Germany: Church-State Partnership

The Challenge of Pluralism

• The book examines church and state relations in six democracies.

Germany: Church-State Partnership

• Bishop Heinrich Bedford-Strohm advocated for Islam to be taught in state schools, alongside Catholic and Protestant instruction.

• He proposed Islamic associations become partners with the state, ensuring compatibility with democratic values and preventing radicalization.

• The German Constitution states, “There shall be no state church,” yet a close partnership exists between churches and the state.

• In education, Protestant and Catholic officials collaborate with universities to train religious education teachers and develop curricula with state authorities.

• Three principles define church-state relations in Germany:

  • Neutrality: The state should not favor any particular religious congregation. Religious institutions should not be disadvantaged compared to other societal groups.
  • Freedom of religion as a positive freedom: The government actively ensures religious persons can exercise their freedoms. The state is obligated to create a social order where religious personality can develop and flourish.

• Despite the lack of an official state church, Germany's approach may seem to violate church-state separation and neutrality to Americans.

• German church-state practices have parallels with the partial establishment in England.

The Nation

• Germany has a population of over 81 million people and is a leading economic and political power.
• The nation transformed from authoritarian government and political instability into a model of stability and liberal democracy.
• The population is nearly evenly divided among Protestants (29%), Catholics (30%), and those with no religion (38%).
• The Evangelical Church in Germany (EKD) is the largest Protestant church with 23 million members, a federation of regional Protestant churches (mostly Lutheran).
• There are 1.6 million members of the Orthodox Church and other free Protestant churches.
• Islam is the largest non-Christian religion with 4-5 million adherents (nearly 5% of the population).
• Germany has the fastest-growing Jewish community in Europe with 200,000 members.
• Germany is increasingly secular; religious service attendance and importance of religion in life have declined.
• Personal faith plays little role in German public political discourse.
• The churches offered opposition to the Nazi regime and provided moral strength post-World War II.
• The Christian Democratic movement and the Christian Democratic Union (CDU) party played major roles in Germany's rise after the war.
• The CDU's manifesto is based on the “Christian concept of mankind”.
• Angela Merkel, the party leader since 2000 and Germany’s chancellor since 2005, is a member of the Evangelical Church.
• A 1995 Constitutional Court decision against crucifix displays in public schools sparked controversy.
• Catholic and Protestant church leaders supported Merkel’s open-door policy toward Syrian refugees in 2015.
• There is controversy surrounding the integration of the growing German Islamic population.
• Germany has a federal system with sixteen states (Lander).
• More power is centralized in the national government compared to the United States, but significant powers are assigned to the states.
• Germany has a parliamentary system with the Bundestag (lower house) and Bundesrat (upper house).
• The Bundesrat's approval is needed for legislation affecting the states, but the Bundestag can override a negative vote by a simple majority.
• The chancellor is elected by the Bundestag.
• The major parties are the Christian Democratic Union (CDU/CSU) and the Social Democratic Party.
• Smaller parties include the Alliance 90/Greens and the Left Party.
• The Federal Constitutional Court has the power of judicial review and is divided into two Senates.
• Justices serve twelve-year terms and are elected by the Bundestag and Bundesrat.
• The Constitutional Court has dealt with crucial church-state issues.

Historical Background

• Five historical periods provide insight into German church-state practices:

  • Middle Ages and Protestant Reformation: Germany was a loose collection of kingdoms and principalities.
    • The concept of the “two swords” (church and civil rulers) took root, with both working for societal stability.
    • This led to conflicts between the papacy and Holy Roman Emperors.
  • The Reformation led to the practice of cuius regio, eius religio (the religion of the ruler is the religion of the state).

  cuius regio, eius religio

  *   The 1648 Peace of Westphalia reaffirmed rulers' right to determine religion but provided rights for dissenters.
  *   This created areas committed to specific religious traditions within Germany. The secular authority dominated the spiritual authority.
  *   The church-state partnership emerged with the well-being of society relying on church and state, united in a common cause.
  *   Religious uniformity allowed cooperation without charges of discrimination.
  *   Church autonomy can be traced to this period, with the church and state seen as coequal institutions.
  

