Freedom of religion in Germany

Freedom of religion in Germany is guaranteed by article 4 of the Grundgesetz (constitution) stating 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: "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."

Historically, though, all German states (Länder) are closely connected with the Roman Catholic and/or a Protestant (Lutheran and/or Reformed) confession. This has legal and cultural influences up to present times and this makes other countries or organizations sometimes doubt the actual separation between state and church or even the actual state of religious freedom in Germany.

Legal situation

The freedom of religion in the Grundgesetz 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.

Legal statutes for religious groups

A religious group in Germany can be formed under all legal statutes:

• It can be organised as a company under Corporate law. Tax regulations and company duties and responsibilities are often seen as disadvantages
• A Verein (Voluntary association) can be formed by anybody. Registration "eingetragener Verein" abbreviated e.V. gives the advantage of legally function as a corporate body (juristic person) rather than just a group of individuals. It can by used by any secular or religious group.

Also this is totally legal and there are no restrictons in any actions, two other types of organisation are often preferred:

• The most general is "gemeinnützige Organisation" not-for-profit corporations, which can be a company or registered association. This status requires not only limitation to non-commercial activities but like 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, without concern for monetary profit. Like many other countries, nonprofits may apply for tax exempt status, so that the organization itself may be exempt from income tax and other taxes, and (in some cases) so that financial donors may claim back any income tax paid on donations, or deduct from their own tax liability the amount of the donation.

There are some discussions about this issue because of restrictions to get the status of a tax-free organisation. This includes Scientology, which is considered as "an organisation pursuing commercial interests". Advantages of profit-organisations are no restrictions which non-profit organisations must fulfill, disadvantages are tax on profit and donations. Always a non-profit organization is:

Körperschaft des öffentlichen Rechts

The second is "Körperschaft des öffentlichen Rechts" (corporate body under public law), which has to be specifically granted to religious groups. Since the states are competent for granting this status, 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 according to laws which are quite similar to general tax laws.

Religious communities enjoy further special advantages regarding building and tax regulations, may teach religion as a regular class in state schools, and are represented in the media consulting committees.

Religious groups with the status of "Körperschaft des öffentlichen Rechts" are, besides the Roman Catholic church and the Protestant Churches, the Old Catholic Church, some of the Jewish religious communities, the Methodists, the Seventh-Day Adventists, and other communities, with variations from state to state.

In the Federal Republic of Germany, broadcasting is under the jurisdiction of the states (Länder), which, together, passed a state treaty on broadcasting (Rundfunkstaatsvertrag), which must be respected by all public and private broadcasters. The states each form a council on broadcasting (Rundfunkrat), which includes representatives of the Länder, of various institutions, and of religious groups with the status of "Körperschaft öffentlichen Rechts". The Rundfunkstaatsvertrag allows the broadcasting of services of such religious groups (most of these services are of the Roman Catholic Church and the Evangelical Church in Germany which have by far more members than the others); with respect to services of other religious groups or Hour of Power-like preaching shows, no explicit regulations do exist. In fact, such services and shows are commonly broadcast on small municipal channels, as larger broadcasting networks might not expect to attract a larger audience with such content.

Church Tax

The so-called "church tax" which exists in several European countries is legally not a tax but contributions for the church that are collected by the state at the same time as the state taxes.

In Germany, on the basis of tax regulations passed by the communities and within the limits set by state laws, communities may

• either require the taxation authorities of the state to collect the fees from the members on the basis of the income tax assessment (then, the authorities withhold a collection fee),
• or they may choose to collect the church tax themselves.

In the first case, membership in the community is entered onto a taxation document (Lohnsteuerkarte) which each employer requires from any employee in order to withhold income tax prepayments. If membership in a tax-collecting religious community is entered on the document, the employer has to 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 (as e.g. the Jewish Community of Berlin) chose to collect taxes by themselves in order to save the collection fee.

Collection of church tax may be used e.g. to found institutions and foundations or to pay ministers.

The church tax is only paid by members of the respective church. People who are not member of a church tax collecting denomination do not have to pay it. Members of a religious community under public law may formally declare to state - not religious - authorities that they wish to leave the community. With such declaration, the obligation to pay church taxes ends. Some communities refuse to administer marriages and burials of (former) members who had declared to leave it.

The money flow of state and churches is distinct at all levels of the procedures, the church tax is not a way of the state alimenting the churches.

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 Christianization of Western Europe, this custom was adopted by the Christian churches (Arian and Catholic) in the concept of "Eigenkirchen" (churches owned by the landlord) which stood in strong contrast to the central church organization of the Roman Catholic church. Despite the resulting medieval conflict between emperor and pope, the concept of church maintenance by the ruler remained the accepted custom in most Western European countries. In Reformation times, the local princes in Germany became officially heads of the church in Protestant areas and were legally responsible for the maintenance of churches. Only in the 19th century, the financial flows of churches and state got 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.

Religious Education

Children who do not want to take the obligatory class in religious education must take an ersatz class which is called "ethics" and in which various issues of philosophy, society and morals are discussed.

