Res mixta

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The term res mixta (Latin mixed matter , pl. Res mixtae ) comes from German state church law and describes areas that are both a state issue and a matter for religious and ideological communities . One speaks therefore of common affairs .

Origin of the term

The concept of common affairs is linked to the guarantee of the church's right to self-determination in Article 137, Paragraph 3 of the Weimar Constitution , which is part of the Basic Law for the Federal Republic of Germany in accordance with Article 140 of the Basic Law :

"Each religious society organizes and manages its affairs independently within the limits of the law that applies to all."

The so-called “own affairs” of the religious communities are addressed here. Opposite them are state affairs. However, the separation of religion and state within the meaning of the Basic Law in no way prohibits any cooperation between the state and religious or ideological communities. Cooperation is not only permitted to the state as it is with any other social group, but in certain areas it is even constitutionally required. So here the constitution itself knows a third type of affairs in addition to "own" and "state" affairs, namely common affairs.

Examples

The constitution usually subordinates a subject area to common affairs if it considers the fulfillment of a certain task in the social interest to be necessary, but the state is prevented from fulfilling it because of its obligation to be ideologically neutral.

Religious instruction

This is most evident in religious education . The constitution regards the religious education of young people as useful and socially beneficial. Therefore, she orders that religious education be a regular subject. However, an ideologically neutral state cannot of itself convey a certain religion. In addition, he would seriously interfere with the right of self-determination of the respective religious community if he were to teach their members "on their own" in their religion. That is why the state needs the religious communities to shape the content: the task can only be fulfilled together.

Theological faculties

As a result of religious instruction, which requires appropriately trained state teachers, the state must also provide this training. He is also keen to promote theology as a traditional component of university subjects. Again, however, the neutral state is not allowed to establish or test doctrinal beliefs itself. Conversely, the respective religious community is also interested in trained theologians. Consequently, a theological faculty at state universities can only be set up and run as a joint task.

Institutional pastoral care

The Basic Law also expressly deals with institutional pastoral care. Article 141 of the Weimar Constitution continues to apply:

"Insofar as there is a need for worship and pastoral care in the army, in hospitals, penal institutions or other public institutions, religious societies are to be allowed to carry out religious acts, whereby any coercion must be kept away."

Here, too, it may be desirable for the state to guarantee moral and religious education. In the case of institutional pastoral care, there is another purpose that follows from the basic rights of those affected. Normally, religious freedom only includes a right of defense against the state. The individual can only demand an omission of impairments, but has no right to positive benefits. However, there is a special case with the named “institutions”. Prisons, the army, etc. regularly make extensive use of the inmates or relatives: The prisoner, for example, cannot go to church on Sundays, as he likes. In this situation the right of defense turns into a right to benefit. The state must positively convey other opportunities to the holder of basic rights as compensation for the opportunities to practice religion. The ideologically neutral state cannot offer these “services” on its own, which means that only the solution of a common matter remains. This clarifies the regulation and also points out the negative religious freedom of those who are not interested in religious acts ("... whereby all coercion must be kept away").

Military chaplaincy

In the field of military chaplaincy , too, there is cooperation between state bodies (the Bundeswehr institutions ) and the religious communities. The aim of this cooperation is to the soldiers to ask during their military service or their service as a soldier on time or professional soldier pastoral services available that are specifically targeted to the work of the armed forces and their duty hours. This pastoral care takes place predominantly within the facilities of the troops, therefore legal agreements on the work and status of the military chaplains, which were made in state church contracts or concordats , are necessary .

Municipal cemeteries

Municipal cemeteries are owned and managed by the state municipalities . From ancient times, death has also been of religious significance. Funeral ceremonies and similar religious acts are common at funerals and are expected and requested. However, the state municipality cannot offer these services itself, but has to fall back on the representatives of a religious community.

Church tax

Finally, a common matter is also the church tax . On the one hand, a real state tax , as it is levied on its members by the respective religious community. In contrast to a state culture tax, which would be questionable as state church funding, the church tax can therefore only be levied in cooperation with the state and religious community.

Church labor law

If religious communities establish employment relationships under public law, for example for pastors and church officials , they use it to regulate their own affairs. Often, however, they also use private labor law. The employment relationships established in this way are regulated by state law. However, the church's right to self-determination must also be observed in this respect, so state law can be influenced and overlaid by canonical regulations. This “ church labor law ” can therefore also be described as a common matter.

Problem

The common affairs represent a compromise between the separation of state and church on the one hand and the desire for equal promotion of all religions and world views. The church's right to self-determination is both protected and implemented.

However, the cooperation can also lead to conflicts that would not occur in either a state church or a secular system. Particularly problematic is the “denominational state office”, which by no means occurs in all common matters, but in many cases. Art. 33 GG assumes that religious affiliation should not normally play a role for public offices:

“Every German has equal access to every public office according to his or her suitability, qualifications and professional performance.

The enjoyment of civil and civic rights, admission to public office and the rights acquired in the public service are independent of religious belief. No one should suffer a disadvantage from belonging or not belonging to a creed or worldview. "

However, since the Basic Law creates or presupposes common matters elsewhere, it can implicitly establish for these exceptional cases that religious affiliation is even a criterion for suitability within the meaning of Article 33.2 of the Basic Law. It makes sense, for example, that the state cannot teach a Catholic at a Protestant theological faculty, and no avowed atheist in religious instruction. Even as a military chaplain, he can only use someone who is tolerated by the respective denomination. Problems arise, however, when the once appointed state officials later lose the support of their religious community or no longer want to belong to it. Then the state must observe the civil servant's religious freedom as well as his duty of neutrality and the right of self-determination of the respective religious community. These constitutional goods must be balanced by practical concordance . In the practically relevant cases of university professors at theological faculties, the compensation usually consists in the university professors retaining their chair and their salary, but no longer taking part in the examination procedure of the respective denomination (see also the theological faculty ).

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