Gerhard Robbers, State and Church in Germany in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 109 - 124

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5,

Bibliographic information
State and Church in Germany Gerhard Robbers Social Facts Within Germany there are two major Churches which are nearly equal in size and importance. The German population amounts to about 83.0 million in total; the Catholic Church has about 23.3 million members, while the Protestant Church has 21.5 million members. The Protestant Church consists of numerous separate territorially based Landeskirchen, each of these Churches being an independent unit. Together they form the Evangelical Church in Germany. There is also a number of smaller Protestant Churches that have chosen to stay outside this federation; they are known as the Freikirchen (Free Churches). The Protestant Churches are either Lutheran or Reformed Churches; some follow a unified confession, shaped in various ways from these two creeds. Orthodox Christians amount to about 2 million. Approximately 5.1 million inhabitants of Germany are thought to be Muslims. The Jewish communities consist of about 100,000 members. There are also many smaller religions in the country, some having a long established tradition in Germany, others having been in Germany for only a short while. Their membership is estimated at about 2.4 million persons. There is also an estimated 27.1 million inhabitants of Germany who profess themselves to be without any confession.1 The confessional viewpoints in Germany tend to change very rapidly as a result of social developments as well as of immigration, so that estimates remain uncertain and tentative. Historical Background The religious situation in Germany, even today, is strongly influenced by the Reformation which began in 1517. The relationship between the Lutheran Reformation and the territorial sovereignty and activities of the local princes led to the existence of the Landeskirchen of today, for the I. II. 1 109 supreme bishops of such Churches were often the local sovereigns themselves. They worked out a close relationship between the Throne and the Altar that existed until 1919. Since the Middle Ages the Catholic Church had possessed a great deal of direct secular sovereignty and power. The archbishops of Trier, Cologne and Mainz were themselves Prince Electors of the Holy Roman Empire; their worldly power was not very different from that of other Electors. These positions of sovereignty came to an end with the Reichsdeputationshauptschluss of 1803; a sort of recovery of damages was made by the majority of the lords of the "right of the Rhine", as a result of the Peace of Lunéville of 1801, for their "left of the Rhine" losses to France. In the process, the worldly sovereignty of the ecclesiastical princes was abrogated and the majority of their territory re-allocated. The property of the Catholic Church was for the most part secularised, so that not much more remained than the property belonging to local parishes. In the Religious Peace of Augsburg of 1555, the Lutheran and Catholic confessions were recognised as essentially equal. At the end of the Thirty Years War, 16181648, both religious parties emerged without victory. Even today, the territorial distribution of religious congregations is enduringly marked by these events. Throughout the 19th century, the ties between the State and the Protestant Church were gradually loosened. The Weimar Constitution of 1919 resulted in the establishment of a separation of Church and State, nevertheless recognising and allowing for the existence of cooperation in matters such as religious instruction in the public school system, the Church tax and military chaplaincy. Acknowledging responsibility for the murder of millions of European Jews by Nazi Germany in the 1940s has led Germany to give to the Jewish religious communities, though still small in numbers, a very visible role in society. Legal Sources Article 4 of the Basic Law guarantees the freedom of religion. Freedom of faith, of conscience, and freedom of creed, religion or ideology, are inviolable. The undisturbed practice of religion is guaranteed. These individual rights guaranteeing the free existence of religion are complemented by and spelt out in Article 140 GG. These norms incorporate Articles 136139 and 141 of the Weimar Constitution of 11 August 1919 into the Basic Law, so that they are fully fledged constitutional rights. Moreover, Article 7(2) and (3) of the Basic Law guarantees religious educa- III. Gerhard Robbers 110 tion in the public schools. Numerous other regulations, such as the existence of theological faculties at State universities, are contained within the constitutions and other laws of the Bundesländer (Federal States). A large part of Religions-State relations in Germany is assigned to the competence of the Bundesländer. The detailed arrangements of the constitutional foundation for a Religions-State system are established in numerous regulations in the legal provisions ranking below the Basic Law. The Federal Republic of Germany and its Bundesländer have established many concordats and ChurchState treaties with the Churches in Germany.2 In relation to the Catholic Church, the Reichskonkordat of 1933 is an essential basis which is recognised as a treaty under international law. Church-State treaties with the