State Church Law (Germany)
The state-church law is a branch of the German public law . It includes the legal norms set by the state , which relate to the legal status of religious and ideological communities and their relationship to the state. The term has nothing to do with a state church .
State church law by no means only affects the traditional churches, but all religious and ideological communities. It is therefore proposed to speak of constitutional law of religion instead of state church law . However, this has not caught on because this term is also misleading insofar as state church law by no means only consists of constitutional law, rather it also includes norms below the constitutional level ( church exit laws, approval laws for state church treaties, etc.). Finally, the term state church law makes it clear that this area of law is oriented towards membership-based religious communities for traditional reasons. Problems arise from this, especially with regard to Islam (cf. Difficulties with regard to Islamic religious instruction).
Models of state church law
For state church law it is of fundamental importance how the state shapes its relationship with religious communities. The multitude of national state church law systems can be roughly divided into two main groups.
- State and religious communities can be linked to one another ( state church , theocracy ). This is regularly accompanied by the preference for one denomination. For example, the state church in England is the Anglican Church, in Scotland the Reformed Church of Scotland, in Monaco the Roman Catholic Church. State churches also exist in some Scandinavian countries and Swiss cantons, as well as in Turkey ; Although Islam does not have a fixed religious organization, the religious affairs of Sunni Islam are organized by the state.
- State and religious communities can also be separated from one another; one then speaks of the separation model. The separation of church and state is particularly strictly implemented in large parts of France (Separation Act of 1905, which does not apply in Alsace and the Moselle department, which at that time belonged to Germany as Alsace-Lorraine ) and the USA. In its most consistent form, laicism , the practice of religion is a purely private matter.
- However, there are also numerous modified systems of state church law between these two extremes. Belgium and Luxembourg, for example, have a strict separation system, but on the other hand finance all parish salaries from the state budget. The German constitution also assumes a separation of state and church. Unlike secularism , however, it considers the religious activity of citizens to be an important public task: the practice of religion should not be limited to private life, but should benefit the general public. However, since the constitution obliges the state to maintain ideological neutrality, it is prevented from fulfilling this important public task itself. Instead, he leaves the space to the individual religious communities, which he supports equally in it (principle of parity ). This cooperation became known under the catchphrase coined by Ulrich Stutz , the limping separation . However, this designation is dubious in terms of content, as it implies that this model is missing something, but does not emphasize the positive aspects.
Which of the systems is preferable is controversial from a legal and political point of view. The concept of the state church may continue the civic bond in religious terms, but necessarily excludes all other religions and denominations. While the strict separation of the secular character creates clear relationships, equal cooperation with all religious communities is credited with the fact that in times of increasing religious pluralism this is more suitable than a total displacement into the private sphere, to bring about a prosperous coexistence of the individual religious communities that is beneficial for society as a whole .
It should be noted that the state church law seldom goes back to a systematic legislative concept, but has grown historically like hardly any other area of law over the centuries. In many cases, international or domestic treaties also conflict with new concepts.
Unlike civil law , for example, German state church law is not based on a scientifically developed, comprehensive regulatory concept. Rather, it has been formed over centuries and is influenced by historical events like hardly any other legal matter .
Holy Roman Empire
The Holy Roman Empire was shaped by the unity of the (Roman Catholic) Church and Empire. Under Emperor Otto the Great in particular , state rights of rule were transferred to abbeys and bishoprics ("Ottonian System"), which gave rise to spiritual principalities . With the bishops of Mainz , Cologne and Trier , the church later provided three of the seven electors .
With the Reformation the unity of church and empire threatened to break up. The Augsburg religious peace maintained at least the religious unity within the individual territories through the principle of cuius regio, eius religio (“whose country, whose faith”): the denomination of the subjects was based on that of the sovereign. The Peace of Westphalia extended this principle from Catholics and Lutherans to the previously unrecognized Reformed .
