The Turkish Constitutional Court, laicism and the headscarf issue

Abstract

From 1989 onwards, the Turkish Constitutional Court justified the headscarf ban in universities by citing laicism. Interestingly, in 2014, the Court found the headscarf ban in courts unconstitutional and revoked it by again citing laicism as the main reason. How can this seemingly paradoxical practice be explained? This article traces the trajectory of the headscarf issue in Turkey by analysing and contextualising the Constitutional Court decisions. In order to explain how and why the Constitutional Court issued two opposing views of the headscarf ban, this article focuses on the changing political climate and legal developments that took place in Turkey between 2008 and 2014.

Keywords:

• Turkey
• the headscarf issue
• laicism
• religious freedom

Notes

1. Kern, Imperial Citizen, 1–31.

2. McCarthy, “Foundations of the Turkish Republic,” 139; Walter, “Turkey as Borderland,” 257.

3. Arat, Rethinking Islam and Liberal Democracy, 4; Göle, “Quest for the Islamic Self,” 84.

4. Göle, Seküler ve Dinsel, 103.

5. Hale and Özbudun, Islamism, Democracy and Liberalism in Turkey, xvii–xviii.

6. Islamic conservatives in Turkey did not oppose modernity, but rather the Kemalist project of modernity. See Kaya, “Conceptualizing the Current Clashes,” 3–21.

7. Elver, Headscarf Controversy, 66.

8. Ibid., 15–41.

9. The 1982 Constitution is available at https://global.tbmm.gov.tr/docs/constitution_en.pdf

10. Hallward, “Situating the ‘Secular’”; Bowen, “Secularism: Conceptual Genealogy or Political Dilemma,” 680–94.

11. Hurd, “International Politics of Secularism,” 115–38; Sommerville, “Secular Society/Religious Population,” 249–53.

12. Gökarıksel, “Beyond the Officially Sacred,” 657–63.

13. Another body of literature discusses what role the religion should play in the public sphere. See, for instance, Habermas, “‘The Political’”; Habermas, “Faith and Knowledge” ; Habermas, “What Is Meant by a ‘Post-secular Society’?”; Taylor, “Why We Need a Radical Redefinition of Secularism.” The normative debates with respect to secularism are beyond the scope of this study.

14. Hurd, Politics of Secularism in International Relations; Cady and Hurd, Comparative Secularisms in a Global Age; Jackobsen and Pelligrini, Secularisms; Calhoun, “Rethinking Secularism,” 35–47; Keane, “Secularism?”; Bowen, “Secularism: Conceptual Genealogy or Political Dilemma,” 680–94.

15. Hurd, “Political Authority of Secularism in International Relations”; Casanova, “Civil Society and Religion,” 1041–1080; see also Kosmin and Keysar, Secularism & Secularity. Secular states which adopt an inclusionary attitude towards religion in the public sphere show variation with respect to their attitude towards minority religions. For a detailed analysis on the subject, see Stepan, “Multiple Secularisms,” 114–45.

16. See Bowen, “Secularism: Conceptual Genealogy or Political Dilemma,” 680–94; Cady and Hurd, Comparative Secularisms in a Global Age; Modood, “Moderate Secularism,” 4–14.

17. McGoldrick, “Religion in the European Public Square,” 453–4.

18. Hurd, Politics of Secularism in International Relations, 5.

19. Cady and Hurd, Comparative Secularisms in a Global Age, 13.

20. Asad, Genealogies of Religion, 25.

21. Knott, “Theoretical and Methodological Resources,” 115–33.

22. Barras, “Sacred Laïcité,” 276–93.

23. Yildirim, “Search for Shared Idioms,” 235–51.

24. The Cabinet of Ministers banned the headscarf in schools in 1981 (Official Gazette no. 25/10/1982 – 17849). The YÖK banned the headscarf in universities in 1982 (Official Gazette no. 21.08.1982/ 17789). Interestingly, the military government, a strict defender of Atatürk’s secular principles, adopted a pragmatic attitude towards religion. Rather than encouraging the alienation of people from organised religion, it promoted religion in public education. As such, mandatory religious instruction at schools was introduced and the number of İmam-Hatip schools (which offer vocational religious training) was increased. The Turkish military’s intention to neutralise superstitious beliefs and radical Islamic ideologies among the masses, by bringing religious education under state control, provides the rationale for this paradoxical policy. See Elver, Headscarf Controversy.