Evangelical Church and those made with Catholic dioceses are sui generis but are treated as being in a category similar to that of international treaties. The subject matter of such treaties include the cooperation between the State and the religions, the guarantees and arrangements for religious education in public schools, the theological faculties, the military chaplains and the position of the Church in the public sphere, such as the financing of religious parishes. Treaties or agreements also exist with a whole range of smaller religious congregations, including Jewish as well as some Muslim communities. Basic Categories of the System Under the Church-State systems of Europe, Germany takes a middle of the road approach between that of having a State Church and having a strict separation between Church and State. The Basic Law lays down a system under which there is a separation of Church and State while at the same time a constitutionally secured form of co-operation exists between the two institutions. This is done in order to care cooperatively for the needs of the people. The legal basis of the German State-Church system is therefore structured around three basic principles: neutrality, tolerance, and parity. Neutrality requires the State not to identify with a Church; there is to be no Established Church (Art. 137(1) WRV in conjunction with Art. 140 GG).3 The State is not allowed to have any special inclination to a particu- IV. 2 Cf. Joseph Listl (ed), Konkordate und Kirchenverträge in der Bundesrepublik Deutschland, 2 vols., 1987. 3 Cf. also Art. 136 WRV in conjunction with Art. 140 GG, Art. 4, 33(3) GG. State and Church in Germany 111 lar religious congregation or to judge such a congregation's particular merits or ideologies to be true. Ideological institutions are to be on equal footing with religious institutions; this deals with congregations which have a humanistic ideology or a position without reference to the question of a God or gods. This has however had only minimal social consequences. On the other hand, religious institutions must not be placed in a more disadvantageous position than societal groups; this prohibits a decision in favour of State atheism. Neutrality therefore also means non-intervention: the State is not allowed to take decisive action in the affairs of religious communities. This is made particularly clear in Article 137(3) WRV: Every religious community regulates and administers its affairs independently within the limits of the law that applies to all. This right of self-determination is valid, regardless of the legal status of the religious congregation. The principle of tolerance obliges the State not only to be impartial as between all the different religious views, but also to maintain a sphere of positive tolerance that makes room for the religious needs of society. Parity, as the last of the principles, means the obligation to treat all religious communities equally. This means that through a constitutional differentiation of legal status, a sort of graded parity exists that provides an adequate basis for dealing with the various social phenomena. This parity is a specific, grouporientated shaping of the idea of equal treatment that finds its historical roots in the equality of confessions – the result of the religious wars of the 16th and 17th century. These basic principles are also to be seen in the setting out of the freedom of religion according to Article 4 GG. It is here that one finds the requirement of positive tolerance. Freedom of faith is guaranteed in order to give every individual the right to believe what they will. Also included is the freedom of faith in a negative aspect, that is the right not to have a creed and/or not to belong to a particular religious faith. Religious freedom also guarantees the right to act according to one's beliefs. As a result, e.g., the civil law provisions on the structures of an associations have to be interpreted in a way that allows the Bahá'i community to organize in a way compatible with its religious teaching. Freedom of faith in the sense of positive tolerance also allows for the possibility of the State offering in public schools the opportunity for interdenominational school prayer, notwithstanding that such functions have been decreasing largely in recent times. Participation must be completely voluntary. The State must make sure that it provides for an atmosphere of tolerance. The State in certain circumstances, in which it has control over a person's surroundings, such as when one is obliged to attend school, is required to provide for the religious needs of those persons put into such a Gerhard Robbers 112 position.4 This applies equally to the National Defence Force and penal institutions. Religious institutions may also rely on the freedom of faith, which exists as a collective right. The Legal Status of Religious Communities The religious communities with large memberships in Germany, and also a considerable number of the smaller religious communities, have the status of public law corporations. Under various diverse individual arrangements, Church parishes, dioceses, Landeskirchen and Church federations are considered public law corporations. Unlike other public law corporations, the religious communities with this status are not integrated into the State structure. They retain their complete independence, even