Brigitte Schoen. Nova Religio: The Journal of Alternative and Emergent Religions. Volume 4, Issue 2. April 2001.
Reformation has left its traces on Germany’s religious landscape, which still shows a distinctively regional distribution of Roman Catholics and Lutheran and Reformed Protestants. While in 1950, 94 percent of the population belonged to the two churches, recently, numbers have dropped rapidly, with 27 million members or about 33 percent of the population for each church. Ex-members largely remain unchurched. Reunification also brought a significant increase in the number of nonbelievers. Minority religions are estimated to have five million members, or about six percent, with the largest minority religion, Islam, numbering about three million members. Figures for new religions vary considerably. While there is disagreement concerning numbers as well as which communities count as new religions, they certainly are a fringe phenomenon. The typical size of new religions ranges from several hundred to a few thousand members.
Freedom of Religion and Modern Church-State Relations
The fundamentals of religious freedom and church-state relations are laid down in the basic law, the constitution of 1949, which since German reunification is binding for East Germany as well. A major intention of the constitution has been to strengthen the fundamental human rights which are understood to govern the basic law. These fundamental human rights are binding on legislative, executive, and judicial branches of government and are directly enforceable law (Art. 1 III GG). Their essential content must not be infringed (Art. 19 II GG). Freedom of religion is guaranteed through Art. 4 GG, which rules that freedom of creed, of conscience, and freedom to profess a religious or non-religious faith are inviolable; that the undisturbed practice of religion is guaranteed; and that conscientious objection against military service is respected. Art. 4 GG does not state an explicit limitation on religious freedom, which means that this right finds its limits only in the constitutional order as a whole as well as in the basic rights of other individuals. This means that a compelling state interest does not suffice to restrict religious freedom unless it is based on the above named limits. On the other hand, the basic rights of others have to be guaranteed, such as a child’s right to freedom from injury in the case of Evangelicals calling for corporal punishment. To sum up, constitutional guarantees of religious freedom are extensive in present-day Germany.
Church-state relations are the result of a double compromise, the compromise of the Weimar constitution of 1919 being incorporated into the basic law of 1949 because in both cases debates over how to reform the system could not be resolved politically. The constitutions merely prohibit a state church, they do not ask for a strict separation of church and state. Religions are organized either under public or under private law. A corporate body under public law is usually carrying out tasks of the state and therefore is granted a number of state powers, such as the right to levy a tax on its members; the purpose of this organizational form is to have an independent unit of public administration. Organizing religions in this fashion is of course a remnant of the former state- church system. The Weimar constitution produced an interesting compromise by making public law status accessible to all religions and Weltanschauungen which by their constitution and the number of their members guarantee longevity. This meant in effect that the established churches did not lose privileges, but now had to contend with competition. Recently, the Jehovah’s Witnesses have been denied public law status because of a lack of loyalty towards the state, which the federal administrative court has seen as contrary to the cooperation with the state connected with this status; the case has been brought before the constitutional court, which has promised a thorough examination. The case clearly illustrates the tensions caused by assigning state powers to an organization which because of its religious nature cannot be under state supervision.
Religions that do not meet the requirements for public law status organize according to private law; there is no special legal form for them. On the whole the system increases the differences between large and influential religions and small minority religions. Quite often, however, different treatment does not derive from public or private law status but from the fact that those religions holding public law status also have far higher numbers of members. For instance, religious instruction in public schools does not depend on public law status but on whether sufficient numbers of students exist to form classes. The right to public declaration of one’s faith and to public recruitment, that is, the acknowledgement of a public religious mission, is granted to all.
The Concept of Religion in Jurisdiction
The constitutional court stressed early that the right to freedom of religion has to be interpreted broadly. There is no concluding definition of religion; a working definition of the constitutional court merely requires that members of a religion or Weltanschauung share and testify to a consensus on the meaning of human life and how to cope with it. This means a minimum of organizational form, a consensus on the meaning of human existence, and bearing witness to that consensus. As a result, the acknowledgment of new religions has been unproblematic. Neither political activities nor predominant engagement in economic activities hinder the religious character of an organization. Only when religious teachings are alleged to be simply a pretext or facade for economic activities—that is, if the community in effect exclusively pursues economic interests—will it lose the guarantees of Art. 4 GG. So far only Scientology has been affected by this stipulation. The constitutional court has not had a chance to discuss the nature of Scientology at this juncture, but in another decision it has made clear that a community’s own insistence that it is religious may not suffice. Finally, it is the task of the courts to examine and decide these issues in terms of the meaning and aim of the constitutional provisions for the basic right of religious freedom.
