Continuity and Flexibility
Where Does the German Constitutional Law
on State-Church-Relations Go?
From: Herder Korrespondenz, 4/2007, P. 209-211
webmaster's own, not authorized translation
The edition of this year's "Essener Gespräche zum Thema Staat und Kirche" (Essen discussions about state and church) (12/13 March 2007) was about the future prospects of the German constitutional law on state-church-relations. It is challenged by the Islamic presence in the Federal Republic as well as by the uncertain religious situation altogether. But fundamental changes of the religion related law are not in sight.
The "Essener Gespräche zum Thema Staat und Kirche" is a meeting rich in tradition. This year after all one met for the forty second time under the patronage of the bishop of Essen: Lawyers in the service of the Protestant and Catholic Church, lawyers from the public administration, university lawyers from emeritus up to scientific assistant - not only, but primarily from the Federal Republic. The topics the two-day exchange is dedicated to are of different nature. So in the last years it was about the protection of historic monuments, about fundamentalism, marriage and family, but also - on the occasion of the 200th anniversary of the Reichsdeputationsshauptschluss of 1803 - about secularization.
Current Developments Challenge the Constitutional Law on State-Church-Relations
Three years ago the Essen discussion had dealt with "Religions in Germany and the Constitutional Law on State-Church-Relations" and had thereby tackled questions concerning the core of the relation between state and religious communities and its legal arrangement. This time it was about a similarly fundamental question, under the title "The Constitutional Order for Religion and Church in Contestation and Probation". Hence one had chosen top-level experts and invited the chairman of the Protestant Church in Germany, Bishop Wolfgang Huber, as well as the justice of the Federal Constitutional Court Udo de Fabio, who has been in office since 1999. The third in the trio was the young Bonn lawyer Christian Waldhoff, professor for Public Law and director of the there Canon Law University Institute.
There is hardly any other country in the world where such an abundance of treaties between state and church exists as in the Federal Republic - not least because of its federal structure. A relevant collection of texts (Die Konkordate und Kirchenverträge in der Bundesrepublik Deutschland, Berlin 1987) fills two thick volumes; in the meantime the treaties between the churches and the new Lands of the Federal Republic are to be added. Likewise a heavyweight is the "Handbuch des Staatskirchenrechts" , the second edition of which, was published in 1994 (edited by Joseph Listl and Dietrich Pierson), and many of its authors rank among the regulars of the "Essen Discussions".
The German treaties between state and church partly go back to the time of the Weimar Republic, which (particularly for the Protestant Church) meant an important turning point for the relation of state and church. The Weimar Reichsverfassung of 1919 among other things brought for Germany the end of the state church, the recognition of "religious communities" as public corporations as well as the principle that they organize and manage their "affairs independently in accordance with the law as it is in force for everyone" (article 137, WeimRVerf).
The "church articles" of the Weimar Reichsverfassung (136, 137, 138, 139 and 141) were then by article 140 GG taken over into the Basic Law of the Federal Republic and are thus until today valid constitutional law. Added to it are: article 4 in the fundamental right part of the Basic Law (paragraph 1: "The freedom of faith, of conscience and of the freedom of the religious and world-descriptive (ideological) profession are inviolable") as well as article 7, which in paragraph 3 guarantees the confessional religious instruction as full subject of instruction at public schools. Article 4 GG on the one hand and article 140 GG on the other hand are still the main pillars of the German state-church-relations.
In the last years above all three developments let the question about its future become virulent. On the one hand there are the problems of religion related law resulting from the grown presence of Islam in Germany, on the other hand the development of the two large Christian churches, which unmistakably suffer from inner erosion, but at the same time see themselves confronted with high political and social expectations and accordingly insist on their public role. Finally the European dimension comes more and more into play, as it became respectively becomes particularly apparent by the discussions about the place of the churches and religious communities in the treaty on the constitution of the European Union.
On 12 December 2006 the Federal Minister of Justice Brigitte Zypris (SPD) in the Berlin Humboldt University delivered a programmatic speech on the relation of religion and state, in which the present discussion on politics and religion is reflected. Thus one referred several times to this lecture during this year's "Essener Gespräch".
