Concept and Legal Classification of Religious Communities
Religious communities are associations of natural persons who profess, practice, and organize a religious faith together. In legal terms, the term refers to an organization that permanently pursues the collective practice of a particular religious confession. The legal treatment of religious communities has been specified in Germany, as well as in other countries, through numerous laws and supreme court rulings. The following presents the relevant legal foundations, status, rights and obligations, as well as the significance of religious communities in the state and societal context in detail.
Terminological Foundations
Definition
A religious community, according to general legal understanding, is an association of persons based on a shared religious confession, especially manifested in defined beliefs, ritual practices, and a collective organization. The pursuit of religious purposes is at the center of its activities. The crucial point is that the association is designed to be permanent and appears externally as an organization.
Distinction
Legally, a distinction is made between religious communities and ideological communities. Ideological communities focus on general worldviews rather than religious confessions, for example, humanist associations. However, both forms are treated similarly in the Basic Law.
Legal Status in Germany
Constitutional Provisions
Freedom of Religion (Art. 4 GG)
The Basic Law guarantees in Art. 4 (1) and (2) GG the unhindered exercise of religion and the freedom of faith, religious, and ideological confession. These fundamental rights protect not only the individual but also religious communities as such.
Right to Self-Administration (Art. 140 GG in conjunction with Art. 137 WRV)
Art. 140 GG incorporates essential provisions of the Weimar Constitution (WRV) into the Basic Law. This includes in particular Art. 137 (3) WRV, which guarantees religious communities the right to independently arrange and govern their affairs within the limits of laws applicable to all (right to self-administration).
Principle of Equal Treatment
The coexistence of different religious and ideological communities obliges the state to maintain neutrality and to treat all religious communities equally, regardless of their size, influence, or content of teachings.
Legal Forms of Religious Communities
Corporation under Public Law
In Germany, the possibility for religious communities to obtain the status of a corporation under public law is of particular relevance. The prerequisites and consequences are:
- Prerequisites: Permanency, number of members, guarantee of compliance with the legal system, loyalty to the constitution, stability, and organizational capability.
- Legal Consequences: Corporations under public law may levy their own taxes (church tax), employ civil servants, perform public duties, and enjoy special privileges in labor law and participation in the public sector (see corporation status).
Private Law Organizational Forms
Religious communities can also be organized in legal forms governed by private law, such as registered associations (e.V.) or foundations under civil law. Most smaller religious groups and many ideological communities choose this form of organization.
Rights and Duties of Religious Communities
Fundamental Rights and State-Church Law Status
Religious communities are entitled to fundamental rights and also enjoy privileges under specific state-church legal provisions. These include:
- Independent Regulation of Membership and Internal Affairs
- Religious Instruction in Public Schools: Religious communities with corporation status have participatory rights regarding religious instruction pursuant to Art. 7 GG.
- Pastoral Care in Public Institutions: Religious communities participate in public institutions such as prisons, hospitals, or the military.
- Right to Levy Taxes: They may collect their own taxes from their members in the form of church taxes, provided they have been granted corporation status.
Restrictions and Limits
The autonomy of religious communities exists “within the limits of laws applicable to all.” There are legal boundaries, for example, in labor law, child protection, criminal law, and anti-discrimination law. If religious communities violate these provisions, this can lead to the loss of privileges.
Recognition and Granting of Corporation Status
Procedure
Corporation status is granted upon application by the respective federal state. The responsible authorities are the state authorities, as state-church law is part of the cultural state principle and is crafted at the state level. Recognition is based on a formal review of various prerequisites.
Assessment Criteria
- Permanency of Existence
- Number of Members and Social Significance
- Compliance with the Legal Order (Loyalty to the Constitution)
- Capacity and Organizational Stability
- Confession-Based Foundations
In the case of serious violations, withdrawal or revocation of corporation status can be requested.
Church Tax and Financing
Religious communities that have been granted corporation status are permitted to levy church taxes. The legal basis for this is formed by state legislation and the Church Tax Act. Collection is usually carried out by the tax offices for a fee.
Participation in Public Law
Pastoral Care in Public Institutions and Military Chaplaincy
Statutory provisions grant religious communities participatory rights in correctional institutions, hospitals, or in the Bundeswehr. The aim is to ensure religious care.
Religious Instruction
Religious communities with corporation status are granted the right to help organize religious instruction in public schools in cooperation with the state (Art. 7 (3) GG).
International Perspectives and Comparisons
Europe
Other European countries have differing models for the integration and recognition of religious communities. Some countries, such as France, practice a strict separation model (“laïcité”), while others, like the United Kingdom, have enshrined certain churches as state churches.
General International Law
Freedom of religion and the rights of religious communities are also protected under international law, particularly by the European Convention on Human Rights (Art. 9 ECHR) and the UN International Covenant on Civil and Political Rights (Art. 18 ICCPR).
Special Status and Current Developments
Relationship to State Neutrality
The German model envisions “benevolent neutrality” and partnership, with no religion being favored or discriminated against. The diversity of religious convictions is viewed as an integral part of pluralistic societies.
Developments in Anti-Discrimination Law
Recent legislation and case law have strengthened protection against discrimination, including in employment relationships with religious communities. The General Equal Treatment Act (AGG) and decisions of the European Court of Justice have a continued impact in this area.
