Why Germany can't ban the burqa or niqab

Julia Klöckner's opinion is fairly typical of that of many politicians in Angela Merkel's Christian Democratic Union (CDU): "The full-body veil is not a sign of religious diversity, but stands for a degrading image of women," the party's deputy leader told the "Bild" newspaper this week.

It's not the first time that a conservative German politician has called for a public ban on the full-body coverings worn by some Muslim women - but the debate has resurfaced with extra persistence recently, even though very few women wear such garments in the country.

(The commonly used phrase "burqa ban" is something of a misnomer in a German context: The burqa, a loose cloak where the eyes are also covered with a mesh, is virtually unknown - though the niqab, where the eyes are visible, is occasionally seen.)

Two CDU state interior ministers have brought up the prospect of a ban in the past few weeks. "I consider a burqa ban to be absolutely desirable," Frank Henkel, the interior minister for the state of Berlin, told the local "Tagesspiegel" newspaper on Wednesday.

Henkel was soon echoed by Lorenz Caffier, his counterpart in the northeastern state of Mecklenburg-Western Pomerania, who believes that "a voluntary and certainly a forced facial covering stands in conflict with free cooperative living in a free society."

Some commentators have suggested that it might not be a coincidence that both Henkel and Caffier face elections in September - and a significant threat from the right-wing Alternative for Germany, which has made opposition to Islam one of its central policy tenets.

'Constitutionally problematic'

In the end, federal Interior Minister Thomas de Maiziere expressly left the prospect of a burqa ban out of the raft of security measures he presented on Thursday, saying that "you can't ban everything you oppose" before pointing out that the idea was "constitutionally problematic."

In fact, "constitutionally impossible" might have been a better way of putting it: According to the Constitutional Court, the Basic Law's guarantee of religious freedom precludes any such ban. The Bundestag picked up on this in an assessment it published in 2014. "The Constitutional Court made clear that, in a society that gives space to different religious beliefs, individuals do not have the right to be shielded from professions of faith by others," the report said. "There is no right in public spaces to be protected from religious influences in the social environment."

The Bundestag's assessment was written after the European Court of Human Rights confirmed in 2014 that France did indeed have the right to ban full-body veils in public - because France's constitution foregrounds secularism in public life (laicite) over religious freedom, and, the ECHR ruled, in any case the decision was primarily France's to make.

In 2011, France became the second European country to impose such a ban, after Belgium in 2010 and before a Swiss region did so following a referendum in 2013. In all cases exceptions for motorcycle helmets and carnival masks had to be passed into law before the ban came into effect.

'Forced into liberation'

Nevertheless, the ECHR did deny some of the reasoning that France offered. For instance, protecting women was not accepted as a valid legal argument: "They said equality cannot be forced on a woman," said Jasper Finke, a professor at the Bucerius Law School in Hamburg who has published articles on the issue. "Women can't be forced into 'liberation.'"

Nor did the ECHR accept that security could be used a legal argument, as there was no evidence that full-body coverings represent a direct threat. "The court said: 'No, abstract security concerns don't count - you have to have concrete evidence why the burqa represents a special security threat,'" Finke said. "Though there are isolated examples of suicide bombers in Afghanistan hiding belts inside burqas, you don't need a burqa to hide a belt."

"In fact, virtually all European countries with a written constitution guarantee religious freedom," Finke said. "But it's understood to different extents in different countries."

"That's the difference between Germany and France," Finke said. "We don't have that strict division between state and religion here, which is so deeply rooted in their social convictions. The question is: How is 'living together' defined? Social pluralism means people are different, and that is expressed in different religions and different clothing, and to a certain extent the state has a duty to protect that pluralism."

"It's an extremely heavily debated issue," Finke said. "There are certainly good reasons why you might ban [full-body coverings]. But there are just as good reasons why you wouldn't. The question is: How strongly does the Constitutional Court emphasize the state's obligation to neutrality and the obligation to promote real social and religious pluralism?"