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A Brief Historical and Legal Description of Religious Liberty
The historical and legal development of religious liberty in Germany is not to be understood apart from the political process which led to the creation of the German nation as we know it today.The formation of the German nation was a process which took hundreds of years. The German word “deutsch” probably began to be used in the eighth century and initially defined the language spoken in the eastern part of the Franconian realm.1 There were two authorities—the empire and the papacy—which were often contending with one another, each limiting the other’s power. Compared to other nations, where the most common form of rulership had been a form of theocratic absolutism, this duality of government was a rather unusual development in human history.2 The issue of empire and papacy arose again when Charlemagne sought to establish a new theocratic empire. The emperors, claiming to be the vicars of God on earth, assumed the right to control churches. They regularly appointed bishops and invested them with the ring and the symbols of spiritual office. The church seemed to be drifting into another form of theocratic monism.
A dramatic change came in the pontification of Gregory VII (1073-1085).3 The fight, the so called Investiture Contest or Papal Revolution,4 that ensued between pope and emperor (Henry IV) ended with a compromise peace patched up in the Concordat of Worms (1122).5 The struggle between popes and kings was reenacted over and over again in the following centuries. The dualism of church and state persisted in medieval society and eventually was rationalized and justified in many works of political theory.6
Freedom of the church from state control is only one important part of religious liberty. The “libertas ecclesiae” that medieval popes demanded was not freedom of religion for each individual person but the freedom of the church as an institution to direct its own affairs. It left open the possibility, all too fully realized from the twelfth century onward, that the church might organize the persecution of its own dissident members. And when the interests of church and state happened to coincide, as they often did in dealing with heresy, there was room for a severe suppression of religious dissent.7
In one sphere, the emphasis on individual conscience did lead to a degree of religious toleration. Medieval doctrine always taught that non-Christians could not be forcibly converted to Christianity. A further area in which medieval thinkers began to develop a doctrine that would be important for later theories of religious liberty was the idea that all persons possess natural rights. But every medieval writer who discussed this issue saw heresy as a sin and a crime that was properly judged by the secular power. In the context of medieval life, religious persecution seemed to be both right and necessary.8
The Reformation of the sixteenth century created a new historical precedent in which all these matters were reevaluated in the light of new understanding of Christ’s teaching shaped by new historical experiences in the centuries after Martin Luther’s first protests.
While Luther intended to allow minorities in Protestant communities to worship freely in their private houses, the peace of Augsburg (1555) would grant this only to the sovereigns and aristocrats of the Augsburg confession.9 Only with the peace of Westphalia (1646) was freedom of conscience granted to all Catholics and those who were close to the Augsburg confession.10 As time passed, different territorial areas derived different legal rights of freedom of conscience and religious liberty.
By the end of the seventeenth century reasonably adequate theories of religious rights had been formulated. Implementing them took much longer. It was not until the liberal revolution of the nineteenth century that freedom of religion became established in the constitution and not until the twentieth century that the major Christian churches proclaimed rights as an essential tenet of the Christian faith itself.
The Constitution of Weimar (1919) separated church and state without, however, completely removing historicalities. During the reign of the Third Reich (1933-1945), Nazi Socialist leaders neutralized the church as an independent moral authority and co-opted both the German Evangelical Church and the German Catholic Church into supporting the Nazi cause,11 though there was the so- called “Confessing Church” which rejected the “false doctrines” of the Nazis’ “totalitarian rule of society.”12 The legal situation thus created is by and large the one which remains today, in the framework of the Weimar constitution.
For much of German history, Germany was a geographical term for an area occupied by many states. A unified nation for 74 years (1871-1945), it was divided after World War II (1939-1945) into the Federal Republic of Germany (FRG, commonly known as West Germany) and the German Democratic Republic (GDR, commonly known as East Germany). On October 3, 1990, East Germany reunited with West Germany, and Germany once again became a unified nation.13
In April 1990, the first freely elected East German Parliament issued a statement accepting responsibility for Germany’s past actions during WWII. The document states, “we ... admit our responsibility as Germans in East Germany for their history and their future and declare unanimously before the world: Immeasurable suffering was inflicted on the peoples of the world by Germans during the time of National Socialism.”14
Although more than 50 different religious denominations exist in unified Germany today, the majority of the population belongs either to Catholic or Protestant churches. Others are either members of small independent churches, practice other faiths such as Islam, or do not practice any religion at all. As of 1990, East Germans were 53% Protestant, 8% Roman Catholic, and many others atheist.15 The majority of West Germans are Christians, predominantly Lutheran. There are only 40,000 Jews in Germany today. Catholics, Protestants and Jews enjoy special legal status as corporate bodies under public law, allowing them to participate in a state-administered church tax program. In addition, the government gives subsidies to church-affiliated schools and provides religious teaching in both schools and universities for Protestants, Catholics and Jews.16
Currently, the population is 45% (majority Lutheran), 40% Roman Catholic, 2% Muslim, and approximately 30,000 Jews.17 In their map of “Suppression of Religious Liberty around the World,” Christian Solidarity International states that Germany commits “no major violations of basic religious liberties.” The U.S. Department of State reports that “full practice of religion is allowed.”18 However, there are actually serious allegations of religious discrimination in Germany as stated later in this report.
