Defining religious tolerance: German policy toward the Church of Scientology.

• Author: Moseley, Emily A.

TABLE OF CONTENTS

1. INTRODUCTION: GERMANY'S SCIENTOLOGY PROBLEM II. A BRIEF HISTORY OF GERMAN CHURCH-STATE RELATIONS

   1. The Protestant and Catholic Churches:

      From the Reformation to the Third Reich

   2. National Socialism, World War Two, and

      Allied Occupation

   3. Contemporary German Church-State

      Relations and Civil Religion III. THE BASIC LAW AND "SUPRA-POSITIVE VALUES": THE NORMATIVE FRAMEWORK FOR GERMANY

   1. The Federal Constitutional Court:

      Guardians of the Basic Law

   2. Basic Law Provisions Guaranteeing

      Personal Liberty

   3. Basic Law Provisions Guaranteeing Religious

      Freedom IV. THE FEDERAL CONSTITUTIONAL COURT: DETERMINING THE BOUNDARIES OF RELIGIOUS FREEDOM

   1. Interdenominational Public Schools and School Prayer

   2. The Blood Transfusion Case: Religious

      Exemption from a Generally Applicable

   3. The Church Tax Cases: The Limits of

      Religious Neutrality

   4. The Crucifix Cases: Establishing the

      Limits of Freedom to Pursue Religion V. "THERE SHALL BE NO NATIONAL CHURCH" VI. CONCLUSION

      Only--can religion, must religion mean the same thing to every man? When you look at our vast world, you see thousands to whom it does not mean these things, thousands to whom it never will, whether it be preached to them or not. Must it therefore mean these things to me?

      --Johann Wolfgang von Goethe, The Sorrows of Young Werther(1)

1. INTRODUCTION: GERMANY'S SCIENTOLOGY PROBLEM

   As a society founded on the sacredness of human dignity and under shadow of the Holocaust, Germany prides itself in its strong protection of religious liberty.(2) The Church of Scientology, however, labeled a cult by some and a legitimate religion by others, strains the boundaries of German tolerance of minority religious sects.(3) While both the German government and private citizens attack and ostracize Scientologists, Germany's "Scientology problem" suggests that the protections afforded religious minorities may be inadequate to guard against majoritarian domination.

   The German Constitution protects freedom of religion by guaranteeing free exercise of religion, banning the establishment of a state church, and providing some forms of affirmative governmental support to religious and ideological organizations.(4) However, the German government has decided that the Church of Scientology is not a legitimate religion. Thus, the government nullifies the constitutional protections that would otherwise apply to the Scientologists.(5) The Helmut Kohl government considers the Church of Scientology a cult that brainwashes its members and absconds with their money. German officials worry that the teaching of Scientology borders on totalitarianism and that the group ultimately seeks the domination of Germany.(6) Labor Secretary Norbert Blum describes Scientology as "a giant octopus . . . that will stop at nothing in its desire to spread its blind ideology."(7)

   Colorful rhetoric aside, such charges against Scientology are not unique to Germany. Other countries, including the United States,(8) France,(9) and Great Britain,(10) have struggled over how to characterize the group for legal purposes. Founded in 1954 by science fiction writer L. Ron Hubbard, Scientology strives to help members reach their full spiritual potential by overcoming their "individual history of pain."(11) However, many of the close-knit nontraditional techniques of the Church of Scientology, such as reliance on an "electropsychometer" (E-meter) to track such pain, and its recruiting of new, often wealthy members, worry cult-watchers.(12)

   Scientologists face hostility from both the German federal government and the governments of the German Lands, or states. On October 22, 1996, the Christian Democratic Party of Chancellor Helmut Kohl proposed surveilling members of the Church of Scientology and banning its members from the civil service.(13) On December 21, 1996, the Christian Democratic Party purged three Scientologists from its ranks while creating a national office to coordinate its proposed ban.(14) Shortly thereafter, Germany's federal and regional governments formulated a joint plan to combat Scientology.(15) In addition, fifteen of Germany's sixteen states currently monitor the Church of Scientology and its members.(16) German officials placed the Church of Scientology under nationwide surveillance by the Office for Protection of the Constitution in June 1997, citing the alleged anti-democratic aims of the church.(17)

