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Matthias Belafi

Specifications on Religious Freedom?

A Rejoinder to Brigitte Zypries' Speech on Religion Policy


From: Stimmen der Zeit, 3/2008, P. 162-172
webmaster's own, not authorized translation


    In her Berlin speech about religious policy on 12 December 2006 the Federal Minister of Justice Brigitte Zypries demanded a specification of the fundamental right to freedom of religion and in addition to religious instruction proposed a state value instruction. MATTHIAS BELAFI, managing director of the 'Kommission für gesellschaftliche und soziale Fragen' (Commission for Sociological and Social Questions) of the German Bishops' Conference, discusses this position on the basis of the existing church-state relations and stresses the giving meaning to life importance of religions for society.


In her recent statements on religious policy, the Federal Minister of Justice Brigitte Zypries in particular raised two demands that have met with public protest: On the one hand she calls for a legal specification of the fundamental right of religious freedom; on the other hand she wants the confessional religious instruction supplemented by a state value instruction. At first however these demands caused only occasional reactions {1}; attention was paid in the end to the Chairman of the German Bishops' Conference, Cardinal Karl Lehmann's statement on the subject, which however in public met with some misinterpretations {2}. Also for that reason we need a broader social protest against a political redefinition of the relationship between state and religion {3}.


Religious Freedom and Church-State Relations

In Germany freedom of religion is guaranteed by article 4 GG (Basic Constitutional law). Unlike other fundamental rights, freedom of religion is unconditionally granted, i.e. its validity cannot be limited by law, but is only subject to inner-constitutional limitations. The outstanding importance of this fundamental right corresponds to the special historical status of religious freedom for which George Jellinek has coined the concept "Urgrundrecht" (primal fundamental right) {4}.

Also in the other member states of the European Union freedom of religion is guaranteed, but the expressions of this freedom right differ according to the respective cultural coinings. Because of those different cultural preconditions the European states have also looked for various ways to balance the relations between state and religion and to settle their relationship to the religious communities. France, for example, saw freedom of religion above all realized in a strict separation of church and state, whereas mainly in Scandinavia and the United Kingdom state church systems prevail.



In between some states, as for instance Germany, have developed a system of cooperation according to which State and Church are - for their mutual welfare's sake - on principle separated, but out of their freedom arrange cooperation in those points in which they have common concerns for people.

The actual details of freedom of religion are closely related to those institutional issues, because they have developed against the same cultural background. In Greece for instance proselytism - i.e. advertising somebody's change of denomination - is made punishable. Among other things for that reason Greece in recent years in matters of religious freedom often came in conflict with the European Court for Human Rights. Background of the restrictive interpretation of religious freedom is the strong coining of the country by Orthodoxy, which in Greece is no state church but a state religion, "the predominant religion," as Article 3 of the Greek Constitution states it. But also the other swing of the pendulum, the radical separation of state and church in certain respects excludes freedom of religion, because it prefers the negative freedom of religion to the positive {5}.

A thesis, above all held by the Trier expert in constitutional law Gerhard Robbers, says that those different church-state relations move to the centre, that is towards a relationship of cooperation {6}. This convergence thesis will certainly get new food when the new heads of government in France and Britain, Nicolas Sarkozy and Gordon Brown implement the aims of their religious policy: Sarkozy thinks about the further reduction of the separation of church and state, which is not as strictly implemented in France as the emphasis on secularism as Republican principle suggests. He seeks close relations with the churches and sent after the assumption of his office a letter to the pope {7} - for French conditions an unheard-of event. In Britain however, Gordon Brown wants to waive his right to propose the bishops of the Anglican Church to the Queen for appointment and thus to continue the break-up of church and state {8}.

Against this background the question of the reason for this trend arises. On the one hand the states recognize that a separation means more freedom, both for state and church, on the other hand that the cooperation between state and church is beneficial for both institutions. But the trend towards a truly ideologically neutral state also serves the best possible development of religious freedom, because freedom of religion can consistently be achieved only in an ideologically neutral constitutional {9}.

This applies also on the European level. According to the Charter of Fundamental Rights the European Union is bound to freedom of religion but is itself by no means responsible for religious affairs. Nonetheless also here it turned out that the more the integration on the European level has increased, the more the EU and the churches have sought contact with each other - just because both sides have recognised the benefits of an occasional cooperation {10}.



