CAN A JUDGE PROHIBIT THE WEARING OF A HEADSCARF BY SOMEBODY IN THE AUDIENCE AT COURT?
Summarized: A judge cannot prohibit an audience member in a court from wearing a headscarf when the headscarf is being worn for religious reasons and the audience member is identifiable.
A judge is charged with maintaining order at a hearing in compliance with section 176 of the Judicature Act. They may therefore prohibit all kinds of behavior contrary to the reputation and dignity of the court during the session.1 This includes prohibiting the wearing of inappropriate clothing.2 The wearing of the headscarf for religious reasons is, however, protected under the right to freedom of religion as per Article 4 of the Constitution and generally not to be regarded as the kind of behavior which could damage the reputation and dignity of the court. A headscarf ban is impermissible according to case law when the headscarf is worn for religious reasons. It is to be ruled out, however, that this is done in order to express disrespect towards the judges or any others present. The audience member should be identifiable as a person.3
1 Walther in Gerichtsverfassungsgesetz (BeckOK), 1st Ed. 2018, section 176 margin 8.
2 Federal Constitutional Court, decision from 27.07.2006, 2 BVR 677/05, margin 18.
3 See above, margin 20