Religious freedom in Germany

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The freedom of religion is in the Federal Republic of Germany a fundamental right is that in Art. 4 of the Basic Law is normalized (GG). Under European law, religious freedom is guaranteed by the Charter of Fundamental Rights of the European Union . Under international law, Germany is u. a. Obliged to protect religious freedom based on the European Convention on Human Rights .

Their protection includes both religions and beliefs . It is divided into positive and negative religious freedom. The freedom of those entitled to basic rights to undertake a religious or ideological act is called positive religious freedom. The negative religious freedom prohibits to oblige the citizens to religious or ideological action the State.

Normalization

The German Basic Law (GG) secures religious freedom in Art. 4 Paragraph 1, 2:

(1) Freedom of belief, of conscience and freedom of religious and ideological creed are inviolable.

(2) The undisturbed practice of religion is guaranteed.

  • According to Article 33.3 of the Basic Law, the enjoyment of civil and civic rights and access to public office are independent of religious beliefs.

There are additional provisions on religious freedom in the so-called religious articles of the Weimar Constitution (WRV), which were incorporated into the Basic Law by Art. 140 :

  • Article 136 WRV stipulates that civil and civic rights and duties are neither conditioned nor restricted by the exercise of religious freedom. In addition, no one may be compelled to perform a church act or ceremony, or to participate in religious exercises or to use a religious form of oath.
  • Article 137 WRV stipulates that there is no state church and that the association to religious societies is guaranteed. Each religious society organizes and administers its affairs independently within the limits of the law applicable to all, it confers its offices without the involvement of the state or the civil community. Religious societies acquire legal capacity in accordance with the general provisions of civil law.
  • Article 138 WRV regulates that state payments to religious societies based on statute, contract or special legal titles are replaced by state legislation. The Federal Government lays down the principles for this. The property of religious societies and religious associations is guaranteed.
  • Article 139 WRV regulates that Sundays and the nationally recognized public holidays are legally protected as days of rest from work and spiritual exaltation.
  • Article 141 WRV regulates, insofar as there is a need for divine service and pastoral care in the army, in hospitals, penal institutions or other public institutions, that religious societies are to be permitted to perform religious acts, whereby any coercion must be avoided.

History of origin

The demand for a strict separation of church and state first arose around 1526 among the Anabaptists under Balthasar Hubmaier in Moravia and Austria. In contrast, the Lutherans retained the state character of the church and excluded followers of other denominations in their areas, as did the Catholics. On September 25, 1555, the Reichstag in Augsburg passed the Augsburg Imperial and Religious Peace , which granted Protestants freedom of religion for the first time. The key points of the compromise were a general peace in the country (“that no one, whatever their dignity, class or character, should feud, war, capture, cover or besiege the other”) and the recognition of the evangelical faith (“leave this religion calm and peaceful "). In addition, the clerical jurisdiction ("heretic law") against the evangelicals was abolished. This contract regulated for the first time the equal denominational coexistence of both Christian denominations without deciding the controversial question of the “true faith”. However, Calvinists , Anabaptists and other denominational groups remained excluded from the Augsburg religious peace. The Anabaptist mandate issued by the Diet of Speyer in 1529 remained in place. In the German Empire, Calvinism was not recognized as having equal rights with the Catholic and Lutheran churches until 1648. In practice, however, the principle of “ Cuius regio, eius religio ”, which mostly applied until the Peace of Westphalia , was often used to oppress or even expel those of different faiths from the point of view of the absolutist sovereigns in order to achieve religiously homogeneous subjects. The ideas of the Enlightenment could only prevail in a few German areas. Brandenburg-Prussia in particular played a special role in religious terms, as a predominantly Lutheran population had been ruled by a Reformed ruling house here since 1613. The Habsburg Monarchy, on the other hand, was relentless towards Protestants, who often fled to areas outside the Habsburg Empire, and the Jews. It was not until Joseph II. Protestants, Jews and Greek Orthodox 1781–1789 were granted rights to serve in the state.

Friedrich Wilhelm IV's toleration ticket for Baptists and other "sects of the kind that have formed since the reformation [...]" (1852)

With the Prussian Jewish edict of 1812 , the Jews living in Prussia became residents and Prussian citizens. Since the Wars of Liberation , however, there has been a close connection between nationalist and Protestant thinking ( national Protestantism ), which encouraged the state church, suppressed the ideas of the separation of church and state and the free practice of religion and in some cases turned aggressively against Catholics and Jews. According to Ernst Troeltsch , the “restoration of Prussian-German Lutheranism is one of the most important events in social history. It combined with the reaction of monarchical thought, agrarian patriarchalism, the military instincts of power, gave the Restoration ideal and ethical support, was therefore again supported by the socially and politically reactionary powers with all means of violence, sanctified the realistic sense of power and that of the Prussian Militarism indispensable ethical virtues of obedience, piety and a sense of authority. Christianity and the conservative state attitude became identical, faith and a realistic sense of power, pure doctrine and glorification of war and the master's point of view became related. Thus the church reform efforts were suppressed at the same time as the liberal world of ideas, the supporters of the modern social and spiritual tendencies were driven into a harsh hostility to the church and all those with a Christian and religious feeling were then confiscated for conservatism. "

