Europe vs Burqa: Short Analysis Of Germany’s Perspective Towards The Burqa Ban
This essay focuses on the issues surrounding the church and state in the country of Germany. The main objective will be to scrutinize the decisions made by the state court of Germany, to ban the wearing of burqas in public places. In Germany not all states have implemented this ban, however, there have been heated debates about whether it is necessary to continue to forbid this practice of burqas. The following analysis covers the problems encountered within Europe where some countries have completely banned the burqa and the consequences that were encountered. This will help explain the possible outcome for Germany if they would continue to ban the burqa in every state.
The essay will continue to analyse Iran, a place outside of Europe, where the opposite is happening. Women are forced to cover up, and the state is implementing laws that favour religious beliefs, while in Germany the government is focusing on practising a more autonomous stance. There will be a short evaluation of church and state practices in Germany and the input of the constitutional court in regard to the burqa ban. Through this analysis, the problem can be evaluated more clearly. The main question of this essay is: Should the burqa ban continue in Germany?
1| The Various Approach To The Burqa Issue In Europe
Forbidding Muslims to completely cover up their body and faces is a highly discussed topic in Europe (Figure 1). Countries such as Austria, the Netherlands, Belgium and France have already taken measures against this practice, which aims at completely prohibiting Burqas in public places (BBC News, 2018). These places are either public schools, hospitals or during transport. Other European countries partially banned it. This means that in some localities in Spain or Italy, the Burqa is not allowed to be worn (BBC News, 2018). Another example of partially prohibiting the Burqa is not allowing Muslims to wear it in public places like nurseries public schools and universities. This is not allowed in Luxembourg, Switzerland, Norway and with the exception of Kosovo, which has explicitly forbidden this only in public schools (BBC News, 2018).
In addition, in Bosnia and Herzegovina, the Burqa cannot be worn in courts and other legal institutions (BBC News, 2016). In comparison to Germany, this ban was solely applied in a few states which implies that there is still hope for Muslims that the other states will not follow to forbid the Burqa (BBC News, 2018). The subsequent analysis will focus on understanding why the Burqa was explicitly forbidden in some states of Germany. The focal point will be to question whether Germany should continue to forbid Muslims to wear a Burqa. The aim of this is to scrutinize the problems that arise with a verdict on a complicated subject relating to the expression of religious rights.
Figure 1. Europe Burqa Bans. Map from 2023.
2| Explaining The Ruling Of German States Regarding the Burqa
Making the decision to forbid a Burqa can be seen as an extremely controversial resolution. In theory, every person in the world should have absolute freedom to wear what they want. However, in practice, this is usually an unrealistic Human right. Everyone has to conform to a certain manner to a dress code to be appropriate enough to fit into society. But there should be a line to allow some particular dress codes and some not. There needs to be also a valid assessment of taking measures against the wrong outfit. Nonetheless, who and how to make measures in a case like this seems to be still unclear.
The problem simply does not stop there. This issue seems to cover up a much bigger problem, which is that this relates to gender issues, patriarchy and culture (Kuper, 1996). Women especially seem to be affected by this problem all around the world. Amnesty International addressed this issue through a statement in New York around 2011 (Amnesty International, 2011). They announced how women have the right to choose their dress free of coercion since compulsory dress rules would interfere with individuals’ human rights. Inappropriate clothing and who is wearing it is not always a black-and-white problem, but it usually stems from women wearing revealing clothing. This is a very simplified problem statement, but it does put into perspective how this problem does not only happen in one society. This is a global issue and has been for a long time. Specifically, how men seem to be against it and expect women to cover up. Overall this could be considered a general summary of the issue of clothing and why it is usually a protected right. However, in the case of Germany and certain states forbidding explicitly Muslim women to wear Burqas is problematic, and could be related to an infringement of a Human right.