Literature and Legal Foundations
- Basic Law for the Federal Republic of Germany (especially Art. 4, Art. 7, Art. 140 GG in conjunction with Art. 137-141 WRV)
- Church Tax Acts 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 a legally comprehensive organizational framework for the exercise of religion. They enjoy extensive constitutional and specific state-church legal privileges, but are also subject to general legal norms. Their unique position in the relationship between state and religion is reflected in a variety of statutory regulations, supreme court interpretations, 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 GG in conjunction with Art. 137 WRV) as well as in various state laws. In principle, a religious community can be recognized as a corporation under public law if, by its constitution and number of members, it offers assurance of permanency. Recognition brings with it various privileges, such as the right to collect church taxes, participation rights at public broadcasting corporations, or the option to offer religious instruction at state schools. Formal application to the responsible state authority is required. Among other things, this authority examines the organizational stability, loyalty to the constitution, and public interest of the religious community in question. Additionally, some federal states have specific conditions, such as minimum numbers of members or requirements regarding congregational structure. Judicial remedies are available against the refusal of recognition. Recognition as a corporation under public law is neither tied to a particular form or content of faith nor to its social size, so that smaller or less widespread religious communities can also apply for this status.
Do religious communities have special rights and duties toward their members?
Yes, with their recognition, religious communities acquire certain rights and duties that affect both their relationship with members and with state institutions. For example, they can autonomously organize internal matters through their membership regulations (right to self-administration), conclude employment contracts under ecclesiastical labor law (type of business as per § 118 (2) BetrVG), and organize their affairs independently. Such rights are accompanied by obligations such as compliance with the constitutional order and fundamental rights. Furthermore, they are required to demonstrate their non-profit status in order to be eligible for tax benefits. Violations of constitutional principles, such as discrimination or breaches of state laws, can result in the loss of rights as well as civil and criminal consequences. The specific rights and obligations also depend on whether the religious community is organized as a corporation under public law or as a private association.
How is the relationship between religious communities and the state regulated?
The relationship between religious communities and the state in Germany is governed by the principle of separation of church and state, enshrined in Art. 137 WRV in conjunction with the Basic Law. This so-called cooperation model means that the state is fundamentally neutral toward 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. Opportunities for cooperation exist, for example, in the areas of religious instruction, participation in public bodies, or the financing 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 fall under the jurisdiction of the administrative courts.
Are religious communities allowed to enact and enforce their own labor laws?
Recognized religious communities have what is called ecclesiastical autonomy, which allows them to establish their own employment regulations for their institutions that may differ from general labor law. This particularly concerns issues such as loyalty obligations, hiring requirements, dismissals, or the internal structure of the workforce. The exceptions are regulated in the Works Constitution Act (§ 118 (2) BetrVG) and the General Equal Treatment Act, with religious communities being able to set up ecclesiastical labor courts for their faith-based institutions. Nonetheless, general minimum legal standards such as the prohibition of discrimination and the ban on arbitrary measures must also be observed by religious employers. Affected individuals may assert their rights before state courts once ecclesiastical legal remedies have been exhausted. The case law of the Federal Labor Court and the Federal Constitutional Court continually clarifies the limits of ecclesiastical autonomy in employment relations.
What tax law features apply to religious communities?
Religious communities—particularly as corporations under public law—can benefit from tax advantages. The most important include exemption from corporation tax, trade tax, and property tax, provided they pursue non-profit purposes (§§ 51 et seq. AO). In addition, they are entitled to collect church taxes from their members as a supplement to income tax, if they are recognized under public law. The church collects the tax, and tax offices often assist in its collection for a fee. Regardless of their legal form, churches and religious communities may grant donors tax benefits for donations. All such privileges require compliance with the rules on non-profit status as well as transparent use of funds. If they operate commercial businesses, these are taxable unless they serve charitable purposes or idealistic activities.
What legal requirements exist for founding a religious community?
Establishing a religious community in Germany is not subject to any special government authorization requirements. In principle, any group pursuing a permanent religious purpose may form a religious community. However, for acquiring legal capacity, the general provisions of civil law apply, most often through the association structure under §§ 21 et seq. BGB. For further rights (e.g., corporation status), additional requirements must be met, such as organizational stability, minimum number of members, and guarantee of loyalty to the constitution. A religious association already enjoys constitutional protection (Art. 4 GG) even without recognition, provided it does not oppose the liberal-democratic basic order. Minority religions are also protected from discrimination and unjustified restrictions. Possible restrictions (e.g., for sects) are permissible only on the basis of sufficient evidence for concrete threats to legal interests.
What legal options do religious communities have against state measures?
Religious communities can defend themselves against governmental measures by means of general legal remedies. These include, depending on the measure, administrative objection procedures, lawsuits before the administrative court, or—in the case of violations of constitutional rights—constitutional complaints to the Federal Constitutional Court. They are especially protected by the fundamental right to freedom of religion and the right of ecclesiastical self-administration. State interventions, for example in association law, tax law, or issues of discrimination, must be proportionate and require a legal basis. Religious communities may also invoke international human rights guarantees, in particular from the European Convention on Human Rights (Article 9 ECHR). In disputes concerning corporate status, tax matters, or funding, review is carried out by the ordinary courts or the administrative courts.