as public corporations. Under this legal norm, no particular identification between the Church and State is intended: quite the contrary, as the State's view accepts that circumstance as a justification for the religious communities being part of public life. Only a few particular rights are associated with this status. Every religious community, upon application to the responsible federal state, will receive the status of a public law corporation, when they can prove through their bye laws and the number of their members that they are indeed a permanent community (Art. 137(2)(2) WRV; Art. 140 GG). In the struggle of Jehovah's Witnesses for recognition as a public law corporation the Federal Constitutional Court has stated that a general loyalty to the law is also required to obtain this status. Other religious communities receive their legal capacity as a result of civil law. Their status will be at least that of a private registered association, if they want to obtain legal capacity at all. As a result of the guarantees of freedom of faith, the peculiarities of a religion must be taken into account; where necessary, the civil law conditions must be adjusted to meet the religious requirements.5 Consequently the Federal Constitutional Court has seen it to be a constitutional requirement that, contrary to the general requirements of civil law, a local spiritual advisory board of the Bahá'i that applies for legal status should be entered in the register of associations, even though it is considered not to be independent of other organs of the Bahá'i religious movement. V. 4 Cf. BVerfGE 52, p. 223. 5 Cf. BVerfGE 83, p. 341. State and Church in Germany 113 The Meaning of Religious Community and the Right of Self-Determination The right to self-determination (Art. 137(3) WRV, in conjunction with Art. 140 GG), may be considered to be the central reference point for the legal and social existence of religious communities; the provision calls them religious societies without introducing a special meaning. Religious societies must regulate and administer their affairs independently within the limits of the law that applies to all. Every religious community may, then, regardless of its legal status, manage its own affairs independently. This right of self-determination covers such things as religious dogma and teaching, making official appointments, religious services, the organisation of charitable activities, matters concerning the important parts of the relationship between employer and employees, and data protection. The list of possible examples should not mislead one into supposing that the right of self-determination is not all encompassing, nor should it be taken to suggest that the operating spheres of the Churches are to be restricted into certain defined areas. The meaning and formulation of the limits of the right of self-determination is not uncontroversial. It exists only within the boundaries of the law that applies to all. For some time, the Federal Constitutional Court used the formula that a law would not be contrary to the right of self-determination of religious communities when the law did not particularly affect the religious community but instead affected everyone. Subject to that, a law breaches a Church's right of self-determination when the Church itself is not affected to the same extent as everyone else, but rather, within its special qualities as a Church, its self-identity and in particular its spiritual religious duty is subject to particular disadvantages. More adequate is another formula created by the Federal Constitutional Court whereby the right to self-determination cannot prevail against an general law that represents a provision of particular importance to the common weal.6 It is important for the understanding of this matter to note that the Federal Constitutional Court attributes major importance to the Church's selfidentity: what is meant by the Church's affairs is determined particularly by how the Church itself views its own affairs, although the competence to take a final decision on the basis of the Basic Law is still reserved for the State Courts. The central relevance of the right of self-determination of a Church must furthermore be taken into account when defining the boundaries of this right. VI. 6 Cf. BVerfGE 42, 312/334; 66,1/20. Gerhard Robbers 114 A Church's right of self-determination is not restricted to a narrowlydrawn field of specifically "ecclesiastical" activities. The idea of freedom of religious practice extends to preserve the right of self-determination in other areas that are also based on religious objectives, such as the running of hospitals, kindergartens, retirement homes, private schools, and universities. In very substantial ways, the large churches in Germany provide social services, particularly in the form of the Caritas of the Catholic Church and the Diaconal Works of the Evangelical Church. Without these services, the guarantees of a social State in Articles 20(1) and 28(1) GG would be mere empty platitudes. All these activities are part of what religious communities and the Church really means. The service rendered by the Churches is also understood by State law to be a single whole. The right of self-determination is therefore not merely attributed to a Church itself as a distinct entity, but instead it is something common to all institutions