In 1852, the Prussian King Friedrich Wilhelm IV issued a Tuldungsbillet for Baptists and other Protestant dissidents addressed to the Ministers of the Interior and of Culture . However, it was only valid for those communities that have "formed themselves since the reformation" within the evangelical creed, and that have proven themselves to be harmless and religious. According to this, borders should only be drawn where "decency = feeling and the security of the state dictate".

The later Kulturkampf contributed to the separation of church and state in the Little German Empire, but it also led to discrimination against Catholic population groups.

It was not until the Weimar Republic , under the influence of political Catholicism, that a constitution was established that obliged the state to remain ideologically neutral and guaranteed the undisturbed practice of religion. With the Weimar Constitution , the relationship between church and state was given its version that is still valid today.

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Protection area

Religious freedom protects citizens from restrictions on their right to freely practice a religion. To this end, it guarantees a sphere of freedom that sovereigns may only intervene under certain conditions . This sphere is called the protection area . If the sovereign intervenes in this and this is not constitutionally justified, he thereby violates religious freedom.

Jurisprudence differentiates between the personal and factual areas of protection. The personal protection area determines who is protected by the fundamental right. The objective area of ​​protection determines which freedoms are protected by the fundamental right.

Personally

In principle, everyone (Germans and foreigners) is entitled to basic rights. However, it is only possible for minors to decide about their religious beliefs when they are of age. The parents' authority to decide on the child's religious belief is governed by the law on religious upbringing . Groups (e.g. religious communities) can also refer to religious freedom (collective religious freedom).

Factual

The material scope of protection of Art. 4 GG is understood broadly, whereby paragraphs 1 and 2 are understood as a uniform protection area. The 2nd paragraph only has a clarifying character with regard to the practice of religion.

In a report by the Scientific Service of the Bundestag on the subject of "Religiously motivated circumcision of underage boys" it says: "However, even at the protection area level, freedom of belief does not include encroachments on other people."

Positive religious freedom includes the right to form and have a religion (the personal inner conviction “forum internum”), to profess one's religion and to live according to one's religious convictions (the externally acting “forum externum”) as well as to oneself To unite religious communities. What is disputed is how far the “forum externum” extends, which in certain circumstances can counteract the behavior of the majority society in a way that is full of conflict and conflict. Therefore, it is sometimes argued that the freedom of religious belief is limited to traditional pronouncements of the contents of the faith, which, in addition to ritual customs (e.g. services, prayers), include the proclamation of the faith, the conversion of non-believers or non-believers, and at most include charity for religious reasons. The Federal Constitutional Court does not only see cultic customs recorded, but also the right to align all behavior with the teachings of one's faith and to live according to one's inner beliefs.

The negative freedom not to form, have, confess and live according to belief is also protected. The negative religious freedom is dealt with in particular by Art. 136 Paragraph 3 and Paragraph 4 WRV. It is also ensured by Article 7, Paragraph 3, Clause 3 of the Basic Law, according to which teachers cannot be obliged to give religious instruction, which in the interpretation is also extended to the supervision of pupils during a school service; also through the possibility of deregistering from religious instruction (Art. 7 Para. 2). At the level of the federal states, the negative freedom of religion is concretized through church exit laws. Despite concerns in legal doctrine and literature, the Federal Constitutional Court considers it constitutional that fees may be charged for leaving a religious community in North Rhine-Westphalia (see church exit # exit fees ).

With regard to the controversial description of the term religion, the Federal Constitutional Court demanded a “ culture adequacy ” in the “ Tobacco Decision ” , but today it has probably abandoned this restriction. Faith is every conviction of man's position in the world and his relationship to higher powers and lower layers of being. The risk of getting certain that the appearance of a religious community to give try to be able to rely on Article 4 of the Constitution (eg in the case.. Scientology , Osho - sect ), will be prevented by the requirement, the claim that it If it were a religious belief, it had to be plausible. This requirement is satisfied by the fact that it has to be a religion in terms of its spiritual content and outward appearance. Even atheists can rely on the freedom of religion. Since religious freedom seeks to prevent a person who has to choose between the precepts of his or her faith and the behavioral requirements dictated by the state legal system from breaking mentally because of this contradiction, only behavior that is protected by religious conviction is protected by freedom of belief is offered and not only allowed or recommended.

