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1. Privileges of the churches

Law and church status

State law shall not give preference to any religious community over other organizations. Neither shall religious groups be allowed to bind others to their values with the help of state laws.

What IBKA demands:

  • Religious organizations shall not have a privileged legal status over other organizations. The Catholic Church, as far as its status with the United Nations is concerned, shall be treated the same as other religious and philosophical communities.
  • Concordats and ecclesiastical treaties whose contents go against the principle of the separation of state and church / religion / philosophy shall be terminated. New agreements of this kind shall not be entered into. The subject matters of such shall be regulated by statute or, if necessary, by individual agreements.
  • Religious, philosophical and ethical values of individual persons and groups shall not be established by law nor be made binding for all citizens.
  • This principle shall include legal provisions prohibiting certain activities at certain times: religious holidays or periods of church services or any other religious events. Such provisions shall be permitted only if they protect the peace of religious holidays in the same way as Sundays or any secular holidays, or inasmuch as they are required to ensure the undisturbed holding of religious events. Any restricting provisions going beyond any of the above shall be abolished.
  • The use of religious forms and symbols (school prayer, crucifix, oath) shall be prohibited in any public institution (e.g. court, state school).
  • The questioning by public authorities of citizens regarding their religion (e.g. pursuant to the German law on civic status) and any corresponding information in public documents and forms are contradictory to the religious neutrality of the state and shall be refrained from and/or deleted.

Special conditions in Germany:

The German judiciary displays ecclesiastical-clerical influences. The Concordat of the German Reich from 1933 and the state concordats (Länderkonkordate) define the relationship between state and church in Germany. They are contradictory to the principle of the separation of church and state. As rehards the Catholic sphere, areas they were entered into on the basis of canon law, the Corpus Iuris Canonici (CIC). Quite evidently, some court judgements were made according to ancient ecclesiastical law. This includes judgements in connection with the "blasphemy clause" (Section 166, German Penal Code), the abortion clause (Section 218, German Penal Code), judgements regarding school prayer and church tax as well as judgements of industrial tribunals under the so-called Right of Tendency clause [Tendenzschutzparagraph; Tendenzschutz means that in media, and in other companies, which besides their economic interests (primarily) pursue intellectual or philosophical objectives (= Tendenz), the rights of the works councils are restricted. The lawmaker justifies this restriction with the supposedly necessary protection of the civil rights and liberties (i.e. freedom of the press) of those, who pursue the intellectual and philosophical objectives of the company; the translator].

Prevailing public jurisprudence undermines the principle of separation of state and church by referring to legal sources, particularly the constitutions of the Länder (Land / plural: Länder: any of the federal states of Germany) and ecclesiastical treaties (concordats), that are subordinate to the Constitution of the Federal Republic of Germany. "Federal law shall take precedence over Land law" is stated in Article 31 of the German Basic Law (Grundgesetz, GG). Crucifixes in courts indicate further that the constitutional provision of the separation of state and church is far from complete within the judiciary.

Incompatible with the provision of philosophical-religious neutrality of the state is the privilege that is granted to full-time clergymen and students of theology: Unlike other citizens, they can be exempt or deferred from military service or the alternative community service.

An important privilege of the churches and other religious and philosophical communities in Germany is defined in the German Constitution: They can be or become a "corporation under public law" (Article 137 of the Weimar Constitution of the German Reich (Weimarer Reichsverfassung) from 1919, which, according to Article 140 GG, forms part of the German Constitution).

This privilege is a relic from the times of the state church, when the church was covered by public law and was granted privileges from, but at the same time dominated by, the state. This status of a public-law body is contradictory to the state's obligation of religious and philosophical neutrality. In addition, these privileged religious organizations and philosophical communities do not meet one single defining characteristic required by a corporation under public law.

In Germany, the status of a "corporation under public law" results in a close cohesion between state and church. It influences the regulations of the beginning and the termination of church membership. These regulations appear to be explicitly aimed at securing the churches a large number of members. In Germany one becomes a member of the church by being christened, usually as a baby, without one's consent. Leaving the church, on the other hand, requires quite a lot of energy: In most German states this is done through a personal declaration at the local court or registry office. Employees will then have to have their wage tax card adjusted accordingly, for which purpose they have to call on the issuing authority.

Christians (by certificate of baptism) whose church membership has nothing to do with their convictions whatsoever are still listed in public certificates and statistics and are being used by the churches as the basis for their status as the "strongest socially relevant group" and their claims for public subsidies and opportunities of influence.

