The New German Constitution

by René Brunet

4.—RELIGION AND THE CHURCHES.

Declarations of Rights generally contain, justly so, principles relative to religious liberty and the free exercise of creeds. But the Constitution of Weimar could not limit itself on this point to traditional general maxims. The question of the relations of church and state forms an essential article of the programme of the Centre, and also of the programme of the Social Democrats. Their solutions would seem to be self-contradictory. The Centre wanted to guarantee to the Church a privileged and preponderant situation within the State. The programme of Erfurt, on the other hand, declared religion to be a purely private matter, and refused all subsidies levied on public resources in behalf of ecclesiastical or religious needs. But these two parties entered at that moment into a coalition which, together with the Democrats, governed the Reich. As neither of these two opposed conceptions was able to prevail, the conflict of the two theories was finally settled by a compromise—which before consummation required laborious negotiations.

The Constitution first proclaims the principle of liberty of belief and conscience and the free exercise of religion. These liberties are expressly placed by the Constitution under the protection of the State. They are guaranteed against every invasion no matter from what side it comes. But the general laws of the State remain intact and religious liberty finds itself limited by the general regulations for the maintenance of order and public security. Every abuse in the exercise of religious liberty is punished by ordinary law. Civil rights and duties must not be restrained or conditioned by the exercise of religious liberty. The enjoyment of civil and civic rights as well as the admission to public employ are independent of the religion professed. No one is obliged to divulge his or her religious convictions before any authority whatsoever, and the right of an authority to inquire into the sect to which one belongs may not be exercised except as one’s rights and duties depend upon this, as, for example, in the matter of church tithes or in the matter of guardianship or instruction; or where it is necessary for the gathering of statistics ordered by law. No one may be forced to attend any Church ceremony or to take part in any religious exercise. No one may be forced to make use of any religious oath as was formerly prescribed in civil and penal procedure. It is sufficient, in taking an oath, that the one swearing shall declare without a religious formula, “I swear!”

On the other hand, the Constitution contains several provisions regarding the exercise of religion. Sundays and legal holidays remain protected by law as days of rest and spiritual edification.

These principles being admitted, there still remained the difficult problem of the relations of State and Church. The following solution was adopted: There is neither complete separation nor any close union of the Churches and the State. The Churches are emancipated from the State, but they enjoy certain privileges.

The Churches are free. “There is no State Church.” The union that formerly existed between the Church and the State, in Prussia, for example, and in the majority of the German States between them and the evangelical church, has disappeared, and the principle according to which religious affairs depend upon the state is abolished.

This freedom of the Churches is manifested first, in that the creation of religious denominations and sects is free, and that the assembly of religious denominations in associations within the Reich is subject to no limitation whatever. It is also revealed in the complete independence of the Churches in regard to the State. Each religious denomination administers and conducts its affairs freely, provided that it observes the laws that apply to all. It conducts its work without the co-operation of the State or of the municipality. The new system realizes thus the emancipation of ecclesiastical administration from secular control. The State may neither decree regulations affecting faith, nor appoint any one to ecclesiastical service nor demand that its assent be required to the nominations made by ecclesiastical authority.

However, the Constitution does not push the principle of the separation of Church and State to such a point as to allow religious denominations no more than the merely private rights accorded by law to natural persons. Recognizing the social force and the importance in public life exercised by the Churches, the Constitution accords them privileges similar to those given to public corporations. Religious denominations existing in Germany at the time of the adoption of the Constitution remain recognized as public corporate bodies. As for other similar organizations, the same rights are accorded them on the motion of the state government if, by their constitution and the sufficient number of their adherents, they offer guarantees of permanence. While recognizing that in theory the smaller religious groups, chapels, and sects may be invested with rights similar to those of the principal churches, the object of the above limitation is to prevent ephemeral organizations from acquiring the standing of public corporate bodies.

The Constitution does not expressly state of what the rights of public corporations consist, for these rights result from provisions made in the legislation of the various states. In a general way, however, public corporations, in addition to the legal standing that private law gives them, are under the special protection of the State. Their organizations are indirectly public agencies, and they have the right to levy taxes. This right, practically the most important of those accorded public corporations, is expressly emphasized and guaranteed in the Constitution.

Religious denominations that are public corporate bodies have the right to levy taxes on the bases of the lists established for the collection of civil taxes. The right to levy the taxes granted to public religious denominations is limited, as a rule, to their members. They may, however, in exceptional cases levy on certain other taxables, particularly corporations and joint stock companies, etc., to the same extent as on their co-religionists, if the laws of the particular State authorize this.

If several religious bodies combine into one association, the latter, without being required to secure any special authorization, becomes a public corporation. This provision is important and has been voted out of consideration for the evangelical churches of the States which up to now were territorially separated, and which are seeking to unite in a German ecclesiastical organization, such as had to be formed after the disappearance of the régime in which reigning princes ruled the churches.

The financial situation of religious bodies is regulated by [Article 138]. The property and other rights of religious bodies and associations for the maintenance of their cultural, educational, and charitable institutions, their foundations and other possessions, are guaranteed. As a consequence of the separation of Church and State, the Constitution provides that the obligations hitherto imposed on the State to participate financially in the expenses of the Churches no longer exists. But on this point the Constitution compromises. Payments due from the State to the Churches because of some law or of legal title to such, must be commuted by state legislation, on bases fixed by the Reich. The States, however, cannot proceed to do this before a law of the Reich has fixed these bases. Till then, these payments continue. (Articles 138 and 179.)

The liquidation must include not only the payments owed because of a law or treaty, but also those due by virtue of some special legal title, particularly those resting on customary law and tradition.

The question whether, in the new legislation relative to the Churches, there subsists still any special right of supervision by the States, cannot be answered uniformly. Properly speaking there is no right of supervision by the States. But the latter may exercise over the Churches the same control as over public corporations for the purpose of maintaining order and public security.