25. Quoted in Aksoy, Başörtüsü-Türban, 163.

26. Aldıkaçtı-Marshall, “Ideology, Progress, and Dialogue,” 115.

27. Arat, “Toward a Democratic Society,” 245–6.

28. Arat, Group-Differentiated Rights,” 32; Arat, Rethinking Islam and Liberal Democracy, 24–5. For the implications of the politicisation of the headscarf issue for feminist movements in Turkey, see Cindoglu and Zencirci, “The Headscarf in Turkey.”

29. Salt, “Nationalism and the Rise of Muslim Sentiment in Turkey,” 16–7.

30. Qur’an courses were opened in 1932 by the Republican People’s Party (CHP) government. In these courses, students learn how to read and memorise Qur’an. See Ünsür, Kuruluşundan Günümüze İmam-Hatip Liseleri.

31. The 28 February decisions are available at:

http://www.hukukajansi.com/images/dosyalarim/DAVALAR/28_SUBAT_KARARLARI/28_UBAT_KARARLARI.pdf.

32. Turam, Türkiye’de İslam ve Devlet, 17.

33. In the 28 February process, persuasion rooms were set up within Istanbul University to persuade headscarved students to remove their headscarves. For more analysis on the subject, see Çaha, Women and Civil Society in Turkey.

34. Narli, “Civil–Military Relations in Turkey,” 125.

35. Ibid., 116.

36. Quoted in Shively, “Religious Bodies and the Secular State,” 52.

37. Ibid.

38. Göle, Seküler ve Dinsel, 95.

39. Akdoğan, AK Parti ve Muhafazakar Demokrasi, 15–6.

40. Turam, Türkiye’de İslam ve Devlet, 157.

41. The e-muhtira is available at http://www.siyasiforum.net/viewtopic.php?f=1&t=9987.

42. Bardakci, “Coup Plots.”

43. Shambayati and Kiriş, “In Pursuit of ‘Contemporary Civilization,’” 771; Shambayati, “Courts in Semi-Democratic/Authoritarian Regimes,” 284.

44. Kili, Turkish Constitutional Developments, 66.

45. Shambayati and Kiriş, “In Pursuit of ‘Contemporary Civilization,’” 771.

46. Özbudun, “Turkey’s Search for a New Constitution,” 40.

47. Ibid.

48. Shambayati and Kiriş, “In Pursuit of ‘Contemporary Civilization,’” 775.

49. Özbudun, “Turkey’s Search for a New Constitution,” 49.

50. Turkish Constitutional Court Judgement no. 1991/8, available at: http://kararlaryeni.anayasa.gov.tr/Karar/Content/152e95a6-8e5c-4e9e-ae1a-197acdaefe66?higllightText=ba%C5%9F%C3%B6rt%C3%BCs%C3%BC&excludeGerekce=False&wordsOnly=False

51. Turkish Constitutional Court Judgement no. 1991/8, available at http://kararlaryeni.anayasa.gov.tr/Karar/Content/f0a825c8-9c1d-4660-bac4-d16991f22d32?higllightText=ba%C5%9F%C3%B6rt%C3%BCs%C3%BC&excludeGerekce=False&wordsOnly=False

52. On the Şahin case, the ECHR ruled that to protect civilian rights, freedoms and public order, forbidding the headscarf is necessary for a democratic society. European Court of Human Rights. Şahin_v. Turkey, Grand Chamber Judgement, decision of December 10, 2005. Application No. 44,774/98, available at http://hudoc.echr.coe.int

For a critique of ECHR’s reasoning on the Şahin case, see Westerfield, “Behind the Veil.”

For a critique of the Turkish Constitutional Court’s judgements on the headscarf issue, see Arat, “Toward a Democratic Society.”

53. Turkish Constitutional Court Judgement no. 2008/116, available at:http://kararlaryeni.anayasa.gov.tr/Karar/Content/bc06900f-3196-4240-856d-00ebea7b2ff7?higllightText=ba%C5%9F%C3%B6rt%C3%BCs%C3%BC&excludeGerekce=False&wordsOnly=False

54. Turkish Constitutional Court. Application no. 2014/256, available at http://www.constitutionalcourt.gov.tr/inlinepages/leadingjudgements/IndividualApplication/judgment/2014-256.pdf

55. 2023 Political Vision of the AKP is available at https://www.akparti.org.tr/english/akparti/2023-political-vision

56. Gökarıksel, “Beyond the Officially Sacred,” 662.

57. Göle, “Quest for the Islamic Self,” 86.

58. Ibid.

59. Arat, Rethinking Islam and Liberal Democracy, 15–6.