vonrichesandlaws 23.11.2020

Riches and Laws

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A recent judgment by the Administrative Court of Baden-Württemberg affirming German authorities’ decision to deny a Muslim man German citizenship over his refusal to shake hands with a female official received quite some international media attention. It has become a reference point in the conversation on the extent to which there is a place for Islamic religious and social practices in German society. This is unfortunate, as the judgment is shockingly flawed in its legal reasoning and espouses thinly veiled xenophobic exoticization of German Muslim women as well as a reactionary understanding of gender-relations.

The said case concerned an application for German Citizenship by Lebanese man who had arrived in Germany as a student, completed his medical degree and become a successful and well-reputed senior physician. He met all the criteria and got a perfect score in his nationality test. After some initial concerns of German authorities over his membership in a mosque, which had in the past invited guest-speakers associated with a more fundamentalist views, they eventually gave him security clearance and approved his citizenship application, as the authorities could not find any indication that he harboured such views.

When he went to collect his certificate of naturalization, he politely refused the congratulatory handshake by the female official, a person whose hand he had shook on several prior occasions. He explained that after numerous arguments with his wife, a German Muslim, he had promised conceded to no longer greet other women with handshakes or hugs, as she objected to him having any physical contact with other women outside the context of his profession. Triggered by his refusal the official reversed the approval of his naturalization request, a decision that was upheld by the Administrative Court in Stuttgart and then appealed before the Administrative Court of Baden-Württemberg. On the face of it, the court’s verdict appears plausible enough.

“Because of its societal and legal significance, the handshake forms part of German social norms. A person who applies for German citizenship who, due to his fundamentalist cultural and moral views refuses to shake hands with a woman does not evidence his acceptance of German social norms, if such a refusal is based on the social norm that such physical contact may be perceived as unmoral, or bear in it the risk of a sexual temptation.”

Accepting German social norms is a legal requirement in order to qualify for German citizenship under the German Nationality Act. The twist in this case however is that the beliefs that prevented its protagonist from shaking hands with the female official were not his own, but those of his wife.

 

Responsibility for his wife’s beliefs

The Court does not dispute the couple’s assertions that the reason that the claimant did not shake the official’s hand was the promise made by him to his wife and not his own “fundamentalist cultural and moral views”. In fact, the Court goes through great lengths to establish this particular causality focusing on both the claimant’s and his wife’s sources of religious teachings to establish that she had on her own very likely developed beliefs akin to the Salafi movement. Nonetheless, the Court attributes the fundamentalist cultural and moral views to the claimant, pointing to his remarkable professional success, which testifies to his “strong-willed nature”. Furthermore, a man of such nature could be expected to not abide by his wife’s wishes. The Court elaborates that the couple was not in a long-distance relationship, and therefore there was no rational reason for his wife’s jealousy and for him to give in to her demands. Rather, he should have realized that her request was informed by her religious beliefs and rejected it for this reason.

One can only wonder what legal doctrine may have informed this construction of fundamentalism by proxy. Given that the Court seems to accept that there can be legitimate reasons for refusing an inter-gender handshake, namely arousal of spousal jealousy, it is unclear why this motive is somehow more legitimate in this context than that of respecting one’s spouses’ religious convictions. After all, in this case there is a more evident balancing of two constitutionally protected human rights norms at play, that of gender equality and freedom of religion. Finally, given the Court’s recognition that the claimant’s behaviour is undoubtedly attributable to the promise made to his wife, the absence of any consideration of the legal protections of family and marital life is stark.

More profoundly there is a deeply unsettling hierarchization in the Court’s interpretation of gender equality- while it constructs the claimant’s refusal to shake a female official’s hand as not having internalized German social and constitutional norm of respecting women, it simultaneously and explicitly suggests that he should have disregarded his wife’s wishes. In doing so, the Court requires the claimant to evaluate one woman’s conceptions of respect against another one’s, based not only on whether or not such conceptions reflect German norms, but also on whether or not they are reasonable. For the Court, the answer is evident. One conception is reasonable and productive for the German social order. The other is unreasonable and irreconcilable with, even subversive to the German social order. In other words, in the eyes of the Court, whether or not the claimant is suitable for German citizenship depends on his willingness to prioritize one woman’s demand for expression of respect over another. Not choosing rightly automatically disqualifies him from being eligible for German citizenship and any attempts to reconcile both conceptions e.g. by not shaking hands with anyone, neither men nor women is equally non-conform to German social norms.