Not least by paying their church taxes, these "church members by certificate of baptism" play an important role in the funding of the churches. Even those are expected to pay who, as minors, were "christened into the church" without giving their consent, based only on an agreement between their parents and the church. Putting an end to this imposed church membership is only possible by officially leaving the church.

During the last few years, leaving the church has been made even more difficult in some Länder: The person leaving is charged a fee (in 2001, the leader was Baden-Württemberg charging 50 euros). In IBKA's opinion, this fee is a violation of the German Basic Law. Pursuant to the German law on non-profit associations (Vereinsrecht) alone, non-profit associations are not permitted to charge a leaving fee, because this would constitute an "inadmissible impediment to withdrawal". What applies to a non-profit association should certainly apply to a religious community: after all, the right to leave a religious community is part of the human right of religious freedom1. The status of "public law corporation" has an effect on the collection of church tax: Those religious organizations who are corporations under public law have the right to levy taxes based on the civil lists of tax assessments in accordance with the provisions of the law of the Länder." (Article 137 paragraph 6 of the Weimar Constitution). Based on this provision, a practice has developed in Germany that carries the involvement of state and churches even further than as defined by this provision:

The state has taken on the responsibility of collecting the membership contributions on behalf of the two main Christian churches in the form of the so-called church tax - in 1992, this amounted to an equivalent of approx. 8 billion euros! The great financial power of the churches in Germany stems primarily from the above. As far as salaried employees are concerned, employers are obliged to carry out accounting with respect to the collection of the church tax free of charge. The constitutional principle that nobody has to reveal his or her philosophical views is being disregarded in favour of the collection of church tax. Employers find out their employees' confession and public authorities get information on the religious profession of the citizens administered by them.

By collecting church taxes the state gets involved in the dubious methods of financing the churches. Thus, a number of Länder has introduced a law about a "special Kirchgeld (church contribution) for married couples of different creeds": If only one of the married couple is a member of a church and the church member earns considerably less than the non-member, they have to pay a Kirchgeld according to the income of the main earner - this being the income of somebody who is not a member of the church at all.

What IBKA demands for Germany:

  • The German Basic Law and the constitutions of the Länder shall be reviewed to determine to what extent they fulfil the philosophical-religious neutrality of the state and be amended as necessary.
  • The judiciary shall consider canon law (CIC) only insofar as it considers the articles of associations of non-profit organizations, that is, where such has been explicitly provided for by state law.
  • Court judgements putting canon law (CIC) above the German Constitution are a violation of the German Basic Law and shall be rescinded.
  • Section 166 StGB (German Penal Code) shall be deleted.
  • Clergymen and students of theology shall be treated the same as all other citizens. As long as there exists a compulsory military service, they shall be called in for military service or the alternative community service just as any other citizen. Any law exempting full-time clergymen and deferring students of theology from military service shall be abolished.
  • The status of a "corporation under public law" for churches and philosophical communities shall be abolished. Paragraphs 5-6 of Article 137 of the Weimarer Constitution shall be deleted from the German Basic Law without replacement.
  • Churches and philosophical communities shall be converted into institutions under private law which are subject to the general provisions of the law on non-profit associations (Vereinsrecht). In the interest of religious freedom, the right of church members to leave the church at any time with immediate effect shall be guaranteed. This right equally applies to all members of any religious or philosophical community.
  • Christening of children shall be performed as a religious, purely church-internal ceremony and exclude any legal claims by the church against the state and its citizens, thus being without any effect under state law.
  • Aquisition of legally valid membership with a religious and philosophical community shall be possible only by a personal declaration, not before the person seeking membership has reached the age of religious maturity (Religionsmündigkeit) (14 years).
  • Leaving the church shall at any rate be free of charge. As far as public authorities are responsible for dealing with declarations of withdrawal from church, they shall be entitled to reimbursement from the churches for any administrative expenses incurred.
  • Church tax shall be abolished. It is the churches' responsibility to finance themselves through their own contribution system.
  • The "special Kirchgeld for married couples of different creeds" shall be abolished or shall not be introduced in the first place.

The funding of the churches by the German state

Special circumstances in Germany:

In Germany, the state is not only involved in the financing of the churches by collecting the church tax. The churches also receive additional income and benefits from the government budget, i. e. out of the pockets of all taxpayers, including the non-religious and members of religious minorities.