Admittedly a sufficient minority of European countries refused to acknowledge in the preamble of the Constitutional Treaty the contribution of Christianity to the development of European values {11}. This seems all the more absurd as the importance of Christianity for the emergence of Europe and its values is perfectly evident. But in practice such a preamble formulation would have developed no legal effect. For the churches in Europe, however, it was more important that a church article has been included in the European Constitution, which was to oblige the EU institutions to a structured dialogue with the religious communities. This regulation will now also be taken into consideration in the new Reform Treaty {12}. Why does the State - or in this case the European association of States - get involved in this dialogue and even seek it?


The State and the Religiousness of its Citizens

The State has in fact a vital interest in the religiousness of its citizens. For Christians are apparently more honest citizens: They refuse far more than the rest of the population to evade taxes or take advantage of unwarranted social welfare benefits. There is evidence that they take part in elections above average and elect extreme parties below the average. This is not surprising insofar as they approve of the social system far more than the average of society {13}. And only recently a further study was published substantiating the connection between religiosity and reproduction rate: Those who believe have more children {14}. State and society live on all the elements of such behaviour of religious citizens.

Admittedly, it is by no means the task of the state to missionize its citizens; quite on the contrary, this is out of the question for the secular state. Nevertheless the liberal state has a legitimate interest in the faith of its citizens. And for the realisation of that interest it depends on strong religious communities as partners. Ernst-Wolfgang Böckenförde's dictum the state lived on preconditions which could not be guaranteed by it must therefore not be interpreted to the effect that the state was condemned to inactivity. On the contrary, it has the potential and the task to support and protect religion {15}.

Just for that reason the German state can promote religious communities, because it not only guarantees religious freedom but can make religious communities and churches stand out by the status of public corporation and grant them rights that make it easier for them to realize their public mission in society.



The liberal State will pay heed to it that the religious community to which it wants to grant this status is actually laid out for a positive promotion of the liberal society {16}. Cardinal Lehmann rightly pointed out that this status should not be granted rashly and at random {17}. With it he is by no means only interested in securing Christian-church privileges. He has especially been misinterpreted to the effect that he wanted to withhold this status from Islam and thus to ban it to the second federal division" {18}. Who like Lehmann-critic Claus Leggewie says one wanted to force Islam into the "anachronism of the constitutional law on state-church-relations" {19}, has not understood the contribution and the purpose of religious institutions and plays religion and religious communities off against each other in favour of an approach taking into account the individuals' rights.


The Churches as Important Institutions of Religion in Germany

It is rather so that this particular relationship between church and state, which culturally has influenced us and also lastingly coined the legal relations between religion and church, should not carelessly to be thrown overboard. For the legal relationship between State and religion in Germany is based on two pillars. It is not only settled by means of Article 4 GG (see above) on freedom of religion but also and above all by the constitutional law on state-church-relations and the relevant articles from the Weimar Constitution incorporated in the Basic Law. The Federal Republic's legal relations to religion have always been strongly coined institutionally. Admittedly, there is in recent years a significant trend to form the law on religion by shifting the emphasis towards freedom of religion and thus orienting it more strongly towards the Basic Law, and to develop it from a "constitutional law on state-church-relations" to a "constitutional law on religion" {20}. But with good reasons that had so far only remained an academic discussion.

Hence the Minister of Justice Brigitte Zypries disregards a crucial element of the State's policy on religion, when she only talks about freedom of religion but ignores the strongly institutionalized legal relationship between the State and religious communities. In this way she neglects the important role of the churches as strong institutions and partners of the State. But strong religious communities are of great importance, because on the one hand they spread the faith (and thus also values), and on the other hand they oppose by an integrated teaching the individual fragmentation of faith and the legal consequences corresponding to that. In a certain sense these church functions of Mission and channelling the faith appear - related to the religious life - analogously to the function of the parties in the political life, which on the one hand by means of advertising and consent focus political opinions and which on the other hand themselves are opinion-forming.



The importance of religious communities can also be seen by the fact that nobody thinks his faith up, but faith is lived in a community that also takes care for passing on this faith.