Constitutional and Legislative Provisions Relating to Religion
Although the Constitution of 1919 provided the first catalogue of human rights in Germany, this codification was not strong enough to withstand heinous violations during the Hitler period. The Basic Law of 1949 provides more comprehensive protection of fundamental human rights and religious freedoms. Paragraph 3 of Article 1 of the Basic Law provides that the “dignity of man is inviolable” and basic rights “are directly enforceable by law and are binding on the legislature, the executive and the judiciary.”19
The unified Federal Republic of Germany adopted West Germany’s Basic Law of 1949 with the Unification Treaty of 1991.20 Provisions relating to religious liberty are as follows:
Article 2 (1): Everyone has the right to the free development of his personality in so far as he does not violate the rights of others, or the constitutional order or morality.(2): Everybody has the right to life and physical integrity. Personal freedom is inviolable. These rights may not be encroached upon save pursuant to a law.
Article 3 (3): No one may be prejudiced or favored because of his... faith, or his religious or political opinions.
Article 4 (1): Freedom of faith, and conscience as well as freedom of creed, religious or ideological, shall be inviolable.
(2): The undisturbed practice of religion is guaranteed.
(3): Nobody may be compelled against his conscience into military service involving armed combat. Details shall be subject of a federal law.
Article 5 (1): Everybody has the right to express freely and disseminate their opinion by speech, writing and pictures and freely to inform himself from generally accessible sources.21
Article 7 (1): The entire school system shall be under the supervision of the state. (2): The persons entitled to bring up a child shall have the right to decide whether it shall receive religious instruction.
(3): Religious instruction shall form part of the ordinary curriculum in state and municipal schools, except in secular schools. Without prejudice to the state’s right of supervision, religious instruction shall be given in accordance with the tenets of the religious communities. No teacher may be obligated against his will to give religious instruction.22
Article 140: The provision of Articles 136, 137, 138, 139, and 141 of German Constitution of 11 August 1919 shall be an integral part of this Basic Law.
Article 136 (1): Civil and political rights and duties shall be neither dependent on nor restricted by the exercise of religious freedom.
(2): Enjoyment of civil and political rights and eligibility for public office shall be independent of religious denomination.
(3): Nobody shall be obliged to disclose their religious convictions. The authorities may not inquire about the membership of a religious community except where rights or duties depend on such information or a statutory statistical survey makes such inquiry necessary.
(4): Nobody may be compelled to perform any religious act or ceremony or to participate in religious practice or to use a religious form of oath.
Article 137 (1): There shall be no state church.
(2): Freedom to form religious communities shall be guaranteed. The uniting of religious communities within the territory of the Reich shall not be subject to any restrictions.
(3): Every religious community shall regulate and administer its affairs independently within the limits of the law valid for all. It shall confer its offices without the participation of the state or the civil community.
(4): Religious communities shall acquire legal capacity according to the general provisions of civil law.
(5): Religious communities shall remain public corporations if they have enjoyed that status hitherto. Other religious communities shall be granted like rights upon application where their constitution and the number of their members offer an assurance of their permanency. Where several such public religious communities form one organization it too shall be a public corporation.
Article 138 (1): State contributions to religious communities in law, contract, or special legal titles shall be redeemed by means of Land legislation. The principles for such redemption shall be established by the Reich.
(2): The right to own property and other rights of religious communities or associations in respect of their institutions, foundations and other assets intended for purposes of worship, education or charity shall be guaranteed.
Article 139: Sunday and feast-days recognized by the state shall remain legally protected as days of rest from work and of spiritual edification.