As stated in the German constitution, according to Article 4, the country offers freedom as an ‘undisturbed practice of religion’ (Bundestag, 2021). Particularly this article insinuates why german states cannot continue the burqa ban since this would be an infringement of constitutional law (DW, 2010). For example, Wolfgang Bosbach, a politician from the Crhistian-Democratic Union (CDU), has explained that the further ruling of the Burqa ban implies an unrealistic measure. This is because the verdict would serve barely any purpose since there are not enough cases that prove a need for a ban. Except in the cases of students wearing Burqas, or if a woman would be a witness in court or drives a car. In these situations, Bosbach suggested a critical evaluation, but overall he does not see a need for an absolute ban in the whole country as Belgium has done so (DW, 2010).
However, five years later Bosbach radically changed his answer. A popular german newspaper covered one of Bosbach's interviews with the Huffington Post, in which he considered that women who wear a Burqa are unwilling to integrate (Stelter, 2015). His opinion seems to have changed, and now with the help of a few other politicians, Bosbach is looking forward to completely banning the Burqa (Stelter, 2015).
Nonetheless, the basic law, article 4, is the main argument against the continued ban on Burqas (DW, 2010). This problem demonstrates, as well, that this could relate to a violation of Human Rights law. According to article 8 of the European Convention on Human Rights (ECHR), the law protects women’s rights to their personality and identity development (Considine, 2014). The adjacent articles, 9 and 10, elaborate on that women have the right to freedom of expression (Considine, 2014). Another article, number 14, indicates that women “should be protected from discrimination based on religious and other discriminatory grounds” (Considine, 2014).
This means that Germany could break the Articles of the ECHR if they continue to forbid Muslim women their right to wear the Burqa in Germany. But something else should be evaluated as well, which is to reconsider this possible unrealistic regulation. If it was implemented, would this mean that the german police would go around arresting all Muslim women who are wearing a burqa, or even worse, would she be considered a criminal if she did? These are the types of questions that would have to be addressed if German states are willing to continue with the ban on Burqas.
3| Europe Vs. Germany: Problems with Muslim Women Wearing The Burqa In Public
Letting Muslim women wear the Burqa in public would mean that there is a certain type of religious expression allowed (Habermas, 2006). According to Burchardt and Griera (2018), “legal regulations of certain types of clothing or religious symbols are often readily interpreted as responses to their driptive effects as religious expressions in public” (Burchardt & Griera, 2018, pg. 728). Nonetheless, this effect is not always accurate as described, state Burchard and Griera (2018). It is suggested that other scholars have argued that the ban and the regulations of face coverings are the results of “right-wing populism, nativism and racism” (Burchardt & Griera, 2018, pg. 729). This implies that the main aim of such a directive is to progressively marginalize Muslims in Europe (Bruchardt & Griera, 2018).
In order to explain the ban against Burqa, which seems to be in contrast to nationalism and racism, it is important to reflect, for example, on France. This is the first country to ban the burqa, and it is consequently the first European country to have done so (Hunter-Henin, 2012). France aimed, first, in 2004, to forbid the burqa in schools, but did not do this explicitly. They rather described it in a form of banning the display of religious symbols (Hunter- Henin, 2012). But by 2010 the law become more vigorous because the focus of this regulation was “to condemn the practice of the full Islamic veil” in public (Hunter-Henin, 2012, pg. 3). According to Hunter-Hening (2012), the implementation of these two regulations seems to evince “the legal expression of the French sensitivity to the presence of Islam in the public sphere” (Hunter-Henin, 2012. Pg. 3). Simply put, the Burqa is “not welcome” as stated by the Former President of France, Nikolas Sarkozy (Chrisafis, 2009). It seems to become clear over time, that this ban is not here to encourage diversity. Also, Hunter-Henin concludes that hopefully, the French 2010 “ban will not become the model for Europe” (Hunter-Henin, 2010, pg. 27).
