Definition and Legal Classification of Religious Communities
Religious communities are associations of natural persons who together profess, practice, and organize a religious faith. Legally, the term describes an organization devoted to the permanent common exercise of a specific religious creed. The legal treatment of religious communities is specified by numerous laws and supreme court rulings in Germany, but also in other countries. What follows is a detailed account of the relevant legal foundations, status, rights and obligations, as well as the significance of religious communities in the state and societal context.
Terminological Foundations
Definition
A religious community, according to general legal understanding, is an association of persons based upon a shared religious confession, which is reflected in established doctrines, ritual practices, and a communal organization. The pursuit of religious purposes is the central activity. It is essential that the association is intended to be permanent and appears outwardly as an organization.
Distinction
Legally, a distinction is made between religious communities and ideological communities. Ideological communities focus not on religious confessions but on general worldviews, such as humanist associations. However, both forms are treated similarly in the Basic Law.
Legal Status in Germany
Constitutional Provisions
Freedom of Religion (Art. 4 Basic Law)
The Basic Law guarantees in Article 4 paragraphs 1 and 2 the undisturbed practice of religion and the freedom of belief, religious and ideological confession. These rights protect not only individuals, but also religious communities themselves.
Right of Self-Government (Art. 140 Basic Law in conjunction with Art. 137 WRV)
Article 140 of the Basic Law adopts significant provisions from the Weimar Constitution (WRV) into the Basic Law. This includes, in particular, Article 137 paragraph 3 WRV, which guarantees religious communities the right to independently regulate and administer their affairs within the limits of generally applicable laws (right of self-government).
Principle of Equal Treatment
The coexistence of different religious and ideological communities obliges the state to neutrality and equal treatment of all religious communities, regardless of their size, influence, or the content of their teachings.
Legal Forms of Religious Communities
Public Law Corporation
In Germany, the possibility for religious communities to attain the status of a public law corporation is of particular relevance. The prerequisites and consequences are:
- Prerequisites: Permanence, number of members, guarantee of legal compliance, loyalty to the constitution, stability, and organizational capacity.
- Legal Consequences: Public law corporations can levy their own taxes (church tax), employ civil servants, perform public tasks, and have special privileges in labor law and in participation in state affairs (see corporate status).
Private Law Organizational Forms
Religious communities can also be organized as private law associations, such as registered associations (e.V.) or civil law foundations. Most smaller faith communities and many ideological communities choose this organizational form.
Rights and Obligations of Religious Communities
Fundamental Rights and status under state-church law
Religious communities are entitled to fundamental rights and are also privileged by specific state-church legal provisions. These include:
- Autonomous Regulation of Membership and Internal Affairs
- Religious education in public schools: Religious communities with corporate status have rights to participate in religious education according to Article 7 of the Basic Law.
- Pastoral care in institutions: Religious communities participate in public institutions such as prisons, hospitals, or the military.
- Right to Levy Taxes: They may levy their own taxes in the form of church tax from their members, provided they have been granted corporate status.
Restrictions and Limits
The autonomy of religious communities exists ‘within the limits of the laws applicable to all.’ There are legal boundaries, for example in employment law, child protection, criminal law, and the prohibition of discrimination. If religious communities violate these provisions, they may lose privileges.
Recognition and Award of Corporate Status
Procedure
Corporate status is granted upon application by the respective federal state. The authorities of the Länder are responsible, as state-church law, as part of the principle of cultural sovereignty, is structured according to federal states. Recognition is based on a formal examination of various prerequisites.
Examination Criteria
- Permanence of Existence
- Number of Members and Societal Weight
- Conformity with Legal Order (Loyalty to the Constitution)
- Capacity and Organizational Stability
- Confessional Foundations
In the event of serious violations, the withdrawal or revocation of corporate status may be requested.
Church Tax and Funding
Religious communities that have been granted corporate status are entitled to levy church tax. The legal basis consists of state regulations and the Church Tax Act. Collection is generally carried out by tax offices for a fee.
Participation in Public Law
Institutional and Military Chaplaincy
Statutory provisions provide for the rights of religious communities to participate in correctional institutions, hospitals, or the armed forces. The aim is to ensure religious care.
Religious Education
Religious communities with corporate status have the right to help organize religious education in public schools in cooperation with the state (Art. 7 para. 3 Basic Law).
International Perspectives and Comparisons
Europe
In other European countries, there are sometimes different models for the inclusion and recognition of religious communities. Some countries, like France, practice a strict separation model (‘laïcité’), while others, like the United Kingdom, have established particular churches as state churches.
General International Law
Freedom of religion and the rights of religious communities are also protected under international law, especially by the European Convention on Human Rights (Art. 9 ECHR) and the UN Civil Pact (Art. 18 ICCPR).
Special Status and Current Developments
Relationship to State Neutrality
The German model envisions a ‘benevolent neutrality’ and partnership, in which no religion is to be favored or discriminated against. The diversity of religious attitudes is regarded as an integral part of pluralistic societies.
Developments in Anti-Discrimination Law
Recent legislation and court decisions have strengthened protection against discrimination, including in employment relationships with religious communities. The General Equal Treatment Act (AGG) and rulings of the ECJ have an ongoing influence here.