Martin Luther installed the sovereigns as emergency bishops , which is what today's regional churches go back to. Their areas are therefore often linked to territorial borders that have long been politically outdated. While the Catholic spiritual principalities continued to exist unchanged, it was controversial how the relationship between state and (regional) church in the Protestant states, the " sovereign church regiment ", was explained:
- According to the theory of the episcopal system , the rule of the sovereign in his church was an ecclesiastical right that had been transferred to him through the Peace of Augsburg. According to this view, the church government was only transferred to the prince in trust and was not identical with the state authority. The episcopal system made it possible to separate state and church authorities even before the end of the sovereign church regiment and to see a personal connection only in the person of the monarch.
- On the other hand, the theory of the territorial system approached an absolutist understanding of the state , according to which church power was only part of the prince's unrestricted rule in his territory, i.e. not legitimized by the church but by the state.
- Influenced by the enlightened idea of the social contract , the theory of the collegial system emerged . According to this, the churches were religious societies whose power of rule was based on the autonomy of the members. The sovereign was thus a mere "association board", whose function was to be strictly separated from the state. Because of its comparability to corporate law structures, this understanding finally caught on in legal science. Even today, the designation of the religious communities as "religious societies" in the articles of the Weimar Imperial Constitution incorporated into the Basic Law reminds of this theory. Of course, the secular model of the association did not match the church's self-image.
Area on the left bank of the Rhine during the French occupation of the Rhineland
After France occupied the areas on the left bank of the Rhine in 1794, French law was gradually introduced there. With an ordinance of June 9, 1802, measures for secularization in the Rhineland were ordered. So monasteries and other spiritual institutes were abolished and their property was nationalized. The secular rule of the monasteries was also ended.
Especially for the (Catholic) ecclesiastical principalities, the Reichsdeputationshauptschluss 1803 brought a turning point. As a replacement for the loss of territory on the left bank of the Rhine, the secular principalities were not only compensated with the basic assets of the ecclesiastical principalities. In addition to this secularization of property , there was also a secularization of rule - the political rights of the imperial princes were also secularized (secularized). The “Ottonian system” ended for good.
With the secularized goods, however, the states also took on the burden of maintenance obligations for church employees and church construction work by way of universal succession . Thus the basis was for the State Services applied to the churches: the expropriation took the churches the opportunity to provide for themselves, and made them dependent on government assistance. These state benefits continue to exist over two hundred years after the Reichsdeputationshauptschluss. They still have concrete effects today, for example, with the restructuring of the diocese of Essen, where, in order to maintain such performance obligations, the dissolution of beneficiary parishes is waived even against the otherwise underlying structural principles. As historical awareness declines, they are increasingly difficult to explain and are a frequent point of contention in public discussion. A replacement of the state benefits has not yet been tackled despite the stipulations in the constitution.
In the course of the 19th century, an organizational separation of the authorities prevailed: the sovereign exercised the “iura in sacra” (the episcopal, church-governing rights) in “his” regional church through a consistory or a higher church council ; the church supervision over all religious communities ( iura circa sacra ) against it exercised by state ministries .
In Prussia, the Catholic Church, which Otto von Bismarck understood as the representative of a foreign power, found itself in the situation of state persecution (" Kulturkampf "). The introduction of compulsory civil marriage and various criminal provisions (see. The " pulpit clause ") their influence should be pushed back into society. Up until January 1, 2009, the Personal Status Act (PStG) contained the administrative offense of “ religious pre- marriage”, which threatened the clergy with a fine who performed a church wedding or celebrated a church service on the occasion of the marriage without the civil marriage having previously been concluded . The constitutionality of this provision was controversial with regard to religious freedom and the right to self-determination and was therefore deleted in 2008 without replacement.
With the end of the monarchy in the individual states as well, the state church regiment in the Protestant regional churches ceased to exist in 1918 . It is true that church and state structures in the Protestant countries had already been separated and only connected in the person of the sovereign. Problems arose, however, from the fact that it was not uncommon for the political left to continue rule of the church despite its demand for a separation of state and church , albeit with the opposite sign.
