Freedom of religion in Germany

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Freedom of religion in Germany is guaranteed by article 4 of the Basic Law (constitution). This states that "the freedom of religion, conscience and the freedom of confessing one's religious or philosophical beliefs are inviolable. Uninfringed religious practice is guaranteed." In addition, article 3 states that "No one may be prejudiced or favored because of his gender, his descent, his race, his language, his homeland and place of origin, his faith or his religious or political views." Any person or organization can call the Federal Constitutional Court of Germany for free help.[1]

The German system of state support for otherwise independent religious institutions assists all religions equally in principle, though in practice it has been unable to fully encompass some minority faiths.[2] The government has granted most of the country’s major religious communities “public law corporation” (PLC) status – Körperschaft des öffentlichen Rechts in German – which allows for numerous benefits. Traditions that lack a centrally organized national structure – most notably Islam – have had difficulty attaining PLC status and the benefits that come with it.[2]

Legal situation[edit]

The freedom of religion in the Grundgesetz (Basic Law) means one may adopt any kind of religious or non-religious belief, practice it in private or in public, confess it, or keep it for oneself. The state does not identify with any religious organization.

Religious freedom, like the other basic rights of the Grundgesetz, is limited where it collides with the core value of human dignity or with the basic rights of others, or if it is misused to fight against the basic constituency of free democracy.

Art. 4 sec. III provides for the right to refrain from military service in the name of religion (lit. "conscience").[3]

"Collective" freedom of religion[edit]

German law on freedom of religion distinguishes between individual and collective freedom of religion. Collective freedom of religion additionally covers the legal statutes of religious organizations. Of special interest is the statute of corporate body under public law, which allows the organization to collect church tax and hold religious education in state schools.

Types of legal statutes[edit]

A religious group in Germany can be formed under all legal statutes. It can be organised as a company under Corporate law, but tax regulations, company duties, and responsibilities are often seen as disadvantages. A voluntary association can be formed by anybody. Registration as an "eingetragener Verein" (abbreviated e.V.) gives the advantage of legally functioning as a corporate body (juristic person), rather than a simple group of individuals. It can by used by any secular or religious group.

Non-profit corporation[edit]

Two other types of organizations are often employed: the most frequent are gemeinnützige not-for-profit corporations, which can be companies or registered associations. This status requires not only limitation to non-commercial activities, but similar to American non-profit organizations, it is limited to those whose primary objective is to support an issue or matter of private interest or public concern for non-commercial purposes. Like many other countries, nonprofits may apply for tax exemption status, so that the organization itself may be exempt from taxes. In some cases, financial donors may claim back any income tax paid on their donations, or deduct from their own tax liability the amount of the donation.

Corporate body under public law[edit]

The second is a Körperschaft des öffentlichen Rechts (corporate body under public law), a status which is specifically granted to religious groups. Some smaller communities may have this status in one state, while they maintain a different status in another. The status has a string of benefits attached. Religious communities which are organized under public law have the right to collect contributions (church tax) according to laws which are similar to general tax laws. Religious communities enjoy further privileges regarding building and tax regulations, the ability to teach religion as a regular course in state schools, and the ability to be represented in media consulting committees.

The right to collect church tax[edit]

The so-called "church tax" (German: Kirchensteuer) for corporate bodies under public law is collected with the regular state tax by the state from all registered members of these denominations.[4] On the basis of tax regulations within the limits set by state laws, communities may either request the state to collect fees from members in the form of a surcharge of the income tax assessment (the authorities would then withhold a collection fee), or they may choose to collect the tax themselves.

In the first case, membership to the community is registered onto a taxation document (Lohnsteuerkarte). The member's employer must then withhold church tax prepayments from the income of the employee in addition to the prepayments on the annual income tax. In connection with the final annual income tax assessment, the state revenue authorities also finally assess the church tax owed. In case of self-employed persons or other tax payers not employed, state revenue authorities collect prepayments on the church tax together with prepayments on the income tax.

In case of own collection, collecting communities may demand the tax authorities to reveal taxation data of their members, in order to be able to calculate the contributions and prepayments owed. In particular, smaller communities (e.g. the Jewish Community of Berlin) chose to collect taxes by themselves in order to save the collection fee[citation needed]. Collection of church tax may be used to found institutions and foundations or to pay ministers.