Hence the importance of the churches as recognised institutions of religious life should not be underestimated. Not least because of the public mission of the churches and its by the Basic Law emphasized position religion is by far not only a private matter. Zypries' reference to the fact that religion "had to a large extent become a private matter of the individual citizens" can at best apply insofar as the question of the personal belief is a private decision. But faith and religion have on principle a public social impact {21}. The awareness of that public role of religion has admittedly increased in recent years, but religion had also before never disappeared from the public. Also states and societies with laicist claim had and have to recognize that. And in this sense it cannot be the aim and the claim of the Federal Republic to get religion out of public life. Exactly the opposite is the case: For good reasons the Basic Law grants the religious communities the possibility to develop their public work with an institutional status.


The Basic Law does not need a Specification of Religious Freedom

The Federal Minister of Justice is not alone with her proposal to put the fundamental right to religious freedom in concrete terms and by an amendment to admit a legal reservation of restrictions - i.e. the possibility of limiting the fundamental right by law. Some time ago Oliver Lepsius too published a similar proposal {22}. Lepsius refers to a connection of institutional constitutional law on state-church-relations and legal reservation of restrictions as regards religious freedom: Other countries which did not integrate the religious communities by an institutional solution needed a legal reservation of restrictions for religious freedom. Lepsius pleads for just such a solution. Thus also the question arises whether the Minister of Justice with her calling for restriction of religious freedom de facto wants to tackle the institutional constitutional law on church-state-relations. For the reasons given by her for the necessity of restrictions on freedom of religion are very weak.

The supposed problems mentioned by Zypries in connection with the interpretation of religious freedom that allegedly "gets out of hand" are actually unproblematic. For genital mutilation, hashish consumption and the notice of withdrawal from school lessons admittedly are items of actual discussions in recent years.



But they are just not covered by the freedom of religion of the Basic Law. The regulation of the Basic Law is sufficiently clear in order to fend off the concern to let "any behaviour" be legitimized by freedom of religion. The interpretation of freedom of religion has just here proved to be not "getting out of hand", but the Basic Law has rather proved itself in exactly these issues by its firm rejection.

Freedom of religion already now finds its limits. It is, as Udo Di Fabio recently stated, "only one fundamental right ... among others. It is no fundamental right de luxe. It cannot push aside other freedoms and rights." {23} "Unreserved guarantee does not mean unlimited guarantee", says Christian Walter {24}. Admittedly, freedom of religion also needn't be unconditionally guaranteed, but all previous cases could have been solved "with the help of the traditional dogmatics of a collision of interests protected by Constitutional Law" {25}. Hence Zypries here leads a mock discussion about "a greater precision in the protection area" of freedom of religion. For that reason the Minister of Justice's central thesis in her speech has to be clearly contradicted: The Basic Law does at present not need "clearer contours" and barriers to the fundamental right of freedom of religion.


The Challenge of Islam

The main challenge facing religious policy - and this is true not only for Germany but for almost all countries in Europe - is at present Islam's inculturation. Here you are to agree with Zypries when she expresses the hope that Islam may go the same - for the religion per se painful - way of adaptation which also Christianity had to go in order to recognize freedom of religion and to play a role supporting society. The inquiries in this context addressed to Islam are to a large extent again issues of the constitutional law on state-church-relations. For on the one hand it is about the challenge to induce Islam to form structures that enable the integration into the institutional system of the constitutional law on state-church-relations. On the other hand with it - in view of the above thoughts about the conditions for granting the status of a corporate body - the question is connected whether Islam is ready to recognize the order of values of the Basic Law and culturally to contribute to its preservation. Only such a positive contribution allows the institutional assimilation in status with the existing bodies such as the Christian churches.

But in the question indirectly asked by Zypries, namely how you can make Islam beneficial for society, she will make no progress by redefining freedom of religion. For freedom of religion with regard to Islam is rather a challenge to society than to the Muslims.



Certainly, in our society an abstract question whether you were to get Islam out of the backyards and concede it the equal rights as regards the possibility to build houses of God, will still be answered in the affirmative by a majority. But when the building of a mosque in the immediate neighbourhood begins to emerge, when the country's largest mosque is to be built in a city that has over the centuries been marked by the Cologne Cathedral, when it is about the actual acceptance of a minaret, then the agreement gives way in favour of the question after the cultural compatibility of Muslim traditions with the Western culture {26}.

