Religious freedom in Modern Germany:

A Review of Constitutional Provisions

By Debarati Halder* and K. Jaishankar**

Abstract

The modern German constitution differs from other constitutions of the European Union in guaranteeing a broader religious freedom which includes almost all the basic rights. Constitutional provisions guaranteeing of faith, creed, conscience, right to education, freedom of movement, right to choose career of one’s own choice co relates to one’s belief in a particular religion. But in reality how far the constitutional guarantee of basic rights which orbits around the notion of religious freedom is applied to multi ethnic society in Germany is the question. Some researches show Islam is the most targeted religion by the legislation, some show the restrictions on Scientology and again some show the position of Jews in post Nazi Germany as most endangered. The article tries to find out the constitutional guarantees to multi religious communities in Germany and the existence of secularism.

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Keywords

Germany; Constitution; Religion; freedom of religion; rights; secularism.

Introduction:

Freedom of religion in modern Germany post unification is noteworthy not only for its broader prospective but also for creating a unique opportunity for every German resident as well as non-residents to have a guaranteed undisturbed practice of religion of his own faith. Religion forms an essential part of the Basic Rights under Chapter 1 of the German constitution.[i] As such the Basic Rights in German constitution are interrelated. A thorough study of Chapter 1 of the German constitution would reveal the impartial nature of constitution to individuals belonging to different faith and ideologies. . Even though the Preamble to the constitution does not mention Secularity as one of the characteristics of the German constitution as the Indian constitution,[ii] freedom of faith, conscience and of creed[iii] and right to secular education [iv] along with other basic rights make the German constitution secular in character. How ever, after the Head Scarf case, impartial nature of German religious freedom is questioned by one and all.

This article tries to search how far and to what extent the religious freedom in German constitution protects the interest of multi religious German society. The authors have divided the article into four parts; the first discusses about the character of secularism present in Germany, the second part discusses about the constitutional provisions dealing with religious freedom in Germany, the third part discusses the judicial decisions on cases of religious freedom in modern Germany and the fourth part shows the developments that have occurred in regard to religious freedom in modern times.

Part I

Camouflaged secularism:

Modern constitutions of the world have guaranteed freedom of religion in various ways. There is the laïcist solution of France banning even religious symbols worn by pupils, not just those worn by teachers or other public servants. At the other end of this axis, we find Britain, which allows the presence of religious symbols quite freely in the public sphere. There is a High Court judge who wears a turban because he is a Sikh. There are policewomen who wear headscarves as part of their uniform, to name just some examples which are deemed to be unacceptable in other countries. Germany follows a rather mixed middle course. After the Headscarf decision of the German Constitutional Court, the Länder are in charge of establishing the new legislation, which, according to the court, is necessary for a ban of headscarves. Some Länder intend to ban headscarves alone, and not Christian or Jewish symbols, some follow a laïcist line of banning all visible and ostentatious symbols, and some follow a liberal course deciding on a case-to-case basis.[v] Chapter I of the German constitution guarantees basic rights which orbits around citizen’s personal faith and believe. But how far does it guarantee full religious freedom? It could be seen, as per the constitutional provisions, religious classes form part of the ordinary curriculum in state schools except for secular schools.[vi] Further, freedom of assembly and association under Arts 8 and 9 restricts movements. Question arises as to whether minority communities get the same security and freedom as the majority of the Christian community. The famous decisions of the constitutional court which we have discussed later show the biased nature of the state towards the minority communities. Hence, religious freedom in Germany can be termed as camouflaged secularism.

Art 4 of the German constitution:

A brief analysis of Art 4 of the German constitution would show that freedom of conscience, of faith and belief makes the basis for almost all the basic rights. Thus it could be seen that Art 4 guarantees freedom of creed ,of conscience, and freedom to profess a religious or non religious faith, which is related to right to equality , human dignity, right to expression and the right to choose occupation of one’s own choice; again, undisturbed practice of religion is guaranteed which relates to freedom of expression and then lastly, Art 4 correlates to freedom of occupation where by it is told that no one may be compelled against his conscience to render war services involving the use of arms.