The church tax is only paid by members of the respective religious corporate body under public law . Those who are not members of a tax collecting denomination are not required to pay it. Members of a religious community which is a corporate body under public law may formally declare to state authorities that they wish to leave the community (this is commonly referred to as "leaving the church"). With such declaration, the obligation to pay church taxes ends. The concerned religious organisations usually refuse to administer rites of passage, such as marriages and burials of (former) members who had seceded. To rejoin a religious corporate body under public law one would get one's declaration of re-entry officially recorded. The Conference of the German Bishops, however, considers the declaration to "leave the church" to be a schismatic act to be punished automatically by excommunication.

The church tax is historically rooted in the pre-Christian Germanic custom where the chief of the tribe was directly responsible for the maintenance of priests and religious cults. During the Christianization of Western Europe, this custom was adopted by the churches into the concept of Eigenkirchen (churches owned by the landlord), which stood in strong contrast to the central church organization of the Roman Catholics. Despite the resulting medieval conflict between the emperor and pope, the concept of church maintenance by the ruler remained the accepted custom in most Western European countries. In Reformation times,[5] the local princes in Germany officially became heads of the church in Protestant areas, and were legally responsible for the maintenance of churches; the aforementioned practice is legally referred to as Summepiscopat. Only in the 19th century did the financial flows of churches and state get regulated to a point where the churches became financially independent – the church tax was introduced to replace the state benefits the churches had obtained before.

Fee for leaving a religious corporate body under public law[edit]

In July 2008, the Federal Constitutional Court of Germany had to decide whether a fee for leaving a religious corporate body under public law ("leaving the church") was in accordance with the constitution. Ultimately, the court decided it was an unconstitutional infringement of religious liberty.[6][7] As the state of affairs in August 2008 noted, declaring that one is no longer a member of a church costs between 10 and 30 € in most federal states. It is free in Berlin, Brandenburg, Bremen, and Thuringia; in some communities in Baden-Württemberg, in contrast, it may cost up to 60 €.[8] In its decision, the Federal Constitutional Court also clarified that the legislator is required by the constitution to reduce the fee, in cases where the person who wants to "leave the church" does not have any personal income.[9] The German atheist group IBKA disagreed with the decision and took the issue to the European Court of Human Rights.[10]

The right to provide religious education at state schools[edit]

Education is the responsibility of the 16 federal states (Bundesländer), and each state can decide how to organise religious education. In most states, religious education is obligatory. The curriculum is provided by the churches and approved by the state. Usually the Roman Catholic Church and one Protestant Church each provide school lessons for members of their own denominations, and for members of other denominations that wish to participate. Smaller denominations and some other religious minorities either co-operate with one of the big ones or may decide to conduct classes outside school. In the latter case they can provide the school with details of pupils' performance, so that this information can be included in school reports.

Children who do not want to participate in religious education are obliged to attend an alternative class called "ethics", in which various issues of philosophy, society, and morals are discussed.

In most cases, even if pupils that stay in one class for almost all their lessons, they are divided into three groups (Roman Catholic, Protestant, Ethics) for their religious education, joining other pupils they might not know very well, but who belong to the same denomination.

The position is reversed in some states (Berlin, Brandenburg): the default option, similar to "ethics", is called "knowledge of life".[11] Pupils may choose instead to attend a denominational course. As the city has many Muslim immigrant children, Berlin also offers Islamic classes, although Muslim associations are not corporate bodies under public law.[12]

Other states (Bremen, Hamburg) have different systems of their own.

Historical development[edit]

The Peace of Augsburg in 1555 changed the legal situation from a uniform Roman Catholic area to the Cuius regio, eius religio principle, which defined freedom of religion for territorial princes, while their subjects had to follow them[clarification needed]. Individuals had at best the possibility to move into an area where their confession was practiced. Depending on the reigning prince, there could exist a certain tolerance towards other denominations, but not as a common law.

In the first half of the 17th century, Germany was laid to waste by the Thirty Years' War, where the lines between enemies within Germany followed mainly denominational borders between the areas of the Catholic League (German) and those of the Protestant Union, resulting in a time of harsh intolerance. Pastor and hymn writer Paul Gerhardt was forced out of office in 1755 due to his staunch Lutheran convictions in a Berlin ruled by a reformed prince. In the 18th century, the idea of freedom of religion was promoted by cultural leaders like philosopher Immanuel Kant and dramatist Gotthold Ephraim Lessing, but their stress was on the freedom of the individual to believe or to not adhere to the beliefs of a dominant state church.

