Tag Archives: Germany

Weir, “Secularism and Religion in Nineteenth-Century Germany”

Next month, Cambridge University Press will publish Secularism and Religion in Nineteenth-Century Germany by Todd Weir (Queen’s University Belfast). The publisher’s description follows.Secularism and Religion in Nineteenth-Century Germany

Negotiating the boundaries of the secular and of the religious is a core aspect of modern experience. In mid-nineteenth-century Germany, secularism emerged to oppose church establishment, conservative orthodoxy, and national division between Catholics, Protestants, and Jews. Yet, as historian Todd H. Weir argues in this provocative book, early secularism was not the opposite of religion. It developed in the rationalist dissent of Free Religion and, even as secularism took more atheistic forms in Freethought and Monism, it was subject to the forces of the confessional system it sought to dismantle. Similar to its religious competitors, it elaborated a clear worldview, sustained social milieus, and was integrated into the political system. Secularism was, in many ways, Germany’s fourth confession. While challenging assumptions about the causes and course of the Kulturkampf and modern antisemitism, this study casts new light on the history of popular science, radical politics, and social reform.

“A Coat of Many Colors”

In this post, I want to pick up some of the themes I alluded to in my first post and respond to Marc’s observations here and Mark’s observations here. The title of this post is from Justice Harlan’s discussion of neutrality in Bd. of Educ. v. Allen, 392 U.S. 236, 249 (1968)(Harlan, J., concurring).

Marc points out the inherent uncertainty as to the meaning of “neutrality” within each system. Indeed, I agree that there is great indeterminacy in both systems; and there are different judicial and academic interpretations. In fact, one of the premises in my book was that – even though the term is used frequently in constitutional decisions in both countries – we don’t really know enough about what neutrality means in each system. Given this uncertainty, I advocated for a contextual inquiry into the meaning in each system before turning to a comparative perspective.

The German Federal Constitutional Court offered two noteworthy interpretations of neutrality in its landmark Crucifix and Headscarf decisions. In my last post, I quoted the Crucifix decision as saying that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.” In the Headscarf case, the court offered its most elaborate discussion of state neutrality to date, stating that

the religious and ideological neutrality required of the state is not to be understood as a  distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs. Article 4.1 and 4.2 of the Basic Law also contain a positive requirement to safeguard the space for active exercise of religious conviction and the realisation of autonomous personality in the area of ideology and religion. The state is prohibited only from exercising deliberate influence in the service of a particular political or ideological tendency or expressly or impliedly identifying itself by way of measures originated by it or attributable to it with a particular belief or a particular ideology and in this way itself endangering religious peace in a society. The principle of religious and ideological neutrality also bars the state from evaluating the faith and doctrine of a religious group as such.

So here we have an example of the court itself setting up different interpretations of neutrality. (Professor Markus Thiel – among other insightful observations – recently raised some interesting questions regarding the interpretive role of the Federal Constitutional Court in relation to academic scholarship in our exchange here.)

A quick final point about taxation, an issue raised in the comments to Mark’s post. One of the more striking features of the German system is the concept of “limping separation” that allows for certain benefits of state-recognized religious bodies – perhaps most notably from the U.S. perspective, the collection of church taxes by the state. Mark pointed out correctly that the German church tax may be avoided by resigning church membership. And, as some may remember, the German Federal Administrative Court last year addressed the question of resigning church membership (reported for example here). Moreover, under the jurisprudence of the European Court of Human Rights, while nonadherents may be taxed by an established state church for delegated state functions (such as keeping birth and death records, maintaining cemeteries or performing marriages) they may not be taxed for religious activities. I’ve written about some of those funding aspects in comparative perspective in my recent article “Transnational Nonestablishment” published in the George Washington Law Review and available online here.

And with that, I’ll leave Lautsi and symbols for next time.

If It Looks Like A Duck…?

Thanks so much, Mark, for the warm welcome! I want to use my time here to write about some comparative issues in law & religion.

A growing body of literature in comparative constitutional law discusses themes of constitutional convergence. Do constitutional provisions converge across legal regimes? Do international human rights norms cause them to do so? These and related questions are enormously rich and thought-provoking, and the literature is expanding and getting increasingly sophisticated. But another question is perhaps as interesting as the question of textual convergence: interpretive convergence. Imagine two courts charged with interpreting a functionally similar, yet textually different constitutional provision using the same term as their analytical basis. Does that indicate convergence?

Here is the context in which I have addressed this question. The German Federal Constitutional Court and the U.S. Supreme Court both use the language of “neutrality” in their respective interpretations of constitutional provisions concerning religion-state relations. It’s interesting that we have two constitutional regimes, with constitutional provisions that say “Congress shall make no law respecting an establishment of religion” and “there shall be no state church” respectively—neither of which, incidentally, mentions the word “neutrality”—and two courts interpreting these provisions and finding an underlying requirement of state neutrality.

Two examples: the U.S. Supreme Court in McCreary County (quoting Epperson) has this to say about neutrality: “The touchstone of Establishment Clause jurisprudence is the requirement of governmental neutrality between religion and religion, and between religion and nonreligion.” In the Classroom Crucifix Case, the German Federal Constitutional Court found that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.”

From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality.  But we have to look beneath the surface. The meaning of neutrality evolved contextually, separately in each system. If we take the language of neutrality at face value, without regard to history and context, we fall into the convergence trap: we see one thing that looks just like the other thing, and we assume they’re substantively the same.

On a wide-angle view, starting from opposite sides of the religion-state relationship spectrum—a historically strong notion of separationism on the U.S. side and close cooperation on the German side—it seems that while the degree of separation may be declining in the United States, it is increasing in Germany. And the language of neutrality tracks those developments. But sufficient room for the individual interpretation of neutrality remains in both systems.

A more detailed view, however, might focus on the diverging meanings of the term. The substantive content of neutrality in both constitutional systems is characterized by significant underlying indeterminacy. Neutrality is notoriously ambiguous in both systems; it seems almost impossible to define an abstract, universally applicable, single meaning. This indeterminacy has led some scholars to argue that we should simply do away with the concept of neutrality in religion-state relations. But while I am not going that far, we should not expect too much from the neutrality principle in terms of resolving individual disputes.

To some extent, we are also dealing with a moving target. Take for example parity between the Catholic and Lutheran churches in Germany. Equal treatment of the two would have arguably satisfied the neutrality requirement in the past, but given the changing composition of the population that is likely not the case anymore. Similarly, the growing number of nonbelievers in the United States poses a challenge. So the doctrinal framework must be squared with changing societal realities.

Ultimately, the point is that what initially seems to be the same in fact is not. The underlying trajectory is different in that the starting points might be identified as polar opposites: a strong notion of separation in the United States, and an extensive system of cooperation in Germany. However, we can observe a narrowing gap between the two systems that is reflected in the use of the language of neutrality. In the United States, neutrality as it is used today means “less distance” between religion and state. In Germany, conversely, neutrality means “more distance” between religion and state.

An Exchange on Claudia Haupt’s “Religion-State Relations in the United States and Germany”

Here is a nice, short, and generally quite positive review by Markus Thiel (Cologne) of Claudia Haupt’s Religion-State US Germany(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.

Heimbach-Steins on the German Circumcision Case

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.

Gulalp & Seufert, “Religion, Identity, and Politics: Germany and Turkey in Interaction”

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.

Neither Belonging Nor Believing?

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.

Copycats

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. 

German Parliament Resolves to Keep Circumcision Legal

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.

Haupt, “Religion-State Relations in the United States and Germany”

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.