Here is a nice, short, and generally quite positive review by Markus Thiel (Cologne) of Claudia Haupt’s (Columbia) recent book, Religion-State Relations in the United States and Germany: The Quest for Neutrality (CUP 2011). Professor Haupt has an interesting reply as well just below the review. The exchange is worthwhile among other reasons on the question of the value of comparative scholarship in this area. From Professor Thiel’s review:
The reviewer is an avowed skeptic about the scientific benefit of comparative research in constitutional law in general. It oftentimes achieves the sole result that the legal world is colorful and diversified. Therefore, it is more reasonable to compare particular (legal) provisions and institutions and not the legal system on the whole. But even this approach has to keep in mind that a comparison is complicated by diverging legal and social frameworks and circumstances. It is all the more important for comparative constitutional and political research to provide a precise description of the applied scientific methods, the questions of interest, and the objects of research. The author commences her book with a substantial and instructive chapter on her understanding of a comparative approach. Here, the reader notices that the book restricts its view on questions regarding the interpretation and application of legal provisions. This may be due to the fact that it is based on a dissertation in Political Sciences, but especially the relevant articles of the German Grundgesetz should have been the starting point for any analysis of the neutrality principle in Germany. A German reader with a legal background misses the presentation of the relevant constitutional law “dogmatics” to a certain extent.
And from Professor Haupt’s reply:
Comparative constitutional law in particular benefits from a wide-angle view not merely focused on doctrinal questions. Doctrinal rules, the law on the books, may play out much differently in practice. Take, for example, the paradigmatic example in U.S. religion-state relations, the much maligned Lemon test. Technically, as a matter of blackletter law, Lemon still governs; but engagement with religion-state relations that goes beyond examining the current doctrine in the United States quickly uncovers that, first, the test itself is under siege; second, case law suggests that it does not apply in a number of circumstances; and finally, there is a trajectory of development that suggests the U.S. system of religion-state relations is on a different path altogether, one that is more concerned with the meaning of neutrality than the mechanical application of this three prong test. In short, we learn very little about religion-state relations in the United States from looking at the Lemon test. By contrast, studying the larger societal, historical, and political context allows scholars to identify trends that put the doctrine into perspective.
In May 2012, a regional court in Cologne ruled that the circumcision of a boy, carried out for religious reasons, qualified as a crime under German law. The court reasoned that the child’s right to physical integrity trumps religious and parental rights—a decision that greatly concerned Germany’s Jewish and Muslim communities. The decision is available in German here and in English in an official and abbreviated version here.
In December 2012, the ReligioWest project at the European University Institute sponsored a lecture by Marianne Heimbach-Steins (Institut für Christliche Sozialwissenschaften- Universität Münster) on the decision and the general topic. She has now published the paper for ReligioWest. Here’s the abstract:
In May 2012, a German court in Cologne ruled that circumcising young boys represents grievous bodily harm. This decision, which touched upon the questions of freedom of religious practice, identity and children’s rights, was condemned by Jewish and Muslim representatives in Germany, but it was also widely and controversially debated by civil society and politicians. The German Parliament recently passed legislation protecting circumcision as a religious practice, but the debate is likely to continue. In this paper, Marianne Heimbach-Steins, director of the department of Christian Social Ethics at the University of Münster (Germany), discuss this case and its implications for the definition of religious freedom.
Her working paper can be downloaded here.
This April, Routledge Publishers will publish Religion, Identity, and Politics: Germany and Turkey in Interaction edited by Haldun Gulalp (Yıldız Technical University) and Günter Seufert (senior researcher, German Institute for International and Security Affairs). The publisher’s description follows.
This book examines the long history and unrecognized depth of German-Turkish relations, particularly with regard to the mutually formative processes of religious identities and institutions. Opposing the commonly held assumption that Europe is the abode of secularism and enlightenment, while the lands of Islam are the realm of backwardness and fundamentalism, the authors observe that, Germany, as the case in point, both historically and contemporarily has treated religion as a core aspect of communal and civilizational identity and framed its institutions accordingly. Further, there has been, and continues to be, a mutual exchange in this regard between Germany and both the Ottoman Empire and modern Turkey. Definition of identity and regulation of communities have been explicitly based on religion until the early and since the late twentieth century. The period in between, often treated as normative for being identified with secular and national communities, now appears as an exception.
Reader John McGinnis sends this interesting piece from the International Herald Tribune on an attempt by the Catholic Church in Germany to encourage its faithful to continue paying that country’s so-called “church tax.” Under German law, religious associations can assesses a tax — really, it’s more like membership fee — on members. The state collects the tax, which typically amounts to 8-9% of the taxpayer’s total liability, and then distributes it to the church the taxpayer designates on his tax form. All a taxpayer has to do to avoid paying the tax is to resign his church membership. Traditionally, however, German taxpayers have continued to declare church membership, and pay the church tax, notwithstanding the relatively low rate of religious observance in that country. Sociologists of religion have described this phenomenon as “belonging without believing,” and it reflects a standard European attitude toward religion.
That may be changing. The IHT suggests that an “exodus” is underway both in the Catholic and Lutheran Churches, as taxpayers increasingly end their formal affiliations to avoid paying the church tax. The Catholic hierarchy has come up with a strategy to stop the departures. Starting this week, Catholics who resign their church membership “may no longer qualify for religious ceremonies such as a Christian burial and may not partake in confession or communion; become a godfather at baptism or confirmation; or hold office within the church.” This has led to protests from Catholics who resent being told they have to pay for such things, as well as perhaps predictable references to the pre-Reformation sale of indulgences — notwithstanding the fact that the Lutheran Church participates in the church tax too.
