The Balance between Freedom and Security

The legislation currently in place in Germany is sufficient for dealing with the opinions of adherents of religious minorities, argues Christian Walter of the Max Planck Institute for Comparative Public Law and International Law.

photo: DPA
Germany's relatively liberal stance concerning religious freedom has its roots in the country's history, says Christian Walter

​​"Freedom of faith and of conscience, and the freedom of creed, religious or ideological, are inviolable. The undisturbed practice of religion is guaranteed." What is stated in such simple, straight-forward language in Article 4 of the Basic Law of the Federal Republic of Germany underlies numerous conflicts in actual practice. Interview by Christian Mayer

Why is the question of religious freedom currently such a pressing issue?

Christian Walter: This is mainly due to the problems that a society trying to integrate immigrants is faced with. The influx of citizens of Muslim faith is creating a strong religious minority that is also demanding its rights. Another reason is more basic and is rooted in the different ways in which the relationship between state and religion – traditionally state and church – is defined.

In France and the United States, there is a dividing line, while we in Germany have always spoken of a cooperative model and friendly coexistence. The German model has many advantages, but it also entails a number of problems: to a far greater extent than laicist France, we must redefine, case by case, where religious freedom begins and where its limits are.

What are the differences between the three countries?

Walter: Although on first sight seemingly similar, the two systems of separating church and state in France and in the US are, in reality, based on two entirely different historical conditions: while the French endeavoured to liberate the state from the church, thereby placing the emphasis on the state, the Americans, given the specific situation of immigrants who suffered religious persecution in their native countries, took the perspective of liberating the church from the state – thereby accentuating religion. In Germany, by contrast, a strict division in the French or American sense never occurred.

Why did the strictly neutral stance of the state that strives to ban religious symbols to the private sphere prevail in France?

Walter: This strict position is in line with the French laicist tradition. It is, however, always important to take note who has formulated such guidelines and rulings. In 1989, it was a court, namely the French council of state (Conseil d'Etat) that tended to define a more liberal course in terms of religious freedom; the current strict headscarf ruling was initiated by policymakers seeking to assert "true laicism."

We will have to wait and see how the courts respond to the new legislation. Regrettably, the French council of constitution (Conseil constitutionnel) did not review these issues.

Under what conditions has freedom of religion developed in Germany?

Walter: The religious wars of the 16th century and their "federalistic" solution were pivotal in the historic process. The Religious Peace of Augsburg of 1555 embodies this solution: Cuius regio, eius religio. The territorial rulers were accorded the freedom to decide which religion their subjects should adopt. As a consequence, the Reich had to take a neutral position on religious issues.

Thereafter, in terms of the different confessions, a relatively liberal position evolved in the individual territorial states in Germany, especially in Prussia and Austria. The integration of other religious communities was desirable – to some extent for decidedly pragmatic reasons: rulers wanted good citizens, regardless of their faith. That could also include French Huguenots.

This stands in contrast to France, where Catholicism was the state religion and was then radically replaced by laicism...

Walter: In France, the government was always highly centralistic and oriented to a single religious confession, namely Catholicism. Since the annulment of the Edict of Nantes, the official position had been very intolerant. The French system lacked a "federalistic outlet" like the one that had developed in Germany. The result was an explosion, in the form of the French Revolution, and subsequently, under the influence of the Enlightenment, a far greater degree of individualization than in Germany, oriented toward confessions and not toward individual religious convictions.

In addition, individual, decidedly anti-religious currents had been in evidence since the French Revolution and have repeatedly shaped the course of events.

The different approaches in France and Germany in dealing with the principle of religious freedom are aptly reflected in the current disputes. In Germany, the question is whether a schoolteacher who is a civil servant is allowed to wear a headscarf. The French are far more rigorous and have extended the headscarf ban to schoolchildren.

Walter: In France, it is a matter of course that teachers at public schools are not permitted to wear a headscarf. This is part and parcel of the laicistic doctrine, according to which neutrality must be maintained on a symbolic level. As a European comparison shows, France is especially restrictive: in their treatment of the headscarf issue, Great Britain, Belgium, the Netherlands and Denmark are more in line with the German policy.