  • Congress of Vienna (1815) through World War I: Germany was composed of nearly fifty principalities with conservative forces dominant.

    • Prussia became a dominant force, uniting Germany in 1871 into a modern nation-state.
    • Three important elements:
      • Weakness of the liberal movement: Enlightenment liberalism never became as strong as in other countries and cooperated with conservative classes.
      • Strong alliance between the Protestant church and the newly formed German state: Regional governments provided financial subsidies to the church.
      • Development of a significant Catholic political movement: Bismarck launched Kulturkampf (culture war) against Catholics, leading to the rise of the Catholic Center Party.

  • Weimar Republic: The Weimar Constitution adopted church-state separation for the first time.

    • It declared there was to be no state church.
    • Provided that civil and political rights and duties would not be restricted by religious freedom.
    • Recognized governmental neutrality and autonomy. The current Constitution incorporates the religious freedom articles of the Weimar Constitution.

  • Nazi Era: Church leadership was largely negative toward the Weimar Constitution.

    • The churches initially supported Hitler, who promised stability and freedom to the churches, but the Catholic Church never fully supported the Nazi regime, prioritizing institutional autonomy.
    • The Vatican signed the Reichskonkordat with the Nazi regime which assured the Catholic Church certain rights, but also helped the Nazis consolidate their power.
    • A “German Christian” movement within the Evangelical Church supported Hitler.
    • Opposition arose, with the Confessing Church opposing the pro-Nazi “German Evangelical Church.” Thousands of pastors were arrested, sent to concentration camps, and executed.
    • After the war, the Evangelical Church adopted the Stuttgart Declaration, acknowledging the churches’ and nation’s guilt.
    • Two lessons:
      • The church must not be too subservient to the state, therefore principle of church autonomy was emphasized.
      • The church must play a role in political and social life, thus strict church-state separation was seen as dangerous. Both churches resolved to be active forces in society.

  • Postwar Era: The Christian Democratic movement rose.

    • The party was interconfessional and committed to liberal democracy.
    • It actively supported European integration.
    • Linking Christianity to democratic impulses made the state's cooperation with religion possible.
    • Religion was seen as a democratizing force and a bulwark against the reemergence of Nazism.

• In 1948, the Western allies moved to create a constitution for West Germany.

  • It begins with “Conscious of their responsibility before God and Humankind.” Article 4 assures freedom of faith, conscience, and creed.
  • Article 3: All people are equal before the law, irrespective of sex, birth, race, language, national or social origin, faith, religion, or political opinions.
  • Article 140 incorporates the Weimar Constitution religous freedom provisions into the current Basic Law

• The situation in the communist-controlled German Democratic Republic (GDR) was different.

  • East German parents were pressured not to baptize their children.
  • Church-going young people were often unable to obtain a college education.
  • Active Christians were often denied government and business promotions.
  • An uneasy détente emerged between the state and churches.
  • Both Protestant and Catholic churches played a role in the demise of the East German state.
  • Numerically, the churches suffered with many were without any church affiliation at the time of Germany's reunification in 1990.

Free Exercise Issues

• The free exercise of religion is a basic, fundamental right, interpreted broadly. It trumps concerns over the establishment of religion.

• The Constitutional Court has interpreted free exercise rights to include not only the right to believe but also the right to act on one’s beliefs.

• German courts decide cases on free exercise grounds that in the United States would be seen as establishment of religion cases.

• This is due to the German courts’ seeing religious freedom as having a positive as well as a negative aspect to it.

• In a 1979 decision finding the use of general prayers in the public schools constitutional, the Constitutional Court based its decision on the concept of positive religious freedom.

• The Constitutional Court has frequently referred to neutrality as an important component of its free exercise decisions.