which are connected in some way or another with the Church regardless of the legal form taken by those links. This is true so long as, according to their selfidentity, their goals or duties are suitably carried out and are held to be true mandates of the Church.7 Taking also into account the status of a public corporation, this approach has led the Federal Constitutional Court to regard religious hospitals as enjoying a special position in the context of the State's insolvency laws, even when according to the hospitals' statutes they are only loosely associated with the particular organised Church. It would not be compatible with the idea of the right of self-determination that a judicially ordered administrative receiver should act within the particular structure or organisation of a religious establishment.8 The space which the framework of the right of self-determination offers to the religious communities has been used by the large Churches in Germany to work out their own detailed and voluminous internal legal systems with their own peculiarities and particular Church emphases, which operate in parallel with State law. Within the framework of the right of self-determination, there is also a jurisdictional system belonging to the Church. So far as the right of self-determination applies, the jurisdiction of the Church is exclusively the Church's own affair and Church matters settled internally are not reviewed by the public courts. In detail, however, there is still much that is a matter of debate. New developments indicate 7 Cf. BVerfGE 70, 138/162 with further references. 8 Cf. BVerfGE 66, p. 1. State and Church in Germany 115 that the State courts are becoming more ready to interfere in church matters, but they give ample space to the right of self-determination in assessing each individual case. Churches and Culture The large Churches in the Federal Republic of Germany operate a significant number of private schools. The majority of them are recognised as replacing public schools. This means that they offer a standard of education equal to that offered in State schools. As a result, they are made subject to various important regulations that apply to the public schools. The entire school system of Germany exists on the basis of Article 7(1) GG and is thus under the supervision of the State; compared with the number of State schools, Church or other private schools or educational establishments form a small minority. Concerning the financing of private schools, the Churches, like other organisations running private schools, receive public funding. The large Churches operate a considerable number of kindergartens for children between about 4 and 7 years of age. According to Article 7(3) GG, religious instruction in public schools, with the exception of non confessional schools, is to be a standard subject. Notwithstanding the State's right of visitation, religious education is to be conducted in accordance with the guidelines of the religious communities. No teacher is obliged, against his or her will, to teach religious education. Parents or guardians have the right to control the participation of their children in religious education; in principle when the child reaches the age of 12 years, the parental decision is not allowed to conflict with the child's. Upon reaching 14 years of age, the child may decide for him or herself. Religious education, according to the requirements of Article 7(3) GG, is to be a standard subject in public schools, and it is therefore not permissible to put it into the position of simply a minor or an optional subject. The content of religious education is to be decided by the confessional teachings of the relevant religion. When a minimal number of students of the same confession is reached, normally between six to eight pupils, a public school is obliged to offer corresponding religious education. Children, parents and religious communities have a constitutional right to such educational services. A question not yet adequately settled relates to the religious instruction for Muslim school children; despite a basic standing entitlement to such religious instruction, claims for the service often founder because of the lack of representation on the part of the Islamic communities. A large vari- VII. Gerhard Robbers 116 ety of different approaches have been introduced in the various schools to provide religious instruction for Muslim pupils. There are more than 700,000 Muslim pupils in German schools. Pupils are allowed to wear religious symbols such as the Muslim headscarf in public schools; the full face veil, however, is not accepted. The same applies in most of the federal Länder for teachers. Some Länder, however, forbid teachers in public schools from exhibiting religious symbols in class to varying extents. This highly controversial issue relates predominantly though not exclusively to the Muslim women's headscarf. At numerous public universities there are theological faculties of a specific confession and also an increasing number of departments of Islamic theology. In a variety of differently fashioned State-Church agreements, the Churches have a more or less determinative influence upon the appointment of professors and on the curriculum and examinations. In this area the Catholic Church enjoys a greater area of control than does the Evangelical Church. The professors of the