This is based on the alleged obligation to compensate the churches for lost assets through the so-called secularization. These payments take the form of state pensions paid to the churches out of taxes from both Christian and non-Christian citizens in Germany. What has not been taken into account so far is the fact that before "secularization" (1803) the churches appropriated themselves assets in the order of billions (according to today's assessment) by illegal or legally questionable means (e.g. confiscating the assets of "witches" and victims of the inquisition, forging certificates of possession, legacy hunting by taking advantage of people's fear of the purgatory). For this reason alone, those state subsidies based on "secularization" shall be withdrawn without replacement. The Christian churches, on the other hand, have hardly ever compensated their victims. For no other group, let alone individuals, does the state recognize claims for compensation after such long periods of time. In view of payments from public funds for almost two centuries any claims which might have existed were paid for a long time ago.

In addition the churches are granted subsidies from public funds (e.g. contributions to building cost from the Federal government, the Länder and local authorities) in the order of billions as well as further millions through blanket benefits from the Länder, including even the funding of church events (such as church congresses, ecumenical celebrations, etc.). Often, these benefits are dynamically adjusted from one year to the next, occasionally even unnoticed by the parliamentary controlling bodies. The question why - despite a constitutional provision for the discontinuance of state benefits based on ancient titles - the Basic Law of a state claiming philosophical-religious neutrality should permit the establishment of state benefits also remains unclear.

Equally incompatible with the philosophical-religious neutrality of the state are its contributions towards the funding of religious instruction - be it the funding of Theological Faculties or the funding of religious education in state schools (2. Youth and education).

Further unjustified financial contributions by the state are justified by Article 141 of the Weimar Constitution of the German Reich from 1919 which, according to Article 140 GG, forms part of the German Basic Law: To the extent that a need exists for religious services and pastoral work in the army, in hospitals, in prisons, or in other public institutions, religious societies shall be permitted to provide them, but without compulsion of any kind.

The state-organized and state-funded pastoral care in the army and prisons through clergymen with permanent civil-servant status, however, goes far beyond the above "permission". Thus, a responsibility of the church was turned into a responsibility of the state, contrary to the prohibition of any institutional link between state and church.

An alliance of church and military in Germany is no less evident than throughout the entire history of the church.

Ever since the Reichskonkordat (concordat between church and the German Reich), which was entered into by the Hitler government in 1933 and continues to be legally valid in Germany, there has been state-organized pastoral care for the military services: The churches provide the clergymen who, just like with the entire personnel of the military church administration, are paid for by the state. As civil servants of the Federal Republic of Germany, the clergymen are subordinate to military leadership.

They have to teach the so-called Lebenskundlicher Unterricht (lessons on the theory of life) which is part of the troops' regular service programme. With regard to the Protestant church in Germany, the Treaty on Pastoral Care for Military Personnel which came into force in 1957 provides for a similar regulation. This is an institutional violation of the constitutional provision for the separation of state and religion.

What IBKA demands for Germany:

  • An individual's religious affinity or world view is part of his/her inviolable private sphere. Nobody shall be forced to reveal his/her religious affinity or philosophical conception of the world to the Einwohnermeldeamt (local government office for registration of residents) or on his/her wage tax card. Neither are the church authorities entitled to request proof of non-membership with a religious community to clarify the assessment of church tax.
  • The state benefits based on historical legal titles (e. g. owing to the so-called secularization of church assets in the 19th century) shall be terminated. The reimbursement as provided by the German Basic Law shall be considered to have been effected by the payments so far made by the state. Therefore, the constitutional provision, which came into force in 1919 and was confirmed in 1949, to reimburse the religious associations on the basis of law, agreement or special legal titles through the legislation of the Länder in accordance with principles to be established by the Federal Government shall be deemed as performed and, hence, abolished.
  • Tax advantages or special advantages regarding public charges (such as exemption from real property tax, real property transfer tax, administrative or legal fees, etc.) for religious and philosophical communities, particularly the two main Christian churches, shall be abolished.
  • As long as the religious and philosophical communities, particularly the two main Christian churches, are granted benefits and financial contributions from public funds, these shall all be disclosed and subjected to unlimited parliamentary control and compulsory disclosure. This shall include any benefits and payments dynamically adjusted from one financial year to the next on the basis of legal contracts, administrative agreements, historical legal titles, etc.
  • State funding of theological faculties shall be discontinued.
  • State funding of religious education in state schools shall be discontinued.
  • The institutionalization by the state of pastoral care for personnel of the military service, the Federal Border Police (Bundesgrenzschutz), police and penal institutions shall be abolished. Especially, military and institutional pastoral care, in their present form, violate the German Basic Law and shall therefore be given up.

Remarks:

Kirchenaustrittsgebühren (fees for leaving the church): How some Länder hinder secession from church, available on the Web from www.ibka.org/artikel/ag00/gebuehr.html