• Religious freedom as a positive right includes the opportunity to exercise that freedom.

• Neutrality requires the state actively to create space for the realization of a person’s religious worldview.

• The Constitutional Court wrote that the “duty of neutrality imposed on the state by the Basic Law was not a distancing neutrality of the nature of laicist non-identification with religions and ideologies, but a respectful neutrality. . . which imposed on the state a duty to safeguard a sphere of activity both for the individual and for religious and ideological communities.”

• The expansive and strong concept of free exercise is not unlimited. The Constitutional Court stresses that when the free exercise of religon infringes on human dignity or public health and safety a balancing process must take place.

• The principles discussed thus far can be illustrated by a particularly dramatic free exercise case that came before the Constitutional Court.

  • A married couple, both of whom were members of the Association of Evangelical Brotherhood, held to a religious faith that believed it was inappropriate to make use of blood transfusions to solve medical problems. Wife refused blood transfusion and died.
  • Husband was prosecuted and convicted for failure to provide his wife with necessary assistance. On appeal, the Court overturned the decisions of the lower courts on the basis of the free exercise provision of Article 4 of the Basic Law.
  • The Court decided even a law which was not aimed at constricting certain religious practices, was overruled by the free exercise protections of Article 4.

• The most contentious issue over the past decade has been the freedom of Muslim women who are teachers in government-run schools to wear the traditional Muslim headscarf or hijab.

  • In 2003, the Constitutional Court ruled that prohibiting teachers from wearing headscarves would require a specific law empowering authorities to make this prohibition.
  • Over the next decade, half of the German states passed laws banning public school teachers from wearing the hijab.
  • In 2015, the Court revisited the issue and reversed course. It ruled that a general ban on the headscarf is a violation of freedom of religion.
  • While the Court recognized that the state must be neutral among religions, it concluded that allowing teachers to wear religious symbols did not mean that the state was endorsing those symbols.
  • The Court defined neutrality in a way to encourage freedom of religion for all beliefs.

State Support for Churches

• Church and state are seen as having different responsibilities, but they both have public responsibilities, and cooperation works to the benefit of society.

• Government supports and helps the churches by:

  • Granting the three main, historical religious communities—Evangelical, Catholic, and Jewish—status as a corporation under public law.
  • Assuring them of their legal autonomy.
  • Giving them the right to levy taxes on their members.
  • Allowing them to offer religious instruction in the public schools.
  • Enabling them to work with the government to appoint prison, hospital, and military chaplains.
  • Seeing the major religious bodies as having a public, or societal, significance.
  • Making it clear that Religion is seen as being more than a purely private concern. Public corporation status is granted by the state governments, and thus the religious bodies with that status vary somewhat from one state to another.

• Best known and most important of the privileges granted to churches that have qualified as public corporations is the church tax (Kirchensteuer).

  • Under the church tax, all members of the Catholic and Evangelical churches, and of Jewish congregations, are assessed a fee set by the churches that amounts to about 8 or 9 percent of what is owed the federal government in income taxes.
  • This money is added to one’s income tax bill and is forwarded to the churches by the government.
  • People who do not pay are subject to the same penalties and means of collection as are taxes that are owed.
  • The only way a member can escape the church tax is to resign his or her membership in the church.
  • In 2011, income from the church tax amounted to 9.2 billion euros ($12 billion) to the Catholic and Evangelical churches which amounted to about 70 percent of their total income.
  • The money is used to finance both the pastoral activities of the churches and wide-ranging charitable and educational activities.

• The origins of the church tax system go back to the early nineteenth century, when the state confiscated church property in most areas of Germany.

  • In time, these cash payments were transferred into the right of the churches to tax their members.
  • The civil authorities cooperate in collecting the taxes.
  • The legal basis for the church tax is found in Article 137(6) of the Weimar Constitution, which has been incorporated into the current Constitution.
  • The Constitutional Court has upheld the legality of the church tax system.