In comparison to Germany, apparently, statements like these cannot be demonstrated. Instead, there seems to be a common belief that Germany appears to have no issues with Muslim women wearing the Burqa (Ferrari, 2016). According to Ferrari (2016), german law guarantees the right to religious clothing. Germany shows a far more open approach to diversity than other European countries have done so, in the past. “It is striking that the public wearing of a burqa [...] is not really an issue in Germany” (Ferrari, 2016, pg. 191). However, the only time Germany finds a problem with a Muslim woman wearing a Burqa is “when pictures of identity papers are taken and when a Muslim woman wants to work as a teacher or public officer” (Ferrari, 2016, pg. 193). This is due to the fact that identity pictures in Germany, require a person to completely reveal their face. However, even in this case, German laws make an exception for a person for wearing headgear, if this is because of their religious grounds (Ferrari, 2016). But the Burqa is not included in this exception, since the German states expect a person's face to be seen from the chin to the forehead (Ferrari, 2016). This exception seems to disregard the main purpose of Article 4, which is to grant women their religious freedom (Ferrari, 2016).
Coupled with the identity paper issues, the problems surrounding women wearing a headscarf while working as a teacher or public officer seem also to be a highly discussed topic in Germany. In 2004, a primary school teacher in Baden-Wuerttemberg, Fereshta Ludin, was not allowed to enter an internship (Ferrari, 2016). The main problem was that she was wearing a headscarf, and even though Article 4 protects this exact right, allowing exceptions to be made with identity papers, many state courts waivered this (Ferrari, 2016). This meant that Ludin and other women after her were allowed to be denied jobs due to their religious practice of wearing a headscarf (Ferrari, 2016).
According to Ferrari (2016), however, the burqa is not the central point of discussion in Germany. He concludes, that as long as individuals wearing a burqa (or any other form of veiling) do not work as civil servants or other forms of public duties, the law will not interfere with their religious expressions (Ferrari, 2016). Nonetheless, this appears to be a bit of a controversial conclusion, since Germany is restricting Muslim women a lot in the labour market and thus, it may be noted that the balance of freedom regarding religious convictions and the interests of citizens and the state is not as fair as it could be. This behaviour, however, is excused in a certain sense, because german politician Silvana Koch-Mehrin, former head of the Free Democrat in the European Parliament considered the burqa or any form of covering as “an enormous attack on the rights of women” and “a mobile prison”, and, furthermore, she recommended a European wide ban (Grillo & Shah, 2012, pg. 16). Comments made such as these here show a rather sinister view on the burqa, instead of viewing it as religious clothing that should be protected under law.
Although Koch-Mehrin has such a radical perspective about women wearing the burqa, she had been in a mobile prison herself, due to a plagiarism scandal that caused her to resign from the FDP (Spiegel Politik, 2011). According to the University of Heidelberg, her dissertation had to be reevaluated due to issues regarding potential plagiarism, which later seemed to be true (Spiegel Politik, 2011). So, if she is plagiarising her own work, she should not be considered a trusted source to evaluate women’s rights, in this case, her comment might be viewed as a less useful perspective of Germany regarding the burqa ban. However, as wrong as Koch-Mehrin is with her manner of handling her work assignments, her opinion does put the problems regarding the burqa further into darkness. It has still not become evident whether the burqa ban should continue since the opinions of german politicians either radically change or cannot be valued. In this case, it is time to go outside of Europe and have a look towards countries where women are forced to cover up and religious practices take over the government's law-making. In the country of Iran, exactly this is happening currently.
4| The Reverse Issue: Iran forces women to cover up
In Iran, women are forced to wear a hijab because they are forced to comply with extreme restrictions on freedom of choice, expression and religion (Sharim, 2022). And this problem seems to be in contrast towards what the burqa proposes in the view of german politicians and other European country governments. It is, therefore, vital to consider the forceful laws that the country has implemented since the 1970s, that propose to suppress women (Sharim, 2022). In Iran, the Iranian government authorities believe that carrying out such strict laws would benefit the country, however, “the idea that a woman is not worthy of respect unless she covers herself and hides herself from society is not freedom” (Sharim, 2022, pg. 20). In this case, the problems surrounding the veiling of women evince that it is limiting a woman's freedom, just as suggested by german politician Koch-Merhin since she also considered this an infringement on women rights. This might suggest that countries in Europe that favour implementing a burqa ban, might be viewed as advocating for freedom.