The case of Rumpelkammer :

Religious freedom in post Nazi Germany was explained finely in the case of Rumpelkammer. [vii]”.The controversy concerned a Roman Catholic youth organization that actively sought to practice its faith as a missionary in society, trying to realize the ideal of daily life lived by good deed. At issue was the group’s collection of used clothes, paper, and other recyclable goods for the purpose of raising money, which it then donated to charitable causes dedicated to the relief of hunger and misery in underdeveloped countries. To further this effort, the group enlisted the pulpit, calling on priests to urge parishioners to donate to the cause. These activities raised the ire of a commercial rag dealer, who complained that the group’s activities illegally competed with his business, which suffered. The lower courts agreed, enjoining the youth organization from engaging in its clothing drive. The Constitutional Court disagreed, overturning the injunction on the basis that it was a violation of the group’s Article Four religious guarantees. Freedom to act and practice religion is central to religious belief. The Article Four guarantees of religion irrespective if the creed is rooted in religious or nonreligious ideological belief entail not only the inner freedom to believe or not believe, that is to profess a particular creed, or to remain silent or disavow a previously held creed and profess a new one, but also the freedom to engage in ritual acts, to proselytize, and to propagandize. . . . Religious exercise has central meaning for each faith, and in view of its historical content, must be interpreted broadly. It includes not only ritualistic acts, like adherence to religious practices such as worship services, church collections, prayer, receipt of the sacrament . . . but also religious education, religious and atheistic celebrations and other practices of religious or nonreligious life”.[viii]

Part II

Constitutional provisions guaranteeing religious freedom:

The German constitution opens with guaranteeing the basic rights in Chapter One. Guarantee of religion finds an important place in the constitution which is interrelated with almost all the basic rights. Arts 3, 4 and 7of the German constitution speaks of religion and religious rights. Art 3 guarantees equality to all, Art 4 emanates the broad rights of preaching, practicing and believing religion of one’s own choice and Art 7 mentions in part right to follow and attend religion classes. A broad study of Chapter One would show that the basic rights in German constitutions are interrelated to the concept of religious freedom and secularity. But the question arises as to how far in reality religious freedom is accepted in modern Germany?

Human dignity and religion in Germany:

The chapter of Basic Rights opens with right to human dignity to every German and guarantees that the basic rights are binding on the legislature, executive and judiciary as directly enforceable by law[ix]. The constitution guarantees every one free development of his personality, right to life and personal integrity in so far as he does not violate the right of others[x] and finally in the equality clause under Art 3 it says all humans are equal before the law and then again reiterates the same principle broadly in Art 3(3) by stating that no one may be disadvantaged or favored because of his sex, parentage , race , language , homeland and origin, his handicap, political ideologies and finally because of his faith or religion. Thus it could be seen, impliedly the German constitution guarantees the basic human rights to every man and woman irrespective of their religion and the equality clause establishes the liberal attitude of Germany towards the faith or religion of the individual.

Again, every German has right to freely express his opinion in writing, speech and pictures[xi]. Freedom of expression is assured to preachers of religion under Art 4 which accepts right to profess religious or nonreligious ideas as inviolable. It could be seen freedom of religion is interrelated to right to marriage and family[xii] also. . all German residents are free to choose their spouses irrespective of their cast or creed and parents’ right to up bring their children according to their religious faith is protected by the constitution. In other words, minority rights in Germany are well protected which marks the difference line between the Nazi Germany and post world war , post unification modern Germany .

Education and freedom of religion:

Religion forms a quintessential part of education in Germany. Art 7 guarantees the right to education to all Germans irrespective of his race, color, language and religion. The right to education under the German constitution is divided into two parts, the first part describing the general right to education and the other part describes the right to set up private and elementary schools beside the state school. In the first part it could be seen that every guardian of a minor child has a right to decide for religion classes to be attended. Even though German constitution makes it mandatory for the religion classes to be part of the curriculum, the right to free practice of religion and freedom of faith under Art 4 gets priority here. The German constitution also encourages secular schools (Art 7/3) to be established in the state, liberal attitude of the German constitution towards religion can be seen in Art 7 guaranteeing the right to education, where it is mentioned that religious instruction is given in accordance with the tenets of the religious communities. Again, freedom to profess religious or non religious faith is upheld in Art 7 whereby no teacher may be obliged to give religious instructions against his will (Art 7).

