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Erna Scheffler – The First Female Judge at the German Federal Constitutional Court

The following is a guest post by Friederike Loebbert, a foreign law intern working with Foreign Law Specialist Jenny Gesley in the Global Legal Research Directorate of the Law Library of Congress.

In honor of Women’s History Month and the 100-year anniversary of women being allowed to practice law in Germany, I thought I would write about Erna Scheffler.

Erna Scheffler was born on September 21, 1893, and, in 1951, became the first female judge on the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), which is the only federal court with constitutional review power. (Basic Law, arts. 92, 93.) She would be more than pleased to know that as of December 31, 2020, 47.9 % of all judges in Germany were female and that the Federal Constitutional Court currently has a female majority of 9 out of 16 judges. Since 2004, more women than men study law in Germany. When Erna Scheffler started law school in 1911 at the Friedrich-Wilhelm University Breslau (today the University of Wroclaw in Poland), she was the only female student and was mostly ignored by her professors, who kept addressing the auditorium with “dear gentlemen” only. (Jahrbuch Universität Breslau, at 540.) Moreover, at the time she started her law studies, job prospects for women in the legal field were still very limited.

University with bridge, Breslau, Silesia, Germany (i.e., Wroclaw, Poland). Between ca. 1890 and ca. 1900. Library of Congress Prints and Photographs Division.//hdl.loc.gov/loc.pnp/ppmsca.01060.

In Erna Scheffler’s time and today, working as a lawyer, judge, or in another legal position in Germany required passing a first state exam (also called “Referendarexamen”) right after law school and after two more years of practical legal training passing a second state exam (also called “Assessorexamen”). However, even though universities started accepting more and more female students starting in 1908, women were not able to practice law, because they were not allowed to sit for the state exams. (Ende eines Aufbruchs, at 19-20.) This finally changed in 1922, when an act on the admission of women to legal practice was adopted. (Reichsgesetzblatt 1922, I at 573.)

Erna Scheffler belonged to the first generation of female jurists who used this opportunity. After successfully passing the second state exam in 1925, she started her own law firm and, in 1932, became a judge at a local court in Berlin. As I myself will soon complete my legal education with the second state exam this year, I know how much time and effort it involves. It is always the hope to have an interesting and fulfilling career after you finish your studies and training that keeps you going. I can only imagine how hard it must have been for Erna Scheffler to be “retired” in 1934, only two years after becoming a judge, when the Nazis came to power. Her “retirement” was based on section 6 of the “Law for the Restoration of the Professional Civil Service” (Gesetz zur Wiederherstellung des Berufsbeamtentums) of April 7, 1933, which allowed retirements under the very vague condition “to simplify the administration.” (RGBl. 1933, at 175.) According to Nazi ideology, women (and especially women like Erna Scheffler with two Jewish grandparents) did not belong in the judiciary. She was forced to perform menial, occasional jobs, while only receiving a small pension. (Jahrbuch des öffentlichen Rechts, at 262.)

After the Second World War ended, she once again became a judge in Berlin before moving to the Administrative Court in Düsseldorf. When she was selected to serve on the Federal Constitutional Court in 1951, she had already garnered public attention by delivering a speech at the 38th German Jurist Day in 1950, which was met with “enthusiastic applause from the audience.” In an entertaining but still well-thought-out way, she explained to the audience how the law in areas such as citizenship, taxation, or marriage still discriminated against women in a way that needed urgent reform. (Frauen der ersten Stunde, at 159-162.) During her 12 years on the Constitutional Court’s bench, she participated in a series of landmark decisions that all law students still learn about today. She played an important role in shaping the interpretation of constitutional rights in modern German legal studies. (Jahrbuch Universität Breslau, at 569.) Today, she is remembered in particular as an important voice in fulfilling the promise of article 3 paragraph 2 of the German Basic Law (constitution): “Men and women are equal.”

Bundesverfassungsgericht [Federal Constitutional Court]. Sept. 5, 2006. Photo by Flickr user Johannes Bader. Used under CC BY 2.0.

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