(Feb. 27, 2018) In a decision published on January 10, 2018, the Higher Administrative Court of North Rhine-Westphalia (OVG NRW), the highest state court in administrative law matters, held that the petitioners, two Islamic religious umbrella organizations, were not entitled to introduce Islamic religious classes in public schools as a permanent part of the school curriculum. The Court stated that the two umbrella organizations did not qualify as religious societies as defined in the German Basic Law. (OVG NRW, Docket No. 19 A 997/02, Nov. 9, 2017, Judiciary NRW website (in German); GRUNDGESETZ [GG] [BASIC LAW] (May 23, 1949), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 7, ¶ 3, cl. 2 & art. 140 in conjunction with WEIMAR CONSTITUTION art. 137, ¶ 6, GERMAN LAWS ONLINE (unofficial English translation).)
Although Germany has no state church, a certain degree of cooperation exists between religious groups and the state. Article 140 of the Basic Law incorporates certain provisions of the former Weimar Constitution (WRV) concerning religion and religious societies into the Basic Law. Religious societies that meet certain criteria defined in article 137 WRV may qualify to teach religious classes at public schools, with classes taught on the basis of the tenets of the religious societies. (BASIC LAW art. 7, ¶ 3.) For more background information on the relationship between state and church in Germany, see Jenny Gesley, The Relationship Between Church and State in Germany, IN CUSTODIA LEGIS (Dec. 6, 2017).
Facts of the Case
The petitioners, the Central Council of Muslims in Germany (Zentralrat der Muslime in Deutschland e.V., ZMD) and the Islamic Council for the Federal Republic of Germany (Islamrat für die Bundesrepublik Deutschland e.V.), are important Islamic umbrella organizations. (OVG NRW, Docket No. 19 A 997/02, at 6–8.)
The two organizations first applied to introduce Islamic religious classes in public schools in 1998, but the application was rejected by the then Department for Schools and Further Education as well as by the administrative court of first instance and the Higher Administrative Court. (Id. at 9.) The petitioners appealed to the Federal Administrative Court, which remanded the case to the Higher Administrative Court. (Id.)
The proceedings were stayed upon the petition of the parties in 2006 and resumed in 2016 when the attempts to find an amicable solution failed, because the state of North Rhine-Westphalia had introduced Islamic religious classes only on an interim basis. (Id. at 10–12.)
The Higher Administrative Court affirmed the decision of the lower courts and did not allow an appeal to the Federal Administrative Court. (Id. at 22 & 56.) The Court reiterated that the state is obligated to grant religious societies as defined in the Basic Law the constitutional right to teach their religion in public schools as part of the regular curriculum. (BASIC LAW art. 7, ¶ 3, cl. 2; WRV art. 137).) It held, however, that the petitioners were not religious societies or parts of a religious society in this sense.
According to the jurisprudence of the Federal Administrative Court, umbrella organizations qualify as religious societies in the sense of the Basic Law if they fulfill four particular requirements. First, an organizational bond shaped by common belief must exist, through which the governing body at the top is connected with the individual believer at the bottom. Second, the umbrella organization must be in charge of exercising important tasks essential to the identity of a religious community according to its bylaws. Third, the umbrella organization must actually be able to exercise authority in religious questions that is accepted by the local religious communities. Finally, the character and activities of the umbrella organization must be shaped by the associated religious communities at the bottom level of the organization. (OVG NRW, Docket No. 19 A 997/02, at 32.)
The petitioners unsuccessfully challenged the validity of the last two requirements that umbrella organizations actually exercise authority in religious questions and be shaped by the local religious communities. The petitioners argued that religious societies do not need strictly hierarchical structures. The Court agreed in part, but upheld the third requirement nonetheless, interpreting it as an organizational structure that enables the governing body to genuinely implement fundamental decisions on questions of faith in each and every local mosque. (Id. at 34–39.)
Furthermore, the Court held that the first petitioner, the Central Council of Muslims in Germany, did not fulfill the second requirement, that its bylaws contain a provision that charges it with the exercise of tasks essential to the identity of a religious community, because the organization’s decisions and guidance in questions of belief are not in all cases binding on its members. (Id. at 42.)
Moreover, according to the Court, neither petitioner met the third requirement of actually exercising authority in religious questions in the community, in that they did not show sufficient influence concerning central religious issues apart from giving general advice in the form of brochures and assistance in isolated instances. (Id. at 47–50.)
The Court concluded that the petitioners could not be considered religious societies as defined in the Basic Law and as a consequence were not entitled to introduce Islamic religious classes in public schools.
Prepared by Felicia Stephan, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist.