With the celebrations for the 500th anniversary of the Protestant Reformation in full bloom, I thought it would be a good opportunity to write about the relationship between church and state in Germany. Unlike in the U.S. where the Establishment Clause of the Constitution “was intended to erect a wall of separation between Church and State,” the German Constitution (Basic Law) does not establish a complete separation. Although there is no state church, the Basic Law allows certain kinds of cooperation between the state and religious groups.Religious Makeup of Germany
At the end of 2016, out of the total 82.8 million Germans, 23.6 million identified as Roman Catholics (28.5%), 21.9 million as Protestants (26.5%), 4.1 million as Muslims (4.9%), 3.3 million as other religions (3.9%), and 30 million (36.2%) were of no religious belief. These low numbers of Protestants are rather surprising given the fact that Germany is the birthplace of the Protestant Reformation. The number of Protestants is especially low in the former German Democratic Republic (East Germany, GDR) and at an all-time low of 10% in Wittenberg, the city where Martin Luther nailed his ninety-five theses against papal indulgences on the door of the church. The main reason for the low numbers in the former East Germany is the anti-religious policies of the socialist government of the GDR from 1949 until 1990, which proved successful. In the 1950s, about 50% of Germans belonged to the Protestant faith and 46% to the Roman Catholic faith. In the 1960s and 1970s, membership in Christian churches throughout the country began declining. (Großbölting, Losing Heaven. Religion in Germany since 1945, at 106). Today, membership is still declining, whereas the numbers for non-Christian religions, in particular Islam, are increasing. Most Muslims in Germany are migrants or descendants of former migrants. The emergence of new religious groups also poses constitutional law challenges as the provisions of the Basic Law which deal with the relationship between church and state date from the Weimar Constitution from 1919, a time when the religious makeup of Germany was quite different.
Constitutional Provisions on Church-State Relationship
Article 140 of the German Basic Law incorporates articles 136-139 and article 141 of the former Weimar Constitution (WRV) on religion and religious societies into the Basic Law. These provisions form an integral part of the Basic Law and have equal status with the other provisions. Another provision concerning the church-state relationship is article 7 on religious classes in public schools. The German states are generally competent to legislate in the area of church-state relationship.
Article 137 of the former Weimar Constitution provides that there is no state church and that religious societies regulate and administer their affairs independently, thereby generally establishing a separation between church and state. The German state has to adhere to the principle of state neutrality, meaning the state is in general neither allowed to favor nor to discriminate against certain confessions and cannot define what constitutes a religion or religious behavior. On the other hand, the Basic Law does not establish a strict separation but a cooperation between the state and the religious societies. For example, it allows religious classes as part of the regular curriculum in public schools (Basic Law, art. 7, para. 3), the establishment of private denominational schools (Basic Law, art. 7, para. 5), and religious societies may apply to register as public law corporations (art. 140 in conjunction with art. 137, para. 5 WRV) and levy taxes on their members as a result of that (art. 140 in conjunction with art. 137, para. 6 WRV). Associations whose purpose is to foster a philosophical view of the universe (Weltanschauung) have the same status as religious societies (ideological associations) (art. 140 in conjunction with art. 137, para. 7 WRV.).
Religious Societies as Public Law Corporations
Article 137, paragraph 5 WRV states that “[r]eligious societies shall remain corporations under public law insofar as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and the number of their members give assurance of their permanency.” A religious society does not need to apply for public law corporation status in order for it and its members to be entitled to freedom of religion, but the status provides it with certain privileges. The most important privilege is that a religious society with public law corporation status is allowed to levy taxes on its members. The public law corporation status is granted by the German states. Only the members residing in that particular state count for the application. There is no state supervision of the religious societies that are granted that public law status, unlike with other public law corporations.
Religious societies that enjoyed public law corporation status before the Weimar Constitution was adopted and kept that status under the Basic Law are the Protestant churches, the Roman Catholic church, individual Jewish congregations, Old Catholics and Old Lutherans, the Baptists, and the Mennonites. All other religious societies have to apply to be granted the status of public law corporations. This is problematic because the principle of state neutrality prohibits the state from determining what can be classified as a religion or a religious practice. The German Federal Constitutional Court therefore defers to the self-assessment by the religious societies or ideological associations. With regard to the Christian churches, the question never arose whether they were a religion or not. Cases instead centered around the question of whether or not a certain practice was part of the exercise of religion. With the emergence of new religious and ideological societies in Germany, the German states and the courts were for the first time confronted with the question whether a certain religious society or ideological association could be classified as such. In order to prevent abuse of the concept of self-assessment, the state may perform a plausibility check, for example it can examine whether religion and religious teachings are only used as a pretext for economic gain.
Religious Classes as Part of the School Curriculum
Article 7, paragraph 3 of the Basic Law provides that
Religious instruction shall form part of the regular curriculum in state schools, with the exception of non-denominational schools. Without prejudice to the state’s right of supervision, religious instruction shall be given in accordance with the tenets of the religious community concerned. Teachers may not be obliged against their will to give religious instruction.
Even though the article only mentions religious communities, states may also allow ideological associations to conduct classes on their ideologies in school. Currently, it is predominately the Protestant and the Roman Catholic churches that teach religious classes in public schools, although some minority religions (Orthodox Christians, Jews) also teach religious classes in a few states. Hesse is the first German state to offer Islamic religious classes in its schools. It should be pointed out that students are not obligated to take part in religious classes and may opt out or, if they are under the age of fourteen, their parents may opt out for them. This is because parents have a constitutional right to decide whether their children should receive religious instruction.
