Does Islam have to be compatible with the German constitution, as the AfD is demanding? The question is pointless: the constitution requires nothing of the sort – from either Muslims or Christians, writes Dieter Grimm, former Judge at Germany’s Federal Constitutional Court.
The German constitution guarantees freedom of religion, for each and every religion. Freedom of religion doesn’t just mean that an individual can decide whether he wants to follow a religion and if so, then which. It also means that the faith community itself decides on the content of its creed and the behaviour expected of its followers in accordance with that creed.
Under the constitution, the state does not have the right to prescribe what a religious community is permitted to believe and what it is not. A religious community is also at liberty to regard its own beliefs as the one true faith and others as mistaken. It can even regard combating their mistake as a religious duty.
Establishing the truth without the state
If the beliefs of a religion had to be compatible with the German constitution, then Christianity would run into difficulties in Germany, too. Like many other religions, it claims that its God-given doctrine is generally valid rather than just applicable within the religion. If Christian denominations weren’t allowed to claim that they serve the one true God, before whom all other gods are mere idols, they would have to renounce the First Commandment.
Catholicism would be incompatible with the constitution, because its priesthood is reserved for men – and priests who choose to marry are defrocked. A religious community founded on divine truth, as Christianity is, cannot be tied to democratic constitutions, either. World religions would become impossible if they had to align their beliefs with the national constitutions of the countries where they are practised.
Ideological neutrality: ″the state not only respects freedom of religion, but protects religions against attacks from third parties. It doesn’t force religion out of the public sphere, but gives it space and if necessary even creates that space – the very opposite of a secular fundamentalism, pitched against religions ,″ writes Dieter Grimm
The state even has a duty to protect freedom of religion, as it does all basic rights – no matter whether it is the religion of the indigenous or immigrant population and whether that religion upholds the state′s own values or goes directly against them.
That means that the state not only respects freedom of religion, but protects religions against attacks from third parties. It doesn’t force religion out of the public sphere, but gives it space and if necessary even creates that space – the very opposite of a secular fundamentalism, pitched against religions.
As a result, religions are not forced to give up their claim to truth. Rather, each is able to maintain its own claim to truth, precisely because the state itself stays out of the question and doesn’t side with anyone.
Norms only within limits
We should, however, separate this from the question of which behaviours required by a religion must be accepted by the free democratic state and which it can prohibit.
The fact that a faith community determines its own beliefs does not mean that it can be allowed to implement them unhindered. The right to live according to the commandments of your faith also falls under the protection of the basic right of religious freedom. But because it can conflict with the same right of other believers or religious communities, other basic rights, important community assets and the general law of the land, it is less firmly enshrined than the right to self-determination of beliefs.
Freedom of religion only exists in multi-faith societies when no single religion is allowed to make its truth generally binding.
This means that the claim made by religious communities to be absolute can only ever be valid for their own believers, inside that religious community and not for the general population; and even then, only insofar as it is voluntarily followed.
The secular state must not make its coercive power available for pushing through religious norms. Yet even voluntary subjection to religious norms can only be accepted within certain limits. These limits are set by the non-negotiable basic principles of the constitution – above all, human dignity.
Even basic rights are subject to limitations
Behaviour required of believers that conflicts with these principles cannot be tolerated even within a religious community. If beliefs go against the highest principles of secular order, then the state is duty bound to provide protection for believers against their own faith community. Outside the area of non-negotiable principles, however, a more lenient approach can be taken, as long as the demands of a faith don′t conflict with general laws. Such a conflict can be solved neither one-sidedly in favour of the general laws, nor one-sidedly in favour of the freedom of religion, which is neither the only nor the highest basic right. Like all basic rights, it is subject to certain limitations.
Where religiously motivated behaviour starts to run counter to generally applicable laws, we must carefully weigh up the general concerns expressed in the law and the basic right to freedom of religion. Sometimes this leads to the enforcement of the general law and sometimes to dispensations made out of consideration for the religion.
Freedom of communication permits criticism
These principles also apply to the particularly delicate relationship between religious freedom and the freedom of opinion, the media and the arts. These are also basic rights and as such enjoy the same protection as religious freedom. The duty to protect religion in constitutional law cannot therefore immunise religion against criticism. This is all the more important since the democratic form of government depends on the freedom of communication.
The harder a religion tries to influence public order, the more it must be subject to argument and opposition and this is something it has to bear. This opposition includes mockery and satire, provided these don′t involve vilifying people because of their religion, or inciting hatred against believers.
No faith has to be compatible with the German constitution, but not everything a faith demands can be realised under the constitution.
© Frankfurter Allgemeine Zeitung 2017
Translated from the German by Ruth Martin
Judge at Germany′s Federal Constitutional Court from 1987 until 1999, Dieter Grimm subsequently held a professorship at Berlin′s Humboldt University until 2005. From 2001 until 2007 he was director of the Wissenschaftskolleg in Berlin
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