The headscarf as threat: a comparison of German and U.S. legal discourses.

• Author: Kahn, Robert A.

ABSTRACT

This Article compares how U.S. and German judges conceptualize the harm the headscarf poses to society. The examples are the 2003 Ludin case, in which the German Federal Constitutional Court held that the civil service, in the absence of state regulation, could not reject a woman from a civil service teaching position solely because she would not remove her headscarf while teaching, and State v. Freeman, in which a Florida court held that a woman could not pose for a driver's license photograph wearing a garment (the niqab) that covered all of her face except her eyes. While judges and legal critics in both countries tended to see the headscarf as threatening, German society was more likely to see it as a symbol of political Islam, while U.S. society viewed it as a tool used by potential terrorists.

TABLE OF CONTENTS I. SYMBOLIC THREATS II. GERMANY: THE HEADSCARF AS POLITICAL THREAT A. Migration, Feminism, and Political Islam B. Germany's Christian Heritage C. Protecting Germany's Children from Islam D. The Utility of Political Islam as a Threat III. UNITED STATES: HEADSCARF AS A TOOL FOR TERRORISTS A. The Limits of Religious Sincerity B. The Headscarf and National Security IV. CONCLUSION I. SYMBOLIC THREATS

Societies ask courts to repudiate symbols they find threatening. For example, German courts repudiate Holocaust denial; courts in the U.S. South repudiate cross burnings and Ku Klux Klan masks. (1) The symbols, however, do not have meaning by themselves. Instead, it is up to the court to attribute meaning to them. In this process, the courts often privilege the concerns of the specific society within which they operate. Consequently, courts in different settings--or different societies--will treat the same symbol differently. To explore this point, this Article will look at two cases involving the Muslim headscarf--one from Germany, the other from the United States. The Article has two goals. First, it will show that although legal discourses surrounding both cases treated the headscarf as a threat, the threats themselves were presented differently. Second, somewhat more speculatively, the Article will trace the reasons for the different perceptions of the threat to differences in how Germans and those in the United States view religion in general and Islam in particular.

The German case began in 1998, when a series of German courts debated whether school authorities in Stuttgart could deny a civil service position as an elementary school teacher to Fereshta Ludin, an Afghani woman, solely because she refused to take off her headscarf while teaching. (2) Ultimately, in 2003 the Federal Constitutional Court ruled in Ludin's favor but only because the state of Baden-Wurttemberg did not specifically ban headscarves, (3) a failing the state legislature speedily remedied the following year. (4) Central to the legal debate was whether wearing a headscarf was consistent with the civil service official's duty of neutrality and moderation. (5) In this context, the headscarf raised two fears: (i) religious conversion (the court repeatedly expressed the concern that the sight of an authority figure wearing a headscarf would lead the pupils to adopt Ms. Ludin's views, even though she repeatedly claimed no interest in this and was even willing to tell her students that the headscarf was a "fashion accessory"); (6) and (ii) political Islam (the courts repeatedly drew a connection between Ms. Ludin's headscarf and Islamist movements, especially those that sought to repress women). (7)

The case of Sultaana Freeman raised different threats. (8) In early 2001, Ms. Freeman, a U.S.-born convert to Islam, posed for a Florida state driver's license photograph wearing a niqab, a garment that covered her entire face, save for her eyes. (9) In late 2001, however, she was ordered to surrender her license and submit to a photo without her niqab. (10) In response, she sued under Florida's Religious Freedom Restoration Act (RFRA). In June 2003--after a three-day trial that aired on Court TV--Judge Janet Thorpe rejected her request. (11) To get around precedent extending similar rights to isolationist Christian sects in the 1970s and 1980s, (12) Judge Thorpe observed that times had changed since then, noting both the increase in technology and the new threat of "foreign and domestic" terrorism. (13) Although she assured her readers that Ms. Freeman "most likely" was not a terrorist, Judge Thorpe did not allow the headscarf to get off as easily. (14) Repeatedly in her ruling, she identified the headscarf as the means for accomplishing terrorist acts and discussed the idea that an "insincere" terrorist could threaten national security by falsely posing as a religious Muslim at the Department of Motor Vehicles (DMV). (15) Some of the media commentators observing the trial harped on this point, relying on reports that Ms. Freeman's husband had been caught with phony identification cards. (16)

Part II of this Article will examine the Ludin case in detail. First, it will show how Germans view the threat posed by Political Islam through the lens of their totalitarian past. It will then discuss the view that Germany is a Christian country, one with a widely shared opposition to a rigid separation of church and state. Then it will show how these ideas manifested themselves both in the decision of the majority and in the opinions of the dissenters of the Federal Constitutional Court as well as in the reaction to the case by political leaders, activists, and other commentators.