Jurisprudence on Religions New to Germany
The problem of determining what constitutes a religious society or ideological association was (and is) heavily debated with regard to religions that were not present in Germany at the time the Weimar Constitution was enacted.
In 2000, the German Federal Constitutional Court (BVerfG) had to rule on an application from the religious society of Jehovah’s Witnesses which was denied the status of a corporation under public law by the German state of Berlin. In this case, the Court found that the rights of Jehovah’s Witnesses were violated when the application was denied. It reiterated that in order to fulfill the requirement of “permanence” in article 137 WRV, the current number of members of the religious community and the actual overall condition of the community have to be evaluated, based on criteria such as “sufficient funding, a minimum period of existence, and the intensity of religious life.” (BVerfG, para. 63.) It further held that several unwritten requirements have to be met as well. (Id. para. 68.) A religious community that wishes to become a corporate body under public law must respect the law (Rechtstreue) and must offer assurances that it will comply with the valid law. (Id. para. 77.) The Court stated that
a religious group that wants to become a religious body under public law must provide the guarantee that its future behaviour will not endanger: (1) the fundamental constitutional principles set forth in Article 79.3 of the Basic Law; (2) the fundamental rights of third parties, which are entrusted to the protection of the state; and (3) the fundamental principles of the liberal law of religious organisations and of the state’s law on churches that are enshrined in the Basic Law. (Id. para. 83.)
No loyalty to the state extending beyond this is demanded as it would conflict with the religious freedom of the religious societies. (Id. para. 92.) Jehovah’s Witnesses are currently registered as a corporation under public law in all German states.
The Church of Scientology on the other hand, despite claims to the contrary, has not been recognized as a religious society in any German state. Lower courts have either ruled against the applications, overturned them on appeal, or restricted their reasoning to questions of freedom of religion and explicitly left out the question of whether or not the Church of Scientology can be qualified as a religious society as defined in article 137 WRV. The Federal Constitutional Court has not ruled on the issue. The Federal Labor Court for example held that the Church of Scientology cannot be qualified as a religious society, because, in the Court’s opinion, religion is only used a pretext for economic gain which is the main purpose of Scientology. In a later decision, the Federal Labor Court did not address that issue, because it was irrelevant to the decision.
Developments Concerning Islam
There have been several model projects to allow Islamic studies in German language in public schools, for example in the state of North Rhine-Westphalia, but with the exception of the state of Hesse, nothing permanent. On November 9, 2017, the Higher Administrative Court of North Rhine-Westphalia denied an application by the Central Council of Muslims in Germany (ZMD) and the Islam Council for the Federal Republic of Germany to have Islamic religious classes as a permanent part of the school curriculum. The main problem that the Court pointed out was that the two umbrella organizations did not qualify as religious societies as defined in article 137 WRV, because they did not have the necessary religious authority over all the Islamic associations or individual local mosques in Germany. The two associations together represent about 45,000 people. The Court referred to the jurisprudence of the German Federal Administrative Court, which had held in 2005 that an Islamic religious umbrella organization qualifies as a religious society in the sense of article 137 WRV if it is responsible for implementing the purpose of all united believers of the religion and can exert religious authority on doctrine for all levels of associated groups down to the individual mosques.
An Islamic religious society that fulfills the requirements of article 137 WRV has a constitutional right to teach its religion in public schools as part of the regular curriculum upon application or to register as a corporation under public law. However, Michael Wrase, a professor of public law at the University of Hildesheim and research fellow at the Berlin Social Science Center, pointed out that the criteria that the courts used were incompatible with Islam’s non-hierarchical structure. He added that ”[t]here is no single Muslim ‘church’ – and, apart from the imams, there is no hierarchy with certain authorities who can decide certain questions of faith.”
However, in the German state of Hesse, the Ahmadiyya Muslim Jamaat in Germany have been registered as a corporation under public law in 2013. According to their own description, the Ahmadiyya Muslim Jamaat are a “revival movement within Islam…which believes that the…Messiah has come in the person of Mirza Ghulam Ahmad of Qadian.” They recognize the Khalifa of Islam, currently the fifth successor to Ahmad, as their central spiritual leader. There are around 15,000 members in the state of Hesse. The Ahmadiyya Muslim Jamaat Germany and the DİTİB Landesverband Hessen e.V. (Turkish Islamic Union for Religious Affairs), a non-profit organization controlled by the Turkish government’s supervisory committee for religious affairs, teach religious classes in schools in Hesse.
If you would like to know more about religion in Germany, the church-state relationship, or religious freedom, please consult the resources available at the Library of Congress. A selection can be found below.
- Großbölting, Thomas. Losing Heaven. Religion in Germany since 1945, translated by Alex Skinner. English-language edition (2017).
- Heimann, Hans Markus. Deutschland als multireligiöser Staat : eine Herausforderung (2016).
- Pulte, Matthias. Grundfragen des Staatskirchen- und Religionsrechts (2016).
- Transformation of Church and State Relations in Great Britain and Germany. (Christian Walter & Antje von Ungern-Sternberg eds., 2013).
- Robbers, Gerhard. Religion and Law in Germany (2nd ed. 2013).
- Palm, Julia. Berechtigung und Aktualität des Böckenförde-Diktums: eine Überprüfung vor dem Hintergrund der religiös-weltanschaulichen Neutralität des Staates (2013).
- Haupt, Claudia E. Religion-State Relations in the United States and Germany: the Quest for Neutrality (2012).