• The church tax is a cooperative venture by the churches and the civil authorities, in which the churches levy certain fees on their own members and the civil authorities collect those fees.

• One can argue that the church tax does not violate the norm of governmental neutrality—funds are collected only from the church’s own members with the amount set by the church.

• One can argue that the principle of neutrality is being violated since the coercive power of the state is being put at the disposal of the churches.

• The system establishes a formal contact between the church and state that would be unthinkable in the American context.

• More Germans are rethinking their passive support for the system and have formally relinquished their membership in the church.

• A Catholic journalist complained that the church tax greatly strengthens the power of the central church hierarchy, since the money goes to the regional church offices, including the Vatican, and is distributed downward from there.

• The system is premised on the assumption that the tax is paying for certain religious services. The Catholic Bishops' Conference in Germany issued an edict in 2012 that barred Catholics who had refused to pay the tax from receiving communion, making a confession, serving as a godparent, or holding any office in the church.

• The current system is' most serious deficiency has been the inability of German states fully to recognize Muslim mosques and associations as a public corporation.
  Due to the divided German Muslim ideologies.

The Challenge of Muslim Incorporation

• The inability of the Muslim community to gain public corporation status on par with other religious communities is one of the more evident examples for how Muslims have not been fully integrated into German society.
• Islam is now the third-largest religion in Germany.
• As with the other European countries in our study, the Islamic population in Germany has grown rapidly over the past several decades from 20,000 in 1950 to 4.2 million in 2010.
• Percentage of the German population that is Muslim has increased from under 1| percent of the population in 1950 to 5 percent in 2010.
• The Muslim story in Germany is inextricably bound to Turkey.
• Germany signed bilateral arrangements with Turkey, among other countries, that sent laborers to Germany as “guest workers.”
• There remains a mind-set among some Germans that sees Muslims as foreigners living in Germany, rather than as persons who have become Germans.
• Evidence about the success of the integration of German Muslims is mixed,
• On average, Muslims have lower educational attainment, higher levels of unemployment, and are more likely to live in highly segregated communities.
• On the other hand, 90 percent of German Muslims view democracy as a desirable form of government, the same percentage reports that they have regular contact with people of other faiths outside of work hours, half are members of a German Association, and only 1 percent could be described as radical Islamists.

Church, State, and Education

• The distinguishing mark of Germany regarding religion and education was, until recently, the domination of public education by confessional schools.

• The 1949 Basic Law placed the responsibility for education with the state governments, not the national government.

• At present, there are three types of schools in Germany: governmental schools, governmental religious schools, and private religious schools.
  Practices are unconstitutional based on US Supreme Court interpretations.

• The legal, constitutional basis for religion in public education - practices that would be clearly unconstitutional in the United States under current Supreme Court interpretations - is found in subsections 2 through 4 of Article 7 of the Basic Law:

  • Parents and guardians have the right to decide whether children receive religious instruction.
  • Religious instruction shall form part of the curriculum in state schools except non-denominational schools. Without prejudice to the state’s right of supervision, religious instruction shall be given in accordance with the doctrine of the religious community concerned. Teachers may not be obligated to give religious instruction against their will.
  • The right to establish private schools shall be guaranteed. Private schools as alternatives to state schools shall require the approval of the state and be subject to Land [state] legislation.

• The elimination of all ideological and religious references would disadvantage parents who desire a Christian education for their children.

• Article 7(3) requires religious instruction to be a part of the standard curriculum.

• The religious bodies themselves, not the public school authorities, control the content of the religious courses of study.

• The absence of a centralized, hierarchical organization among German Muslims made it hard for state officials to incorporate Muslims into the existing system, although there has been shift in public policy.

• State of North Rhine Westphalia Offered Islamic studies classes starting in 2010

• The most important cause for this shift has been the realization among German authorities that Islamic religious instruction can be a way to counter radical teaching and to encourage the successful integration of the nation’s growing Muslim minority into the values of the larger society.

