What a law is the conscience

Fundamental rights

Mathias Metzner

Mathias Metzner was a research assistant at the Federal Constitutional Court and in the fundamental rights department of the Federal Minister of Justice. He is Vice President of the Kassel Administrative Court.

Article 4

(1) Freedom of belief, conscience and freedom of religious and ideological creed are inviolable.

(2) The undisturbed practice of religion is guaranteed.

(3) No one may be compelled to do military service with a weapon against their conscience. The details are governed by a federal law.

Article 4 of the Basic Law regulates freedom of belief, freedom of conscience and the right to conscientious objection.

Freedom of belief and belief includes, on the one hand, the inner freedom to have a belief or belief, and, on the other hand, the outwardly directed freedom to express the belief, to profess it, to spread it and according to the belief and worldview to act.

Conversely, freedom of belief also protects it not to profess one's belief. Particularly important with the religious freedom protected by Article 4, Paragraphs 1 and 2 of the Basic Law is the protection of outwardly directed actions.
This includes not only the undisturbed practice of religion at home as well as in churches and prayer rooms. Missionary activity, the building of churches and mosques, collections for church purposes, but also sacred church bells (but not the chiming of the church clock), the call of the muezzin and certain clothing regulations, such as wearing a headscarf, are also recorded.

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Not just a piece of cloth

It is above all clothing regulations from Muslim cultures that keep causing discussions. It is generally completely clear that anyone who wants to can wear a headscarf.
This is fundamentally protected not only by the freedom of religion (if that is the reason for the headscarf), but also by the general freedom of action.

But questions arise when the state comes into play. For various reasons, critics try to ban the headscarf as much as possible from the state-influenced area of ​​public life.
Women’s rights activists in particular fear that young girls could be hindered in their development by wearing a headscarf. For this group, the cloth stands for an image of society in which the woman has to subordinate herself to the man.
The more a young girl is confronted with such clothing rules, the less she has to oppose the family who wants to force her to wear the shawl.

The question therefore leads to controversy above all when teachers, who can be role models for their students, want to teach with headscarves.
As early as 1998, the state of Baden-Württemberg therefore did not hire a teacher who did not want to do without clothing in class either.

In 2003 the Federal Constitutional Court ruled that this would not be possible without a law. The state of Baden-Württemberg had argued that the Koran does not necessarily prescribe the headscarf. The court did not accept such a definition of religious interpretation by third parties, but the judges also did not question the teacher's motivation.
The basic rights of the teacher played a major role in the decision. In contrast to the crucifix in the classroom, the students here are not just faced with the state, but with a personality.
The judges of the Second Senate admitted that because of the increasing ideological plurality in Germany, new rules could possibly be useful. A state legislature could then create this in general - not just with a view to the headscarf, for example.

Eight countries did this, with different rules. Sometimes it is argued that a headscarf is not necessarily religious, but possibly political, as a sign of a certain ideology, intended and to be understood.
The state of North Rhine-Westphalia, for example, stipulated in its school law: "Teachers are not allowed to make any political, religious, ideological or similar external statements that are suitable to undermine the neutrality of the state towards pupils and parents or the political, To endanger or disturb religious or ideological school peace. In particular, external behavior is inadmissible, which can give pupils or parents the impression that a teacher is against human dignity, equal rights according to Article 3 of the Basic Law, the fundamental rights of freedom or the free-democratic basic order occurs. "

The Federal Constitutional Court ruled that a blanket headscarf ban should not be derived from this.
An external religious manifestation such as the headscarf can only be forbidden to the teacher if it results not only in an abstract but also in a "sufficiently concrete" danger to the school peace. Above all, the judges decided: if a country opposes such external manifestations, then no distinction must be made between religions or world views.
"Christian educational and cultural values ​​or traditions" must therefore not be treated better than others. The judges therefore declared a corresponding provision of the North Rhine-Westphalian law null and void.

There is still a dispute over dress codes. For the legal assessment, it depends on the context in which the questions arise. For example, it would be unproblematic to prohibit full veiling with a burqa or niqab wherever it prevents the state from fulfilling its tasks, especially to ensure safety - be it at the wheel of a car or when giving evidence in court.
It could look different if it is only a matter of a woman who wants to move fully veiled in public. Still other questions arise, for example when swimming in a burkini at school. This also includes the question of whether such clothing can alleviate other concerns. So whether a schoolgirl can be obliged to take part in physical education if she is allowed to wear a burkini.