Just as the constitutional law on state-church-relations is a challenge for Islam, so the freedom of religion is a request to the society to harmonize cultural ideas with freedom of religion. But Zypries' arguments go not far enough when she raises the accusation with regulations such as the headscarf ban for teachers and the banning of burqas in the Netherlands only political capital was made "out of the fears about the 'Christian Occident'". For these fears are real. It is the duty of democratic politicians not to leave them to the Islam-phobic forces. With it cultural reasons against particularly strong, just not inculturated expressions (such as the wearing of a burqa or the muezzin call), should not be made light of. But Zypries above all ignores the objective reasons which for example speak against the headscarf for teachers.


Religious Instruction and/or Value Lessons?

Freedom of religion requires from the state certain consequences: So it makes possible, for instance, the confessional religious instruction. For freedom of religion is a fundamental right that opens man the possibility to engage in religious activities or to refrain from them. But in order that man can experience religion he needs someone who exemplifies and communicates religion to him. Paul Kirchhof uses here the comparison with learning a musical instrument - a particularly beautiful picture, after the concept of religious musicality has got such a wide spread. As you need a model for the decision to make music, so things go also for pupils in religious matters. And since the ideologically neutral state guarantees freedom of religion, it is its task to let people experience religion {27}.

According to her remarks the Federal Minister of Justice does not want to question the religious education. She also considers it to be "desirable, soon to have Islam instruction - on equal footing with the Christian, taught by well-trained teachers, and in accordance with the curricula and the school laws.



You can fully agree with that wish - despite of all known problems. But Zypries also suggests establishing - in addition to the denominational religious instruction - a further subject, in which the knowledge about all religions and values should be taught. For religion, Zypries says, was "not the only source of values of a society". The churches had "no monopoly of young people's orientation towards values". And she continues in her speech on religion:

"From the freedom for religious education no freedom from ethics instruction can be constructed. There is no exclusive claim of the religions to value instruction. Precisely because of the diversity of creeds the State must also in schools even more strongly promote the social integration by common values instructions."

For that reason the introduction of a compulsory subject ethics in Berlin was for her "no 'attack on freedom of religion'". With it Zypries plays religious instruction off against state values instruction. For she pretends that the state was in the position to "promote" the training of culture and values in school. De facto the value instruction would promote no value training but would communicate values. Just for the reason that the state itself is not the producer of sense but only based on values, it to a large extent restrains from communicating values and knowledge of religion. On the contrary, according to the principle of subsidiarity it concedes to the religions the possibility of religious education and communication of values. Since the state itself has no religious claims, it allows the churches to meet the religious sense needs. Here it also becomes clear that the religious education goes beyond the communication of values, because religion primarily conveys a sense out of which in a second step values are derived.

Hence it is mainly about the question of one's own religiousness, not about the early training of religious scholars. Because of that Paul Kirchhof criticises also the idea of the state values instruction:

"When now the federal state Berlin says: We train the young people, as it were, in all religions at the same time, that's just as if you'd simultaneously teach young people all the musical instruments. Then they'll master none of them. They have first to master one, and then to decide, 'I keep to this one, or I choose another" {28}.

A state value instruction - intentionally or unintentionally - represents a relativization of religious instruction. Hence the idea should be rejected that in the end brings the state in the school in competition with the religions. This does of course not apply to the alternative ethics instruction instead of religious. But there is no need at all for a compulsory state value instruction.



Why we Need Religion

Expressly Zypries clarifies that for her only the Basic Law can form the common consensus of society: "May the people in our country follow the Bible, the Koran or the Talmud. Permanently, we will only live together in peace when one book applies to all of us - and that is the Basic Law." In terms of law that statement is certainly beyond doubt. But for Zypries the Basic Law also serves as sole basis for the entire cohesion of society. With her thesis Zypries refers to Ernst-Wolfgang Böckenförde and says: "If I correctly understand Ernst-Wolfgang Böckenförde's recent statements, then he above all banks on loyalty to the law as regards the cohesion of our society. It was the indispensable minimum of common ground."