In Iran, the Sharia law prevails above anything else, and it evokes rules such as forcing young girls, around the age of 7, to wear a hijab (Sharim, 2022). These rulings and the continued decreasing rights for women have provoked thoughts that this could be an infringement of Human rights laws (Sharim, 2022). Nonetheless, the Iranian government considers the implementation of these policies as an “emblem of its religious and political identity” (Sharim, 2022, pg. 1). The foremost target of the government is to have women and young girls, cover up their faces, hands, body and hair to such an extent that nothing can show (Sharim, 2022). The burqa requires an even harsher all-covering of the body (Ab Halim et al., 2022). This could be regarded as a violation of a human right if women are not allowed to choose what they want to wear and have to cover up. Likewise, the covering up of the body to the extent the burqa expects a woman too, could possibly be described as a mobile prison, just as Koch-Mehrin had mentioned.
Here are as well, distinctions and similarities found with how the burqa ban is being treated in Europe. In Germany, for example, the burqa ban would be considered a human rights violation because women are not allowed to choose what to wear in public. This is a striking similarity to the issues women face in Iran, but it is also different because some women want to wear the burqa due to religious beliefs. Also in Iran, there are “two different hijab: the democratic hijab - the head covering that a woman chooses to wear - and the tyrannical hijab - the one that a woman is forced to wear” (Sharim, 2022, pg. 20).
The problems here demonstrate the complexity to find a fitting ruling for the veiling of women. But at the same time, Europe and Iran are both not letting women choose individually what they want to wear. Each place is suggesting somewhat legitimate issues, in their eyes, that seem to give them the self-declared right to scrutinize a woman’s dress code, which was supposed to be protected by Amnesty International. The problem is that in Iran “states are given discretion by courts and treaties when making decisions as to whether restricting a person’s human rights is necessary to pursue a legitimate aim in recognition of cultural and political differences” (Sharim, 2022, pg. 4).
Figure 2. Muslim Women wearing Burqas. One of them is carrying her child.
Similarly in Germany, “the states (Bundeslaender) have the competence for legislation concerning teachers and public officers [...] eight of the german states have enacted regulations that forbid headscarves for teachers in public schools” (Ferrari, 2016, pg. 193). Even though in Germany the rules are about the headscarves and it is a ban only in public schools, the fact that a constitutional court is deciding what a woman is allowed to wear can be viewed as problematic. Especially when this is restricting a woman’s rights in the labour market in Germany, or women being threatened to be “beaten up or rejected by families for refusing to wear the hijab or protesting its use” in Iran (Ferrari, 2016; Sharim, 2022, pg. 5).
The outcome of the decision-making of a constitutional court is implying consequently somewhat of restrictions towards the freedom of women. The idea to continuously ban the burqa in Germany could be as well viewed as a restriction of a woman’s freedom, just like the hijab problem has caused in the german labour market. For example, the United Nations Committee had suggested that in Iran the “State party promptly review all its legislation to ensure that it is non-discriminatory and gender neutral and that is enforced” (Shamir, 2022, pg. 11; U.N. Committee on the Rights of the Child, 2005). The main task of the state and consequently the constitutional court is to create an environment in which diversity is acknowledged. However, both in Iran and in Germany, the constitutional court seems to favour a side in which apparently the well-being of society is protected by limiting women’s freedom.
Also, the right-wing party, Alternative For Germany (AfD), seems to create this illusion of support towards freedom of religion, but it is an illusion since the AfD puts a lot of limits towards this freedom (Zislin, 2022). Specifically, the AfD is against Islam and perceives it to be “in conflict with Germany’s legal system”, and is therefore supporting the ban on the burqa (Zislin, 2022, pg. 105). As a consequence, forbidding the burqa might seem as if it is a racist and nationalistic approach towards the marginalisation of Muslims in Europe.