The German Empire of 1871 recognized a basic religious freedom for individuals. The constitution of Weimar of 1919 defined individual freedom of religion in article 136: the civil and civic rights and duties are neither qualified nor restricted by exercise of freedom of religion. No one can be forced to attend an ecclesiastical act or ceremony or be forced to take part in religious exercises or use a religious formula of oath.

Article 137 was about religious associations. Main points include the omission of recognition of a state church. Religious associations manage their own affairs within the limits of general law. Religious offices are given without the influence of the state. Religious associations are legal entities. Religious associations which are "bodies of public law" keep this status. Other religious associations can request the same rights, if they can show by their constituency and number of members that they are permanently established. Associations with the purpose of cultivating a world view have the same status as religious associations.

During the time of the Third Reich, there was a very real danger of religious persecution for adherents of any religious association beside the Protestant Reich Church.

In 1949, West Germany formulated religious freedom in the Grundgesetz. On the other hand, communist East Germany did officially claim religious freedom, which existed in actual practice only for low-key private exercise of religion, and did not interfere with any duties towards the state. Outspoken pastors had to face prison in extreme cases, but the more frequent way of dealing with openly confessing Christians and clerics was subtle repression, like strict observance by the state security, or forbidding admission to college for their children.

Social and cultural dimension[edit]

While church and state in Germany are legally separated, and have been so since the Weimar Republic, there remains the fact that Germany has been under the dominating social and cultural influence of one single church, be it Protestant or Roman Catholic. This influence determined education, arts, music, customs, festivals, lifestyle, and even, to some degree, architecture. In eastern Germany and in urban areas, this cultural influence of religion has been substantially reduced; but, in rural areas, it still can be felt in Bavaria, and in some areas of Baden-Württemberg and the Siegerland.

Individual freedom of religion[edit]

Besides collective, German law protects individual freedom of religion, which is to be distinguished into positive and negative freedom of religion. Negative freedom of religion covers the right not to confess your faith unless legally required (i. e. registration for church tax) and the right not to be exposed to religion while in a position of "subordination" where one is legally required to attend. Landmark decisions are the Crucifix Decision[13] and the Headscarf Decision.[14]

Crucifix Decision[edit]

In the Crucifix Decision the German Federal Constitution Court in 1995 decreed a law that insisted on the presence of religious symbols (crucifixes) in public institutions to be illegal, excluding in some Roman Catholic elementary schools. The court further demanded that the symbols must be removed if a parent does not agree with them. In 1973, a Jew complained successfully that his freedom of religion was violated by the obligation to speak in a German courtroom decorated by a cross.[15]

Headscarf Decision[edit]

In 2004, the German Supreme court denied a Muslim teacher the right to wear a headscarf in class, on the basis that she had to represent neutrality. In this case, freedom of religion (of teachers) had to be brought into "balance" with the state's authority over schools (art. 7), the freedom not to be exposed to religion while in a state of subordination (art. 4), resp. the parents' rights to raise their children (art. 6), and the specific duties of teachers as state servants (art. 33). German courts rarely hold the freedom of religious and non-religious belief to be infringed, as freedom of religion is limited by the exertion of other basic rights (and duties) guaranteed by the Grundgesetz. Already in the late 1970s, a teacher had also been denied the right to wear the distinct clothing of his religion at the workplace.[citation needed]

In Germany, high school students are not excused from classes on sexual education[16] and evolution theory on the basis of religion, as it collides with the state's authority over schools (art. 7) and the legal duty to attend schools. Homeschooling for religious reasons is illegal.[17]

Cults, sects, and new religious movements[edit]

State-issued information on NRM[edit]

The German government provides information about cults, sects, and new religious movements. In 1997, the parliament set up a commission for Sogenannte Sekten und Psychogruppen (literally "so-called sects and psychic groups") which delivered an extensive report on the situation in Germany regarding NRMs in 1998.[18]

