is called the Neutrality Law because there are areas like schools, courts and the police, in which the state must maintain strict neutrality,” Mayor of Berlin Michael Müller told Frankfurter Allgemeine Zeitung.
In June 2015, a Muslim trainee lawyer was offered a traineeship at a local state authority in Berlin but was subsequently told that they would have to review their decision after seeing that she wore a headscarf. After an exception was made for traineeships, she was then informed that she would be allowed to work there after all.
Weighing up religious freedom with judicial impartiality
At the heart of the headscarf debate lies the issue of balancing judicial requirements and personal rights.
When asked whether judges and junior lawyers should be allowed to wear a headscarf in the courtroom, Jens Gnisa, the Chairman of the German Association of Judges, maintained that it’s about weighing up the personal right to freedom of religion with the judicial duty of neutrality.
“It is important for citizens that the legal system decides on their case in a recognisably impartial way,” Gnisa went on to say.
Constitution must be altered
If the headscarf ban is to come into effect, “it must be made into legislation at the very least; it might even be necessary to change the Constitution,” claimed Robert Seegmüller from the Association of German Administrative Judges.
However, if the Constitution were to be altered to enforce the headscarf ban for judges, the ban would also have to be applied to other pieces of religious clothing and other religious symbols, he added.