 

Exoticization of the Muslim German

Throughout its decision, the Court makes an extraordinary effort to exoticize the claimant’s wife and to diminish her subject-hood. A substantial portion of the judgment exclusively focuses on her. The Court e.g. notices that she wore a “loose and cloak-like outfit to the oral hearing, with only her face and hands left uncovered” and that she is a German citizen born to Syrian parents in Germany and has “allegedly been a German citizen since birth”. Of course, a Court does not have to rely on allegations to ascertain anyone’s citizenship history, which is easy enough to verify. So why does the court think that her outfit, her citizenship history, her religious upbringing, her education or her level of intelligence mattered to this particular case? She was not a party to the case, nor was her citizenship in doubt, nor did the case concern the compatibility of her religious beliefs with German social norms, or her choice of clothing. Still the Court pursued all these aspects with two objectives. One is to support its finding that the religious beliefs she holds qualify indeed as fundamentalist and the other is to find that her conceptions of gender relations are not only fundamentalist but also alien. And alien to an extent that the Court could create a dichotomy where respecting her religious, social and moral views automatically translated into disrespecting German social norms. Such a construction of her self-distancing from her citizenship may be the reason why her rights and those of her husband were lesser in the eyes of the Court than that of the German official.

This is the most explicit one-sided application of the right to non-discrimination. The norms that the Court sees as violated by the claimant’s behaviour are that of gender equality as well as a woman’s right not to be discriminated against based on her gender. One paragraph of the judgment dedicated to the protection of the freedom of religion notes that even if the refusal of the handshake was religiously motivated (which the Court does not believe to be the case here), a finding that such behaviour disqualifies an applicant for German citizenship is still lawful. This is because a refusal of a citizenship application on such grounds does not hamper one’s ability to freely exercise one’s religion. While this observation is certainly accurate, the question in such a scenario can hardly be whether a denial of a citizenship interferes with a person’s right to freely exercise their religion, but rather whether it violates a person’s right not to be discriminated against on the basis of their religion. While the answer to this question may not be obvious, the need to raise it is.

 

Fetishizing of the Handshake

Finally, let’s turn to the Court’s finding of the handshake being a social practice so central to the German social order that not performing it would not only jeopardize the equality of genders but would also leave the claimant unable to perform certain legal acts. Here it is worth noting that the examples that the Court cites to stress the centrality of the handshake to the German legal system are either ones where the handshake is never the only possible modality to perform such an act (e.g. to conclude a contract), or they are examples of a handshake being required in a professional capacity (e.g. for representative purposes). Since it is quite clear that the claimant does not object to physical contact with women in the context of his professional activities, here again the legal reasoning seems somewhat detached from the facts of the case. All the more so, because as mentioned above there seem to be certain scenarios in which it is compatible with the German social order to refuse a handshake with a person of the opposite gender, namely reasonable spousal jealousy.

 

What now?

If there is anything to learn from the attention that this case has received internationally, it is that the relation between law, religion and culture remains controversial. More specifically, to what extent does a constitution in a liberal state not only protect Western social and cultural practices, but also protect from other non-Western ones? Can liberal understandings of feminism and gender equality be reconciled with non-Western ones? Is it compatible with our understanding of personal freedom and physical integrity to attach adverse legal consequences to the refusal of physical contact? Such questions were already raised around the ban of the headscarf in public spaces, or the infamous French burkini ban. As much as one may wish for this judgment to contribute to the discussion on such broader question, a close reading of it prompts a different question. Is it possible that the biggest threat to Western constitutional values is not posed by non-Western religious, social and cultural views and practices, but by our willingness to bend or even abandon fundamental principles of the rule of law and of legal reasoning to shield the Western social orders against non-Western social practices?

 

 

Lys Kulamadayil is an international lawyer and post-doc at the University of Amsterdam. She is also a research fellow at the Graduate Institute, Geneva. You can follow her on Twitter (@kulamadayil). This piece will also be published on OpinioJuris.

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