The main point of critics against Sekten from the governmental side is that they propagate a concept of the ideal human (Menschenbild de:Menschenbild) which is very different of the concept underlying the Grundgesetz (Basic Law). For example, some cults may stress the inequality of social groups, races or sexes, and foster a culture where blind obedience and fundamentalism are welcomed. The Grundgesetz, however, says that all people are equal and envisages people who are open-minded, discerning and tolerant.[19]

In 2002, Germany's Federal Constitutional Court ruled that the German government had violated its constitution in its treatment of the Osho movement, using deprecating expressions about it that were not based on fact.[20] The Federal Constitutional Court took eleven years to come to its decision, and the overall duration of proceedings from the original complaint lasted over 18 years; Germany was subsequently fined by the European Court of Human Rights for the excessive duration of the case.[20][21][22][23] Given the limits set by the Federal Constitutional Court on the permitted scope of government actions in 2002, the European Court of Human Rights found that Germany was not in violation of Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights, but found that it had violated Article 6 § 1 (right to a fair hearing within a reasonable time).[23]

Jehovah's Witnesses[edit]

Since the 1990s, German courts have repeatedly denied the request of the Jehovah's Witnesses to become a corporate body under public law for various reasons, one of them being that the Jehovah's Witnesses would discourage their members from taking part in state elections, and would not respect the Grundgesetz.

In March 2005, Jehovah's Witnesses were granted the status of a body of public law for the state of Berlin,[24] on the grounds that the alleged lack of fidelity towards the state had not been convincingly proven. The decision on the group's status in Berlin was upheld by the Federal Administrative Court in 2006.[25] In subsequent years, corresponding decisions were made in 12 other states.[26][27] In the states of Baden-Württemberg,[28] and Bremen,[29] the group was denied the status in 2011.

Due to their status of corporate body under public law (in some states), Jehovah's Witnesses in 2010 filed a complaint for broadcasting time at Germany's international broadcaster, Deutsche Welle.[30]

Concerning the issue of blood transfusions, the Federal Constitutional Court has held that transfusing blood to an unconscious Jehovah's Witness violated the person's will, but did not constitute a battery.[31]

Scientology[edit]

German courts have come to different decisions on employees and members of Scientology regarding their religious status.[32] The German government considers Scientology "an organization pursuing commercial interests".[32][33] Scientology is not classified as a non-profit organization in Germany, and the current organizational form of Scientology is "Scientology Kirche e.V." (eingetragener Verein, or registered association). Germany has been criticized over its treatment of Scientologists in United States human rights and religious freedom reports, and the U.S. government has repeatedly expressed its concern over the matter.[34][35][36][37] Rebutting such accusations, and justifying its stance on Scientology, the German embassy in Washington has said that the German government believed Scientology's "pseudo-scientific courses can seriously jeopardise individuals' mental and physical health, and that it exploits its members."[35]

Illegality of religious TV advertisements[edit]

In 2002, there was a legal controversy regarding the "Power for Living" campaign by the Christian Arthur S. DeMoss Foundation featuring celebrities Cliff Richard and Bernhard Langer. The TV advertisings for their book were banned because they were considered as "advertising a worldview or religion", which is forbidden by § 7 section 8 of the state treaty on broadcasting (Rundfunkstaatsvertrag) and European laws on media. For its posters, newspaper adverts and leaflets, however, there was no such problem.[38]

Display of neo-pagan symbols[edit]

There have been cases of groups in Germany which practice Germanic neopaganism facing legal sanctions because of their display of symbols, such as runes or the Celtic cross, which prosecutors have deemed illegal under laws against neo-Nazi propaganda. Using "unconstitutional symbols", namely the swastika, is an offense punishable by up to three years in jail or a fine[39] according to § 86a of the German Criminal Code.

References[edit]