However, 60,000 demonstrators in Berlin and a collection of seven million signatures caused the Weimar National Assembly to refrain from radically reversing the current state church law. The “Weimar System” laid down the separation of church and state and the ideological neutrality of the state, but left the churches their status under public law and their opportunities to participate in society. Of course, this status was no longer exclusive, but was also granted to other religious communities and even non-religious ideological communities upon request. These principles of the “limping separation”, characterized by parity and tolerance, are constitutional law that still applies today.
The end of the sovereign church regiment and the associated elimination of the regional bishop has led to the fact that some regional churches still do not have a bishopric , but a church president , president or (in Bremen ) secretary of the church committee. However, the vast majority have filled this office again.
While the Catholic Church had already distanced itself from the state during the Kulturkampf, the Protestant regional churches had not yet found a new self-image when National Socialism took all social groups into line . Because of the democratic structure, the regional churches could easily be infiltrated by the German Christians . The creation of a German Reich Church with a Reich Bishop could not prevent some regional churches from resisting until the end (so-called intact regional churches ). Only in this church struggle and the activities of the Confessing Church did a new Protestant understanding of canon and church law emerge, which was reflected in the Barmen Declaration . A purely Nazi embossed Canon Law was in Warthegau introduced (elimination of the public status, organization of the Church as an association, placing under state law supervision).
The constitution of the GDR of October 7, 1949 contained articles 41 to 48, which were very similar in content to the Weimar church articles. In particular, the status of religious communities as corporations under public law in Article 43 (3) was retained. However, the constitutional text and reality also differed greatly on this point: The GDR itself was not ideologically neutral, but "a socialist state of workers and peasants [...] under the leadership of the working class and its Marxist-Leninist party" (Art Constitution of the GDR from 1949).
Religious communities were therefore perceived by the state as a source of interference in communicating the socialist worldview and were pushed out of public life. The state introduction and propagation of youth consecration as a competition to evangelical confirmation and Catholic confirmation , the observation of the churches by unofficial employees of the state security , making religious instruction more difficult , the abolition of church taxes , the discrimination of church work in the social field and the exclusion of active Christians from many Professional groups mean that the proportion of citizens who are members of a religious community in the new federal states is still comparatively low (cf. Christians and Church in the GDR ).
In the constitution of April 6, 1968 , the legal situation was largely adapted to social reality and state church law was only mentioned in Article 39. Although this status as public religious societies had fallen, the religious communities continue practicing public law employer capacity and regulation. This was not only accepted by the state, but also taken into account by ordinary law, contrary to the constitution.
Despite this “totalitarian church policy” ( Axel Freiherr von Campenhausen ), the religious communities continued to exist and played an important role in the overthrow of 1989/90 (see Monday prayers , Monday demonstrations , Democracy Now ).
Applicable state church law
The current state church law of the Federal Republic of Germany is characterized by religious freedom and the separation of state and church, through which the state is obliged to remain ideologically neutral. The religious communities regulate their affairs themselves and without state influence (so-called church self-determination ). Because the Basic Law does not regard the care of religion as a state but as a public task, the state promotes religious and ideological communities.
The essential fundamentals of the relationship between church and state are regulated in the Basic Law (GG). In the fundamental rights part , GG, which grants both individual and collective freedom of religion , and Art. 7 GG ( religious instruction ) are important. For the most part, however, the Basic Law is content with adopting the “Weimar Church Articles ” in Art. 140 GG : “The provisions of , , , and the German constitution of 11. August 1919 are part of this Basic Law ”. They are not a lower-ranking constitutional law, but rather form an organic whole with the other norms of the Basic Law.
The competence to regulate the legal status of the churches is otherwise that of the federal states ( federal state (so-called state church law). A classic example of differences in state church law is the procedure for collecting church tax and for leaving the church .Basic Law in conjunction with Paragraph 8 of the WRV). Therefore there are to a certain extent differences in each
There is also the so-called treaty church law , which has gained in importance in the “new federal states”, especially after the reunification of Germany. The federal states conclude church agreements , i.e. so-called concordats with the Catholic Church, and church agreements with the Protestant regional churches and other religious communities .