This can only be explained by a look at history. The strong Catholic influence on the ancien régime was followed by a different ideological ideal in the second half of the 19th century, namely the republican egalité that is felt to this date.

What is the American position on religious freedom?

Walter: America has a liberal government tradition. The state is accorded less import – there is less government intervention, and government is also less active as a protector for weak individuals. This also applies to risks relating to religion. France is the only country to have passed anti-religious sect legislation, purposely creating legal regulations for dealing with sects – particularly to protect weak individuals who might be susceptible to religious sects. This would be inconceivable in the US.

The legal philosopher Uwe Volkman of the University of Mainz advocates tightening the boundaries of religious freedom, also in Germany. As Volkman writes, it is time "to reduce the broad interpretation of religious freedom to a socially compatible level." How do you feel about this?

Walter: I tend to be more sceptical, despite the fact that an intensive debate on these issues is currently raging in legal science. There are increasingly vocal accusations that freedom of religion has been overly emphasized ever since 1945. It is correct that the extent of protection is defined broadly, but that is unavoidable in view of our basic constitutional rights. I also feel that, in terms of legal policy, it is not unproblematic that we are now rediscovering the boundaries of religious freedom in our interaction with the Islamic faith.

The debates revolving around the headscarf dispute also reveal another aspect: many symbols of Christian and Western civilization are conveyed and interpreted as cultural tradition and not as part of a religion, while other standards are applied to Islam. I advocate the establishment of generally applicable criteria for religious freedom.

The German Federal Constitutional Court has repeatedly emphasized that the self-understanding and perception of a religion is of considerable significance for determining its area of protection. This does not mean, however, that there are no limits and boundaries: this self-understanding and self-perception must be made plausible, and the limits of freedom of religion must be honoured.

But both of these aspects are already required according to our current understanding of freedom of religion.

Will teachers who want to wear a headscarf at school have to explain why this is part of their religion, and not a political statement?

Walter: While a teacher who wants to wear a headscarf should explain why, it should not be necessary to make definitive statements on the meaning of a religion. To a certain extent, this is being demanded in legal doctrine in Germany – but this is a departure from the straight and narrow. Just imagine what would happen if government courts would attempt to interpret the Koran.

There are a number of legal experts who argue along the lines that, as there is no uniform, generally valid doctrine in Islam with regard to wearing headscarves, it is not possible to define a corresponding religious rule or precept.

I regard this as a highly problematic interpretation of the law, for if one were to pursue this line of thought in a consistent manner, Catholicism would be the only religion with a uniform doctrine. All other religions lack an instance that can define such a rule or precept in a binding manner. Therefore, it must suffice if the claimed religious rule or precept is regarded as binding by an adequately large current within a given religion. This must be explained in a plausible manner – but no more than that.

Wouldn't it be logical to also ban nuns from wearing their headscarves when teaching?

Walter: If the aim is to prohibit religious symbols as such at schools, then the nun's habit would also have to be included. Nuns express the fact that their life is dedicated to God by their choice of clothing. In view of the significance of the act, I would regard it as a strong simplification if one were to merely reduce this to a simple traditional symbol of Western culture.

If religious symbols are to be prohibited, this will necessarily have consequences for Christian symbols. In my opinion, it would be better to allow teachers to wear their headscarves in classrooms – but to ensure that they are not doing so with the intention to do missionary work.

In Germany, there is no uniform legal interpretation as to whether headscarves are permissible. What consequences ensue from the recent judgment of the Federal Constitutional Court?

Walter: The Federal Constitutional Court has assigned the Länder (Federal States) the task of developing criteria in the respective Land legislation that define under which conditions religious symbols such as headscarves should be permitted or prohibited. Consequently, we will not have a uniform, nationwide solution. This solution is disputable – and I am convinced that it would be better not to enact any new laws, but to apply the existing criteria to individual cases.