The Minister of Justice spoke of the secular constitutional state as a result of the separation between secular and religious power, and about the fact that with increasing religious variety in German society it was less probable "that our State Law reflected those religiously justified values shared also by the individual person". She pleaded for a new thought about the freedom of religion, and "about the area of conflict between state neutrality, religious tolerance and a minimum of rules which all people guarantee for a peaceful living together".
At least indirectly she shook the foundations of the given constitutional order of state-church-relations when dealing with the topic of religious education. The Minister of Justice did not declare herself against denominational religious instruction, she rather expressly voted for the teaching of Islam as subject of equal rights. But at the same time she endorsed an instruction prescribed by the state in which "all pupils learn something about all religions - and this together and not denomination-oriented", and in this connection repudiated any criticism of the introduction of the compulsory subject 'ethics' in Berlin (see HK, May 2006, 220f., and HK, November 2005, 544f.): There was no exclusive claim of the religions to teach values.
The Modern State and its Christian Preconditions
Wolfgang Huber, who as bishop of Berlin and Brandenburg is directly confronted with the there controversy about the status of religious instruction, used his appearance at the "Essener Gespräch" for an offensive plea for co-operation of state and religious communities, as it is enabled by the German constitutional law on state-church-relations . In Germany the relation of state and religions had been developed in the sense of a proper vis-à-vis of the secular community and of legally independent religious federations in a "specific connection of individual, corporative and institutional freedom of religion".
As foundation for an appropriate relation of church and constitutional order he emphasized freedom as concept of the Christian certainty of man's salvation as well as of the state legal order: "These two concepts of freedom are to be distinguished from each other. But in the relation of church and constitutional order of the Basic Law they are at the same time related and correspond to each other." Christian freedom aspired after social circumstances and a constitutional order in which the development of this freedom was possible.
The chairman of the EKD, author of among other things a large work about church and public (1973), canvassed for the public task of the church in the democratic community. The mutual independence of state and church did not mean that religious matters were banished from the public area: "Rather the liberal democratic state recognizes the great importance of religion in the process of the formation of values and convictions. In spite of all secularity and religious neutrality it needs a social-ethical foundation."
At the same time the church's social commitment must always remain recognizable as expression of the church's life. In all Huber drew the conclusion the clearer perception of religious plurality in our society provided no reason to question or to modify "the relations between religious communities and constitutional state founded on freedom of religion - quite on the contrary".
Wolfgang Huber approached the topic constitutional law on state-church-relations from the perspective of the church respectively of the Christian freedom message, whereas the justice of the Federal Constitutional Court Di Fabio argued more in -philosophy of law and culture, but he reached similar conclusions. He, too, answered the question (asked at the beginning of his lecture) whether the cooperative proximity between state and church was still up-to-date, with a clear 'yes', but with it connected demands both on the state and on the church.
In his much noted book "Die Kultur der Freiheit" (München 2005) Di Fabio (himself a Catholic) dedicated a chapter of its own to the "religious communities" (164-184). There he acknowledges that the religious communities are a "constant reminder of the one-dimensional view of the modern project" (167) and asks for the indispensable contribution of the religious communities to the "preservation of the cultural foundations of a humane society" (174), a contribution that at the same time is endangered by lay trends and the loss of power of the churches. At the same time he underlines that the neutrality of the modern constitutional state towards religion was not "unconcern and cold indifference, less than ever the political institutionalizing of the anti-religious affect" (173): Respect for the "old institutions of the large churches" (270) was a first and important task in times of missing respect and sense of history.
At the "Essener Gespräch" Di Fabio now in this sense insisted that the state of the modern age remained bound to Christianity without therefore being a Christian state. It rather had introduced spiritual basic patterns of Christianity into the secular sphere by proceeding from the primacy of the individual person instead of the collective. Today is was above all necessary to promote in a "second enlightenment", i.e. a reflected enlightenment, against a liberty getting out of hand the individual's self-restraint and communities arising from that attitude, hence just religious ones. In the state's relation to the individual religious communities a "judging differentiation" was quite possible.
