Dan Lyman (Dorsey & Whitney)
HISTORICAL AND POLITICAL CONTEXT
Germany is a European country, bordered by Denmark, the North Sea and the Baltic Sea to the north; Czech Republic and Poland to the east; Switzerland and Austria to the south; and the Netherlands, Belgium, Luxembourg and France to the west. As of December, 2016, the country was estimated to have a population of approximately 83 million. It is comprised of 16 states or “Länder.”
Germany traces its modern roots to the establishment of the German Empire in the 1870s. The German Empire dissolved in 1918 following its defeat in World War I and was replaced by the German Republic (also known as the Weimar Republic) and, subsequently, the Third Reich. Following World War II, Germany was divided into four zones, occupied by the United Kingdom, France, the United States, and the USSR. West Germany was formed on May 23, 1949 and East Germany was formed on Oct. 7, 1949; thus two separate states existed until 1990. The zones occupied by France, the UK, and the US eventually formed the Federal Republic of Germany, or West Germany, on May 23,1949, while the USSR-occupied zone became the German Democratic Republic, or East Germany, on October 7, 1949; thus two separate states were created. Modern Germany was formed in 1990 from the unification of West Germany and East Germany following the fall of the Berlin Wall.
There has always been a concept of separation of church and state in Germany, even during the Nazi regime. The Nazi regime used the concept to push the Churches out of the public sector. The period of Nazi rule under the Third Reich and accompanying atrocities of the Holocaust have motivated laws and policies aimed at encouraging religious freedom and tolerance. Germany’s Federal Constitutional Court determines whether or not a political party is unconstitutional, such as the Nazi Party, and the use of symbols and propaganda of such organizations. In addition, Germany’s Basic Law (Art. 4 BL) provides uniquely robust protections to religious liberties not seen in typical western constitutions and laws.
The German federal government is divided into essentially three functions—executive, legislative and judicial. The executive branch includes the Chancellor and Federal Ministers. The Federal President is not part of this branch of government, but is the head of the Federal Republic. His position is sometimes referred to as a branch “sui generis”, a neutral branch. The legislative branch is divided between two bodies—the Bundestag, in which members are elected directly by the people, and Bundesrat, members of which are appointed by the leadership of each state. Depending on the size of the state, the number of representatives varies, although each state has at least three votes. The judicial branch is comprised of the Federal Constitutional Court and the Specialized Courts. Additional details regarding the structure and function of each of these bodies is provided below. State governments are typically governed by a cabinet, led by a president and unicameral legislatures.
In 1958, the Treaty of Rome, between West Germany, Belgium, France, Italy, Luxembourg and the Netherlands, established the European Economic Community—the precursor to the European Union (the “EU”). As a member of the EU, Germany is subject to EU directives and regulations, as well as use of the Euro currency and participation in the free movement of people among EU member countries, among other programs. Germany’s membership in the EU creates an additional layer to its political process, as well as to the country’s approach to social issues, including matters of religious liberty.
In 2017, approximately 28 million (about 35-36%) of Germany’s 81 million people are not members of a public-law religious society. The two largest religious groups are the Roman Catholic Church and the Evangelical Church in Germany, with approximately 23.3 million and 21.5 million members, respectively, representing, in total, approximately 58% of the country’s population. The next largest religious group is Islam, with an estimated 4.5 million members, or about 5% of the population. Another large group are the orthodox churches with about 1.5 million members. The remaining 4% of the population is comprised of a variety of other religious groups, such as Judaism, Buddhism and Jehovah’s Witness.
Perhaps in response to the period of Nazi rule and its attendant atrocities, the German federal government places special emphasis on promoting religious freedom and tolerance. As described in greater detail below, Germany’s Basic Law establishes the freedom to profess and practice religion and prohibits religious discrimination. The guarantees offered to religious freedom are unique in the context of the Basic Law in that, unlike provisions establishing other fundamental rights, they contain no express reservations or limitations. These guarantees apply to all, not just German citizens. Also notable is the fact that the protections offered to religious freedom extend to philosophical or ideological nonreligious beliefs.
The Basic Law, incorporating provisions of the German Constitution of 11 August 1919, also provides for the freedom to form religious organizations. It goes on to provide that “religious societies shall acquire legal capacity according to the general provisions of civil law.” On this basis, religious organizations that desire official recognition must apply for and receive “public-law corporation” status from each state, each of which uses a variety of qualifications to make such determinations. Public-law corporation status provides religious organizations with the right to levy tithes on members, which are collected by the state through state tax collection processes and distributed to the organization’s congregations. This status also provides such organizations with tax exemptions and the opportunity to be involved on “supervisory boards of public television and radio stations.” Other rights (so-called corporation rights) include the right to employ civil servants and to constitute an employment regime of a public law nature; competence to install sub-entities of public law; right to establish autonomous legislation in respect of churches’ own affairs which forms a binding part of the legal order of the State; the parish right; the right to create public ecclesiastical property. Moreover, statutory law also contains a number of provisions granting legal advantages to churches and religious communities that have public law corporation status. The reasons for these advantages vary and they are usually referred to as bundle of privileges such as in tax law, employment law, social law, building law and media law.
SOURCES OF LAW AFFECTING RELIGION
a. BASIC LAW
The supreme law of Germany comes from the Grundgesetz or Basic Law of the Federal Republic of Germany (the “Basic Law”). As described in greater detail below, the Federal Government typically proposes legislation, which is adopted by the Bundestag and Bundesrat. The Federal Constitutional Court has authority to exercise judicial review of legislation to ensure compliance with the Basic Law. Key Basic Law provisions addressing religious freedom include the following:
Article 3 Abs. 3 BL of the Basic Law provides that “no person shall be favoured or disfavoured because of … faith, or religious or political opinions.”
Article 4 provides that the “freedom of faith and of conscience, and freedom to profess a religious or philosophical creed” are inviolable and guarantees the “undisturbed practice of religion,” in addition to providing that “no person shall be compelled against his conscience to render military service involving the use of arms.”
Article 7 provides that state schools shall include religious instruction in its curriculum, “in accordance with the tenets of the religious community concerned,” though teachers cannot be forced to provide such instruction and parents have the right to decide whether their children will receive such instruction.
Article 33 Abs. 3 BL provides that the enjoyment of civil rights, and eligibility for public office, shall not be dependent upon religious affiliation and that “no one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed.”
Certain clauses of the Constitution of the German Reich of 11 August 1919 (the “Weimar Constitution”) are incorporated into the Basic Law by Article 140. Article 136 of the Weimar Constitution provides that “civil and political rights and duties shall be neither dependent upon nor restricted by the exercise of religious freedom.” Article 137 of the Weimar Constitution provides that there will be no state church and establishes the right of public-law corporations to levy taxes on members using state and federal taxation structures. Article 141 of the Weimar Constitution provides that religious societies may, as needed, provide religious services in the army, hospitals, prisons or other public institutions, but shall not be compelled to do so.
b. STATUTORY LAW
Legislative regulation of religious organizations takes place primarily at the state level. Some states have enacted laws prohibiting teachers from wearing headscarves; others extend the ban to include all civil servants and any type of religious symbol.