Historical development

The Peace of Augsburg 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. 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 rule.

In the first half of the 17th century, Germany was laid in waste by the Thirty Years' War where the lines between enemies within Germany followed mainly denominational borders and was followed by a time of harsh intolerance. Pastor and hymn writer Paul Gerhardt was forced out of office 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 or 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 knew a basic religious freedom for individuals, but had, especially following the Kulturkampf, several restrictions regarding churches and the activities of clerics.

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 are: There is no state church. Religious associations manage their own affairs within the limits of general law. Religious offices are given without influence of the state. Religious associations are legal entities according to the general regulations of the civil right. 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 worldview 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 which did not interfere with any duties towards the state. Outspoken pastors had to face prison in extreme cases, but the more frequent dealing with openly confessing Christians and especially clerics was subtle repression like strict observance by the state security or no admission to college for their children.

Social and cultural dimension

While church and state in Germany are legally separated, and have been so since the Weimar Republic, there remains the fact that any German region has been for centuries under the dominating social and cultural influence of one single church, be it Protestant or Roman Catholic, with practically every inhabitant being a member of that church. This influence determined education, arts, music, customs and festivals, lifestyle and even, to some degree, architecture. And, of course, the population in such an area did equal "their" church, the only church they knew, with "being Christian". In the first decades of the 20th century there were still areas in Roman Catholic Bavaria where people could not imagine that a child of a pastor could be anything but illegitimate. 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, e.g. in Bavaria, or in some areas of Baden-Württemberg and the Siegerland.

A famous decision is the so-called Crucifix Decision of the German Supreme Court (1995), which says that a law which insists on the presence of religious symbols (crucifixes) in public institutions [1] is illegal, in the special case in the elementary schools in mainly Roman Catholic and rather traditional Bavaria. It further demands that the symbols must be removed if one parent does not wish them. In the 1950s, a German Jew had already complained successfully that his freedom of religion was violated by the obligation to speak in a German courtroom decorated by a cross.

Despite the (positive) state-patronizing of the "Churches", there have been very few cases in which the freedom of religious and non-religious belief has actually been infringed. In Germany, the freedom of religious and non-religious belief is guaranteed in "balance" with the other values of the Grundgesetz, namely, with human dignity. For example, a member of a religion which propagates cannibalism could not base a cannibalistic practice on his freedom of religious and non-religious belief, as this religion requires the killing of humans, which is not permissible from the point of human dignity. Problem fields of this are Satanism and neo-Pagan religion (which is in Germany in some cases linked to Neo-Nazism) but as those groups are minor and rather loosely organized, they have been of little importance as far as the freedom of religion had to be defended in court.

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 Germany, teachers are employed by the federal state that their school is located in and thus are generally considered "representatives of the state"). [2]. In the late 1970s, a teacher (who was a member of the Osho religion), had already been denied the right to wear the distinct clothing of his religion at the workplace.

German courts regularly hold that Muslim parents who exclude their daughters from class trips, sports and swimming classes make acceptable use of their freedom of religion; however, when a Christian mother requested the same for her daughter, the courts said that this was "odd".

In Germany, high school students are not excused from classes on sexual education and evolution theory on the basis of religion

Cults, sects and new religious movements

The German government provides information about cults, sects, and new religious movements called Sekten in German. In 1997 the parliament set up an enquete 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.

The main point of critics against Sekten from the governmental side is that they propagate a concept of the ideal human (Menschenbild) which is very different of the concept underlying the Grundgesetz. 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.

Since the 1990s, German courts have several times denied the request of the Jehovah's Witnesses to become a corporate body under public law for various reasons, one of them 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 Berlin [3], on the ground that the alleged lack of fidelity towards the state had not been convincingly proven. The legal decision has not been challenged yet, nor extended to other German countries.

German courts held that transfusing blood to an unconscious Jehovah's Witness violated the person's will but did not constitute a battery.

In Germany, Scientology is not regarded as a non-profit organization but considered "an organisation pursuing commercial interests". This has been affirmed by a court decision. The current organisation of Scientology is "eingetragener Verein" (registered association).

There was a 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 the German and European laws for broadcasting media. For "Power for Living" posters, newspaper adverts and leaflets, however, there was no such problem.

There have been cases of groups in Germany which practice Germanic neopaganism facing legal sanctions because they displayed symbols such as certain runes or the Celtic cross, which prosecutors have claimed are illegal under laws against neo-Nazi propaganda.

External links

• German Embassy background paper: Church and state in Germany
• German Embassy background paper: Scientology and Germany
• German Embassy background paper: Jews in Germany today
• Final report of the enquete commission on so-called sects and psychogroups (pdf, 448 pages)
• http://www.uni-marburg.de/religionswissenschaft/journal/mjr/kent2.html Stephen A. Kent: The French and German versus American Debate Over New Religions, Scientology, and Human Rights]
• US State department report on religious freedom in Germany 2004