The second part of Art 7 guarantees the right to establish private schools as a substitute for state schools. Private schools need the approval of the state when they satisfy certain conditions like they are not inferior to state schools in their academic aims, their facilities, professional training of their staff , pupils are not segregated according to their parent’s monetary conditions (Art 7/4), thus giving a strict guideline for equality clause for the establishment of the private schools. Again the constitution permits the establishment of primary elementary schools where the education authority finds that it serves special pedagogic interest, or on the interest of the guardians it is to be established as an interdenominational school based on a particular religious or nonreligious faith and where a state elementary school of this type doesn’t exist in the commune. (Art 7). It is evident from analyzing the right to education under the German constitution that the makers of modern German constitution viewed both impartiality to individual’s religious faith and importance of the religious belief as two pillars to build modern Germany. Education in Germany therefore supports young citizens to form their own ideologies and teach them to be harmonious to other faiths and belief.

Free movement and right to religion:

Freedom of movement implies three particular freedoms namely freedom of assembly[xiii], association[xiv] and the freedom of movement[xv]. Right to free practice of religion would be meaningless if there is no guarantee for right to free movement. It could be seen that the German constitution in Art 8 guarantees right to assemble without prior notification or permission, provided the assembly is peaceful, unarmed and not in open air. Clause 2 deals with open air assemblies where the right may be restricted by a statute or pursuant to a statue. Thus it could be seen that Art 8 is a defensive right and it benefits dissident minority the right of self determination, as to the place, point in time and content of an event. At the same time it forbids state’s compulsion to take part in a public event or to stay away from it.

Art 9 again specifically mentions freedom of associations; all Germans have the right to form clubs and societies. Even though the right to form association here is mentioned as a right to protect economic conditions and the improvement of working atmosphere, in general, right to form association is inseparable from right to assemble and thus right to practice religion as a community. But “It is the task of fundamental rights to secure an independent sphere of action for each societal subsystem. Therefore, the guarantee of freedom of religion can only reach as far as the exertion of faith does not encroach upon the activities of the other social spheres”[xvi].

Hence the German constitution guarantees every right including the freedom of religion with a restriction clause. Thus Right to association like the right to assemble is restricted to constitutional provisions.; these are i) when the purpose and activities of the association conflict with criminal statutes, ii) when they are directed against constitutional order and iii) against concept of international understanding.

Freedom of assembly, association and freedom of movement are interrelated. Art 11 of the constitution depicts that all Germans enjoy freedom of movement through out the territory. Analyzing these three basic rights it could be seen German right of religion is safeguarded in most liberal way. Every one thus has a right to assemble for his own religious purpose, can create religious association and can have access to any religious place of worship. At the same time, no one may be discriminated for his religion from his right to reside in any part of Germany.

Right to choose occupation and freedom of religion:

The basic right to work is guaranteed in both Art 4 as well as Art 12 of the German constitution. The right Art 4 the constitution is both positive and negative. Firstly, it states that everyone has a right to choose occupation as a preacher of religious or nonreligious faith; secondly, no one may be compelled against his conscience to render war services involving the use of arms.[xvii] This is a negative right forbidding the state authorities to force individuals to engage them in war services.

Art 12 again reiterates that all Germans have the right to freely choose their occupation, their place of work and their place of study or training. No person may be forced to perform a work of a particular kind except a particular framework of a traditional compulsory community service that applies generally and equally to all; and finally forced labor may be imposed only by court sentence. Art 12a while specifying the liability to military and other services points out that every German has to compulsorily serve in the military for one year but every one simultaneously has a right to refuse to render any service involving war and use of arms and they can substitute the said service in the health system, civil defense or the military hospital organization.[xviii]

In other words, both clause III of Art 4 and clause II of Art 12a speak the same right to refuse to work involving arms. The constitution through these two provisions puts a bar on the state to compel any person to take occupation against his conscience.