The relationship between the state and religious communities
Therefore, the principle of state neutrality applies to the religious communities. However, not least because of the reference to God in the preamble of the Basic Law, this does not mean a radical separation in which state institutions or state action in the sense of secularism would have to be “religiously free”, i.e. free from all religious references, elements, characteristics or symbols. Rather, there are legal or contractual regulations in the area of so-called "common affairs" ( res mixta ) in which issues such as religious instruction , church tax , military pastoral care , theological faculties or the filling of university chairs outside the theological faculties are regulated. Religious communities must be treated equally and promoted in the same way.
In the Basic Law (GG), religious instruction as a regular subject (restricted in Basic Law - so-called " Bremen Clause "): (GG Article 7, Paragraph 3: Religious instruction is included in public schools With the exception of non-denominational schools, a regular subject. Without prejudice to state supervisory law, religious instruction is given in accordance with the principles of the religious communities. No teacher may be obliged to give religious instruction against his will.)Paragraph 3 of the Basic Law guarantees
The status of religious communities
In order for religious societies to be able to participate in legal relations in the state, i.e. to exist legally at all, they must acquire legal capacity . This is done according to the principles of private law (equal to civil law , para. 4 WRV). In principle, the legal form of the private law association comes into consideration . The church's right to self-determination , to which all religious and ideological communities are entitled, may, however, result in deviations from the usual association law ( constitutional interpretation ).
Some churches such as the Catholic Church, the Protestant regional churches as well as Israelite synagogue congregations were already managed in the legal form of a public corporation of its own kind before the Weimar period . This legal form has been adopted today ( para. 5 WRV). This shows that the Basic Law does not regard religious care as a state task, but as a public task. Even more recent (generally to the above-mentioned "old-fashioned") religious or ideological communities can achieve this status; some of them took the opportunity. There were problems with the Jehovah's Witnesses who use their right to recognition had to pass through several court rulings.
In contrast to other corporations under public law (federal government, states, municipalities, chambers, universities), religious societies under public law are not part of the state and thus not bearers of public authority within the meaning of (3) of the Basic Law. As a result, the religious communities are not bound by fundamental rights but are entitled to fundamental rights . They are public corporations of their own kind ( sui generis ) . There is therefore no state legal supervision over the religious communities organized under public law. However, official liability claims should also be possible against such corporations .
Well-known (constitutional) church lawyer
Important church and state church lawyers are or were Axel Freiherr von Campenhausen , Hans Dombois , Johannes Heckel , Rudolf Smend , Albert Stein , Rudolph Sohm , Alexander Hollerbach , Christoph Link , Erik Wolf , Jörg Winter and Hans Michael Heinig .
Other well-known lawyers such as Konrad Hesse , Josef Isensee , Ernst Gottfried Mahrenholz , Paul Kirchhof , Dirk Ehlers and Hartmut Maurer also published writings on the relationship between state and church.
In the discussion again and again, the headscarf ruling in particular has caused new movement in this area of law. The discussion on the introduction of state, non-denominational, religion-critical teaching is again on the political agenda due to an advance in the state of Berlin in 2005 (cf. the dispute over the " Bremen Clause ").
International legal status of the Catholic world church
It is possible to establish canonical treaties at the level of international law. To do this, however, the parties must have the so-called “international legal capacity”. In principle, only states acquire international legal capacity. The Vatican is a separate state, and consequently a subject of international law .
Exceptions to this principle are so-called atypical subjects of international law. a. the Holy See or the Sovereign Order of Malta . Due to the lack of national territory, these are not a state, but nevertheless capable of international law . The Holy See is the head of the Roman Catholic world church. Both the Vatican and the Holy See can independently conclude binding international treaties with other states; the latter are referred to as concordats .
State church treaties with other religious communities are subject to national law due to the lack of international legal capacity.
- Hans Ulrich Anke : The redefinition of the state-church relationship in the new states through state church treaties: on the possibilities and limits of the state church treaty instrument. Mohr Siebeck, Tübingen 2000, ISBN 3-16-147319-1 ( Jus Ecclesiasticum , vol. 62).
