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Separation, Equality, Nearness: Three Church-State Models

Abstract

The author discusses several models of the relation of church and state with respect to their advantages and shortfalls to freedom of religion and equality of religions. The first model is the separation of church and state at a great distance, the second the model of equal religions and the third the rapprochement model of civil religion and constitutional ethics. None of these possible models is fully satisfying. Precisely because the minimum pre-requisites for legitimacy and liberality are preserved, or should be preserved, in all three models, the advocates of all of these church-state models should learn to cherish their respective assets in order to ‘bear’ the accompanying losses.

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Notes

  1. The word ‘church’ in the essay title is an abbreviation. “Church” is meant here as religious organizations in general, regardless of whether they are loosely or strongly organized, or formally or informally recognized by law.

  2. Regarding this type of church-state relationship see Brugger [5], Sect. 2.

  3. See von Campenhausen/de Wall [8], §§ 3–7; Walter [27], Ch. 2.

  4. Art. 4 § 1: “Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.” § 2: The undisturbed practice of religion shall be guaranteed.

  5. See Frowein [11], 78, as to the scope of the European Convention on Human Rights (ECHR).

  6. See Frowein [11], 78 ff; Walter [27], Ch. 12; Brugger [5], Sect. 2.

  7. Oftentimes scholarly literature uses the terms ‘distance’, ‘separation’, and ‘division’ as synonyms, which is of course possible. What is important here is that these terms can be used—and are in fact used—in a not such a strict but broader way, or indeed strictly or in a maximized way (for example: as much distance as possible!). For the purposes of this article it is important to differentiate between the broader or looser meaning of distance/separation/division (in 1.) and the more narrow version (in 2.), as well as the competing models of equality and nearness (3., 4.), which still build upon the general framework explained in Sect. 1 of the paper.

  8. See the arrangement of church-state models in Heinig [15], Sect. 2: “Hierarchisierung [correlates with the model of ‘nearness’] und Distanzierung [the first model presented here]”.

  9. See Basdevant-Gaudemet [1]; Dokupil [10].

  10. This is exemplarily stated by the German Federal Constitutional Court (BVerfG) in its Headscarf Decision in BVerfGE 108, 282 (309 ff.), in which the Court granted state lawmakers some degree of independent judgment with regard to modeling church-state relations, according to their own assessment of the particular situation (How much integration or conflict will be brought about if Muslim women are permitted to wear headscarves?) and constitutional considerations (balancing out the fundamental rights of the teacher, the students, and the parents, as well as the state’s competencies in this area). In this case a step toward more laicism and neutrality (the first model presented here) should be just as possible as an approval of headscarves in the classroom, with a greater nearness of church and state (the second or third model presented here, resulting from a closer arrangement). For the specific provisions, see the evidence presented by von Campenhausen/de Wall [7], 72 f, especially footnote 117.

  11. The reference here is to a part of the US jurisprudence that operates under the title of ‘strict separation’. As to this point, see Brugger [5], footnote 28 ff. An early seminal decision of the US Supreme Court on this matter is Everson v. Board of Education, 330 US 1 (1947), in the minority opinions of Justices Jackson (18 ff) and Rutledge (28 ff). The dissenters take the expression “wall of separation” (16), also used in the majority opinion, and strictly interpret it. The majority, on the other hand, opts for a more flexible interpretation of the same term. See the later debate of this case in the main text, which revolves around the question whether the government can subsidize transporting school children to state as well as religious schools. The majority in this case characterized this as constitutional, within the separation model; the minority disagreed. In Germany no such strict separation and distance requirement exists; scholars, however, once in a while call for it. See the references in Brenner [4], 271 f, especially footnote 28 f, as well as Heinig [15], in footnote 38.

  12. See the dissenting opinion of Justice Jackson in Everson v. Board of Education, 330 US 1, 27 (1947) in reference to the Catholics and Catholic schools that were unpopular at the time in many places: The strict separation and distancing from church and state “alone assures Catholics the right to maintain these schools at all when predominant local sentiment would forbid them”.

  13. Justice Rutledge in Everson v. Board of Education, 330 US 1, 59 (1947), with this in mind, argues, “that complete separation between the state and religion is best for the state and best for religion”.

