Prohibiting a headscarf under 14 years of age

WOULD A HEADSCARF BAN UPON STUDENTS WHO UNDER 14 YEARS OF AGE BE UNCONSTITUTIONAL?

Summarized: A headscarf ban for students under 14 years of age is not permissible. Parents have the right to raise their children according to the religious beliefs that they deem correct until the child is of age. The state may not interfere in that right. 

A law banning the headscarf for schoolchildren under 14 years of age would be unconstitutional.¹  Although children under 14 years of age are considered ’religiously unfit‘ according to Section 5 of the Act on the Religious Education of Children (KerzG), parents can still exercise their rights as their representatives within the framework of parental custody according to Article 6, paragraph 2, sentence 1 of the German Constitution with relation to Article 4, paragraph 1 of the same.² As part of care and upbringing, religious and ideological education plays an important role and is an inseparable part of the parent-child relationship, at least until the child reaches an age of religious maturity.³ Besides the rights parents enjoy under Article 6 (2) of the German Constitution, parents also have been granted protection under the right to freedom of religion pursuant to Article 4 of the Constitution.⁴

Parents have the right to convey the religious and ideological convictions that they hold upon their children and to protect them from state measures which could detrimentally affect their personal legally protected sphere. This does not only include the profession to a certain belief system, but also the adherence to religious commands, rituals and other outward practices.⁵ Parents are granted such far-reaching decision-making powers because the child is not yet able to make use of its freedom of belief and confession. It is only after a certain point of religious maturity that a child can make its own decisions.⁶ Neither the state’s duty of guardianship under Article 6 (2) of the German Constitution nor the state’s educational mandate under Article 7 (1) of the same, nor the requirement of ideological and religious neutrality can justify any interference with the right of parents to educate their children according to Article 6 (2) in conjunction with Article 4 of the Constitution.⁷

^{2 Germann in Grundgesetz, 38. Ed. 15.8.2018, Art. 4 margin 27.}

^{3 Uhle in Grundgesetz, 38. Ed. 15.8.2018, Art. 6 margin 54.}

^{4 Federal Constitutional Court, case from 17.12.1975, 1 BvR 63/68, margin 98.} 

^{5 Jürgen Schmid in Gesetz über die religiöse Kindererziehung, 1. Ed. 2012, Section 1 margin 1.} 

^{6 Isensee in JZ 2013, page 321.} 

^{7 Wissenschaftlicher Dienst des deutschen Bundestages from 26.01.2017, Schule u. Religionsfreiheit- Wäre ein Kopftuchverbot für Schülerinnen rechtlich zulässig?, WD 3 – 3000 – 277/16, page 8.}