Church right to self-determination

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The church's right to self-determination or church freedom is a right with constitutional status that the German Basic Law grants to all religious and ideological communities and guarantees them freedom from state interference. The terms “self-regulation” and “self-administration” mentioned in the law are commonly referred to as “self-determination”. Occasionally this right is also declared as a religious community's right to self-determination . This right of self-determination is based on the fundamental right to religious freedom from Article 4 of the Basic Law and the state church law principle of the separation of state and church , which is expressed in Articles 136, 137, 138, 139 and 141 of the Weimar Constitution in conjunction with Article 140 of the Basic Law.


The right to religious self-determination was already included in the Paulskirche constitution of 1849. Section 147 (1) read:

"Each religious society organizes and manages its affairs independently, but remains subject to general state laws."

Without this legal reservation , it was also found in Article 15 of the Prussian constitution of 1848/1850:

"The Protestant and Roman Catholic Churches, like every other religious society, organize and manage their affairs independently and remain in the possession and enjoyment of the institutions, foundations and funds intended for their religious, educational and charitable purposes."

In the Kulturkampf , a conflict between the Kingdom of Prussia and later the German Empire under Chancellor Otto von Bismarck and the Catholic Church under Pope Pius IX. this right was systematically violated.

Legal regulation

The legal regulation of the church's right to self-determination can be found today in Art. 137 Paragraph 3 of the Weimar Constitution , which, according to Art. 140 of the Basic Law, is part of the Basic Law for the Federal Republic of Germany:

“Each religious society organizes and manages its affairs independently within the limits of the law that applies to all. It confers its offices without the involvement of the state or the civil community. "

Not only churches can invoke the church's right to self-determination , but all religious communities. It is by no means reserved for religious communities that are recognized as a corporation under public law , but also protects communities organized under private law , regardless of religion or denomination.

When Art. 138 Para. 2 WRV speaks of the fact that "the property and other rights of religious societies [...] in their [...] establishments, foundations" are guaranteed, this list expresses that foundations and establishments are also part of it understood by the religious community. They are therefore included in the right to self-determination, because the creation of such legally independent forms of organization is also an expression of self-determination.


The separation of church and state can result from two opposing motives. On the one hand, the state can aim to free itself from paternalism by religious communities. This idea is found above all in secularism ; Sometimes it can even turn into state repression of religious communities, as happened in Nazi Germany or the GDR , for example . Conversely, the separation of state and church can also aim to protect religious communities from state influence. They should determine their own affairs.

German constitutional law follows the latter concern. Respecting this self-determination is not only an obligation of the state in Germany, but the religious communities have a subjective right of constitutional status to respect this freedom.

Because of the connection with the principle of separation, one speaks of the church's right to self- determination and not of a right of self- administration, as is the case with municipalities or universities that are part of the state : Religious communities, regardless of their legal form, are not parts of the church with limited autonomy State, but are organizationally separated from the state. In contrast to self-administration, there is therefore no state supervision of religious communities. This also applies to religious societies under public law . The deviating correlate theory , which was advocated in the Weimar Republic, represented a continuation of the sovereign church regiment under the opposite sign and was later abandoned.


The church's right to self-determination has far-reaching consequences for the legal system in Germany. Attempts by the state to exert influence on church teaching, appointments to offices, liturgy , etc. rarely occur in practice. In other areas, however, interventions by the state had to be rejected by the Federal Constitutional Court in some sensational decisions.

Balancing the right of self-determination with the conflicting fundamental rights of third parties ( practical concordance ) can be difficult in individual cases. It is facilitated by the fact that the canonical regulations are partly similar to the state ones, cf. such as the Roman Catholic ordinance on church data protection or employee representation laws . Trusting this, the legislature often does not restrict the right to self-determination to what is just still permissible, but allows the religious communities a certain freedom (“Church law will not offend state law”). Agreements concluded between the state and religious communities enable a gentle balance between state sovereignty and the church's right to self-determination .

Individual cases

Church law regulations do not require any state approval, nor do the internal organization of a religious community or asset management. Also has its own church jurisdiction can be used, for example, ex officio , the Administrative Court of the Union of Evangelical Churches , church court and Church Court of the Evangelical Church in Germany . Who is a member of a religious community is determined only by the religious community itself, not by the state. The exit from the church is regulated by state laws.

The special loyalty obligations of the labor law of religious communities go back to the right of self-determination as well as the exclusion of the regulations of the Works Constitution Act for religious communities. Instead, these have given themselves their own canonical regulations on employee representatives . It is disputed whether the balance of the right of association of workers with the Church's self-determination to exclude the right to strike leads of workers and lockouts right of employers. In many religious communities, wages are set by commissions with equal representation ( third way ). The churches choose this path because they do not want to conclude collective agreements with trade unions.

The Federal Constitutional Court has denied the possibility of bankruptcy for religious corporations under public law based on the church's right to self-determination .

Own affairs

According to the wording of the law, religious communities only organize and manage "their affairs" independently. What is one's own and what state affairs are ultimately dependent on the respective understanding of the state and society and has therefore been judged differently over time. The self-image of the religious community concerned plays an important role in the delimitation.

Today, teaching and culture, organization and assignment of offices, training, asset management and parts of service law, but also charitable activities, are recognized as separate matters. The common affairs ( res mixtae ) such as religious instruction , institutional pastoral care and theological faculties in state universities stand between one's own and state affairs .

