Religious communities and the state in Germany
Religion and the Basic Law
The most important provisions governing the relations between church and state in Germany are found in Article 4 of Germany`s constitution, the Basic Law, and in the articles of the German Constitution of 11 August 1919 (Weimar Constitution), which are an integral part of the Basic Law under its Article 140. For historical reasons, the constitutional provisions governing the relations between church and state are based on the organization of Christian churches; however, they also apply to all other religious and philosophical organizations.
In addition, many issues of constitutional law on religious organizations are governed by agreements between the state and these organizations.
Freedom of religion
Article 4 (1) and (2) of the Basic Law guarantees every individual freedom of religion. Every person has the right to freely profess a religion and to join a religious organization. However, everyone also has the right not to profess a religion, to leave a religious organization or to change religions.
The freedom of religious assembly is the right to form associations based on shared religious or philosophical beliefs. The freedom of religious assembly is part of the freedom of religion guaranteed under Article 4 (1) of the Basic Law. It is also protected under Article 140 of the Basic Law in conjunction with Article 137 (2) of the Weimar Constitution.
While the right of religious freedom (Article 4 (1) and (2) of the Basic Law) is unconditionally guaranteed, it is limited by the basic rights of others and other fundamental constitutional values; lawmakers may not otherwise limit the freedom of religion in any way.
No state church
Germany does not have a state church: Institutional ties between the state and religious or philosophical organizations are prohibited (Article 140 of the Basic Law in conjunction with Article 137 (1) of the Weimar Constitution). However, this does not rule out cooperation between the state and religious organizations. Such cooperation is allowed when it complies with the requirement of neutrality and equal treatment. Germany does not practise the kind of secularism seen in France, for example, with a strict separation between church and state; instead, over the centuries the state and religious organizations have come to cooperate with each other. Religious organizations are also called on to express their positions on social issues and to take part in various commissions and boards, such as ethics commissions, boards of public television and radio broadcasters, and the Federal Film Board. They are consulted, for example in Bundestag committee hearings, where they can make their positions known.
According to the Federal Constitutional Court, the state must regard itself as a "home for all citizens", independent of their religious or philosophical beliefs. For this reason, the state cannot identify itself with a particular religion or philosophy, but must remain neutral and tolerant towards all faiths and philosophies.
Right of self-determination
The right of self-determination for religious and philosophical organizations means that they are independent of the state and may manage their internal affairs autonomously, within the limits of the law that applies to all (Article 140 of the Basic Law in conjunction with Article 137 (3) and (7) of the Weimar Constitution).
The status of religious organizations
Persons who wish to form a religious or philosophical organization do not need state permission to do so. Only if the organization wishes to be recognized as having a particular legal status, such as an association having legal capacity, will it have to be entered into the appropriate register; this applies to non-religious organizations as well. The same applies to recognition as a charitable or non-profit organization for tax purposes. Any religious group may organize itself as an association and acquire the status of a legal person in order to enter into legally binding contracts, for example. Many religious organizations in Germany, including Muslim organizations, have the legal status of a registered society.
In addition, such organizations may acquire the status of a corporation under public law, which grants certain privileges, such as the right to collect taxes from its members and to delegate the task of tax collection to the state, which then turns over the tax revenues to the organization. Religious groups organized as corporations under public law also enjoy other privileges, such as exemption from certain taxes, fees and charges. Such groups may decide whether their staff are employed under private or public law. Religious organizations with the status of corporations under public law do not perform any state tasks, however; they are not part of the state and are not subject to state supervision. They are a separate type of constitutionally recognized corporation with special rights.
Those religious organizations which were recognized as corporations under public law when the Basic Law entered into force have a constitutionally guaranteed status. Other religious organizations may be granted this status upon request if certain conditions are met (Article 140 of the Basic Law in conjunction with Article 137 (5) of the Weimar Constitution).
The German states (Länder) are responsible for granting the status of corporation under public law. According to the constitutional division of powers, the states have primary responsibility for cultural matters and therefore also for constitutional law on religious organizations. The states may grant this status only to those organizations whose constitution and number of members give assurance of their permanency (Article 140 of the Basic Law in conjunction with Article 137 (5) of the Weimar Constitution). In practice, this means that the organization must have a certain minimum number of members and sufficient financial resources, and has existed in the Federal Republic for at least 30 years.
According to Federal Constitutional Court rulings, the religious organization must also be expected to exercise the sovereign authority delegated to it in compliance with constitutional and other legal obligations, and its future action must not threaten the fundamental constitutional principles, the basic rights of third parties protected by the state, or the basic principles of the liberal constitutional law on religious organizations.
Under Article 7 (3) of the Basic Law, religious instruction shall form part of the regular curriculum in state schools. Such instruction is compulsory for members of the relevant religious organizations. However, children may be excused from religious instruction at their parents’ request; students over the age of 14 may also request to be excused.
Under Article 141 of the Basic Law, the provision making religious instruction part of the regular curriculum in state schools shall not apply in any state in which state law provided otherwise on 1 January 1949; this was the case in the city-states of Bremen and Berlin.
Religious instruction as part of the regular curriculum is intended to convey the values and doctrines of the relevant religious organization; religion classes intended only to provide neutral information about one or more religions is not the kind of instruction referred to by the Basic Law.
Although the states are responsible for supervising school curriculum, the curriculum for religious instruction is to be set in cooperation with the religious organization and “in agreement with their principles”. Organizing religious instruction in schools is the responsibility of the states, as part of their responsibility for education. Under certain conditions, religious organizations are entitled to have religious instruction in their faith taught at public schools. Among these conditions are that their constitution and the number of their members give assurance of their permanency; the organization must also have a clearly defined membership so that it is possible to determine who is required to attend religious instruction. They must also have a designated representative to the government who is authorized to define the organization’s principles to be followed when giving religious instruction. Further, the religious organization must not threaten the fundamental constitutional principles, the basic rights of third parties protected by the state, or the basic principles of the liberal constitutional law on religious organizations. The religious organization does not have to be a corporation under public law.
According to rulings by the Federal Administrative Court, schools may introduce non-confessional ethics curriculum for students not taking religious instruction. Public schools may offer classes on ethical issues.
All religious and ideological communities with corporation status may levy taxes (Article 140 of the Basic Law in conjunction with Article 137 (6) of the Weimar Constitution).
The church tax is not a state tax. Only members of the relevant religious or philosophical organization are subject to the tax. Organizations with the right to levy taxes may decide whether to do so.
The states are responsible for the specific legislation on the church tax and determine the details in consultation with the religious and philosophical organizations entitled to levy taxes. Because this is a matter for the states, the law on church taxes varies from state to state, so only the general structures can be described here.
In most cases, church tax takes the form of a surcharge on income and wage tax. This surcharge ranges from 8% to 9%, depending on the individual state. The church tax is subject to management by the church administration. However, the relevant legislation of all the states gives churches the option to delegate management to the state tax offices. If they choose this option, the churches pay the state tax offices a management fee amounting to between 2% and 4.5% of church tax revenues.