In a new publication Cornelia Koch 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. She bases her challenge on an examination of two of the most controversial cases ever decided by the German Constitutional Court and the public’s reaction to these cases. Her chapter appears in the new book Freedom of Religion under Bills of Rights, edited by Paul Babie and Neville Rochow and published by University of Adelaide Press, which will be launched by the Honourable John Doyle AC on Wednesday 28 March 2012. Click here for Flyer. What follows is a brief summary of her chapter.
Most modern Western societies operate under a broadly secular system of government. Germany is no exception. Among the fundamental features of a secular polity are State neutrality in questions of faith, the absence of a State religion, the toleration of all beliefs (religious or not) and the guarantee of the individual’s freedom to believe or not to believe and to exercise his or her religion.
Despite this fundamentally secular orientation of the State, many people have strong feelings about religious issues. Occasionally, these views can trigger heated, emotive and widespread public debate, particularly when the belief systems of different religious groups or of believers and non-believers come into conflict. An extreme example is the worldwide controversy about the publication of cartoons of the Prophet Muhammad in the international press, which even resulted in violence and a number of deaths. Other examples include the debate on introducing Sharia law and on the regulation of displaying or wearing of religious symbols or clothing in public settings in Western countries.
Two questions that touched a nerve in German society were whether the State could require that crucifixes are installed in all primary school classrooms and if a Muslim teacher could wear the Islamic headscarf while teaching in a public school. Both of these questions are morally and politically highly controversial. They are the type of questions for which there is no easy answer and where every answer given is bound to have its detractors. In a democratic society, which branch of the government is best suited to make these decisions? Some opponents of Bills of Rights claim that these types of questions are for the elected Parliament alone and are not suitable for determination by courts.
These opponents argue that a Bill of Rights will inevitably lead to the courts being called upon to rule on morally and politically controversial issues. Doing so makes the courts vulnerable to public criticism because their judgments on these difficult matters will become the object of a wider public debate. In the long run, opponents maintain, this will harm the authority of the courts and in turn the entire legal and political system because the public at large will lose respect for and trust in the courts. The determination of highly controversial issues should therefore be left to the political branches of government, the legislature and the executive. Consequently, a Bill of Rights is undesirable.
The purpose of this chapter is to challenge the argument that controversial questions of a moral and political nature should not be decided by the courts. The German experience of religious disputes under a Bill of Rights demonstrates that, even when courts are called upon to determine politically and morally charged issues, a loss in public confidence of the legal system is not inevitable. To support my point, I examine two of the most controversial decisions ever handed down by Germany’s highest court, the German Federal Constitutional Court (Bundesverfassungsgericht) (FCC). Both concerned religious freedom. They dealt with the two questions outlined above: whether the State can require that crucifixes are installed in all primary school classrooms (the Classroom Crucifix case) and if a Muslim teacher can wear the Islamic headscarf while teaching in a public school (the Teacher Headscarf case).
My discussion lends support to the first part of Bill of Rights opponents’ argument that such a Bill leads to the courts being called upon to decide morally and politically controversial questions. Both the Classroom Crucifix and the Teacher Headscarf cases illustrate this clearly, and I chose them to support my argument precisely because the issues under review were so highly controversial. The Crucifix case also exposed the FCC to fierce public criticism, while the strong attacks on the Court following the Headscarf case came mostly from academic commentators. Therefore, as the discussion will show, I fully agree with opponents of Bills of Rights that under such a Bill the courts may be required to rule on very controversial questions and become the target of strong criticism.
However, I strongly disagree with the second part of the argument, that long-term damage to the institution of the courts and the legal and political system as a whole is an inevitable consequence of such public exposure and criticism. The German experience shows that the FCC’s reputation and the German legal and political system did not suffer long-term damage, although the Court was required to rule on highly controversial issues and became the target of fierce and widespread public criticism. This argument relies on empirical research that supports these findings.
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.
Cornelia Koch is a Senior Lecturer at the Adelaide Law School. Freedom of Religion under Bills of Rights will be launched on Wednesday, 28 March 2012 at 5:30pm in the Ira Raymond Room, Barr Smith Library, University of Adelaide.