Article 141: To the extent that there exists a need for religious service and pastoral work in the army, hospitals, prisons or other public institutions, the religious communities shall be permitted but in no way compelled to perform religious acts.
Recent Reported Cases of Religious Intolerance
ANTI-SEMITISM. Recent cases of anti-Semitism are even more troubling in light of Germany’s past. Unification brought economic recession and led to an increase in radical right-wing violence directed mostly at foreigners and Jews. The President of the Israeli Cultural Society reported that her members have had their tires slashed and “receive death threats in the mail and on the phone ‘on a regular basis.’” During a recent visit to Bonn, the late Prime Minister Rabin’s wife found her car defaced with swastikas. In the wake of anti-Semitic violence, over 150 Jews left the country in 1992, double the number that exited the year before. Although the German government need not be held responsible for anti-Semitic sentiment such as that expressed in a recent 1992 Der Spiegel magazine in which 36% of those questioned stated that “Jews have too much influence in the world,” the government does have a duty to protect religious minorities and to foster a stable community.23
DISCRIMINATION AGAINST CHRISTIANS. The Cooperation of Christian Lawyers and Legal Advisers, an association of Christian Lawyers in Germany, recently expressed concern regarding the Berlin Senate Administration of Youth and Family’s decision to identify religious groups as cults or sects. This decision seems directly aimed at Christian groups. The Berlin Senate Administration of Youth and Family presented an Information Brochure on “New Religious and Ideological Movements and So-Called Psycho Groups,” with a goal “to make people aware of these aspects of danger, perhaps even to warn of concrete dangers, and to demonstrate their ideological background.”24
The brochure sparked a legal controversy, with several groups mentioned in it demanding their names be removed from the brochure. The Cooperation lost the case in the first and second proceedings with the Administrative Court of Berlin and now wait for the decision of a higher court. The association was particularly concerned about the Administrative Court’s refusal to hear expert witness Irving Hexham, professor of Religious Studies in Calgary, Canada. Professor Hexam stated that the brochure “relies on popular stereotypes which have been repeated numerous times in other situations and have inevitably been shown to be false by social scientists.”25
The Cooperation stated that the brochure “seems to be the worst thing that the State has ever made in Germany against religious freedom” and expresses its fear that religious freedom in Germany seems to be in danger.
In August 1995, the Constitutional Court (Germany’s highest court), declared unconstitutional a Bavarian law “requiring a crucifix to be hung in each of the State’s 40,000 classrooms.”26
In November 1995, Interior Minister Manfred Kanther would not permit South Korean evangelist, Sun Myung Moon, to enter the country. Kanther said that Moon is a “threat to public safety and order.”27 Similarly, in 1980, the German government banned Moon from the country.28
DISCRIMINATION AGAINST THE CHURCH OF SCIENTOLOGY
The U.S. Department of State reports that members of the Church of Scientology in Germany continue to complain of harassment such as being fired from jobs and being expelled (or not permitted to join) political parties. The members of Scientology continue to bring such grievances to court.29 The United Nations states that Scientologists:
were asked to give up functions on advisory boards, lost customers in their businesses, or credits in their banks, once their membership in the above Church was known, some members also experienced difficulties for renting halls in hotels for conferences related to the Church of Scientology . . . members . . . have been the victims of defamation, insults, attacks on property, bomb scares and even death threats.30In a report from 1994 on “systemic religious discrimination and other human rights violations by the Federal Republic of Germany,” the Scientology Church reports several actions from state governments “to create an atmosphere against all Scientologists in Germany and to socially ostracize Scientologists while stripping them of their fundamental religious and civil rights.”31 The report states:
In September 1992, the Government of the State of Baden-Wuertenberg implemented comprehensive and discriminatory measures against Scientology. These measures included requesting the government to:
-withdraw the legal capacity of Scientology organizations;-initiate criminal investigations of the Church;
-increase “enlightenment” about Scientology in schools, in governmental offices and in public;
-prevent the economic “influence” of Scientology in coordination with Employers Association, the Chambers for Industry Commerce and Trade;
-continue to elicit the support of Unions, which have agreed to inform their members about the economic influence of Scientology and to counteract this influence through Union publications attacking membership in Scientology.
-work out a complete list of other measures designed for the “reduction of Scientology activities.”32
Virtually identical measures were discussed and adopted in the States of Saarland, Nordrhine- Westfalia, Bremen and Mecklenburg-Vorpommern.