Limits of the law that applies to all

Like every right, the church's right to self-determination is not guaranteed without restrictions. Like basic rights (cf. legal reservation ), it can namely be restricted by parliamentary law. It is therefore the state that reserves the “competence competence” according to the provisions of the constitution (also agreed identically in the Reich Concordat). By means of the law that applies to all, the state defines the limits that the churches must also comply with. However, the legislature has to observe the prohibition of excess , so it must not restrict the law disproportionately.

Problems of interpretation arise in view of the special requirement of a law “applicable to all”. The problem is similar to that of freedom of expression , which can only be restricted by “general law”. Johannes Heckel understood this to mean “every law that is indispensable for the nation as a whole as a political, cultural and legal community, but only one such law”. However, this standard has proven to be both too narrow and too broad: laws that are (allegedly) indispensable for the nation as a whole can contain the greatest injustice, while the indispensability of numerous regulations is difficult to justify, but which, according to the general opinion, certainly also apply to religious communities, for example the traffic rules. A distinction between internal and external affairs has also not been able to establish itself. According to the “Everyman Formula” of the Federal Constitutional Court, a law that applies to everyone is only one that affects the religious community “like everyone”. Laws that specifically aim to affect religious communities cannot restrict the right to self-determination and are unconstitutional and void. In particular, special state regulations of church supervision or church office law are not permitted. If there is no “law applicable to all”, constitutional barriers come into consideration in individual cases.

Another problem is the question of whether the “law applicable to all” should be “laws in the formal sense” or “laws in the material sense”. Laws “in the formal sense” have been enacted by the state through a formal legislative process. Laws “in the material sense” also include other legal norms such as ordinances and statutes. Since the churches, for example, are also subject to local law (statute law, e.g. development plan) of the municipalities, it can probably be assumed that the "law applicable to everyone" includes the laws "in the material sense".

The General Equal Treatment Act (AGG) provides for certain exceptions to the right to self-determination in Section 9 AGG for religious and ideological communities.

The church's right to self-determination as the authority of the churches "within the limits of the laws that apply to all" to set law in their own affairs does not mean that every general state law restricts the right of self-determination. Instead, it is necessary to weigh up the competing legal interests. The Federal Constitutional Court stated in 1980:

"In order to give the churches and ecclesiastical institutions the opportunity to fully comply with their religious and diaconal task [...], their given principles and models also in the area of ​​organization, administration and operation, the independent organization and administration of their affairs is essential for them guaranteed by the Constitution. The fact that this guarantee is only given within the limits of the law that applies to everyone does not mean that any state legislation, provided that it is abstract and general in the sense of a classic legal concept, and appears reasonable from a worldly point of view in terms of the matter to be regulated could easily intervene in the area of ​​autonomy to which the churches and their institutions are entitled. Regardless of its formal design, every law that draws barriers to the church's right to self-determination in this sense encounters a similar barrier, namely the material value decision of the constitution, which goes beyond an area of ​​freedom inviolable for the state authority, the special independence of the churches and their institutions from the State recognizes […]. The recognition of the value-setting significance of this principle leads in the sense of a reciprocal effect that beyond the formal standards of 'valid for all', depending on the weighting of the points of contact between state and church order, certain material limits arise for the state's legislative authority. "

Legal quality and judicial enforcement

The church's right to self-determination is a subjective public right . Since Art. 137 para. 3 WRV is part of the Basic Law, it shares its rank. All courts and administrative authorities must observe the right to self-determination as well as other constitutional law. Norms of simple federal or state law are null and void if the church's right to self-determination is disregarded, as well as other constitutional violations . In the case of formal (parliamentary) laws, nullity is determined by the Federal Constitutional Court within the framework of the corresponding proceedings.

The enforceability of the right to self-determination is made more difficult by the fact that it is not a fundamental right or a right equivalent to fundamental rights: it is not listed in Art. 93 (1) No. 4a of the Basic Law, its violation cannot be asserted with a constitutional complaint. The resulting gap in legal protection is weakened, however, because if the right to self-determination is violated, a violation of religious freedom appears at least possible. This gives you the necessary power to lodge a complaint . Once the hurdle of admissibility has been overcome, the Federal Constitutional Court has consistently ruled that the challenged measure not only checks for violations of fundamental rights, but also for all constitutional violations. With this broad standard in the examination of the merits , a violation of the right to self-determination can usually be complained about indirectly.

See also

Individual evidence

  1. Constitution of the German Empire. (Paulskirche constitution 1848). Retrieved October 28, 2015 .
  2. ^ Constitutions of Prussia. Retrieved October 28, 2015 .
  3. A summary of the state of opinion can be found at Dr. Jürgen Kühling, former judge at the Federal Constitutional Court, labor dispute in the Diakonie, subsection BI The author affirms the right to strike at the church.
  4. Canon Law & Right to Self-Determination . Section 6 Law and Auditing of the Evangelical Church in Baden. Archived from the original on November 6, 2018. Retrieved November 6, 2018.
  5. Federal Constitutional Court (Second Senate) Decision with the file number 2 BvR 208/76 of March 25, 1980 (alternative source: BVerfGE 53, 366, 404) . March 25, 1980. Archived from the original on November 6, 2018. Retrieved on November 6, 2018.