theological faculties at State universities are State officials; nevertheless at Catholic faculties they need the missio canonica from the Catholic Church. If it is withdrawn, the particular professor is not allowed to remain a member of the theological faculty. He or she will however still retain the rights and duties as a State official and must be given another position within the university. For vacant theological professorships, the State is obliged to find the necessary replacement. Moreover, the large Churches also have their own theological faculties. The Catholic Church has its own university in Eichstätt, which also has a significant number of non theological faculties. There is also a large number of Church run colleges, offering an education that is more vocationally orientated than that of a university. It is part of the special position of the Churches that they have a special so-called public mandate. This public mandate is secured by State-Church treaties and has its foundations in the religious freedom of the Churches. This accordingly allows them to have a say and a right to information in the matters and affairs of public life. On the basis of their public mandate, religious institutions have designated timeslots on television and radio. They are also, as a result, given a representative position on the supervisory boards of public institutions where a particular societal representation is necessary. The Churches' position is relevant to the broadcasting commissions of public broadcasting corporations such as ZDF, ARD and the Landbased broadcasting corporations, the supervisory commissions for the private television and radio stations, and also appraisal and classification boards in order to identify and restrain scripts and films that are deemed harmful to young viewers and listeners. Mirroring their historic and cul- State and Church in Germany 117 tural impact, the Jewish communities usually also have representation in these bodies. Also, the Muslim population is represented here. Labour Law within the Churches The large Churches of the Federal Republic of Germany employ together more than 1.3 million persons: this is evidence of the importance of their position as employers. As public corporations, the Churches are considered to be entitled to confer public office. This means that they are able to have employees who are considered to be civil servants; reciprocally Church administrations are structured along the same lines as their State counterparts. The Churches frame their own civil service law along the same lines as the public civil service law, even in respect of salaries and benefits. For priests and ministers, a separate service law is in force that also mirrors public civil service law as far as possible, considering the special context. However, for the large majority of the employees in the service of a church, normal labour law applies. It is nevertheless modified in many circumstances, on the basis of the Church's right of self-determination and its particular religious context. Freedom of religion demands that the special conditions which result from the duties of the Churches must be taken into consideration when examining their labour status. A particular expression of this is in that Church employees owe a particular obligation of loyalty to their Church employer. It is the Church itself which, within the constitutional framework of the notion of ordre public, good faith, and prohibition of prejudice, determines the contents of these obligations. The right of self-determination of the religious communities allows the Churches, within the limits of the law that applies to all, to regulate Church working conditions according to their own terms and to make obligatory specific duties of the Church employees. Which basic duties of the Church are important as part of the terms of employment is judged according to the organised Church's own acknowledged standards. In cases of dispute, the labour courts have to respect the standards of the Church in assessing contractual obligation of loyalty, insofar as the Basic Law recognises the right of the Church to determine the matter internally. It is thus normally left to the organised Church to decide what is required for the credibility of the Church and its teaching, what the specific Church duties are, what are essential principles of the faith and morality, and what is to be considered contrary to these norms. In the case of a violation of such an obligation of loyalty by the employee, the public labour courts are VIII. Gerhard Robbers 118 the final judge of whether termination of employment of a Church employee is justified or not.9 As a result of their religious mandate, Churches have the right to give notice to an employee when in their public way of life or in their publicly expressed opinions they act contrary to Church teachings. The Federal Constitutional Court ruled that it was constitutional to give notice of termination to a physician employed at a Catholic hospital who had publicly taken a stance against the Church on television and in a magazine concerning the right of women to have an abortion. This decision was reaffirmed by the European Commission of Human Rights.10 More recent decisions show an increasing tendency of state courts to stricter scrutiny as to the appropriateness of termination.11 In the sphere of collective