The flip side of this generally pro-religious jurisdiction can be seen when it comes to religion in the public square, where Christian predominance is clearly felt. Religion in public school may serve as an illustration. The state court of Hessia ruled in 1965 that school prayer would violate the negative religious freedom of the non-believer. However, the constitutional court in 1979 still held school prayer to be permissible as long as students were free to decide whether to participate or not. A significant alteration was effected in the so-called crucifix decision of the constitutional court in 1995, which stated that crosses in the classrooms of Bavarian public schools violated the plaintiffs’ religious freedom, since the children were legally required to attend school and thus to be confronted with the cross, a situation which differs from casual encounters with religious symbols of different faiths in daily life. This decision attempted to resolve tensions between different faiths by at least removing religious symbols in situations where confrontation is unavoidable. However, it will not generally affect the presence of religious symbols in public. This active support for minority faiths against the predominant culture has been a comparatively late development, but because of the increasing numbers of non-Christians in Germany, this trend is likely to continue, Bavarian protests against the crucifix decision notwithstanding.
The most conspicuous activity of German governmental agencies has been the production of information booklets on new religions. One of the first of these was a published report by the Federal Government in 1979 to the Board of Petitions, which had called on the government to present a concept of how it was going to deal with certain problematic endeavours of new religions. The government’s report gave a general perspective on problems arising with new religious movements (NRMs) and specifically mentioned the Unification Church, the Children of God (Family of Love), ISKCON, Divine Light Mission, Scientology, Transcendental Meditation, and the Bhagwan Rajneesh movement. The legal part of the paper ruled out any prohibition of NRMs and emphasized the possibilities existing laws provide for eventual action.
This booklet as well as others distributed by state governments were challenged by lawsuits filed by the new religions affected. The courts then had to clarify the standard which the booklets needed to meet. They affirmed that authorities generally are bound by the precept of neutrality and tolerance, the principles of proportionality, requirement, and appropriateness, and the prohibition of excess. While accurate factual statements are permissible, matters which are yet unclear are excluded, as are speculations and rumors. In the latter case, even speculations that appear as quotations from other sources must be excluded, since including them could lend them an air of authenticity. An important controversy arose regarding the legal basis on which the booklets were issued, as they were taken to be an interference with the right to religious freedom of the religious groups cited. While state governments can resort to police power which is situated at the state level, the federal government cannot. In much debated rulings both the federal administrative court as well as the constitutional court derived the legal basis for the booklets from the constitution itself.
The booklets themselves are of very mixed quality. Despite a large amount of legal information, the booklets aim to be accessible to the general public, and therefore often tend to oversimplify. Because of these court rulings, the booklets now mainly rely on quotations from publications of the religions in question. State warnings against new religions on the one hand seem drastic because of their publicity; on the other hand everyone is free to ignore them, as was pointed out by the federal administrative court. While it is important that new religions protest against booklets which they perceive to be unfair, the courts have held this public form of debate to be legitimate. However, the booklets’ influence on public opinion should not be overestimated.
In 1996, the German Parliament appointed an Enquete Commission entitled “So-called Sects and Psychotherapy Groups.” The general purpose of Enquete Commissions is to provide parliament with background information on complex and important issues. The task of this commission was not to deal with particular organizations, but to analyze and to mitigate the potential for conflict in a range of new religious and ideological communities and psychotherapy groups. As the commission was initiated at the request of critics of new religions, and as the majority of the commission’s members can be counted among critics, the commission’s results were all the more surprising. It concluded that at present new religious and ideological communities and psychotherapy groups presented no danger to state and society or to socially relevant areas. Reasons for these moderate results can be seen in the presence of experts as permanent members of the commission, most notably among them Hubert Seiwert, who has analyzed the political conflicts and compromises behind the scenes. The commission not only drew on social scientific research, but had itself ordered a number of research projects the results of which could not be ignored. This is a significant contrast to the French Enquete Commission of 1996, which largely relied on intelligence service reports, or the Belgian Enquete Commission of 1997, which viewed sociologists and historians of religion as mere theorists who would only study the doctrines and texts of these movements and would use very vague categories for qualifying groups as NRMs. As a result, the Belgian commission found that the conclusions of scholars were insufficiently grounded and judged that their work was not really appropriate for the task of the commission, since the sociologists did not study the harmful aspects of the organizations in question.