Of course, only the constitution can serve as common legal basis to which all must keep. Nevertheless more seems to be needed for the social cohesion. After all also the Basic Law does not survive by itself. Just here a society falls back on existing values and convictions which promote the cohesion of society and can also secure the legal foundations with regard to their intellectual preconditions. Such convictions and values often spring from religious confessions. Precisely for this reason it is no no matter of indifference whether people follow a religious writing, if only they respect the Basic Law. State neutrality must, as Cardinal Lehmann says in this context, "not be mistaken for indifference and unthinking tolerance to the activities of religions in society" {29}. On the contrary, it is necessary to allow the civic ethos to benefit from the contribution of religion.

In this sense also Böckenförde does not seem to want to adopt the interpretation of his remarks by the Minister of Justice. On the contrary, in an interview with the Berlin "Tagesspiegel" he answers the question, "Does the liberal state therefore need religion? Is, for example, the Basic Law not enough ethical basis?" with the words: "That depends. If from other cultural sources a supporting ethos originates and remains alive, perhaps not. But it seems doubtful to me whether this is possible without religion." {30}

Precisely for this reason Zypries is wrong when she calls the "recourse to religion" a "nostalgia for the order of yesterday" that offered "no answers to today's questions". Quite on the contrary, a foundation carrying society and the intellectual and cultural preconditions of state and society will also in future not manage without religion.




{1} See W. Huber, Kirche u. Verfassungsordnung - Vortrag bei den 42. Essener Gesprächen in Mülheim/Ruhr am 12.3.2007:; D. Deckers, Aufklärung zweiter Ordnung. Bischof Huber u. Verfassungsrichter Di Fabio werben für ein Miteinander von Staat u. Kirche, in: FAZ, 16.3.2007; U. Ruh, Kontinuität u. Flexibilität. Wohin geht das deutsche Staatskirchenrecht?, in: HerKorr 60 (2007) 209-211; R. Schieder, Die Zivilisierung der Religionen als Ziel staatlicher Religionspolitik?, in: Aus Politik und Zeitgeschichte 57 {2007) H. 6, 17-24; K. Wiese u. M. Wrase, Wohin mit der Religionsfreiheit?, in: Zeitschrift für Rechtspolitik 40 (2007) no. 5, 171f.

{2} K. Lehmann, Zum schiedlich-friedlichen Verhältnis von Staat u. Kirche heute. Vortrag beim Karlsruher Foyer "Kirche und Recht" am 19.6.2007, vgl.; ders., Etwas genauer bitte! Nochmals zum Staat-Kirche-Verhältnis, in: Glaube und Leben, Juli 2007, vgl.

{3} The contribution is the revised version of a statement given during the "Lichthofgespräch 2007" at Ludwigs-Maximilians-University Munich on the topic "Demokratie und Religion - untrennbar oder unvereinbar?" (Democracy and Religion - Inseparable or Incompatible?) on 16 July 2007 with Brigitte Zypries, Konrad Hilpert, Ulrich Schroth und Matthias Belafi. Zypries has presented her theses first on 12 December 2006 in the 5. Berlin Speech on Religious Policy at Humboldt University:

{4} G. Jellinek, Die Erklärung der Menschen- u. Bürgerrechte. Ein Beitrag zur Verfassungsgeschichte (Leipzig 1895). Admittedly, the thesis on the primal basic right is time and again questioned, for instance by O. Lepsius, Die Religionsfreiheit als Minderheitenrecht in Deutschland, Frankreich u. den USA, in: Leviathan 34 (2006) 321-349, but it exists "now as ever rightly", see E.-W. Böckenförde, Der säkularisierte Staat. Sein Charakter, seine Rechtfertigung u. seine Probleme im 21. Jahrhundert (München 2007) 19, note 13.

{5} A. von Campenhausen, Religionsfreiheit, in: Handbuch des Staatsrechts der Bundesrepublik Deutschland, edited by J. Isensee and P. Kirchhof, volume VI (Heidelberg ²2001) 369-434, 372, § 136, Rn. 4.

{6} See G. Robbers, Staat u. Kirche in der Europäischen Union, in: Staat u. Kirche in der Europäischen Union, edited by the same (Baden-Baden ²2005) 629-641, 631f.