What is the legal position concerning the slaughter of animals according to religious rites?

Walter: There are a few new judgments here, and there is an amendment of Germany's Basic Law, according to which the protection of animals is now a constitutionally guaranteed right. Consequently, freedom of religion no longer automatically takes precedence.

Slaughter according to religious rites, however, is permissible according to both the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Basic Law, and all courts generally assume that, in principle, these issues are subject to the freedom of religion.

The decisive questions have to do with details: What requirements do butchers have to fulfil? Is it permissible to slaughter an animal in a backyard? The Federal Constitutional Court has left it up to lower level authorities to arrive at an appraisal of these issues in actual practice.
Moreover, it has still not been clarified whether slaughter according to religious rites actually represents worse treatment of the animal than anesthetization with a pneumatic gun, which apparently does not always function entirely faultlessly in practice.

Unlike the dispute concerning headscarves, the debate on slaughter according to religious rites has been far more factual.

Walter: That is correct, because there is a key difference here: the slaughtering of animals according to religious rites takes place largely out of public view. It thus elicits far less response from the general public than a teacher who wants to wear a headscarf in public.

The headscarf issue has to do with the symbolic effect and is often not actually a concrete problem. Otherwise, it would not have been possible for Muslim schoolteachers in North Rhine-Westphalia to wear their scarves over many years without encountering any objections.

Could we learn a thing or two from our European neighbours on how to deal with these issues in a more relaxed manner?

Walter: On a trip to London I experienced something that left a lasting impression. Arriving at the airport, my passport was checked by a Sikh wearing a turban. Apparently it is not a problem in England if the first representative of British state authority a foreigner encounters on arrival wears a turban. This strongly reflects the relaxed attitude taken toward these issues.

Given the current debates we are experiencing, one could hardly imagine the same scene here in Germany. It is likely that we are still far removed from establishing any uniform European standards for defining and determining the limits of religious freedom. The European Convention for the Protection of Human Rights and Fundamental Freedoms establishes minimum standards that are adhered to by all member nations. Apart from these standards, individual definitions and practice will continue to differ very widely.

The European Constitution is still being hotly debated, and this also includes the preamble that would summarize a number of basic values. Should the preamble also codify Europe's religious heritage – or would that be just meaningless words?

Walter: Preambles do not comprise binding legal regulations. However, they are important as the expression of a certain spirit of the times that plays a role in understanding the actual body of law. The constituent assembly that is drawing up the constitution must decide whether the specific reference to religious heritage is desired – which I would welcome. It is undeniable that there is a religious tradition in Europe.

Likewise, it is undeniable that there is also a humanistic tradition and a tradition of the Enlightenment – and there is explicit reference to this in the draft version of the constitution for good reason. Whether this additional reference to religion can be politically asserted against laicist France remains to be seen.

There are also Islamic groups that convene in Germany under the guise of freedom of religion and abuse the legal protection granted. Do we need even stricter laws or a restriction of religious freedom as proposed, for example, by the Bavarian Minister of the Interior?

Walter: No, the problem has nothing to do with our constitution, but with ordinary laws. Up until 2001, the Law Relating to Associations (Vereinsgesetz), which defines and regulates the right to form associations, contained a so-called religion privilege that barred the application of the Law Relating to Associations to religious associations. This clause was abolished, also in response to the terrorist attacks of September 11, 2001. We now have the possibility to prohibit religious associations.

The Federal Minister of the Interior has already set precedence in taking action against the "Caliph State" (a fundamentalist organization in Cologne). I believe that the lawmakers have responded to the risks of terrorism in an adequate manner. It is now more a matter of applying existing legislation. It is abundantly clear that international terrorism favours "security activism" that may result in considerable restrictions of citizens' basic rights.

Given the current difficulties, the challenge is to retain the proper balance between individual freedom and security considerations.

Interview: Christian Mayer

© MaxPlanckResearch 2004

This article was previously published in MaxPlanckResearch 2/2004

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