In response, the German government stated that “the courts have never ruled definitively on whether the Scientology organization is a religious or ideological community, such as would be eligible for special protection under article 4 of the Basic Law.” The Federal Constitutional Court states that the standard it will apply is to see if the spiritual heritage or outward manifestations of Scientology demonstrate that it is in fact such a community. Currently, the government holds that it is not aware whether membership alone has caused members to be discriminated against so as to lose their jobs or business customers.
PRIVACY CASES. Human Rights Watch raised questions concerning procedures to determine whether East German civil servants are eligible to work in West Germany. Although each state has different criteria for determining eligibility, most employees are asked a series of questions which include information on their religious affiliation. Although there is no evidence that religious persecution has occurred, Human Rights Watch is concerned that the German government could “violate the individual’s protected right to hold political opinions without government interference and to associate freely with others.”33 Human Rights Watch admits that the German government seems committed to investigating and compensating for arbitrary firing of officials. The German government also seems committed to “investigate, document and prosecute past abuses under the former communist regime.”34
ENDNOTES
1 Facts about Germany, Frankfurt/Main 1993, 78.2 Brian Tierney, Religious Rights: An Historical Perspective, 6.
3 Tierney, F.
4 Die Religion in Geschichte und Gegenwart II.D-G (Tuebingen, 1958, 3.ed): 1106.
5 ibid.
6 Tierney, 8.
7 ibid.
8 Tierney, 10-11.
9 Die Religion in Geschichte und Gegenwart I. A-C (Tuebingen, 1957, 3. ed): 735.
10 Die Religion in Geschichte und Gegenwart VI. ST-Z (Tuebingen, 1958, 3. ed): 1659.
11 Un Doc. CCPR/C/52Add.3, para.9, in Lawson, 672.
12 Arthur C. Cochrane, The Church’s Confession under Hitler. (Philadelphia: Westminster Press, 1962): 240.
13 “Germany.” Microsoft Encarta. (Microsoft, Funk & Wagnalls Corporation, 1994): 1.
14 Edward H. Lawson, ed., The Encyclopedia of Human Rights (New York: Taylor & Francis, Inc., 1991): 671.
15 Lawson, 669.
16 U.S. Department of State, Country Reports on Human Rights Practices for 1994 (Washington, D.C.: United States Government Printing Office, 1995): 821.
17 Microsoft Encarta, 4.
18 U.S. Department of State, Country Reports on Human Rights Practices for 1993 (Washington, D.C.: United States Government Printing Office, 1994): 891.
19 UN Doc. CCPR/C/52/Add.3, para. 9, in Lawson, 672.
20 Gisbert H. Flanz, “Federal Republic of Germany,” in Albert P. Blaustein and Gisbert H. Flanz, eds., Constitutions of the Countries of the World (Dobbs Ferry, NY: Oceana Inc., 1991): 14.
21 Flanz, 81-82.
22 Flanz, 82-83.
23 Elliot Neaman, “The Escalation of Terror in Germany: Is it Time to Leave?” Tikkun, Vol. 8, No. 1 (January/February 1993): 33.
24 From the Information Brochure on “New Religious and Ideological Movements and So Called Psycho Groups” by the Berlin Senate Administration of Youth and Family, published in October 1994 (non-official translation).
25 Comments on the Church of the Way, expert witness by Irving Hexam, Professor of Religious Studies in Calgary, Canada being used in a lawsuit against the brochure concerning the Charismatic church which is being attacked (non-official translation).
26 Crucifix Ruling Angers Bavarians, The New York Times, August 23, 1995.
27 National and International Religion Report, Vol. 9, No. 25 (November 27, 1995). 28 ibid.
29 U.S. Department of State, (1994), 823.
30 14 October 1993 “Letter from the Special Rapporteur to the Government of Germany,” 14.
31 See “Report on Systemic Religious Discrimination and Other Human Rights Volume by the Federal Republic of Germany.” (Church of Scientology of Germany, May 1994).
32 “Report on Systemic Religious Discrimination and Other Human Rights Violations by the Federal Republic of Germany,” 16.
33 Human Rights World Report 1993: The Events of 1992 (New York: Human Rights Watch, Inc., 1993): 220.
34 Human Rights World Report 1993, 220.
Source: Handbook on Religious Liberty Around the World, Pedro C. Moreno, Editor. Charlottesville, VA: The Rutherford Institute. This report is reprinted here by special arrangement with the Rutherford Institute and may not be reproduced or mirrored on another webside without written permission of the Rutherford Institute.
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