From an American perspective, this is all very interesting. Americans fund our churches through private (though tax-deductible) donations. Early on, we decided that the state could not collect revenue for religious bodies — not even “three pence,” in Madison’s famous phrase. Many European countries, by contrast, have adopted a state-funding model; the level of private donations is comparatively low. Now, it seems, increasing numbers of Europeans want neither model. Yet they insist on the right to receive church services and protest when someone points out that it costs money to keep a church open. Grace droppeth as the gentle rain from Heaven, but someone has to pay the electric bills. What these protesters seem to be saying is, give us the services, but don’t ask us for anything. Come to think of it, that does sound a bit American.
Here’s an interesting comparative law item. In a gesture of solidarity with Pussy Riot, the Russian punk band currently serving a two-year prison term for staging a “punk prayer” in Moscow’s Christ the Savior Cathedral, three masked protesters stormed Cologne Cathedral in Germany last Sunday during Mass. The protesters shouted “Free Pussy Riot” and threw leaflets at the worshipers until church guards escorted them outside. Authorities in Cologne now say they will prosecute the protesters for “disrupting the free practice of religion,” an offense with a three-year prison term under German law. ”The right to demonstration cannot be set above the right to religious freedom and above the religious feelings of the congregation,” the dean of Cologne Cathedral remarked.
A couple of observations. First, as this episode demonstrates, one can’t simply dismiss the Pussy Riot trial as a symptom of dictatorship. Even in Western democracies, it is illegal to trespass on religious sites, and potential prison terms can be surprisingly harsh. To be sure, it’s unlikely the German protesters will actually serve three years; in the US, as I’ve explained, they probably wouldn’t serve time at all. And the German case differs from the Russian in that the German protesters actually interrupted a religious service. But the basic point is that trespassing on religious sites is a crime, even if one is trying to send a message about a great wrong.
Which leads to the second observation. What, exactly, was the message the German activists were sending? What was the point of disrupting Mass in Cologne Cathedral? Cologne Cathedral is not Russian Orthodox. It’s not even Orthodox. It’s Catholic. However bad the corruption in the Russian Orthodox Church, the Catholic Church bears no responsibility for the Pussy Riot prosecution. It’s not like the Vatican called for throwing Pussy Riot in prison. So, really, it makes no sense to disrupt Mass in a Catholic cathedral because of what the Russian Church hierarchy allegedly did to Pussy Riot. Unless, perhaps, the message is that traditional Christianity anywhere, in any form, should be attacked.
Germany’s lower house of parliament has adopted a resolution calling on the government to keep male circumcision legal in that country. The resolution responds to a regional court’s ruling last month that doctors who perform circumcisions on boys for religious reasons could be prosecuted under German law and requests that the government submit a bill this fall. Jewish and Muslim groups in Germany have united to oppose the court’s ruling — impressive what a common threat can do, isn’t it? — though, according to polls, Germans narrowly support a ban on circumcisions.
Conceptions of neutrality in church-state relations are increasingly important these days. But a very interesting feature of the neutrality debates has been the plural and oftentimes incompatible conceptions of neutrality that have emerged. Formal neutrality, for example, is quite different from (and sometimes hostile to) what preeminent church-state scholar Douglas Laycock has called “substantive neutrality.”
Alongside the splintering of the concept of neutrality into plural conceptions in this country, there is now emerging very interesting scholarship on the comparative study of neutrality. My colleague, Mark, is doing some excellent work in this regard. And I just was made aware of this very interesting comparative study by Claudia E. Haupt (George Washington), Religion-State Relations in the United States and Germany: The Quest for Neutrality (Cambridge UP 2012). The publisher’s description follows.
This comparative analysis of the constitutional law of religion-state relations in the United States and Germany focuses on the principle of state neutrality. A strong emphasis on state neutrality, a notoriously ambiguous concept, is a shared feature in the constitutional jurisprudence of the US Supreme Court and the German Federal Constitutional Court, but neutrality does not have the same meaning in both systems. In Germany neutrality tends to indicate more distance between church and state, whereas the opposite is the case in the United States. Neutrality also has other meanings in both systems, making straightforward comparison more difficult than it might seem. Although the underlying trajectory of neutrality is different in both countries, the discussion of neutrality breaks down into largely parallel themes. By examining those themes in a comparative perspective, the meaning of state neutrality in religion-state relations can be delineated.
Here’s a puzzling story. According to the Washington Post, a civil court in France has ordered the Catholic Church to remove a disgruntled parishioner from the baptismal register. The parishioner sought the court order after the Church declined to comply with his request to “de-baptize” him:
A decade ago, Rene Lebouvier requested that his local Catholic church erase his name from the baptismal register. The church noted his demands on the margins of its records and the chapter was closed.
But the clergy abuse scandals rocking Europe, coupled with Pope Benedict XVI’s conservative stances on contraception, hardened Lebouvier’s views. Last October, a court in Normandy ruled in favor of his lawsuit to have his name permanently deleted from church records — making the 71-year-old retiree the first Frenchman to be officially “de-baptized.”
“I took the judicial route to get myself de-baptized because of the church’s excesses,” said Lebouvier, speaking by telephone from his village of Fleury, near the D-Day beaches.
The Post article does not say what the cause of action was, or why the civil court believed it had jurisdiction of such matters. It seems baffling. In some European countries, like Germany, church membership has civil law consequences — church members are liable for a “church tax” the government collects on behalf of the religious body. So I could see why German courts would have authority to determine who is or is not a church member for tax purposes — though it’s not clear the court’s determination could bind the church itself, without the church’s consent. No such “church tax” exists in France, though. So why is a civil court getting involved? H/T: Mirror of Justice