Academic journal article
By Brown, Scott Kent, II
Brigham Young University Law Review , Vol. 1999, No. 2
Since 1949, Germany has had a strong commitment to neutrality in church-state relations.1 Such a commitment to neutrality prevents the German government from being "identified with a[n] [established] Church" and from taking "decisive action in the affairs of religious communities."2 In contrast "to the strong separationist mold of American church-state relations,"3 the German neutrality principle still allows a strong form of cooperation between the government and certain religious communities4 in Germany.5
This cooperation between the German government and certain religious communities has resulted in a two-tiered churchstate structure in Germany.6 At one level, religious communities can be recognized as private organizations under private law.7 Private organization status is relatively easy to obtain and entitles a religious community to religious freedom protections under the German constitution.8 At the next level, religious communities can apply for and obtain public corporation status under public law.9 In order for a religious community to obtain public corporation status, it must satisfy a permanency requirement and demonstrate Rechtstreue (loyalty to the law).10 Public corporation status is more difficult to obtain than private organization status because it entitles the religious community not only to the religious freedoms guaranteed under the German constitution but also to numerous other privileges from the German government.11
Because public corporation status confers extensive privileges and prestige on qualifying religious communities, the Jehovah's Witnesses (hereinafter "Witnesses")12 have sought to obtain public corporation status in Germany.13 Most recently, Land Berlin (i.e., the State of Berlin, which is structurally similar to a state in the United States) denied the Witnesses' request for public corporation status.14 Subsequently the Federal Administrative Court of Germany, on June 22, 1995, agreed with Land Berlin that the Witnesses were not entitled to public corporation status.15 Although the court admitted that the Witnesses had met the "permanency" requirement under Articles 137(5) and 140 16 of the Basic Law and that the Witnesses were Rechtstreue (loyal to the law),17 the court denied the Witnesses public corporation status because they failed to meet a hitherto unheard of "meaning and purpose of a corporation" test.18 The constitutional issues raised by the Federal Administrative Court's decision are now being appealed to Germany's Federal Constitutional Court.19
This Note examines the Federal Administrative Court's decision, Jehovah's Witnesses v. Land Berlin. Part II provides the background of religious freedom and separation of church and state in Germany. Part III contains the facts of the Jehovah's Witnesses case and a detailed paraphrasing of the court's reasoning. Finally, Part IV analyzes the reasoning of the court. This Note concludes that the Federal Administrative Court erred in applying the "meaning and purpose of corporation status" test; instead, the court should have deemed it sufficient that the Witnesses had met both the constitutional "permanency" and the Rechtstreue (loyalty to the law) requirements.
In the post-World War II era, Germany-in part because of the intense desire to distance itself from the tragic events of the National Socialist period-has typically gone the extra mile in protecting human rights.20 In particular, Germany has established an enviable record in its protection of religious freedom. This section of the Note will examine the establishment and current state of religious freedom and church-state relations in Germany. In addition, this section will briefly examine pertinent religious doctrines of the Witnesses and their history in Germany.
A. Religious Freedom in Germany
In keeping with the expansion of religious freedoms throughout the world,21 Germany's law on religious freedom is "liberal in principle and tries to avoid the constraints of anti-religious radicalism. …