  14. See Rutledge, ibid., 32: The complete separation of church and state “secures all forms of religious expression, creedal, sectarian or nonsectarian, wherever and however taking place, except conduct which trenches upon the like freedoms of others or clearly and presently endangers the community’s good order and security.”

  15. In this regard, see the impressive formulations of Justice Black in Everson v. Board of Education, 330 US 1, 8 ff (1947), as well as the last footnotes. Also reference the contributions in Oberdorfer/Waldmann [21], as well as Heinig [15], in footnote 64: “State church regulations have also the task of preventing serious harm to others”. Heinig thinks of what German jurisprudence refers to as “Gefahrenabwehrrecht”.

  16. A recent example of this, from Israel, may be found in Raday [23].

  17. Examples of this may be found in Raday [23], Medina [19], 306 ff.

  18. For a detailed account of this, see Walter [27], Chapter 9.

  19. See BVerfGE 102, 370 (Jehovah’s Witnesses), detailing the conditions of the bestowal by the states of the formal status of “public corporation” on church organization in accordance with Article 140 of the German Basic Law (Grundgesetz), in conjunction with Article 137, Paragraph 5, Sect. 2 of the Weimar Constitution: “Religious societies shall remain corporations under public law insofar as they have enjoyed that status in the past. Other religious societies shall be granted the same rights upon application, if their constitution and the number of their members give assurance of their permanency …”. Such a status assumes some fidelity to the values of constitutional law, in other words: if churches want to receive this formal status (which is not identical with a substantive union of church and state as discussed in Sect. 1), they need to shed the more radical tenets of their beliefs.

  20. On this point, see the evidence presented in Czermak [8], 30 f, in reference to the German church-state system, which contains a non-strict separation model.

  21. As seen from the standpoint of German constitutional law, which distinguishes between the “klassischer Grundrechtseingriff” (an interference in the classic sense of an explicit command) and the “faktischer Grundrechtseingriff” (mere empirical repercussions of state action that diminish the worth of the constitutional guarantee in a more than marginal way).

  22. The real case behind this example is Everson v. Board of Education, 330 US 1 (1947), which has been referenced here before.

  23. So it appears in fact in the dissenting opinion of US Supreme Court Justice William Brennan in Allegheny County v. ACLU, 492 US 573, 639 (1989): “In my view, this attempt to take the ‘Christmas’ out of the Christmas Tree is unconvincing.” In Germany this point of view might seem absurd, but in any case one can generally deduce why some scholars in Germany take Christmas parties in schools to be constitutionally problematical. See Zacharias [28].

  24. As to this point see Schieder [26], 234: “The formal ‘separation of church and state’ does not do justice to the complexity of the relationship between politics and religion. It is susceptible to anti-clerical misinterpretations and utterly ignores the problem of civil religion.”

  25. For further evidence, see Czermak [9], § 10 (on the relationship of equality and neutrality) and Heinig [15], at footnotes 39 ff. From the US literature see the equality plea of Paulsen [22], 314, with a critique of the Supreme Court, which in his view speaks too often of separation instead of equality and neutrality. In the German debate over the handling of the wearing of headscarves by Muslim teachers, the thesis of strict equality is advocated by all those who want to permit the wearing of such a headscarf, thus, in effect, relativizing the first model of distance. These authors insist on ‘strict, equal handling’ of Jewish or Christian or other religious head coverings; some even demand compensatory means of protection for minority religions. For more on the headscarf debate, see Czermak [9], marginal numbers 309 ff.

  26. Relevant examples in Israel have already been referenced in footnotes 16 and 17. One can also think of parallels to John Rawls’ argument that the right to liberty should not be too far away from the factual worth/value of liberty, Rawls [24], 176 ff. If there is a substantial gap, arguments for the furtherance of the poor and weak or disadvantaged come to the fore.

  27. Such is the result reached by Huster [16], 681, Thesis 20: “A state obligated to observe neutrality cannot align itself with religious-ideological symbols in schools [such would be the result of the distance model; W. B.]; it can make arrangements, however, so long as the imperative to remain neutral is observed. Insofar, the neutrality imperative vis-à-vis the alternative of an integration of religious-ideological interests or a more strict separation of state and religious-ideological affairs is indifferent.