labour rights, the Churches are also in a special position as a result of the notion of freedom of religion and consequently the right of self-determination. Their structures are not subject to the public co-determination laws.12 The State is in principle not allowed to intervene in the internal organisational structures and setup of the Churches.13 The Churches have developed the so-called third way in this area. They understand their vocation, especially in the area of charity, as part of one undivided, religiously based commitment. This in principle makes it impossible for them to accept a legal structure of labour relations which is based on the idea of a fundamental opposition between employer and employee. The Catholic Church along with most of the Protestant Churches therefore rejects the conclusion of agreements through collective bargaining with trades unions.14 Within the Church structure there is in general, although highly controversial, no right to strike, just as there is no possibility by way of internal Church decision of locking out employees. The Churches have created their own system of employees' representation and co-determination. It confers, to a considerable extent, more extensive rights on their employees than does the public co-determination system. 9 Cf. BVerfGE 70, p. 138. 10 Cf. BVerfGE 70, p. 138; EKMR, 12242/86, decision of 6 September 1989. 11 Cf. BVerfGE 137, p. 345. 12 § 118 BetrVerfG; § 1 IV MitbestG. 13 Cf. BVerfGE 53, p. 366/400. 14 Some Protestant Landeskirchen (Nordelbien, BerlinBrandenburg) have concluded collective bargaining agreements for their employees instead. State and Church in Germany 119 Financing of Churches As a result of repeated expropriation of church property in the past, the Churches in Germany now have only a relatively small amount of property. As compensation for the secularisation following the Reichsdeputationshauptschluss of 1803, a series of government decisions guaranteed funds for the Churches. They are guaranteed by Article 138(1) WRV in conjunction with Article 140 GG. This provision also envisages the ending of those payments which are necessarily linked to the payment of compensation; this so far has not been pursued on grounds of impracticality. In addition, other subsidies granted by the State are often related to long standing claims of the Churches; an important example is the fact that the local authorities must discharge their public duty to contribute to the maintenance of church buildings. Likewise, on the basis of contractual terms, there are some obligatory contributions to be made by the State to the Church, such as subsidies to the salaries of Church officials. Approximately 80% of the entire Church budget, however, is covered by the Church tax; guaranteed by Article 137(6) WRV in conjunction with Article 140 GG. On the basis of the civil tax lists, in accordance with the law of the Länder, the religious communities that are public corporations are allowed to levy taxes. The large Churches have made ample use of this opportunity, but smaller religious communities with the status of public corporation, such as the Jewish communities, have also done so. Only members of the particular Church authorised to levy the Church tax are obliged to pay. The Church tax was instituted in the course of the 19th century in order to relieve the national budget of its obligations to the Churches, which were in turn based on the secularisation of Church property. Those desiring to be free of the tax may achieve that result by leaving the Church. Withdrawal from the Church is effected by de-registering with the proper State officials and simply means that one has, according to the State classification, officially ended one's membership of the particular Church in question. However, most Protestant Churches see the withdrawal as a withdrawal from their particular Church as well. The Catholic Church, as a general rule, views the withdrawal as a serious violation of the person's obligations to the Church, without bringing into question the theological dimension of Church membership. The rate of the Church tax is between eight and nine per cent of the individual's wage and income tax liability. Other tax standards may also be used. Although this concept is not a requirement, in most cases the Church tax is collected by the State tax authorities for the larger Churches, IX. Gerhard Robbers 120 as a result of an arrangement with the State. For this service, the Churches pay between three and five per cent of the tax yield to the State by way of compensation. If a Church member refuses to pay the required tax, legal means can be used to collect the tax; the Churches however are not required to pursue legal action in the case of non payment. In so far as the Church tax is tied to the income tax of employees, the employer will directly provide the financial authorities with the Church tax along with income tax. Because of the links with State taxes, tax exemptions also affect the Churches' own Church tax. It is estimated that about one third of all Church members pay no Church tax because they are not liable to income tax. In some cases the Churches attempt to make this good by demanding an alternative contribution to the Church, which is independent of income tax. A further important source of income for some Church institutions is being part of the general