Parity principle
The principle of parity (also known as the “parity principle” or “parity under religious law”) is a requirement of equal treatment of the various religious and ideological communities developed in state church law . As a prohibition of preferential treatment and discrimination, the principle of parity is an essential part of the religious and ideological neutrality of the modern constitutional state. In addition, the term is also used in labor law to classify and justify industrial action and in the context of employee participation.
origin
The development of religious law parity began in the wars of religion of the 16th and 17th centuries, as a result of which a development of increasing secularization of the state was set in motion. In the constitutional law of the Holy Roman Empire of the German Nation, for the first time in the Peace of Augsburg and the Peace of Westphalia, equal treatment under imperial law of the Christian denominations recognized at that time was established. By treating the various denominations equally, peaceful coexistence throughout the state should be achieved and secured.
Basics in constitutional law
As a special form of the principle of equality according to Article 3, Paragraphs 1 and 3 of the Basic Law, the principle of parity appears alongside these constitutional provisions. It is located in the Weimar church articles incorporated in accordance with Art. 140 GG in conjunction with Art. 4 Para. 1 GG. The approach in the Weimar church articles is Art. 137 para. 1 WRV with its state church ban as well as Art. 137 para. 5 WRV, which allows religious communities organized under private law to be granted corporate status if the duration is guaranteed.
content
In accordance with the general teachings on the principle of equality, parity under religious law includes a requirement of equal treatment of essentially the same and the requirement of unequal treatment of essentially unequal. This means that not all unequal treatment between the religious communities is unconstitutional, but only unequal treatment that cannot be justified by appropriate reasons.
An extreme position in the jurisprudential discussion is the stipulation of an absolute prohibition of differentiation between religious and ideological communities. Any different treatment between them is therefore unjustified on the part of the state, unless it is expressly permitted in the constitution. A requirement of equal rights, i.e. equal rights under the same conditions, thus becomes a requirement of leveling, unconditional equality. However, no point of reference can be found in the constitution for a principle of equal treatment understood in this way, since this deviation from the general equality rules in Art. 3 GG would have to be expressly reflected in the text of the norm.
According to the principle of parity, the state is not forced to adopt an “all or nothing” attitude, ie it is not forbidden to make any distinction between religious and ideological communities. Possible, because secular, differentiation criteria are, for example, the size, public effectiveness and social significance of a religious or ideological community.
However, the content of belief is not an acceptable criterion for differentiation. In this respect, there is a non-affiliation prohibition based on the prohibition of the state church in Art. 137 para. 1 WRV. Approaches to narrowing the scope of protection of religious freedom to " culturally appropriate " religions and world views, as developed in the tobacco decision of the Federal Constitutional Court, were later abandoned and are accordingly not part of the parity under religious law. The reliance on a special, historically grown cultural bond between individual religious communities and society is largely seen as contradicting the non-affiliation requirement. Correspondingly, indications of an alleged cultural incompatibility of Islam (or other seemingly alien religions) with Western society are to be classified: The content of belief cannot justify different treatment, since the state is not entitled to evaluate the belief or disbelief of its citizens. However, historical origins can be used as a source for differences. For example, only the two major churches (as a result of the Reichsdeputationshauptschluss of 1806) and the Jewish communities (during the Third Reich) were affected by systematic expropriations of their property in the past, which are now compensated for by state benefits. This does not mean that there is no unjustified unequal treatment in relation to religious communities not affected by expropriations. In this respect, the different historical concerns can be used as a religiously and ideologically neutral criterion.
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Use of these different parity terms z. B. on building law: According to Section 3 (2) No. 3 of the Building Utilization Ordinance , facilities for church purposes are exceptionally permitted in purely residential areas, provided they meet local needs.
- A leveling understanding of equality would consider this provision to be unconstitutional because it results in differently authorized religious communities. Not every religious community is allowed to build facilities, so a violation of the parity principle would be assumed.
- If one understands the principle of parity only as a requirement of equal rights , ie unequal treatment must occur for appropriate reasons, the question of the justifying differentiation criterion arises after the comparison group has been established. The distinguishing criterion in Section 3 BauNVO is the need in the residential area. First observation: It is not linked to the religious doctrine of the faith - so no violation of the non-affiliation ban. Second observation: By restricting the system to the locally required systems, traffic from outside should be avoided as far as possible in order to maintain the residential character and to limit disturbances to a minimum. After this purpose of the distinction has been elaborated, a weighing process is carried out to determine whether the purpose justifies the distinction.
In addition to these application questions, which can also be dealt with with the methods used in the general principle of equality, there are also specific characteristics for the area of state church law.
Two-part parity
According to Art. 137 para. 5 WRV, the distinction between religious communities with and without corporate status is constitutionally recognized . The rights associated with the corporate status (ability to serve as employer, tax collection) do not unconstitutionally discriminate against religious communities organized under private law. However, it is controversial whether further distinctions can be linked to the corporate status and which distinctions these are. So are z. B. According to § 132a Abs. 3 StGB only official titles and official dress of publicly organized religious and ideological communities are protected from abuse.
Tripartite parity
In addition to this two-part parity, an additional distinction between born and approved corporations under public law is also represented. A distinction is made here between religious communities that were given corporate status before the Weimar Constitution and those religious and ideological communities that only acquired corporate status after 1919. The parity is divided into the following levels:
- Born corporations (and thus above all the Roman Catholic Church and the Protestant regional churches etc.)
- approved corporations (all religious communities raised to corporate status after 1919)
- Religious communities organized under private law.
Assertion
The from Art. 140 GG i. V. m. Art. 137 para. 1, 5 WRV i. V. m. Article 4 (1) and (2) of the Basic Law, due to its position in the fundamental right of religious freedom (if other requirements are met), can be asserted in the context of a constitutional complaint before the BVerfG.
literature
- Martin Heckel: Equality or Privileges? The general and the special equality principle in state church law. Mohr, Tübingen 1993, ISBN 3-16-146146-0 .
- Martin Heckel: Parity under religious law. In: Listl, Pirson (ed.): Handbook of the State Church Law of the Federal Republic of Germany. Volume I, Duncker & Humblot, Berlin 1994, ISBN 3-428-08031-9 .