Freedom of religion and neutrality:

The concept of religious freedom in German constitution has created numerous questions as to the neutral character of German constitution.” Well known decisions of the German Federal Constitutional Court demonstrate how misleading the neutrality principle, as traditionally understood, can be in this context, e.g. the crucifix and the headscarf cases. Here, the contours of the neutrality principle remain blurred: the presumption that in the headscarf case the state was identifying itself with a particularly strict variant of Islam, if it allowed the teacher to wear the headscarf, is rather far-fetched. Furthermore, the observance of the neutrality principle, understood as an objective right, cannot (as sometimes suggested) depend on the approval of the parents and teachers involved: If the behavior in question is incompatible with the idea of the neutral state, no individual consent can cure the infringement. In this interpretation, the difference to a subjective construction of both positive and negative freedom of religion is leveled out. The court delineates the boundary of factual interferences with the negative religious freedom of dissenters which is once again in a very diffuse manner equated with an objective interest in state neutrality”[xix]*. “Under the cooperative church-state relations existent in Germany, the state acts neutrally, nondiscriminatory, and with tolerance to all beliefs in providing, for example, public school rooms as forums for students to receive instruction in the religion of their choice.[xx]

Part III

Recent judgments on religious freedoms:

From the above analysis it could be seen German constitution gives a wider view to the personal faith and religion of every gunman citizen. All most all the basic rights of life are guaranteed considering the freedom of faith, creed and caste of the citizens. Religious identity of every German is secured in a peaceful way in modern Germany. The modern Germany has schools which has multi religious pupils. “In many cases children of varying ethics and religious background attend school and Muslim children make up largest group by far”.[xxi] Similarly, German citizens enjoy a liberal atmosphere in every occupation and are free to form any association. “The country is becoming increasingly secular and, at the same time, religiously diverse. Regular attendance at religious services is decreasing. Fifteen years after reunification, the eastern part of the country remains far more secular than the west. Only 5 to 10 percent of eastern citizens belong to a religious organization”[xxii]. With the advent of time, the constitution and the judiciary became the guardians of the freedom of religion in Germany. Some important decisions are the proofs of the same.

The head scarf case:

The head scarf case[xxiii] is an important milestone in the German constitutional history for the issue of freedom of religion. Germany’s highest court confirmed the right of a female Muslim teacher to wear a headscarf in the classroom, but also said states could choose to enact legislation banning the same[xxiv]. The court stressed that the German state’s neutrality on religion shouldn’t be understood as a strict separation of church and state. Thus, if federal states didn’t want to employ teachers wearing a headscarf, they would first need to create unambiguous laws that expressly forbid religious symbols in the classroom, the court said.[xxv]

In 2002, the Federal Constitutional Court defined the Government's "warning" function with respect to nontraditional religions, ruling that the Government could characterize nontraditional religions as "sects," "youth religions," and "youth sects," and is allowed to provide accurate information about them to the public. However, the Government may not defame these religions by using terms such as "destructive," "pseudo‑religion," or "manipulative."[xxvi]

The Federal Interior Ministry's 1995 immigration exclusion (refusal to issue a visitor's visa) continues in force against the founder of the Unification Church, Reverend Sun Myung Moon, and his wife, Hak Ja Har Moon. The 1995 decision was based on the Government's characterization of Rev. Moon and his wife as leaders of a "cult" that endangers the personal and social development of young persons. The Unification Church is seeking to overturn the ban in the courts.[xxvii]

The case of Jehovah's Witnesses:

A 10-year legal effort by Jehovah's Witnesses to overturn a Berlin state government (Senate) 1995 decision to deny them public law corporation status was still unresolved by the end of the period covered by this report. The Senate had refused to grant the status because the Jehovah's Witnesses' bar on members voting raises questions about its loyalty to the democratic state and because its use of corporal punishment and separation of members leaving the religion from their families raise human rights concerns. However, in March 2005, the Berlin Administrative Court ruled for a second time that Berlin had not proven its case and ordered the Senate to grant the status. The Senate advised in April 2005, that it was awaiting the written judgment before making a decision on next steps.[xxviii]

In 2004, the Church of Scientology, which operates 18 churches and missions, remained under observation (as it has been since 1997) by the federal and seven state Offices for the Protection of the Constitution (OPCs), out of concern that the Church's teachings and practices are opposed to the democratic constitutional order or violate human rights. In deciding whether to observe an organization, OPC officials collect publicly available information, mostly from written materials and from public events, to assess whether a "threat" exists. In addition, OPC staff and law enforcement officials have also directly approached Scientologists for information, a practice many find intimidating and a form of harassment. More intrusive observation methods are subject to legal checks and would require evidence of involvement in treasonous or terrorist activity.