- Axel Freiherr von Campenhausen , Heinrich de Wall : State Church Law. A systematic presentation of the constitutional law of religion in Germany and Europe. A study book. 4th edition, Beck, Munich 2006, ISBN 3-406-51734-X .
- Claus Dieter Classen: Religious Law. Mohr Siebeck, Tübingen 2006, ISBN 3-16-149034-7 .
- Gerhard Czermak : Religious and ideological law. An introduction. in cooperation with Eric Hilgendorf . Springer, Berlin [a. a.] 2008, e- ISBN 978-3-540-72049-2
- Marion Hundt: Religious Law in Daycare and School. Link, Kronach 2010, ISBN 978-3-556-02482-9 .
- Bernd Jeand'Heur , Stefan Korioth : Basic features of state church law. Short textbook. Boorberg, Stuttgart a. a. 2000, ISBN 3-415-02695-7 .
- Markus Kleine: Institutionalized unconstitutionality in the relationship between the state and the churches under the Basic Law , vol. 114 of the university publications “Law” in the Nomos-Verlag, Baden-Baden 1993, ISBN 3-7890-3028-7 .
- Joseph Listl, Dietrich Pirson (ed.): Handbook of the State Church Law of the Federal Republic of Germany. 2 volumes. Duncker and Humblot, Berlin 1994/1995, ISBN 3-428-08030-0 (complete work), ISBN 3-428-08031-9 (volume 1), ISBN 3-428-08032-7 (volume 2).
- Peter Unruh: Religious Constitutional Law . 2nd edition, Nomos, Baden-Baden 2012, ISBN 978-3-8329-7349-0 .
- Andreas Wallkamm: Muslim communities in Germany in the light of state church law. A systematic overall view. Boorberg, Stuttgart [u. a.] 2012, ISBN 978-3-415-04812-6 .
- Christian Walter: Religious Constitutional Law from a Comparative and International Perspective. Jus publicum, vol. 150. Mohr Siebeck, Tübingen 2006, ISBN 3-16-148990-X .
- Jörg Winter: State Church Law of the Federal Republic of Germany. An introduction with canon law digressions. Luchterhand, Neuwied u. a. 2001, ISBN 3-472-04328-8 .
- Reinhold Zippelius : State and Church. A story from antiquity to the present. 2nd edition, Mohr Siebeck, Tübingen 2009.
- Ulrich Rhode: Lecture on Religion and Religious Communities in Public Law (Philosophical-Theological University Sankt Georgen Frankfurt am Main) (PDF; 520 kB)
- Christian Ruch: The silent schism. What separates Swiss Catholics from Catholic Swiss. Voices of the time / kath.net
- List of religious communities with the status of a corporation under public law in Berlin (with the date of recognition) on berlin.de
- The canonical articles of the Weimar Constitution, which continue to apply according to the Basic Law
- Paul Fabianek: Consequences of secularization for the monasteries in the Rhineland: Using the example of the monasteries Schwarzenbroich and Kornelimünster . Verlag BoD, Norderstedt 2012, ISBN 978-3-8482-1795-3 , p. 6 and attachment Arrêté portant suppression des ordres monastiques et congrégations régulières dans les départemens de la Sarre, de la Roër, de Thinet-Moselle et du Mont- Tonnerre (1789).
- See BVerfGE 83, 341 - Bahá'í .
- Religious and ideological communities. BMI , November 20, 2014, archived from the original on July 13, 2015 ; Retrieved November 20, 2014 .
- Cf. “List of churches and religious communities recognized as corporations in Berlin” in the web links
- Press release of the Federal Administrative Court of June 26, 1997: No recognition of the Jehovah's Witnesses as a public corporation. June 26, 1997, accessed June 11, 2020 .
- Principle judgment: State must treat Jehovah's Witnesses like Catholic Church. Der Spiegel , March 24, 2005, accessed November 5, 2010 .