In the Europe, it seems, not all religions are created equal. A few examples: In the German states of Baden-Württemberg, Saarland, Hesse, Bavaria, and North Rhine-Westphalia, Muslim female teachers are prohibited from wearing headscarves. The explicit thinking by both the German legislators introducing the ban as well a by the courts endorsing it is that headscarf-wearing teachers endanger the neutrality and tranquility in the school—they are intimidating, indoctrinating, proselytizing, and creating unrest among other teachers, pupils and parents alike.
In other words, wearing a headscarf and being a Muslim is sufficient to pose a threat. But this is apparently not the case when it comes to displaying the religious symbols of Christianity or Judaism.
Article 57 of the school law [pdf] of North Rhine-Westphalia, which prohibits headscarves, also provides that “[t]he respective exhibition of Christian and western educational and cultural values or traditions do[es] not contradict [a teacher’s] ‘duty of behavior,’” and are in line with educational objectives.
The European Court of Human Rights has hitherto always ruled in favor of pluralism in education which, it has argued in the past, is best safeguarded by religious neutrality, and secularism.
But in a recent ruling on the issue in Italy, involving a challenge to the mandatory display of crucifixes in classrooms in public schools (Lautsi v. Italy), it has astonishingly argued that the neutrality principle means some religions are treated differently from others. In the Italian crucifix case, it ruled:
There is no evidence that the display of a religious symbol on classroom walls may have an influence on pupils, and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed.
The judges went further, arguing that the crucifix case was to be distinguished from another ruling in the Dahlab v. Switzerland case, which allowed a school to prohibit the wearing of headscarves by teachers.
The court argued the head-scarf prohibition “was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law,” in particular “having regard above all to the tender age of the children for whom the applicant [Muslim teacher] was responsible.”
So let’s be clear: Religious symbols and clothing are not scary or threatening. Provided they are not Muslim.
It gets worse. A Dutch court recently held that a Roman Catholic school may forbid a Muslim girl to wear a headscarf in school—in a new school regulation implemented after this first ever Muslim girl had joined the school. The court argued that the right to manifest the girl’s religion “inevitably clashed with the feelings of others who do not wish to be exposed to such [different] expressions of faith.”
Despite being a Catholic, state-funded institution, the school advertises that it welcomes pupils of all faiths and denominations whose parents respect the fundamental [Christian] principles and goals of the school.
And then there is France, the birthplace of laicité. In 2004, it introduced a ban on wearing religious garments in public schools, which largely and mainly affected Muslim girls and a smaller group of turban-wearing Sikh boys.
Now, on April 11, 2011, a law has entered into force prohibiting and even criminalizing full-face covering in public places for public order and security reasons: in effect, a burqa and niqab ban, sparking protest and arrests.
The French Constitutional Council reviewed the constitutionality of the new law and was explicit about its purpose, stating “the legislator has considered that women covering their face, voluntary or not, find themselves in a position of exclusion and inferiority which are manifestly incompatible with constitutional principles of liberty and equality and that by introducing the said limitations, the legislator has complemented and generalized rules which so far have been reserved for specific situations for the purpose of protecting public order."
In other words, the burqa wearer’s self-inflicted exclusion and inferiority is an assault on French public order. You could throw in the minaret ban in Switzerland, headscarf prohibitions in Belgian Flemish schools, and, most recently, the sacking of a headscarf-wearing shop assistant and the lawyer in Spain who was forbidden from wearing a headscarf in court.
What is the message that Europe is sending to its Muslim population? That we are open, tolerant and pluralistic, but not towards you? That we allow manifestation and observance of religion, but preferably not your religion? That we consider you all to be as bad as fundamentalists, and those who propagate violence?
Law is about balancing of interests and rights. Europe has “the right to freedom of thought, conscience and religion,” including the freedom “in public or in private, to manifest religion or belief, in worship, teaching, practice and observance,” enshrined in Article 9 of the European Convention on Human Rights. Article 14 of the convention also prohibits discrimination.
How are these rights to be balanced with the rights of others to public order, security, and free education? Is there necessarily a conflict? As Europe seeks to find the balance, the European Court of Human Rights is likely to find itself returning in the future to the questions raised in Lautsi v. Italy.