In November 2004, a Cologne court ruled that such observation was justified and could continue. The Church of Scientology has appealed the decision. In April 2005, a Saarland court ruled that the state OPC could not include Scientology in its annual report if no negative information was found. In practice, over the last three years, an increasing number of state OPCs has opted to stop their observation of Scientology. Policy and practice vary widely among the states and the disparity appears to be increasing as many states move away from the stringent practices still followed in Baden-Wuerttemberg and Bavaria. Nevertheless, the federal OPC's 2005annual report concluded that the original reasons for initiating observation of Scientology in 1997 remained valid, although it noted that Scientology had not been involved in any criminal activity. Scientologists contend that OPC observation is harmful to the Church's reputation and continue to seek redress through the courts.[xxix]

Several states have published pamphlets about Scientology (and other religions) that detail the Church's ideology and practices. States defend the practice by noting their responsibility to respond to citizens' requests for information about Scientology as well as other issues. While many of the pamphlets are factual and relatively unbiased, some warn of alleged dangers posed by Scientology to the political order, the free market economic system, and to the mental and financial well being of individuals”[xxx].

Part IV

Developments in religious freedom for the minorities in Germany:

Even though questions of partiality had arisen in Germany towards the minority community, the recent legislations and studies show Germany is truly becoming a peaceful habitat for multi religious citizens. In May 2006, the Government sent a draft anti-discrimination law to Parliament for consideration. The law is based on-but also goes beyond-European Union requirements and would ban discrimination on grounds of religion. Representatives of various minority religious groups believed the new law, once enacted.[xxxi]

After 2003, the Federal Constitutional Court cleared the way for state legislation that would ban female Muslim teachers from wearing headscarves at work; several states indicated their intention to enact laws prohibiting Muslim public servants from wearing headscarves on duty. From April 2004 to June 2006, eight states had passed such legislation. New legislation generally used language that could be applied to wearing any symbol that could be taken as a rejection of constitutional values or as a symbol of oppression. In the case in Baden-Wuerttemberg, this legislation was under judicial review at the end of the reporting period. In October 2005, the state government proposed extending the ban to include kindergarten teachers, a proposal that generated much opposition but remained on the table as of May 2006.[xxxii]

Further, on January 27, 2003 German Chancellor Gerhard Schröder signed the first-ever agreement on Federal level with the Central Council, so that Judaism was granted the same elevated, semi-established legal status in Germany with the Roman Catholic and the Evangelical Church in Germany at least since the Basic Law for the Federal Republic of Germany of 1949.A flagship moment for the burgeoning Jewish community in modern Germany occurred on November 9, 2006 (the 68th anniversary of Kristallnacht), when the newly constructed Ohel Jakob synagogue was dedicated in Munich, Germany This is particularly crucial given the fact that Munich was once at the ideological heart of Nazi Germany, the city that contributed more than any other to the rise of Hitler and Nazism.[xxxiii]

Conclusion:

The modern German constitution ensures restricted religious freedom for its non Christian citizens. Islam, Judaism, Hinduism and other minority religions still await full secular support from the government. The present German constitution differs from all other constitutions of the European Union in broadly defining the religious freedoms and guarantees. But certain provisions like basic right to education, freedom of expression, right to equality need to be analyzed with a broader scope.

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[i] Art 4 of the German constitution

[ii] the preamble to the Indian constitution says India is a secular democratic republic

[iii] Art 4 of the German constitution

[iv] Art 7 of the German constitution

[v] German Law Journal No. 2 (1 February 2005) - Constitutional Identity and the Politics of Homogeneity: Matthias Mahlmann

[vi] Art 7 (3) of the German constitution

[vii] BVerfGE 24, 236 (1958).

[viii]RESEARCH PAPER 02;Free Exercise of Religion in Germany and the United States: Edward J. Eberle

Professor of Law

[ix] Art 1 of the German constitution

[x] Art 2 of the German constitution

[xi] art 5 of the German constitution

[xii] Art6 of the German constitution

[xiii] Art 8

[xiv] Art 9

[xv] Art 10

[xvi] German Law Journal No. 2 (1 February 2007) - The Myth of the Neutral State: The relationship between state and religion in the face of new challenges By Karl-Heinz Ladeur & Ino Augsberg