• In regard to religious exercises in the public schools, most interdenominational schools have prayers at the beginning of the school day and sometimes at the end.

• In 1995 the Constitutional Court ruled that if any student objected to having a crucifix in the classroom, it would have to be removed.

• Private schools receive most of their current expenses—but not their capital expenses—from public funds, although the exact amount they receive can vary from 75 to 90 percent of their costs.

• There are a handful of Jewish (9) and Islamic (1) ones also.

• The right to establish a private school does not, however, include a right to home schooling, which is illegal in Germany, due to the preference given to the government obligation for a good education.
  Germany also has church-sponsored kindergartens.

Church, State, and Nonprofit Service Organizations

• Germany has a long history of public-private partnerships between the state and nonprofit organizations.

• The German government relies extensively on private nonprofit organizations to deliver most of the social services.

• The concept of subsidiarity is incorporated into several laws that require the government not to take over and provide social services directly if there are private social service agencies able and willing to provide them.

• There are six main associations of social service and health care organizations that are referred to as the free welfare associations.

  • Diakonisches Werk (Evangelical Church’s federation of social service and health agencies).
  • Caritas (Catholic counterpart to Diakonisches Werk).
  • The Central Welfare Association for Jews in Germany.
  • The Workers’ Welfare Association.
  • The German Equity Welfare Association.
  • The Red Cross.

• Religious grounding for mission from a “Christian view of mankind, Diakonie strives to “fashion ourselves after God’s unconditional love as embodied by Jesus Christ.”

• The nonprofit sector is heavily financed by the government (64%). Religious associations share in the receipt of public funds.

• As seen in chapter 2, in the United States President George W. Bush’s faith-based initiative was met by a storm of criticism on the basis that it would violate church-state separation. In Germany not to fund faith-based organizations while funding their secular counterparts is viewed as discriminating against the religious organizations.

• Some Muslim social service organizations have received funding from individual state and local governments, generally not included in federal government funding.

• The nonprofit-government relationship goes beyond financial support by the government. “[A]s a result of both the principle of subsidiarity and the principle of self-governance, nonprofit organizations tend to be relatively well-integrated into the policy making function of government.

• Church autonomy is important for understanding the degree of freedom religious nonprofit service organizations have in pursuing their religious missions.

  • Article 137(3) of the Weimar Constitution, which was incorporated into Germany’s current Constitution as Article 140, reads in part: “Every religious community shall regulate and administer its affairs independently within the limits of the law valid for all.”

  • This provision has resulted in general agreement on the right of nonprofit service organizations to make hiring decisions on the basis of religion.

  • In the 1983 Catholic Hospital Abortion Case a Catholic hospital had dismissed a doctor after he had publicly stated he opposed the church’s teaching on abortion: The Constitutional Court held that the hospital was an “affair” of the church and thus under church regulation.

• The U.S, Supreme Court has tended to see religiously based social service agencies as engaged in both religious and secular activities and to extend free exercise rights only to their religious activities.

• Our interviewees did not run into problems with governmental officials over such questions as requiring agency employees to be members of the sponsoring church and to meet expected behavior standards, having devotional exercises as a part of their programs, and having salaried chaplains or pastors conducting religious services.

Concluding Observations

• Most Germans see religion as having an important public role to play as a unifying, inspiring, educating, critiquing force in society.

• As a result, Germany supports practices in which the state cooperates with, assists, and makes room for religion (church tax, religious elements in public schools).

• Germans see the partnership concept and the neutrality, autonomy, and positive religious freedom principles as complementing each other in such a way as to lead to greater religious freedom for all.

• Because German observer has a concept of religious freedom as possessing both positive and negative aspects. This allows a holistic view.

• There is logic and appeal to the German mind-set on church and state.

• Challenges to this approach:

  • Increasing number of Germans opting out of the church tax system (financial pressure).
  • Lack of incorporation of more than four million Muslims into the current arrangement (they lack a unified, centralized religious organization).