The Georgia Freedom of Religion Act is constitutional
is professor of political science with a focus on political theory and the history of ideas at the Georg-August-Universität Göttingen. Her research area is the democratic constitutional state and the relationship between politics, law and religion as well as politics and nature.
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In the Basic Law of the Federal Republic of Germany, God is mentioned right at the beginning. The first sentence of the preamble states that the German people have given themselves this constitution "in responsibility before God and men". One could now ask the question whether this positive reference to God does not contradict Article 4 of the Basic Law, which declares that freedom of belief, conscience and freedom of religious and ideological creed are inviolable? Because this basic right does not only mean freedom to religion, i.e. that every person can have a belief (freedom of belief), profess (freedom of religion) and practice (freedom of worship) - alone and together with others (freedom of religious association). Religious freedom also means freedom of Religion. Everyone also has the freedom not to have a belief and the freedom to abandon the religion in which one grew up. Religious freedom guaranteed by the state also means that no one may be compelled to believe by a state agency.
A certain image of man comes into play here, which is essential for the constitution of Germany. According to this, every person is endowed with an unavailable - that is, one that cannot be questioned by others - dignity and is able to make his own decisions, for which he is responsible in front of his conscience. That is why Article 4 is closely linked to Article 1 of the Basic Law: "Human dignity is inviolable. Respecting and protecting it is the basis of all state power."
The state has the task of protecting people in such a way that they can make their own decisions - with a view to religion: i.e. what you believe, whether you believe in something at all or not, whether you want to change your belief that you do Can also live out faith alone and with others and follow religious or other ethical rules in his life.
In this respect, the reference to God in the preamble cannot force a confession and non-believers can take this formulation as an imposition, which can, however, be historically explained: The Basic Law was written at a time when the vast majority of citizens were members of one of the Christian denominations were.
After the atrocities of National Socialism, for which the German people were responsible - and to this day they are responsible for ensuring that something like this does not happen again - the constitution-giver wanted to express that the obligation to freedom for all people, peace and justice of the citizenship is to a certain extent a part A sacred concern is so important that it should be confessed not only to other people, but also to God. The individual religious freedom in Article 4 cannot be restricted by the naming of God in the preamble, because the basic rights are directly applicable constitutional law and the preamble is only a preamble to the constitution.
The fundamental rights (such as religious freedom) are therefore more important than the preamble, so that no fundamental right can be restricted by it. If freedom of religion and freedom of conscience are comprehensively guaranteed in a state in this sense, then it is a secular state. Secular means "worldly": The state is related to this world and not to an afterlife; it should fulfill worldly purposes, such as external peace (no war) and internal security (e.g. protection against a pandemic like Corona ) to guarantee.
The state is not responsible for whether the people who live in it with or without a religion find their peace of mind. If the state were to declare itself responsible for this, then it would not be peace that would be guaranteed, but strife. Because on the side of which religion or non-religion or worldview should he stand? That is why the state is not allowed to justify its policy with religious purposes, for example derived from the Bible or the Koran or any other scripture. In science and jurisprudence, this is also referred to as the principle of religious and ideological neutrality: regardless of whether the majority of citizens in a state follow a certain religion or the majority are non-believers - the state must not and must rather take sides be the "home", that is, the home of all citizens. This is what the Federal Constitutional Court said in its case law on Article 4 of the Basic Law.
For this reason, the state and religious authorities must be fundamentally separated, which does not, however, exclude the state and religious communities working together in some areas as part of a partnership, for example in the health sector or in the social sector, in which many facilities such as hospitals and old people's homes are in the Are sponsored by religious communities.
The partnership relationship is also expressed in the church tax. This is not a state tax that applies to everyone in favor of the two large Christian churches, but ultimately a personal membership fee of the members of the Catholic and Protestant Church, the amount of which is based on the income that is collected by the state tax offices. Although the churches pay a fee for this, it is nonetheless controversial whether the state collection of church tax does not violate the requirement to separate church and state.
The protection of freedom of religion and conscience is extensive, and Article 4 is particularly important, but the practice of religion is not unlimited. The exercise of freedom is limited by other principles and rights protected by the constitution. Conflicts regularly arise here, which are also settled in court and often have to be decided by the Federal Constitutional Court at the end. In school in particular, demands collide. Why is a student allowed to wear a headscarf, but not a teacher in some federal states? If the pupil decides (or if she is not yet of religious age, i.e. her parents for her) to wear a headscarf for religious reasons, she is exercising her individual right to positive religious freedom and there are no opposing legal interests that could limit this freedom. It is different with the teacher: she represents the state in a certain way, and the state is obliged to be neutral. Whether the teacher's headscarf really affects the state's duty of religious neutrality is controversial. Of course, a teacher is not allowed to advertise his or her religion in the classroom. But whether an inadmissible influence on the student body comes from simply wearing a headscarf or the visible cross on the necklace, opinions differ not only among lawyers. In its first headscarf ruling from 2003, the Federal Constitutional Court said that the constitution allows for both, prohibition and permission, and that such a controversial issue should be decided by parliament and not by a court.
Because of the cultural sovereignty of the federal states, school issues fall within their competence, and this explains why there is no uniform regulation in Germany: While all religious symbols are forbidden in Berlin, in other states such as North Rhine-Westphalia, for example, there are also those that which endanger the neutrality of the country or disturb the school peace. But the Christian symbols are not included, because - so the argument goes - a cross represents a tradition that has grown over time and does not stand for a belief. This is different from the headscarf worn for religious reasons, which Muslim teachers in North Rhine-Westphalia were forbidden to wear.
A constitutional complaint has been lodged against this law, and the Federal Constitutional Court ruled in its second headscarf ruling in 2015 that a blanket ban is unconstitutional and that it always depends on the specific threat to school peace. In this judgment, the Federal Constitutional Court also emphasized that "(t) he ideological-religious neutrality offered to the state should not be understood as a distancing one in the sense of a strict separation of state and church, but as an open and comprehensive freedom of belief equally encouraging attitude for all creeds ".
In a third headscarf ruling in February 2020, the Federal Constitutional Court also decided that the restriction of freedom of belief for certain persons in the civil service is justified: namely in the area of the judiciary. Women judges, public prosecutors and even trainee lawyers (i.e. lawyers in training) may be legally prohibited from wearing a headscarf. The courtroom and the officials who represent the state in it should embody the neutrality of the state in a special way, which is considered important in times of growing religious plurality. But not all conflicts can and should be resolved legally. Often just tolerance is required between members of different religious communities or between believers and non-believers, especially from a majority towards members of religious communities who are in the minority.
There is no legal right to tolerance, tolerance is rather an attitude that cannot be enforced, but on the existence of which a pluralistic society is particularly dependent. Those who are tolerant tolerate or endure a different opinion, behavior that deviates from their own behavior or a different belief, even if he or she completely rejects this opinion, behavior or belief.
The more plural a society is composed, the more important it is that there are shared values in it - tolerance and peacefulness are part of it. Places are needed in which this tolerant and peaceful coexistence can be learned. Here again the school plays a special role. The state shares the upbringing tasks with the parents, and here too conflicts can arise on the basis of religious affiliation. Many Muslim parents do not want their children - more precisely: their daughters - to have physical education with boys, and they mainly de-register their daughters from swimming lessons. Joint school trips are also seen as a possible threat to faith, as it is feared that religious commandments will be violated. But in a state in which there is compulsory schooling, there must be joint lessons and joint class trips, as this is the only way to practice togetherness in diversity and tolerance and, above all, to perceive what is common in all different religious denominations can be.
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