Part III turns to the Freeman case. It will show how the trial judge, Janet Thorpe, made rulings on Ms. Freeman's sincerity and burden that go against earlier precedents involving Christian religious groups. It will also show how Judge Thorpe's decision to craft her opinion in this way reflected a societal fear of terrorism in the wake of September 11th and, to a lesser extent, a suspicion of U.S. citizens who convert to Islam. Finally, Part III will show how Judge Thorpe's rulings on sincerity and burden were not necessary, because she could have reached the same conclusion by holding that states had a compelling interest in banning women from posing for driver's license photos while wearing the niqab.

The Conclusion notes the strong differences between the two cases. While the Germans viewed Fereshta Ludin's headscarf as a symbol of totalitarianism, those in the United States saw Sultaana Freeman as a potential terrorist. These differences suggest that Western constitutional democracies, when confronting the challenge posed by Islamic migrants, will fall back on their own fears and traditions.

2. GERMANY: THE HEADSCARF AS POLITICAL THREAT

   1. Migration, Feminism, and Political Islam

      Fereshta Ludin's headscarf touched off a number of fears for Germans about Muslims and their impact on German society. There are about 3.2 million Muslims in Germany, which is just under 4% of the population. (17) Although many of the Muslims are from Turkey, there are also large numbers of Muslims from other countries, especially Iran, as a result of employment as guest workers during the Wirtschaftswunder. (18) Moreover, while it is customary to think of Turkey as a secular Muslim country, not all Turks in Germany are secular. Instead, many are religious. (19) In fact, the Milli Gorus, a Muslim fundamentalist group that attracts primarily Turks, has a large presence in Germany. (20)

      Before the mid-1990s, the German image of Turks was one of victims. Extreme right-wing circles added new slurs against the Turks to new ones about the Jews. (21) Song lyrics also featured the Turk as target. (22) This animosity resonated deeply at a time when Europeans were expressing doubt about the political stability of a reunified Germany. (23) The 1992 firebombing at Molln, which led to the deaths of four Turkish guest workers, helped spark a nationwide response to the problem of anti-foreigner violence (24) (a problem that unfortunately still persists as followers of the World Cup will notice). (25) As the 1990s persisted, the image of the Turk--and by extension, the Muslim--began to improve. With the election of Gerhard Schroder as Chancellor in 1998 and the opening of German citizenship to Turks, the image of immigrants began to change, (26) even though many Turks still cluster around menial jobs. (27)

      Meanwhile, Germans began to pay more attention to Islam. Within a decade, the Turkish immigrants went from being the next victims of the Nazis to becoming potential Nazis themselves, especially in the context of the civil service. (28) Despite the failure of German public officials to stop Hitler's rise to power in the 1920s and 1930s, the public officials portrayed civil service as a bulwark against the political parties that would corrupt the state; (29) in 1972, the Radicals Decree sought to purge political extremists from the civil service. (30) Some of the participants in the headscarf debate saw Fereshta Ludin as a potential extremist.

      The fears about political Islam were not limited to totalitarian civil servants. Political Islam and the headscarf were also seen as oppressing women. (31) The outrages committed against women in Afghanistan and Algeria in the name of political Islam are well known. (32) In Germany, many see political Islam as a symbol of gender oppression. (33) Like their French counterparts, German feminists suspected that most women who wore the headscarf did not do so by their own free will. (34) Consequently, they tended to downplay the possibility that women wear the headscarf as a form of self-expression and that some forms of Islamist activism provide women opportunities to express themselves in a politically modern way. (35)

      While German feminists' disapproval of political Islam and the headscarf was genuine, other groups latched onto the gender oppression argument to add muster to their criticism of political Islam as totalitarian. (36) This was true...