  1. ^ Fact sheet on the constitutional complaint at the Federal Constitutional Court
  2. ^ a b "Germany". Berkley Center for Religion, Peace, and World Affairs. Retrieved 2011-12-29.  See drop-down essay on "Religious Freedom in Germany"
  3. ^ Religious Freedom in Germany
  4. ^ [1][dead link]
  5. ^ Zippelius, Reinhold: Staat und Kirche, 2. Auflage, Mohr Siebeck, 2009, ch. 9, 12
  6. ^ Spiegel Online, August 8, 2008, Länder dürfen für Kirchenaustritt Gebühren kassieren (German)
  7. ^ Decision of the Federal Constitutional Court (Entscheidung des Bundesverfassungsgerichts): BVerfG, 1 BvR 3006/07 vom 2.7.2008
  8. ^ Decision of the Federal Constitutional Court (Entscheidung des Bundesverfassungsgerichts): BVerfG, 1 BvR 3006/07 vom 2.7.2008, para. 40
  9. ^ Decision of the Federal Constitutional Court (Entscheidung des Bundesverfassungsgerichts): BVerfG, 1 BvR 3006/07 vom 2.7.2008, para. 41
  10. ^ Internationaler Bund der Konfessionslosen und Atheisten / International league of non-religious and atheists: Fee for leaving church is brought before European Court of Human Rights, press release, December 2, 2008
  11. ^ God and Berlin, The Economist, Mar 26th 2009
  12. ^ Islam in Berlin
  13. ^ Decision of the German Federal Constitution Court (Entscheidung des Bundesverfassungsgerichts) BVerfGE 93, 1
  14. ^ Decision of the German Federal Constitution Court (Entscheidung des Bundesverfassungsgerichts) BVerfGE 108, 282
  15. ^ Decision of the German Federal Constitution Court (Entscheidung des Bundesverfassungsgerichts) BVerfGE 35, 366
  16. ^ Decision of the German Federal Constitution Court (Entscheidung des Bundesverfassungsgerichts) BVerfGE 47, 46
  17. ^ Where homeschooling is illegal
  18. ^ Final report of the commission of the Bundestag on the investigation into so-called sects and psycho groups
  19. ^ Final report of the commission of the Bundestag on the investigation into so-called sects and psycho groups, p. 7
  20. ^ a b Seiwert, Hubert. "Freedom and control in the unified Germany: governmental approaches to alternative religions since 1989". Sociology of Religion (Fall 2003). Retrieved 2009-12-13. 
  21. ^ "Deutschland wegen langen Verfahrens zu Bhagwan-Bewegung verurteilt". 123recht.net. 2008-11-06. Retrieved 2009-12-13. 
  22. ^ Buyse, Antoine. "Negative Labelling of Osho Movement". ECHR blog. Netherlands Institute of Human Rights (SIM), Utrecht University. Retrieved 2009-12-13. 
  23. ^ a b "Press release issued by the Registrar: Chamber judgments concerning Bulgaria, Germany, Greece, Russia, Switzerland, "the former Yugoslav Republic of Macedonia" and Ukraine". European Court of Human Rights. Retrieved 2009-12-13. 
  24. ^ Jehovah's Witnesses Granted Legal Status in Germany
  25. ^ Germany Federal Administrative Court Upholds Witnesses’ Full Exercise of Faith
  26. ^ Jehovah's Witnesses file complaint against Rhineland-Palatinate
  27. ^ Jehovah's Witnesses now corporate body under public law in Bavaria
  28. ^ Baden-Württemberg refuses to grant status of corporate body under public law
  29. ^ No recognition as corporate body under public law
  30. ^ Jehovah's Witnesses file complaint for broadcasting time, Welt Online, 06.07.2010
  31. ^ Decision of the German Federal Constitutional Court: [2] BVerfG, 1 BvR 618/93 vom 2.8.2001
  32. ^ a b bundestag.de: Legal questions concerning religious and worldview communities, prepared by the Scientific Services staff of the German Parliament (German)
  33. ^ German Embassy, Washington D. C. (2001–06): Understanding the German View of Scientology
  34. ^ Bonfante, Jordan; van Voorst, Bruce (1997-02-10). "Does Germany Have Something Against These Guys?", Time Archived 4 February 2012 at WebCite
  35. ^ a b Barber, Tony (1997-01-30). "Germany is harassing Scientologists, says US". The Independent. Retrieved 2009-09-11. 
  36. ^ Bureau of Democracy, Human Rights and Labor (2009-02-25). "2008 Human Rights Report: Germany". U.S. Department of State. Retrieved 2009-10-07. 
  37. ^ "2008 Report on International Religious Freedom – Germany". United States Department of State. 2008-09-18. Retrieved 2009-10-03. 
  38. ^ Religious TV advertisements are illegal in Germany – "Power for Living" ads banned by the state media authorities
  39. ^ Swastika Funeral Alienates NPD from Militant Neo-Nazis

External links[edit]