Addressing the churches the justice of the constitutional court in the discussion about his lecture said that the further meaningful co-operation with the state presupposed that the churches - like on the other hand also the state which at present structurally overtaxed itself - were certain of their identity. At the same time he recommended to the churches to stand up self-confidently and with passion for their mission and to show missionary vigour. In another passage he had pointed out that the state-church-relations were bound to a living relation between Christianity and legal culture.
Freedom of Religion with Legal Reservation of Restrictions?
"The question about the future of the state-church relations is the question whether its legal norms are suitable and sufficient to deal with the present and future problems in the state-religion field of tension." Thus in plain German legalese runs the first guiding principle of Christian Waldhoff's paper that was to outline perspectives for the German constitutional law on state-church-relations for this year's "Essener Gespräch".
On the one hand he foresaw a dilemma for these state church relations: "In case the range of application of the institutional regulations shrinks they do not lose their normative validity but they lose their constitutional legitimacy." On this background Waldhoff recommended a "well-balanced openness for development" in their application serving the stabilization of the norms. By it though the proprium of the system of the German constitutional law on state-church-relations was not allowed to be lost. At the same time - with reference to the famous, already in 1967 formulated dictum of the former justice of the constitutional court Ernst-Wolfgang Böckenforde ("The liberal, secularized state lives on conditions that cannot bye guaranteed by it.") - He pointed out that the preconditions of the constitution for constitutional law on state-church-relations could not be forced.
On the other hand in view of the further development of the state church relations Waldhoff pleaded for a "concept based on the division of labour" between the fundamental right to freedom of religion and faith guaranteed in article 4 GG and the institutional regulations in article 140 GG (taken over from the Weimar Reichsverfassung). In a religiously plural society the "loading and overloading" of the Basic Law, he said, met with limiting factors. In this connection he mentioned considerations to supplement article 4 GG with a reservation of law. That had the advantage, "that the parliamentary legislator could regulate relevant conflicts".
Finally the Bonn lawyer thought it advisable to "differentiate more between the constitutional framework and the scope for political realization". The institutional regulations of the state church relations partly had the character of an offer to the religious communities, for instance to get the status of a public corporation, which so far Islamic organizations in the Federal Republic do not have.
On the one hand, so Waldhoff, the relevant regulations could not be removed from "their historical foil and at will be cut out for the needs and requirements of communities up to now not at home yet". On the other hand constitutional limits were imposed on the state, led by utilitarian thinking, to press religious communities also to accept "the requirements of this normative offer". Waldhoff asked his listeners to take into consideration that the "possibilities of realization below the constitutional level" were probably not yet finally sounded out and referred to the problem of Islamic religious instruction as a case of application for it.
Besides on the European level one had obviously realized that the constitutional law on state-church-relations, which to a considerable extent depend on historical and cultural conditions, elude any standardization. The European dimension had already been addressed by Bishop Huber: It was necessary to respect the individual, the corporative and the institutional freedom of religion together with the religious neutrality of the state and the common responsibility of state and religion for the community also in the European context.
Several times at this year's "Essener Gespräch" the point at issue was the at present also on other occasions among experts controversially discussed question whether it was not necessary - because of the enlarged religious plurality in Germany - to abandon the traditional concept "constitutional law on state-church- relations" in favour of a "constitutional law on religion" (see Staatskirchenrecht oder Religionsverfassungsrecht?, Christian v. Walter / Hans M. Heinig [editors], Tübingen 2007). The view prevailed that one was not to lead a dogmatic controversy about conceptions and for pragmatic reasons it could be reasonable to use "constitutional law on religions" as the more comprehensive term. The warning was voiced though under this keyword to call the historically grown status of the Christian churches into question.
Altogether during the conference the expectation prevailed that one could succeed in mastering the new problems in the relationship of the state to the religious communities with the existing legal instruments, presupposed they are applied flexibly and if possible by consent of all involved. But behind the legal questions always the fundamental uncertainty hides in which direction the German society will religious-ideologically develop in the next years and decades, not least in view of the much-sworn to moulding strength of Christianity which can however not be guaranteed. On it the future of the constitutional law on state-church-relations will finally be decided.