In 1997, the conference of the ministers of the Interior decided to put Scientology under surveillance. As the decision came in the wake of Scientology’s international campaign against Germany, it certainly was influenced by public pressure on the government to act. The basis of the decision was the legal expertise of a task force of the intelligence service. While there is general agreement that the state of affairs warrants surveillance, it is debateable as to whether it warrants it compellingly. Helmut Albert has raised the interesting question whether surveillance would actually bring substantially new information, since the intelligence service has to rely mainly on open sources, due to legal restrictions on the tapping of telecommunications. So far, the surveillance has resulted in the production of further information booklets on Scientology.
Taken together, governmental activities have mainly influenced the sphere of public opinion through the collection of information by the Enquete Commission and the intelligence service (on Scientology) as well as through the distribution of information to the general public. This of course means a high degree of publicity for the debate on new religions in Germany. On the other hand, governmental activity did not go beyond the collection and distribution of infomation, mainly because of the restrictions arising from the extensive constitutional guarantees for religious freedom and the fact that new religions have been recognized as proper religions by the courts. This recognition has been an important factor especially in dealing with local public administration. It remains open to debate how far other tools of the state have been instrumentalized for political purposes. The Enquete Commission for its part has arrived at an independent position, and the intelligence service has refused to monitor new religions other than Scientology.
It does not seem appropriate to speak of a grass roots German anticult movement, as the degree of institutionalization of the organizations is high, as is cooperation between organizations. The prominent role of the churches makes it easy to overlook the fact that one is dealing with a number of quite distinct organizations ranging from concerned parents’ initiatives to full-time church counsellors. Attitudes towards new religions also vary. Large differences occur especially within the Protestant Church, which accommodates both the generally moderate Evangelische Zentrale fur Weltanschauungsfragen (EZW) information center as well as the aggressive anticultist Pastor Thomas Gandow.
During the late 1970s and the 1980s some anticult organizations received state funding, a practice which was stopped by the courts since such funding violates the principle of neutrality if the sponsored organization operates on a religious or ideological basis. In addition, private persons can rely on freedom of speech and do not face the same restrictions as public authorities; therefore authorities must not sponsor tendentious organizations in order to circumvent these restrictions. Loss of state funding for private organizations on the other hand meant that the churches became more attractive partners for cooperation and occasional funding. It also led to the foundation of information centers which operate on a neutral basis and therefore may receive state funding, such as the IDZ (Informations- und Dokumentationszentrum Sogenannte Sekten/Psychokulte) in Cologne. This is an interesting development which may help to balance the predominance of Christian countercult information.
Some observers of the German situation may be surprised not to have read anything more alarming. After all, the United States granted political asylum to a German Scientologist in 1997 on grounds of religious persecution. Some scholars have also claimed that German courts would rule according to the information they have been fed by church “cult” investigators; or that Germans descend into persecutional frenzy in periodic cycles because the German psyche associates nontraditional religions with destabilizing political movements. Numerous factual errors notwithstanding, such publications seem to enjoy a certain popularity.
Part of the predominantly negative view derives from the fact that there has been a very contentious public debate about new religions. Even the German government has participated in this debate, and the style some politicians have employed has been much frowned upon. But these concerns have to be seen in the context of a quite favorable constitutional and judicial background. The supportive stance of the courts did not make it into the news because it was not controversial. Still, public opinion on new religions has been quite negative, and Scientology’s campaign against Germany led to an escalation of the situation in the mid-1990s. It was interesting to see that even in the case of Scientology the government’s options for action turned out to be very limited. Instead, officials mainly concentrated on influencing public opinion on the issue. The attempt of the anticultist initiators of the Enquete Commission to jump on the train of current anticult sentiment eventually backfired, as the commission was not able to find evidence for the alleged dangers of new religions. If anything, these official results have had a moderating influence on public opinion.
A general evaluation of the situation of new religions in Germany must take into account the balance between the legal situation, jurisdiction, political action, as well as anticult activities and public opinion. It may be argued therefore that the bitter public dispute on new religions has to be seen as a counter-reaction to the comparatively favorable stance provided for by the legal situation and jurisdiction. Religion old or new is not restricted to the private sphere, but neither is the discussion of religions. The price for a presence in the public square seems to be a public debate, which quite often has taken a negative tone.