whose freedom? The headscarf debate

Switzerland sees itself as a secular state that constitutionally guarantees freedom of religion. Religious freedom is based on state neutrality. At the same time, the separation of the private and public spheres forms the socio-political basis of the fundamental rights guaranteed by the Constitution.

These fundamental rights, in turn, oblige the state, as Mader and Schinzel write, “to restrict the individual possibilities of free development only to the extent that it is in the overriding interest of society, that is, in the ‘public’ interest, appropriate , necessary and desirable. personally reasonable”. Conversely, the state must ensure that questionable practices that curtail or prejudice other rights of individuals are not cultivated under the pretext of religious freedom.

Religion is legally “the expression of an individual attitude towards the divine or the transcendent” and is therefore primarily a purely private matter. However, as a variety of interactions arise between the private and public spheres, it is difficult to make a clear distinction. For example, if a religious confession or membership of a religious community is made visible, religion becomes tangible for others and thus becomes a public matter. This opens scope for interpretation for legal disputes influenced by historical and socio-political developments and discourses.

Since the 1970s, Switzerland has developed from a predominantly Christian country to one of religious diversity. While membership in the regional churches declined, the number of non-religious people and members of free churches and non-Christian religious communities steadily increased. Muslim communities experienced the greatest growth, from about 0.3 percent in 1970 to 5.4 percent in 2020.

After the fall of the Berlin Wall, a new, bipolar world order gradually asserted itself in public debates. Instead of the ‘Communist Eastern Bloc’, ‘Islamism’ and sometimes ‘Islam’ in general was declared an international threat. This perception was reinforced after the September 11, 2001 attacks on the World Trade Center in New York.

As the following example shows, in some cases this change shaped individual freedom of religion. For example, in 1997 the federal court banned a Muslim teacher in the canton of Geneva from wearing a headscarf during class. This affects the children in a way that is incompatible with the religious neutrality of the school. The ban is “not directed against the complainant’s religious beliefs, but aims to protect the rights and freedoms of others, as well as public order and safety,” as stated by the Federal Office of Justice in a February 27, 2001 press release.

Equality law considerations were also included in the court’s ruling: “In addition, it should be noted that wearing the headscarf is hardly compatible with the principle of gender equality […]. This is a fundamental value of our society, enshrined in an explicit constitutional provision […] is defined and what the school must take into account.”

The teacher took her case to the European Court of Human Rights (ECtHR). However, this supported the decision of the Federal Supreme Court. In any case, the religious neutrality of the school must be defended. However, the reasoning on which the described court decisions are based refers to assumptions and unspoken norms.

For example, the following questions arise: To what extent does wearing a headscarf threaten the “rights and freedoms of others” and also “public order and security”? Why does a headscarf ban do more to teach tolerance and mutual respect than to tolerate it? And to what extent can the headscarf be seen as a general sign of women’s subordination?

In recent decades, the subject of religion has received increasing attention from politicians and the media in Switzerland and Europe. News coverage is strongly influenced by ratings. While representatives of Christianity and Judaism are sometimes viewed negatively, sometimes positively, Buddhism is generally regarded as peaceful, non-violent, open, tolerant and undogmatic.

In the case of Islam, on the other hand, negative assessments predominate. It is usually associated with conflict, extremism, violence, backwardness and terrorism or with the suppression of women’s rights. This media “clash of cultures” likes to stylize the headscarf as a symbol of irreconcilable values. Islamic dress practice is often seen as the opposite of what our society wants to be, namely free, equal, safe and just.

Since the early 21st century, the social status of religion has been renegotiated across Europe through the “headscarf dispute”. It is always about the conditions of living together in pluralistic societies. However, in the search for identity, young Muslim women of the second and third generation of immigrants often wear the headscarf with a new self-image.

They see themselves as religious, enlightened and modern at the same time. They strive for independence and professional success and distance themselves from the expectations and values ​​of their parents’ generation, which are perceived as conservative and restrictive, as well as from the exclusionary trappings of the society of arrival. They confidently wear the headscarf, not only as an expression of their relationship with God, but also to make known their claim to social participation and co-determination.