[xvii] Clause III of Art 4 of the German constitution

[xviii] Art 12a of the German constitution

[xix] German Law Journal No. 2 (1 February 2007) - The Myth of the Neutral State: The relationship between state and religion in the face of new challenges By Karl-Heinz Ladeur & Ino Augsberg

*The Crucifix case (93 BVerfGE 1; see also the judgement pronounced after the new legislation, i.e. the introduction of the objection principle (Widerspruchslïsungï), of the Bundesverwaltungsgericht, Neue Juristische Wochenschrift 3068 (1999); see further the decision by the Bayerischer Verfassungsgerichtshof, Deutsches Verwaltungsblatt 1195 (1997); discussed by Ludwig Renck, Neue Juristische Wochenschrift 994 (1999). See generally Peter Badura, Das Kreuz im Schulzimmer, Bayerische Verwaltungsblïtter 33 (1996); critical from a communitarian perspective Winfried Brugger, Zum Verhïltnis von Neutralitïtsliberalismus und liberalem Kommunitarismus. Dargestellt am Beispiel des Kreuzes in der Schule, in: Der Streit um das Kreuz in der Schule 109 (Winfried Brugger/Stefan Huster eds., 1998); for another critical perspective see Ronald Pofalla, Kopftuch ja Kruzifix nein? Zu den Widerspr�chen der Rechtsprechung des BVerfG, Neue Juristische Wochenschrift 1218 (2004).), and the Head scarf case (BVerfGE 108, 282; on this see Christoph Gusy, Kopftuch Laizismus Neutralitït, Kritische Vierteljahresschrift F Gesetzgebung Und Rechtswissenschaft 153 (2004).; Ute Sacksofsky, Das Kopftuch von der religisen zur fïderalen Vielfalt, Neue Juristische Wochenschrift 3297 (2003); Christine Langenfeld/Sarah Mohsen, Germany: The Teacher Head Scarf Case, International Journal Of Constitutional Law 86 (2005)are the two most important cases in the issue of German religious freedom.

[xx] RESEARCH PAPER 02;Free Exercise of Religion in Germany and the United States :Edward J. Eberle

[xxi] Friedhelm Kraft: Muslim Children and the “right to religion” the long road to Islamic instructions in state schools in Germany:

www.feslondon.org.uk/documents/IslamicEducationinGermanStateSchools_000.pdf

[xxii] www.state.gov/g/drl/rls/irf/2005/51554.htm

[xxiii] BVerfGE 108, 282

[xxiv] :“German States Move To Enact Headscarf Bans”(“Deutsche Welle,” September 25, 2003)

[xxv] ibid

[xxvi] International Religious Freedom Report 2005 Released by the Bureau of Democracy, Human Rights, and Labor http://www.state.gov/g/drl/rls/irf/2005/51554.htm

[xxvii] ibid

[xxviii] ibid

[xxix] ibid

[xxx] ibid

[xxxi] International Religious Freedom Report 2006 Released by the Bureau of Democracy, Human Rights, and Labor http://www.state.gov/g/drl/rls/irf/2006/71382.htm

[xxxii] ibid

[xxxiii] History of the Jews in Germany. (2007, July 16). In Wikipedia, The Free Encyclopedia. Retrieved 08:03, July 19, 2007, from http://en.wikipedia.org/w/index.php?title=History_of_the_Jews_in_Germany&oldid=145048507

____________________________________________________________________________ABOUT THE AUTHORS

* Debarati Halder is an Advocate presently working as a Research Assistant in the International Cyber Bullying Research Project at the Department of Criminology and Criminal Justice, Manonmaniam Sundaranar University, Tirunelveli, India. She received her LLB degree from the University of Calcutta and LLM in International and Constitutional Law from the University of Madras. Her current research interests include Constitutional legal analysis, Socio-legal Analysis, Terrorism, Violence, and its International Law ramifications. Url: http://www.debaratihalder.co.nr Email: legaltheories@yahoo.com

**Dr. K. Jaishankar is a Lecturer in the Department of Criminology and Criminal Justice, Manonmaniam Sundaranar University, Tirunelveli, India. He received his Ph.D. in Criminology from the University of Madras, Chennai, India. His research interests include Communal violence, Crime mapping, GIS, Cyber Crimes, Theoretical Criminology, Policing, Crime prevention, and Victimology.

Url: http://www.drjaishankar.co.nr Email: debajai@hotmail.com