Legal framework

The status of religions in Germany is governed by a set of complex legal standards, including constitutional principles, legislative provisions, treaties and agreements between the State and the Churches. In comparison to other types of State-Church relationships, Germany’s situation is distinguished by a partnership between the State and religious communities. The State cooperates with the religious communities in the areas of education, social action and chaplaincies in the army and in prisons. It also maintains formal relations with the representative bodies of the Churches. The following information on Religious rights (Staatskirchenrecht or Religionsrecht) refers to the legal foundations of this partnership.

In Germany, religious rights are characterised by the principles of liberty, equality and the public nature of religions as well as by the separation of the State and Religious Communities. These principles are rooted in the Basic Law (Grundgesetz, GG) and in the Weimar Constitution (Weimarer Reichsverfassung, WRV), of which the provisions regarding religious communities are conserved in the Basic Law.

Voir ROBBERS Gerhard, "State and Church in Germany", in ROBBERS Gerhard (ed.), État et Églises dans l’Union européenne, 3e éd., Baden-Baden, Nomos, 2019, p. 109-124.

D 19 July 2012    AMichael Heinig

The central standard of constitutional law on religion is religious freedom, set out in article 4 (1 and 2) GG. Individual religious freedom aims at protecting the personal freedom to have beliefs, the freedom to confess or spread one’s faith and to behave according to one’s beliefs and religious doctrines. The right to reject any set of beliefs and live without religious beliefs is also protected.
This fundamental right is interpreted expansively in the jurisprudence of Germany’s Federal Constitutional Court in Karlsruhe. It is guaranteed without any legislative reservations. In this respect, religious freedom, in German Constitutional Law, goes even further than article 9 of the European Convention on Human Rights.

Through the religious freedom of collective bodies, religious communities are guaranteed the right to unite and administer their affairs independently, especially with regard to religious doctrines and the selection of their officials. The right to religious freedom for collective bodies is guaranteed within the limits of the law applicable to all citizens (article 140 GG and article 137 (3) WRV). The freedom to form religious associations is also guaranteed (article 140 GG and article 137 (2) WRV).

The fundamental right of religious freedom constitutes the basis of other standards in Religious rights, with regards to religious instruction in state schools (article 7 (3) GG), chaplaincies in public institutions (article 140 GG and article 141 GG WRV) or the legal status of corporations under public law that is available to religious communities (article 140 GG and article 137 (5) WRV). All of these rules are viewed, especially in the jurisprudence of the Constitution Court in Karlsruhe, as instruments that help promote and achieve religious freedom.

D 19 July 2012    AMichael Heinig

Since the Peace of Westphalia (1648), a principle of religious equality was established in Germany. Originally, this principle legitimised the equal treatment of the two Christian faiths. This principle became widespread during the 19th century and is viewed today as a general principle of religious equality.
Thus, any form of religious discrimination is prohibited (article 3 (3) GG). Being eligible to work in the public service is independent of the candidate’s religious denomination (article 33 (3) GG).
All religious communities must be treated according to the principle of equality. They are legally equal with regards to specific standards concerning religious instruction in state schools (article 7 (3) GG), the status of corporation under public law (article 140 GG and article 137 (5) WRV) or military and prison chaplaincies (article 140 GG and article 141 WRV).
There is no State control over religious affiliation. In other areas of partnership between the State and religious communities, the number of members of the religious organizations could justify distinctions between religions.

D 19 July 2012    AMichael Heinig

The State and religious communities are separate. The State is neutral with respect towards religions and ideologies. “There is no State Church” (article 140 GG and article 136 (1) WRV). The State is not permitted to identify itself with one religion or another, nor to refuse or persecute a religion based on its religious doctrine (Identifikationsverbot). Likewise, the State is not permitted to interfere with religious communities on an institutional level, except when provided for in the Constitution (Verflechtungsverbot).

Obviously the State is not prevented from considering the religious affiliation of its citizens, promoting their religions and providing them with a place in the public circle. In other words, the State and religious communities find themselves in a relationship of mutual recognition. This relationship is set out in numerous treaties between the State and different religious organisations, in which the partners determine the rules for the activities they are concerned with.

In this system of open separation between the State and Church, religion is recognised as a stakeholder in civil society and in the public sphere. The public nature of religions manifests itself through religious instruction in public schools, Faculties of Theology in universities, the status of corporation under public law, the integration of religious social action organisations into the facilities of the Welfare State (old people’s homes, hospitals, day-care facilities, etc.) or the participation of Churches, among other civil society organisations, in audiovisual counsels.

D 19 July 2012    AMichael Heinig

Apart from constitutional rules, religious rights are within the competence of the Länder. At this level there is therefore a vast number of laws governing religious instruction, the acknowledgement of religious organisations as corporations under public law (Körperschaften des öffentlichen Rechts) and so forth. This also includes the treaties between Churches and States.

D 19 July 2012    AMichael Heinig