However, in comparison to the Iranian issue, to some women, the ban on the burqa might seem to be a helping hand at a time, when women are forced to conform to cover up their whole body against their will. Therefore, putting the ban in effect in Germany could maybe assist some women in Iran to escape oppression and allow them to enjoy the freedom they do not experience in their own country. Nonetheless, to assess whether the continued ban on the burqa can be contemplated as the right decision in Germany, the dynamics of church and state have to be scrutinized to recognize the need for a ban such as this.
5| Church vs. State: Contemplating the need for the Burqa ban in Germany
The importance of the church in the state of Germany is still more intact than expected because approximately 67% of the german population believes that “religion will either maintain or gain in significance in society” (Monsma & Soper, 2009, pg. 171). Even though most modernized countries are in a steady decline in religious support, in Germany it seems as if the people are still holding on to it surprisingly since there the german state opts to function autonomously (Monsma & Soper, 2009).
The Bundeslaender or referred to in English as states, have assigned powers, but not more than the national government (Monsma & Soper, 2009). This means that if there is a decision made “the Bundesrat’s approval is generally needed for legislation affecting the states” (Monsma & Soper, 2009, pg. 171). However, there seems to be a special exception made since “on other legislation the Bundestag can override a negative vote by the Bundesrat by a simple majority” (Monsma & Soper, 2009, pg. 171). This plays a role in the burqa ban since in Germany only a few states had agreed to allow this legislation, and not all of Germany has incorporated this yet. And the remaining states are also not required to conform, but neither can they stop the states who have implemented this ban.
The next important piece of the puzzle, that explains the church-state dynamics of Germany, is explained through the functioning of the constitutional court of the country (Monsma & Soper, 2009). According to Monsma and Soper (2009), “the constitutional court has dealt with a number of crucial church-state issues”, which could explain their input in the burqa ban in some states (Monsma & Soper, 2009, pg. 172). The courts, furthermore, establish that in Germany “the free exercise of religion is seen as a basic, fundamental right” (Monsma & Soper, 2009, pg. 178). Exercising this freedom has also never brought doubt into Germany, that it could lead to starting a new religion (Monsma & Soper, 2009). In this case, allowing the burqa to be worn, which could be considered an exercise of someone's religion, should not agonize the people of Germany. Since this does not bother the society of Germany, that a burqa is being worn by Muslim women, it could be questioned whether it is necessary to create a ban on the burqa.
The german constitutional courts have in addition, described “that the free exercise of religion includes not only the right to believe but also the right to act on one’s beliefs” (Monsma & Soper, 2009, pg. 178). The ban on the burqa in some german states and other European countries was for a variety of reasons such as “gender equality, fear of giving credibility to political Islam, etc.”, however, non of these should interfere with Muslim women when they exercise their religion and act on their beliefs by wearing a burqa (Kahn, 2022, pg. 12).
But, the majority of the problems might lie in the fact that german courts see “religious freedom as having a positive as well as a negative aspect to it” (Monsma & Soper, 2009, pg. 179). In order, to uphold the exercise of religion in the country, the main aim of the courts is to create a content balance (Monsma & Soper, 2009). For example, praying in school was allowed in certain circumstances even though some parents had complained about it, states Monsma and Soper (2009). To assure a fair balance, there is the weighting of the positive and negative aspects made, as here the example demonstrates. The courts explained it in this manner, which is that “allowing prayers in schools as making room for children who wanted to pray and disallowing such prayers as being a violation of their freedom to pray” (Monsma & Soper, 2009, pg. 179). Paradoxically, in Germany through secularisation, the exercise of religion might be expected to be slightly restricted, nonetheless, the courts sided with religion. This might grant a perspective, in which, the burqa ban could be considered an unnecessary policy, even if people are against the burqa.
