Academic journal article Brigham Young University Law Review

Religious Freedom in Germany

Academic journal article Brigham Young University Law Review

Religious Freedom in Germany

Article excerpt

I. INTRODUCTION

At least from a U.S. perspective, religious freedom in Germany has become a matter of concern in recent years.1 It may well be time to reconsider the law and the facts of religious life in a country under scrutiny due to its twentieth-century history. Upholding religious freedom is a key issue in any community committed to the idea of human rights. After the end of the devastating rule of national-- socialism, Germany reestablished its long-standing cultural history in which it had intensively contributed to the development of human rights. The purpose of this article is to describe the various normative sources of religious freedom in Germany and to establish an understanding of religious freedom as a positive freedom in harmony with the legitimate culture of the people concerned.

II. THE NORMATIVE SYSTEM

A. Constitutional Provisions

Religious freedom has a prominent place in Germany's constitution.2 Freedom of religion is protected before many other freedoms. Only human dignity,3 freedom and life,4 and equal protection5 are human rights placed before religious freedom in Germany's constitution. Religious freedom under the German constitution means freedom of belief and freedom to act according to one's beliefs. The constitution secures religious freedom for both individuals and collective bodies.

The various freedoms guaranteed for religious institutions in Germany can be found in the German constitution, in the constitutions of the German Lander and in ordinary laws, and in the various treaties between the state and specific religions.6 In addition to the central guarantee of religious freedom, the constitution offers additional religious rights and institutional guarantees for churches and religious communities. According to Article 3 of the constitution, no one shall be prejudiced or favored because of his faith or religion.7 This guarantee is specified for civil rights, public office, and public service.8 Article 4 provides for the right to refrain from military service in the name of religion.9 Article 7 guarantees religious instruction in public schools and includes the right to abstain from that instruction.10 Article 7 also secures the right to establish and to run religiously or ideologically based private schools.11

Several far-reaching institutional guarantees for churches and other religious communities referred to in the German constitution12 have been incorporated from the German Reich's Weimar constitution of 1919 ("WRV").13 The most important provisions are as follows: there shall be no state church, i.e., no established church;14 all religious communities shall enjoy the right to self-- determination,15 the status of certain religious communities as public corporations,16 equal rights to associations that foster a non-- religious, philosophical creed,17 the guarantee of Sundays and feast-- days,18 and chaplainry in public institutions.19

The preamble to the German constitution also describes Germany's commitment to religious freedom. It states: "Conscious of their responsibility before God and humankind, animated by the resolve to serve world peace as an equal part of a united Europe, the German people have adopted, by virtue of their constituent power, this Basic Law."20 The reference to God and humankind acknowledges responsibility for the crimes committed during national-- socialism and responsibility to prevent a repetition of those events in Germany. This reference to God does not allude to nor establish any specific religious belief.21 Rather, by referring to God, the preamble acknowledges a sphere of transcendence, indicating a borderline for the state-that is, a field beyond the reach of the state. It suggests that there is something other than the political order established by the constitution, that the state is not all-powerful. The preamble is anti-totalitarian.

B. Other Textual Sources of Religious Freedom

Religious freedom in Germany is rooted as well in texts other than the constitution, such as the Lander constitutions, agreements between the government and specific religious organizations, and case law. …

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