  28. In the US Supreme Court a group of justices exists, separate from the ‘strict separationists’ already noted in footnotes 10–14, known as the ‘accommodationists’, who are more open to the convergence of church and state and are more permissible of facilitation as long as such treatment is equal, or neutral. Such benefits must encompass not only all relevant religions (e.g. religious schools of different colors), but also the corresponding state organizations (public, secular schools). For a summary of this line of jurisprudence, see Brugger [5], 15 f and Muckel/Ogorek [20].

  29. See, for example, Arts. 20 § 1 and 28 § 1 of the German Basic Law, which use the term “social state”, or Art. 1 of the 1996 Constitution of Ukraine, which uses the same terminology.

  30. See footnote 24.

  31. See the parallel arguments in Habermas [12], 173 f, against legal protection [Artenschutz] of endangered cultures.

  32. See the counterexample of exempting churches from tax collection in order to give some financial support, in Walz v. Tax Comissioner of New York, 397 US 664 (1970): In this case financial aid for churches by means of exemption from property tax would make it unnecessary to probe into the internal affairs of churches. This model of non-taxation actually engenders more distance, despite the generally granted subsidies: “The exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches” (696). Reasoning: “Elimination of exemption would tend to expand the involvement of government by giving rise to tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes” (674).

  33. See Czermak [8], 40: “One also should not forget: Ideological symbols are conflicting. With the integration of one aspect, another is excluded.”

  34. See the overview in Czermak [9], § 13 IV und V 5. Doctrinally, it makes at least some difference whether a religious symbol such as the cross is placed on the wall of the school by the state, or whether a female muslim school teacher wears the headscarf—although she acts in a double capacity: as a civil servant with the duty of being neutral, and as a citizen who has not shed all her constitutional rights at the door of the public school. This difference between the two situations is without a doubt legally relevant; whether or not this relevance is decisive, however, is debatable.

  35. References in Brenner [4], 282, footnotes 71, 72. Also see the example given under the title of “Beurlaubt” in the daily Berliner Tagesspiegel of 10 October 2006, which deals with the provisional firing of the British flight attendant Nadia Eweida at British Airways: “Nadia Eweida belonged to the ground crew at Heathrow Airport. She was placed on leave because she wore a necklace with a small cross and refused to conceal the cross while working. The woman argues that, unlike in her case, Muslim women and Sikhs are allowed to wear headscarves and turbans.”

  36. See Justice Rutledge’s dissenting opinion in Everson v. Board of Education, 330 US 1, 59: “It is only by observing [a strict separation between church and state] rigidly that the state can maintain its neutrality and avoid partisanship in the dissensions inevitable when sect opposes sect over demands for public moneys to further religions education, teaching or training in any form or degree, directly or indirectly.”

  37. As to this point see the principle of continuity formulated by John Dewey and explicated by Philip Selznick [25], 28 f and in other places. The point here is that for an adequate understanding of the social order, the differences between its constituent group morals should not be escalated to “pernicious dualisms” (21). Rather, more weight is to be placed on the reciprocal structural relationships of the particular segments of society in order that a collective good life for individuals, as well as the broader community, comes to pass. This is summarized on p. 29: “Sociology looks to the continuities in life, to how things fit together and are interdependent, and it finds in these continuities the primordial sources of obligation and responsibility.”

  38. One often finds such arguments designated as ‘friendly’ or ‘positive neutrality’. See examples of this in Walter [27], 21, and in the Walz decision of the US Supreme Court (cf. footnote 32). See also the references in Kippenberg [17], 63 ff as to the “functions of the social capital of religious joint participation”.

  39. These “core communities” are discussed in detail in Selznick [25], 184 ff.

  40. Under constitutional law it is clear how this is to be organized legally: Parents, children, schools, and communities of faith are protected through specific fundamental rights or competences of their own. See Heinig [15], in footnote 72: “Churches are more than and different from mere agents charged with transmitting values of the federal government.”

  41. See the interesting case of Wisconsin v. Yoder, 406 US 205 (1971), where followers of an Amish sect successfully sued in order that they not be required to send their children to public secondary schools, although not doing so was generally forbidden. The Supreme Court investigated educational efforts undertaken by the religious community and came to the following conclusion: “The Amish alternative to formal secondary school education has enabled them to function effectively in their day-to-day life […] this is strong evidence that they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise of religious belief” (255).