Identically, Kuhn (2022) has also questioned this problem and asked in his research paper about the ECHR. His question is: “Was the court right that, in a modern society showing one’s face is a necessity?” (Kuhn, 2022, pg. 12). The question is inevitable to ask since in private law “in Europe one is supposed to (in theory at least) be able to be -private in public-” (Kuhn, 2022, pg. 12). This somewhat connects well with what was said previously. One of the main reasons in Germany the burqa ban seemed to uphold was due to the problems of identifying the person in a photo if their face was covered. The other problem was that the german CDU politician Bosbach described Muslim women who wear a burqa, to have the unwillingness to integrate, since they look different to others in public, even though Europe allows in theory people to be private in public.
Another issue that arises here is the one of Koch-Mehrin who described Muslim women's garments as a mobile prison, instead of acknowledging the privacy benefits of the burqa. According to Kuhn (2022), the majority of the problem lies within Bosbach's argument, that there is an unwillingness to integrate, which could be compared to the issues of communication. Apparently, “the argument that showing one’s face is necessary for social communications” has been used to defend the burqa ban (Kuhn, 2022, pg. 15). However, Kuhn (2022) states that in places such as the Netherlands and Belgium, “burqa wearers in those countries could communicate quite well with other in society” (Kuhn, 2022, pg. 15). If a burqa wearer is able to communicate with society, they are seemingly able to integrate.
Problems surrounding integration cannot be deemed an argument to explain the necessity of the burqa ban, in Germany. The other issue that has been repeatedly mentioned in different debates, was that of the limitations of freedom. According to Monsma and Soper (2009), “religious freedom as a positive right is also important in free exercise protections since freedom is seen as including the opportunity to exercise that freedom” (Monsma & Soper, (2009), pg. 180). This means that to a certain extent, the freedom of religion is protected by the government, in the country. The limits are created to protect “human dignity or public health and safety”, which could propose that as long as these are not harmed no one's freedom of exercising their religion should be limited (Monsma & Soper, 2009, pg. 180). So, in the case of a Muslim woman wearing a burqa and holding a child, as in Figure 2, should not be condemned. This is because first of all, she is hiding her face in the burqa, but that is allowed since in Europe principle of ‘private in public’ exists. And second of all, she is exercising her freedom of religion because she is imposing no harm to human dignity or public health and safety.
Nonetheless, Monsma and Soper (2009) state that “the challenges of integrating the Muslim minority into the present church-state system” are due to religious pluralism (Monsmar & Soper, 2009, pg. 206). In this sense, forbidding the burqa is not in relation to “the basic principles of neutrality, church autonomy, and positive religious rights and a strong emphasis on free exercise rights” (Monsmar & Soper, 2009, pg. 206). Instead, some of the issues are that “Germans feel that the Muslim minority is not making a real effort to develop structures that can be accommodated by the German system” (Monsmar & Soper, 2009, pg. 206). And maybe wearing the burqa is one of those structures that does not fit into German systems.
Conclusion: Germany’s Perspective On The Burqa Ban
In conclusion, this case study is not the only example of a religious ban that has been adopted by Europe. However, it is important to examine the issues surrounding religious expression and when it becomes a human rights violation if it is limited. Through analyzing the church and state in the country of Germany, the constitutional court ban on the burqa, including the rest of Europe and scrutinising a place outside of it, which is Iran. Through this, the public might somewhat understand if the burqa ban should continue in Germany.
The Burqa ban has had a long hold on Europe, but also on Germany, with many politicians getting involved in the heated debate. The continued debate is fueled by arguments that seem to evince a necessity for the ban. The Burqa ban has a social, political and cultural meaning, which impacts the continued religious pluralism. The limitation on freedom that is proposed by the constitutional court, seems to cause a dilemma with human rights laws. The consequences, as they have been put forward here, indicate that Germany’s continued burqa ban is not fully due to a necessity. Germany has been following in the footsteps of France, the first country to have banned burqas in Europe, which mentions grounds for the ban to be integration, privacy, and women's rights. Nonetheless, Germany is absolutely limiting Muslim women's religious freedoms to succour their own citizens. The consequence suggests a problem, which is that the ban has been accepted widely in Europe and that Germany might consider continuing that path.
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