The sky is falling if judges decide religious controversies! - or is it? The German experience of religious freedom under a bill of rights

Abstract

This chapter challenges the view often put forward by opponents of bills of rights that morally and politically controversial questions are for the elected Parliament alone and are not suitable for determination by courts. The challenge is based on an examination of two of the most controversial cases ever decided by the German Constitutional Court, the Classroom Cruzifix and the Teacher Headscarf Case, and the public’s reaction to these cases. The argument is divided into seven parts. Following the introductory section is an explanation of some fundamental aspects of the German constitutional system, including an introduction to the relevant principles of constitutional law and interpretation. This provides the background to the discussion of the guarantee of religious freedom under the German bill of rights and the Constitutional Court's approach to this guarantee in part three. The fourth section explores the Court's jurisprudence on the free exercise of religion in public schools, culminating in the Classoom Crucifix and Teacher Headscarf cases. Then, the public and scholarly debate surrounding these cases is portrayed. The next section explores empirical research that demonstrates that the Constitutional Court’s authority and reputation did not suffer long-term damage from being the target of much criticism. Likewise, the legal and political system of the Federal Republic of Germany did not suffer as a consequence of the Court's decisions. The chapter concludes that a mature legal and political system can survive highly charged controversies being decided by the courts unscathed, as demonstrated by the German experience. Therefore, the fact that courts may be drawn into controversial debates and become the object of public criticism is not a valid argument against a bill of rights.