Interference and justification

The constitutional right to religious freedom has a stronger protective effect than that of the European Convention on Human Rights, because according to the case law of the Federal Constitutional Court it is not subject to a restrictive law , but can only be restricted by the fundamental rights of third parties and fundamental value decisions of the Basic Law. A strong contrary opinion in the literature and case law of the Federal Administrative Court takes the view that religious freedom can only be exercised within the framework of simple laws and thus transfers the legal reservation of Article 140 GG in conjunction with Article 136.1 WRV as fully valid constitutional law. However, the history of the creation of the Basic Law in particular speaks against such a barrier transformation, which is why Art. 4 I GG superimposes the previous regulation.

Because freedom of religion can be restricted to protect the fundamental rights of third parties or other constitutional principles, parents must send their child to school even if they do not agree with the content of their children’s lessons, such as the theory of evolution or sex education , due to their beliefs . Conversely, however, religious freedom is also suitable for pushing back conflicting constitutional norms.

The professor of criminal law Scheinfeld stated in a detailed commentary on § 1631d BGB: "The religious freedom of parents does not give them the right to injure the body of other people."

Third party effect

In principle, freedom of religion only allows defense against impairments caused by the state. As a constitutional principle, however, the so-called indirect third-party effect of the fundamental rights also makes it important in civil law , especially in labor law .

Philosophical neutrality of the state

A duty of the state to religious neutrality is derived from Art. 4 GG. However, this obligation only applies to the state. For example, the introduction of a headscarf ban for schoolgirls would be unconstitutional as they could invoke their religious freedom against the state. In contrast, teachers, as representatives of the state , must observe its religious neutrality; only nuns are allowed to wear a headscarf (habit). People who let themselves be civil servants go voluntarily into the state sphere and can therefore no longer claim the same degree of "freedom from the state" as other citizens. Article 33.3 of the Basic Law tries to regulate the conflict that civil servants are on the one hand citizens and on the other hand officials of the state . It is the subject of heated debates about whether teachers can be required to teach without a headscarf. According to the headscarf ruling of the Federal Constitutional Court of September 24, 2003, a state law regulation is necessary for this.

The practice in Germany with regard to the religious neutrality of the state is sometimes criticized as a factual preference for Christianity. Almost all public holidays are based on Christian traditions, and the generally applicable rules on so-called silent days also apply to non-Christians, which in individual cases can conflict with their own rites, for example if the Jewish Purim festival falls on Good Friday .

Criticism is also directed against the state collection of church or cult tax for various Christian churches and the Jewish communities belonging to the Central Council of Jews in Germany as well as against fundamental regulations for the financing of theological faculties at state universities, which are laid down in the state church contracts and based on historical obligations are based on expropriations of the church's property, in which the state has undertaken to provide consideration for the ongoing maintenance and continued existence of the churches.

Known disputes

See also

Individual evidence

  1. ↑ Bezold, Andreas von: Religiöse Toleranz unter Friedrich II. Von Preußen , Fern-Uni Hagen 2006, ISBN (E-Book) 978-3-638-50547-5
  2. ↑ Roland Kurz: National Protestant Thinking in the Weimar Republic , Gütersloh 2007, pp. 21-102
  3. ^ Ernst Troeltsch: The Social Teachings of Christian Churches and Groups , 1912. Reprint Aalen 1961, p. 603 f.
  4. ↑ See also Hans Luckey : Gottfried Wilhelm Lehmann and the emergence of a German free church . Kassel undated (1939?). P. 128ff
  5. ↑ Hans Jarass: Preparation before Art. 1 , marginal no. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  6. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  7. ↑ Hans Jarass: Preparation before Art. 1 , marginal no. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  8. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  9. ↑ BVerfGE 24, 236 (" Aktion Rumpelkammer ").
  10. ↑ https://www.bundestag.de/blob/421056/0fd204a0117ce30150e252778c3937cc/wd-3-212-12-pdf-data.pdf
  11. ↑ BVerfGE 32, 98 (106) ; BVerfGE 93, 1 (15) .
  12. ↑ BVerfGE 12, 1 (4) .
  13. ↑ BVerfGE 41, 29 (50) .
  14. ↑ Stein Staatsrecht p. 194
  15. ↑ BVerfGE 83, 341 (353) .
  16. ↑ Pieroth / Schlink Grundrechte Staatsrecht II marginal no. 515.
  17. ↑ a b BVerfGE 33, 23 (31)
  18. ↑ BVerwGE 112, 227 [231]
  19. ↑ https://www.hrr-strafrecht.de/hrr/archiv/13-08/index.php?sz=8
  20. ↑ BVerfGE 108, 282

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