{7} I. de Gaulmyn, Nicolas Sarkozy a écrit à Benoît XVI (21.6.2007):

{8} S. Borger, Die Mauern stehen noch, in: Rheinischer Merkur, 28.6.2007, 25; J. Leithäuser, Krieg u. Frieden, in: FAZ, 18.7.2007,8.

{9} See H. Bielefeldt, Bedrohtes Menschenrecht. Erfahrungen mit der Religionsfreiheit, in: HerKorr 60 (2006) 65-70, 68.

{10} See M. Weniger, Europa ohne Gott? Die Europäische Union u. der Dialog mit den Religionen, Kirchen u. Weltanschauungsgemeinschaften (Baden-Baden 2007) 115-147.

{11} See M. Belafi, Christliche Werte u. Europäische Verfassung, in: Die Werte Europas. Verfassungspatriotismus u. Wertegemeinschaft in der EU?, edited by H. Heit (Münster 2005) 70-84.

{12} See the conclusions drawn by the Presidency of the meeting of the European Council in Brussels on 21/22 June 2007:

{13} Püttmann, Leben Christen anders? Befunde der empirischen Sozialforschung (Köln 1998) 10f.

{14} See Auch eine Frage der Überzeugung, in: Informationsdienst des Instituts der deutschen Wirtschaft Köln 33 (2007) H. 13:

{15} Böckenförde (note 4) 26; see also the same, "Der freiheitliche säkularisierte Staat ...", in: "Um der Freiheit willen ...!". Kirche u. Staat im 21. Jahrhundert (FS Burkhard Reichert, Freiburg 2002) 19-23; K. Lehmann, Säkularer Staat: Woher kommen das Ethos u. die Grundwerte? Zur Interpretation einer bekannten These von Ernst-Wolfgang Böckenförde, in: at the same place 24-30.



{16} See especially P. Kirchhof, Die Freiheit der Religionen u. ihr unterschiedlicher Beitrag zu einem freien Gemeinwesen, in: Religionen in Deutschland u. das Staatskirchenrecht, edited by B. Kämper u. H.-W. Thönnes (Münster 2005) 105-118, 114f.

{17} Lehmann, Zum schiedlich-friedlichen Verhältnis (A. 2) 14f.

{18} Lehmann, Etwas genauer bitte! (A. 2).

{19} See Leggewie gegen Privilegien für Christen, in: Kölner Stadt-Anzeiger, 30.6.2007;

{20} See Staatskirchenrecht oder Religionsverfassungsrecht? Ein begriffspolitischer Grundsatzstreit, edited by H. M. Heinig u. Ch. Walter (Tübingen 2007).

{21} Dazu bedarf es gar keines Verweises auf die völkerrechtliche Stellung des Heiligen Stuhls wie bei Schieder (note 1) 18f.

{22} Lepsius (note 4); see also A. Kemmerer, Wenn das Selbstverständnis nicht mehr ausreicht. Das "Urgrundrecht" im Plural. Die Religionsfreiheit ist in den maßgeblichen westlichen Verfassungstraditionen unterschiedlich ausgestaltet, in: FAZ, 6.12.2006. H. Bielefeldt too pleads for clearer limitations on freedom of religion (note 9).

{23} U. Di Fabio, "Pulverdampf des Kulturkampfs", in: Der Spiegel, 26 March 2007, 26f., 26.

{24} Ch. Walter, Religionsverfassungsrecht in vergleichender u. internationaler Perspektive (Tübingen 2006) 516.

{25} Walter (note 24) 513f.

{26} See E. Noelle u. Th. Petersen, Eine fremde, bedrohliche Welt. Die Einstellungen der Deutschen zum Islam, in: FAZ, 17.5.2006, 5.

{27} P. Kirchhof im Gespräch mit E. Biser u. M. Balle, Der Mensch im 21. Jahrhundert. Perspektiven für die Zukunft:

{28} At the same place

{29} Lehmann, Zum schiedlich-friedlichen Verhältnis (note 2) 13

{30} E.-W. Böckenförde, "Im Staat sind die Gedanken zollfrei", in: Der Tagesspiegel, 16.7.2007:;art122,2340225


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