Literature and Legal Bases
- Basic Law for the Federal Republic of Germany (esp. Art. 4, Art. 7, Art. 140 GG in conjunction with Art. 137-141 WRV)
- Church tax laws of the federal states
- European Convention on Human Rights (ECHR)
- International Covenant on Civil and Political Rights (ICCPR)
- Commentary literature on state-church law
Summary
Religious communities represent an organizational framework for religious practice that is comprehensively defined under the rule of law. They enjoy extensive fundamental and specific privileges under state-church law, but are also subject to general legal norms. Their unique position in the relationship between state and religion is reflected in diverse statutory regulations, supreme court interpretation, and current developments in societal pluralism.
Frequently Asked Questions
How are religious communities recognized by the state in Germany?
The state recognition of religious communities in Germany is regulated in the Basic Law (Art. 140 in conjunction with Art. 137 WRV) as well as in various state laws. As a rule, a religious community can be recognized as a public law corporation if its constitution and the number of its members guarantee its permanence. Recognition brings various privileges, such as the right to levy church tax, co-determination at public broadcasting institutions, or the possibility to provide religious instruction at state schools. A formal application must be submitted to the competent state authority for recognition. This authority reviews, among other factors, the organizational stability, loyalty to the constitution, and public interest of the respective religious community. In addition, some federal states have specific requirements, such as minimum membership numbers or demands on parish structure. Judicial remedies are available in case recognition is denied. Recognition as a public law corporation is not linked to any particular substance of faith or its size within society, so that smaller or less widespread religious communities can also apply for this status.
Do religious communities have special rights and duties towards their members?
Yes, upon receiving recognition, religious communities are granted certain rights and obligations concerning both their relationship with members and with state institutions. For example, they may autonomously govern internal matters through membership rules (right of self-government), enter into employment contracts under ecclesiastical labor law (special nature of operations according to § 118 (2) BetrVG), and independently organize their affairs. Such rights come with duties, such as compliance with the constitutional order and basic rights. Furthermore, they are required to demonstrate their charitable status to benefit from tax advantages. Violations of rule-of-law principles, such as discrimination or breaking state laws, can lead to the revocation of rights and to civil and criminal consequences. Specific rights and duties also depend on whether the respective religious community is organized as a public law corporation or as a private law association.
How is the relationship between religious communities and the state regulated?
The relationship between religious communities and the state in Germany is based on the principle of separation of state and church, which is anchored in Art. 137 WRV in conjunction with the Basic Law. This so-called cooperation model means that, as a rule, the state remains neutral towards religions, but cooperates with recognized religious communities in certain areas. The state may not establish a state church, but must guarantee freedom of religion and belief. Forms of cooperation include, for example, religious education, participation in public bodies, or the funding of social institutions (principle of subsidiarity). At the same time, the state is obliged to treat all religious communities equally and may not discriminate based on religious beliefs. Disputes between the state and religious communities are subject to administrative jurisdiction.
Are religious communities permitted to enact and enforce their own labor laws?
Recognized religious communities possess what is known as the right of ecclesiastical self-determination, which allows them to establish their own employment rules for their institutions—rules that may deviate from general labor law. This particularly concerns questions of loyalty obligations, hiring requirements, dismissals, or the internal structure of staff. Exceptions are provided for in the Works Constitution Act (§ 118 (2) BetrVG) and in the General Equal Treatment Act, with religious communities able to operate their own ecclesiastical labor courts in their denominational enterprises. Nevertheless, general minimum legal standards such as bans on discrimination and arbitrary measures must also be upheld by religious employers. Affected individuals can assert their rights in state courts if ecclesiastical legal remedies have been exhausted. The Federal Labour Court and Federal Constitutional Court continually clarify the boundaries of ecclesiastical self-determination in employment relations.
What are the fiscal particularities applicable to religious communities?
Religious communities can — especially as public law corporations — benefit from tax advantages. The most important include exemption from corporate income tax, trade tax, and property tax, provided they pursue charitable purposes (§§ 51 ff. Fiscal Code). They are also entitled to collect church taxes from their members as a surcharge to income tax, as long as they are recognized under public law. The church levies the tax, often with the assistance of tax authorities for a fee. Regardless of their legal form, churches and religious communities may grant tax benefits for donations. The prerequisite for all benefits is compliance with the rules on charitable status and the transparent use of funds. If they operate commercial businesses, these are subject to taxation unless they serve the specific organizational or idealistic purposes.
What are the legal requirements for founding a religious community?
There are no special state admission requirements for founding a religious community in Germany. In principle, any group pursuing a permanent religious purpose may form a religious community. However, in order to acquire legal capacity, the general provisions of civil law apply, most commonly the association form under §§ 21 ff. German Civil Code. Additional requirements, such as organizational stability, minimum member numbers, and guarantees of loyalty to the constitution, are necessary for further rights (e.g., corporate status). A religious association already receives constitutional protection (Art. 4 Basic Law) without formal recognition, unless it is directed against the free and democratic basic order. Religious minorities are also protected from discrimination and unwarranted restrictions. Any restrictions (e.g., for sects) are only permissible based on sufficient evidence of concrete danger to legal interests.
What legal options do religious communities have against state measures?
Religious communities can defend themselves against state actions using general legal remedies. Depending on the measure, these include objection proceedings, lawsuits before administrative courts, or—in the case of violations of constitutional rights—constitutional complaints before the Federal Constitutional Court. They are particularly protected by the fundamental right to freedom of religion and the right of ecclesiastical self-administration. State interventions, such as those relating to association law, tax law, or issues of discrimination, must be proportionate and require a legal basis. Religious communities can also invoke international human rights guarantees, particularly those arising from the European Convention on Human Rights (Art. 9 ECHR). In disputes concerning corporate status, tax matters, or funding, review is conducted by the regular courts or the administrative judiciary.
