LA PONDERACIÓN Y LA NEUTRALIDAD ABIERTA CONTRA LA DISCRIMINACIÓN RELIGIOSA Y RACIAL EN LA DECISIÓN DEL TRIBUNAL CONSTITUCIONAL ALEMÁN DE 2015 SOBRE EL USO DEL VELO POR PROFESORAS

Abstract

The article analyzes the decision of the German Federal Constitutional Court in January of 2015, related to two constitutional appeals of two Muslim teachers who wanted to use the veil during the exercise of their work in the school. The BVerfG will annul a paragraph of art. 57.4 of the Education Act of the Land of North Rhine-Westphalia, which prohibited teachers from wearing the headscarf, while permitting the use of Christian and Jewish religious symbols, as contrary to the constitutional right to religious freedom (art. 4 of the German Constitution), art. 3 GC, the right to equal treatment and non-discrimination by religion and by race (Article 3 GC), and contrary to equality in access to civil servants (Article 33 GC). This decision is having a great impact in the inclusion in the German society of the Muslim women citizens with origin in the immigration. The article reflects the legal consequences and the immediate application of this doctrine in lower courts. The study focuses on the use that the BVerfG makes of the techniques of legal argumentation, weighting, proportionality principle, and principle of practical agreement, to resolve fundamental rights in conflict. The BVerfG makes an innovative use in the weighting of the DF, on the one hand the rights related to teachers, such as equality of treatment and parity of religions in a social context of growing religious pluralism, the principle of non-discrimination by Religion, equal access to civil service, non-discrimination of women. On the other side of the balance, they will be placed; the right of religious freedom of the pupils and the right of education of the parents, as well as the constitutional educational mandate of the State and the principle of school peace. The BVerfG will bet on a constitutional model to defend the open neutrality of the State towards religions, reinforcing the current constitutional model of separation with friendly cooperation, but insisting on the need for a new opening and flexibility towards the presence of minority religions, granting (Neutrality open to all religions, Toleranzslösung), in turn with respect to German history and tradition, and rejecting a model of strict or distance neutrality with the religions, (strenge Neutralität Lösung or Distanz Neutralität), separating from the sentence of the second senate of the BVerfG, in the Ludin case of 2003, which left this option as possible. The new decision of the first senate also rejects a model of cooperation (positive neutrality), but that privileges Christian (Protestant and Catholic) confessions or the dominant culture (Deutsche Leitkultur) which would end in a return to a certain confesionalidad of State. The ruling concludes that a general law prohibiting the use of the headscarf to the teachers in the German public schools would be contrary to the GC and that could only be prohibited in the concrete cases in which it represents a real danger in certain circumstances and not by a purely abstract danger, granting the constitutional protection to the two appellants.