   The State Intelligence Agency now operates a confidential telephone number which concerned citizens may use to report the activities of the Church of Scientology. The use of a hotline, which relies on private citizens' motivation to report Scientologists, suggests that the anti-Scientology movement may not be restricted to a few powerful German government officials, but rather may entail a larger popular attack against Scientologists. A survey by one German Institute suggests that ninety percent of Germans supported the decision to place the Church of Scientology under surveillance.(18) German employment agencies mark the files of Scientologists with an "S."(19) Bavaria blacklisted jazz pianist and Scientologist Chick Corea from performing at state-subsidized events,(20) and the youth-wing of the Christian Democratic Party protested outside the opening of Scientologist Tom Cruise's film Mission Impossible.(21)

   Although not approaching the manner or severity of the tactics of the Third Reich,(22) current German discrimination against Scientologists raises international concerns(23) over the protections afforded religious minorities in the country that exterminated six million Jews(24) less than sixty years ago.(25) The U.S. Department of State criticized Germany for its "campaign of harassment and intimidation," while simultaneously rejecting "the Scientologists' terror tactics,"(26) a reference to the explosive rhetoric in Scientology counter-attacks. German officials argue that the United States fails to understand the impact of its experience with totalitarianism or Scientology's "murky aims" and its use of "psycho-terror."(27) The United States concluded that despite the crackdown on Scientology, the "German Government fully supports religious freedom."(28) The Church of Scientology, however, continues to fight Germany's attacks through public protests and international advertising campaigns, comparing their situation to that of German Jews in the early 1930s.(29) Leaders in the German Jewish community object to the comparison.(30) Although probably driven more by rhetoric than historical accuracy, the advertisements highlight why any degree of religious intolerance by German political leaders raises serious concern.

   Part II of this Note contains a historical overview of church-state relations in Germany. A brief analysis of the importance of the German Constitution, or Basic Law, as a framework of normative values for Germany and its protections of religious freedom follows in Part III. In Part IV, an analysis of several Federal Constitutional Court cases illustrates how German treatment of Scientologists may violate constitutional norms, increasingly interpreted to protect minority religious groups from majoritarian domination. Yet, this possibly unconstitutional treatment of the Scientologists continues to be culturally and politically acceptable.

   Part V posits two explanations for Germany's Scientology dilemma. First, church and state historically coexisted in a comparatively symbiotic relationship, continued by the Basic Law and benefitting traditional churches. More significantly, the Basic Law textually separates its sections guaranteeing freedom of religion from its sections regulating church-state relations. The Federal Constitutional Court, reflecting broader cultural norms, continues to read the Basic Laws two religion sections separately. This Note argues that these sections must be closely linked to be meaningful. The problems with separating the two are not merely semantic. As long as German constitutional debate is framed in terms of free exercise, without checks on the establishment of a national religion, minority religious interests will not receive sufficient protection from majoritarian domination.

2. A BRIEF HISTORY OF GERMAN CHURCH-STATE RELATIONS

   Religion has historically encompassed every aspect of German cultural and political life, and church-state relations have been closely intertwined.(31) "Despite the radical political changes Germany has undergone since the Reformation, German society has in many respects been highly stable, and this has especially been the case in the church-state sphere."(32) German churches survived the collapse of three Reichs, two world wars, foreign occupation, and the division and reunification of Germany.(33) Moreover, the Christian churches' vital social and spiritual role in German life ensures their continued cultural dominance. While the Weimar Constitution and the Basic Law ended the policy of cuius regio, cuius religio,(34) the church and state remain in a strong partnership to this day. The Basic Law maintains the traditional role of churches in the socio-political realm.(35) This constitutional connection between church and state reflects larger social norms,(36) establishing the context for constitutional interpretation and judicial decision-making.

   1. The Protestant and Catholic Churches: From the Reformation to the Third Reich

      Any discussion of German church-state relations must begin with the impact of Martin Luther and the Reformation on the German nation and its people.(37) As Friedrich Nietzsche explained, "The fundamental fact of German history is Martin Luther."(38) Luther launched a massive social, political, and theological revolution when he nailed his 95 Theses to the door of the Castle Church in Wittenberg.(39) The Reformation established the Protestant Church, which spawned a number of German denominations, including Lutheranism and the Reformed Churches of Germany.(40) Three tenets drove...