  42. This argument is contingent. One must verify whether or not it is factually true, what is normatively presupposed, that fundamentally productive (and not antagonistic) powers and complementary structural relationships between religion, family, and state prevail. Insofar as the reality differs, that is, if highly conflicted or destructive powers predominate between (e.g.) a clan and state power, church and state, or between individual religions, then the productivity argument offered above loses its force. One must then check to see whether the competitive model of distance would function better.

  43. Here, a contingent assumption is also made, in which one must prove whether or not such a strong imprint of the majority religion actually exists. The strong Christian orientation of the German community and constitution should be understood less from an unchallenged ‘normative premise’, but rather from an empirically grounded hypothesis. For a comment on the premise variant, see Huster [16], 200: “The rationale behind the integration motif relies on two premises: (1) the liberal ordering of the Basic Law is founded on a Christian orientation, or at least an impression stamped onto the public consciousness, shared by the majority of its people. (2) This circumstance, in which Christian principles embodied in public law and state institutions—and especially in schools—are given a privileged status, is permissible.”

  44. See the concept of “funded experience” in Selznick [25], 20, 37, 40, 129, 289, 403.

  45. Alongside this point is a religious strain of individualization, which is especially clarified in discussions concerning the meaning of conscience and religious freedom.

  46. Cf. Matthew 25:35–40.

  47. See Heinig [14].

  48. Art. 1 § 1 of the Basic Law, the German Constitution, says: “The dignity of man shall be inviolable. To respect it and protect it shall be the duty of all state authority.”

  49. This argument is similar to that of Härle [13].

  50. Discussed at length in Brugger [6].

  51. See Huster [16], 216 ff.

  52. The following quotation brings these two dimensions to the forefront: “Civil religion—that is, the stock of everyday culture in which the community and, through it, the common life symbolizes its dependence on basic elements of the good life which should not be politically instrumentalized; rather, these elements would be respected and protected in the political process” (Lübbe [18], 239). Both connotations are summarized in Bowden [3], 192 f, who cites writings of Robert Bellah: The concept looks “succinctly to those themes and symbols which [are seen] at work in cultural life” (192). At the same time, the term is “a vehicle for national self-understanding, as integrating the family and local community into a larger sphere, and for mobilizing support to secure national objectives” (192 f).

  53. For an argument in this vein of thinking with regard to the consequences of prohibiting the hanging of Christian crosses in schools in Germany, see Lübbe [18], 248 ff.

  54. As has already been mentioned in footnotes 40 and 41: Only in the case that in fact a productive and not destructive relationship exists!

  55. See, for example, the explanation in Walz v. Tax Commissioner of New York, 397 US 664 (1970), a case in which the state of New York excluded religious communities from property tax. In this case, the US Supreme Court spoke of institutions “that exist in harmonious relationship to the community at large and foster its ‘moral and mental improvement’” (672). The court also held that “the state has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life” (673).

  56. Böckenförde [2], 60: “The liberal, secular state is given life from and thrives on premises which it itself cannot guarantee. This is the great risk that the state, for the sake of liberty, accepts.” Ernst-Wolfgang Böckenförde is a former justice of the German Federal Constitutional Court and a well-known expert on church-state relations. See the entry “Böckenförde-Diktum” in http://de.wikipedia.org.

  57. This would be in agreement with Böckenförde’s thesis. He formulates this on page 61: “The state, no longer confident of or bereft of its own internal bonding force” will not necessarily prove tenable. “In a time of crisis, upon what will such a state support itself? Once again the question—with Hegel—begs asking: Whether the secular, worldly state also needs such interior driving and binding forces which only religious faith may transmit to its citizens”. Reformulated in the lexicon of this article: the binding forces and structural relationships, which family, religious, and national morality productively knit together.

  58. See Lübbe [18], 243 ff, 237 f: “Civil religion” refers to “the component of the reigning religious culture which deals with communally composed political life”.

  59. This has already been addressed in Sect. 2.

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Acknowledgments

Acknowledgments go to Grant van Eaton for generous help with the translation from German.

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Correspondence to Winfried Brugger.

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Winfried Brugger deceased on November 13, 2010.

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Brugger, W. Separation, Equality, Nearness: Three Church-State Models. Int J Semiot Law 25, 263–281 (2012). https://doi.org/10.1007/s11196-011-9229-6

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Keywords

  • Church and state
  • Religion
  • Freedom of religion
  • Equality of religion
  • Separation model