public funding systems. Church-run hospitals, which in some parts of Germany make up the majority of the available hospital beds, are thus part of the publicly run financing systems for hospitals, supported mainly by money paid in medical insurance. Further, many Churches receive allocations from the State for activities in the same way as other publicly funded activities: it is part of the idea of State neutrality that Church activities are not to be put in a worse position than that of, say, State funded local athletic clubs. Churches also receive a certain number of tax exemptions. The Church tax and charitable donations to the Church may be deducted from income tax; this applies equally to donations to non-profit organisations. Churches are also not required to pay certain taxes and duties. Religious Assistance in Public Institutions In so far as the need for religious services and religious assistance in the armed forces, hospitals, penal institutions or other public institutions is concerned, the various religious institutions are permitted to undertake such activities. They have a right to give religious assistance in hospitals and for prisoners. Religious activities within the police and the military forces are governed by contracts. Military chaplains are sent from the Churches for a specific time. For the duration of their service they are given the status of State officials; a contractual status is also possible. Their overall superior in matters of their State position is the Head of the Federal Defence Ministry. German military chaplains have the status of normal X. State and Church in Germany 121 civilian State staff without a uniform or military rank. As part of the State administration, there is an Evangelical Church office for the Defence Forces for Protestant military chaplains, and for the Catholics a Catholic military bishop's office. Their sphere of duties is considered to be part of both Church and State administration. In Church matters they are subordinate to their respective military bishop, acting for his Church, and in matters of public administration to the Federal Defence Minister. The Legal Position of Priests and Members of Religious Orders There is in general no special status in State law for priests, ministers, and members of religious orders within the German legal system. There is only a small number of particular considerations. The Federal Constitutional Court has declared it to be constitutional that a religious institution may deny their own Church office holders the right to stand for public office while they exercise a religious office.15 According to State law, the right to vote and to be elected is in no way restricted and there are no legal impediments whatsoever. Such regulation would not be in harmony with Article 3(3) GG, whereby noone on the basis of their faith is to be disadvantaged or privileged. Furthermore, Article 33(3) GG states that the enjoyment of civil rights and the admission to public office and the rights acquired in the civil service are independent of one's confession. No-one as result of their confession or ideology is to be disadvantaged. Similar stipulations are to be found in Article 138 WRV in conjunction with Article 140 GG. This prohibition against discrimination is however independent of the occupation of a religious office. Ordained Protestant ministers and Roman Catholics ordained to the diaconate are exempt from service in the Defence Forces, as are full time active ministers of other denominations. Ordinands are able to defer their Defence Force service (paras. 11, 12 WPflG). Ministers do not have to give evidence, especially in court, concerning events which were made known to them in their function as ministers (e.g. para. 53.1.1 StPO). XI. 15 BVerfGE 42, p. 312. Gerhard Robbers 122 Matrimonial and Family Law Contrary to the position in some other European countries, the Churches in Germany have no competence in the areas of marriage and family law. Marriage according to the German legal system is wholly a civil affair: it takes place in the register office. A different form, especially a religious marriage with legal effect, may be contracted only between foreigners before a body recognised by their home country as having the right to conduct a marriage. For German nationals, a religious wedding in Germany has no civil legal effect. On the other hand, though, everyone is in general free to have a religious wedding service. The formerly existing, yet constitutionally questionable rule which stated that a religious wedding is not to precede the civil marriage has been abrogated in 2007. However, for reasons of protection of minors, religious or traditional acts or treaties which are meant to constitute a relationship between two persons similar to a marriage are illegal if one of the persons has not reached the age of 18. Religion and Criminal Law Religion enjoys considerable protection in German criminal and procedural law. According to paragraph 130(2) of the Criminal Code a person inciting hatred against a religious group in specifically defined ways is punishable by up to three years imprisonment or a fine. Equally punishable is a person who attacks the contents of religious or philosophical beliefs in a way that threatens to disturb the public peace. The same applies to a person who interrupts the worship of a religious community existing in Germany or commits vituperating mischief in a place dedicated to worship by such a community. The ceremonies of philosophical, non-religious communities are equally protected. Interrupting funeral ceremonies as well as disturbing the peace of the dead is equally punishable (paras. 166168 Criminal Code). A person who without being authorised uses titles, ranks, uniforms or ensigns of a public law religious community is liable to punishment of up to one year's imprisonment or a fine. The destruction or suppression of official documents of a public law religious community is punishable by up to two years imprisonment or a fine; in severe cases this rises to up to five years of imprisonment (paras. 132 and 133 Criminal Code). The confessional secret is broadly protected. Clergy are not obliged to report under any circumstances what they have learned in performing spiritual care (e.g. para. 139(2) Criminal Code, para. 53 Criminal Procedure XII. XIII. State and Church in Germany 123 Code, para. 383 Civil Procedure Code, etc.). Under these circumstances they are also not obliged to inform of planned crimes (para. 139(2) Criminal Code). Particular Questions of Civil Ecclesiastical Law In the last 50 years, German State-Church law, thanks also to the (mostly prudent) case law of the Federal Constitutional Court, has proved to have a clearly structured firm basis, and to be able to respond to social needs in particularly suitable ways. Especially Muslim immigration is triggering social and political change that can affect the relationship between religion and the State in general. The challenges of the law on religion will continue to include the accommodation of new religions and non-religious groups, in particular defining the status of Islam on one hand, and coping with the impact of widespread lack of religious interest on the other: important tasks that lie in the future. XV. Bibliography Axel Frhr. von Campenhausen, Heinrich de Wall, Religionsverfassungsrecht. Staatskirchenrecht, Munich 2019. Gerhard Robbers, Religion and Law in Germany, 2. ed. Alphen an den Rijn 2013. Axel Frhr. von Campenhausen, "Religionsfreiheit", in Josef Isensee/Paul Kirchhof (ed.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol. VII, 3. ed. 2009, p. 597. Stefan Mückl, Grundlagen des Staatskirchenrechts, ibid., p. 711. Stefan Mückl, Der verfassungsrechtliche Schutz kirchlicher Organisation, ibid., p. 791. Stefan Mückl, Freiheit kirchlichen Wirkens, ibid., p. 831. Joseph Listl (ed.), Konkordate und Kirchenverträge in der Bundesrepublik Deutschland, 2 vols., 1987. Joseph Listl/Dietrich Pirson, Handbuch des Staatskirchenrechts der Bundesrepublik Deutschland, 2 vols., 2. ed. 1994. Periodicals: Archiv des katholischen Kirchenrechts Zeitschrift für evangelisches Kirchenrecht Kirche und Recht XIV. Gerhard Robbers 124

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Churches as essential components of European culture have major significance for European integration. A Europe, bound by common constitutional traditions, cultures and traditions of its Member States, their national identity and the principle of subsidiarity, will have to respect the deep-rooted systems of State and Church relationships in its Member States.

The volume presents in its second edition a broad comparison of different systems of State and Church relationships in the Member States of the European Union. It includes the new Member States and gives an account of the new developments throughout Europe. The volume shows the implications of European integration on the position of the Churches. It is of interest to all working in the field of State-Church relationship as well as to public and church institutions.

The volume has been produced in association with the European Consortium for State-Church Research. The authors are experts in the field from the different Member States of the European Union, presenting the relevant systems of their home countries. The editor is professor for public law at the University of Trier and head of the Research Centre for European Constitutional Law.


Im Prozess der europäischen Einigung kommt den Kirchen als wesentlicher Bestandteil der europäischen Kultur eine besondere Bedeutung zu. Ein Europa, das den gemeinsamen Verfassungsüberlieferungen, den Traditionen und Kulturen der Mitgliedstaaten, ihrer nationalen Identität und dem Grundsatz der Subsidiarität verpflichtet ist, wird das gewachsene Staatskirchenrecht seiner Mitgliedstaaten zu respektieren haben.

Die 2. Auflage bietet einen umfassenden Vergleich der unterschiedlichen staatskirchenrechtlichen Systeme in den Mitgliedstaaten der Europäischen Union. Der Sammelband berücksichtigt auch die neuen Mitgliedsländer und beschreibt europaweite Entwicklungen. Er macht deutlich, wie sich die europäische Integration auf die Stellung der Kirchen auswirkt. Das Werk ist für jeden, der im Staatskirchenrecht arbeitet, aber auch für staatliche und kirchliche Institutionen von Interesse.

Das Buch ist in Zusammenarbeit mit dem Europäischen Konsortium für Staat-Kirche-Forschung entstanden. Die Autoren, führende Staatskirchenrechtler aus den verschiedenen Mitgliedstaaten der EU, erläutern die religionsverfassungsrechtlichen Systeme ihrer Heimatländer. Der Herausgeber ist Professor für öffentliches Recht an der Universität Trier und Leiter der Forschungsstelle für Europäisches Verfassungsrecht.