Gudula Geuther



The freedom of belief protected by Article 4, Paragraphs 1 and 2 of the Basic Law is guaranteed without reservation.
However, this does not mean that any behavior that can be traced back to religious beliefs and rules can be enforced without restriction.
It is recognized that religious rules of conduct are protected by Article 4, Paragraphs 1 and 2 of the Basic Law, according to which girls of the Muslim faith have to dress outside of the family from around the age of 7 in such a way that the body with the exception of hands and face remains covered . However, this does not mean that participation in swimming lessons may be refused on the basis of this provision.

The obligation to participate in school sports and swimming lessons is borne by the state educational mandate from Article 7, Paragraph 1 of the Basic Law. By wearing a so-called burkini in swimming lessons, the pupil can also comply with the religious clothing rules that are binding for her.

At the same time, the freedom not to believe is also protected.
Thus the individual must not be exposed to the influences of a certain religious conviction against his will by the state. The state must here maintain religious peace in society; it must not give preference to a certain religious community, even if it represents the majority society, or identify with this religious community.

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The dispute over the crucifix

All government agencies are obliged to uphold fundamental rights.
However, the Federal Constitutional Court itself has no way of enforcing its decisions. For this it is dependent on the cooperation of other government agencies. The difficulties that arise when they do not follow the court were shown in the dispute over the crucifix in Bavarian classrooms.

The school regulations for elementary schools in Bavaria stipulated that a cross was to be placed in every classroom. In negotiations with the school, with the authorities and in court, three students and their parents tried to have the cross hung in the rooms in which the three were taught - without success.

The judges of the First Constitutional Court Senate, however, agreed with the families:
The state obliges students to attend school. If the cross then hung in the classroom, the students would be confronted with the symbol by the state and with no alternative. They are forced to learn "under the cross". The negative freedom of belief of those who do not want that is violated.

The decision led to a storm of indignation - and initially too few consequences in Bavaria: The school law was changed. Accordingly, the crosses were still to be hung up, whoever contradicted this had to put forward serious and understandable reasons. The compromise that the headmaster sought had to take into account the opinion of the majority if possible.
This regulation meant that opponents of a cross could hardly prevail in school. The Federal Constitutional Court did not resolve the dispute with Bavaria. Another constitutional complaint did not accept it for decision - with the unusual reason that it had already decided.

The dispute has only been more or less resolved since a decision by the Federal Administrative Court following a complaint by parents whose children continued to be informed "under the cross" (BVerfG). The new Bavarian law interpreted this in conformity with the constitution: Those who do not want the cross do not have to explain any particular reasons. And the school must protect the anonymity of the applicants. The wish to remove the cross is mostly granted today.

From the crucifix resolution of 1995:

The Federal Constitutional Court concluded from this that the state legislature is not simply forbidden from introducing Christian references in the design of public elementary schools, even if legal guardians who cannot evade this school when bringing up their children do not want a religious upbringing.
The prerequisite, however, is that only the essential minimum of compulsory elements is associated with it. This means, in particular, that the school does not see its task in the religious and ideological area as missionary and cannot claim any liability for Christian beliefs.
The affirmation of Christianity thus refers to the recognition of the formative cultural and educational factor, not to certain truths of faith. Christianity as a cultural factor also includes the notion of tolerance for those who think differently. [...]

The placement of crosses in classrooms exceeds the limit of the religious and ideological orientation of the school.

Gudula Geuther



Freedom of conscience protects the moral identity and integrity of the individual.
Any serious moral decision, that is, based on the categories of "good and bad", is to be viewed as a decision of conscience, which the individual feels as binding and unconditionally binding for himself in a certain situation, so that he could not act against it without serious inner distress. As with freedom of belief, the fundamental right protects the purely internal process of thinking, the relinquishing of decisions of conscience and the resulting action.

The basic right to conscientious objection, in turn, is linked to the concept of a decision of conscience. It only exists if the person concerned rejects the compulsion to kill associated with military service on the basis of a decision of conscience.
It is not enough to reject only certain wars (for example out of a certain political conviction); the decision must simply affect every military service with a weapon. This also includes working with weapons in peacetime, in particular training with weapons.

The consequence of a justified conscientious objection is that the recognized conscientious objector is released from the duty of national defense. The right to conscientious objection is currently - after the suspension of compulsory military service - only relevant for regular and professional soldiers who invoke reasons of conscience after joining the armed forces voluntarily.