Private religious choice in German and American constitutional law: government funding and government religious speech.

• Author: Wuerth, Ingrid Brunk

1. INTRODUCTION

   Sweeping demographic changes have dramatically increased religious heterogeneity in the Federal Republic of Germany since the approval of its constitution (Basic Law) by the Parliamentary Council and the Allied Powers in 1949.(1) Due to Muslim immigration largely from Turkey,(2) immigration by members of other minority religious groups,(3) reunification with a dramatically secularized East Germany,(4) and declining religious affiliation in the western German states,(5) Germany has proportionally far fewer people affiliated with the Protestant(6) and Catholic churches than it did even ten years ago, as well as wide regional differences in religious beliefs.(7) In 1961, more than ninety-five percent of West Germans belonged to one of the two main churches,(8) but by 1987 this number had sunk to around eighty-four percent;(9) after reunification it fell to around sixty-seven percent in Germany as a whole, and to less than thirty percent in the former East German states.(10)

   These changes have created difficulties for the relationship between religion and government under Germany's Basic Law. The Basic Law, which prohibits a "state church" and guarantees the free exercise of religion, rejects "strict separation" in part by protecting certain institutional relationships between the states and religious organizations.(11) In practice, these institutions have included primarily the large Protestant and Catholic churches.(12) Three of the most contentious religion cases in the history of the Federal Republic of Germany are now pending in the courts; in all three, traditional religious minorities(13) are challenging the institutional relationship between the large churches and the government.(14)

   The first case, now before the Federal Constitutional Court, involves an action to compel the state of Berlin to award a group of Jehovah's Witnesses special status as a "corporate body under public law,"(15) a status that the large churches already enjoy, and which brings with it privileges such as the power to collect taxes from church members through the state.(16) Eligibility of the Jehovah's Witnesses for this status hinges on (1) whether the group offers the requisite "loyalty to the state" even though its members may not vote, and (2) whether the "loyalty to the state" criterion itself infringes the group's religious liberties.(17) The case is widely viewed as an important precedent for how the German states and courts will resolve bids by Muslim groups for this status.(18)

   In the second case, the former East German state of Brandenburg, whose residents are overwhelmingly without religious affiliation, refuses to provide religious instruction in the schools pursuant to Article Seven of the Basic Law.(19) Parents and churches have brought suit in the Federal Constitutional Court to force Brandenburg to comply with Article Seven.(20) In the third case, the Federal Constitutional Court struck down a law providing for crosses in Bavarian public school classrooms, a decision that shocked and outraged scholars and the general public.(21) Bavaria responded by amending its law--which still provides that public school classrooms shall include a cross--to permit local school officials to remove the crosses when confronted with objections from parents or students.(22) The Bavarian Constitutional Court upheld the new law against a facial attack on August 1, 1997, in a decision that will probably be considered soon by the Federal Constitutional Court.(23)

   As Germany confronts the problems that come with religious pluralism, the United States increasingly struggles with the problem of how to include religion in public life. This shift arises in part from the force of a point long made in Germany, namely that excluding religion from public life improperly disadvantages it, and the related argument that secularism has no special claim to constitutional legitimacy. Both have reached a crescendo in the United States,(24) and the Supreme Court's response is clear. From Rosenberger v. Rector(25) and Capitol Square Review & Advisory Board v. Pinette(26) to Bowen v. Kendrick(27) and Agostini v. Felton,(28) religion is increasingly finding its way into the public sphere. Yet even as we usher out "separation,"(29) we have no clear vision of how greater integration will function. When and how, for example, may the government engage in religious speech? What are the limits on the government's power to fund religious organizations as part of a "neutral" general program? The tendency of courts and commentators alike is to increasingly view the heart of the Establishment Clause as the protection of individual religious freedom, rather than the structural separation of religion and government.(30) This shift has brought American and German case law considerably closer in Establishment Clause matters; German cases, it turns out, suggest several limitations on the notion that individual liberty should be the sole engine of Establishment Clause jurisprudence.(31)

   This Article considers the three prominent cases in Germany and how they speak to pressing Establishment Clause issues in the United States. The case involving religious instruction in the schools and the Jehovah's Witnesses case question the legitimate secular goals that the government may pursue through funding or support of religious organizations, an issue that remains open in the United States. The third case, crosses in public schools, raises questions of government religious speech similar to those that continue to divide the Supreme Court and scholars in the United States. In both areas, the German cases illustrate weaknesses in an approach to the Establishment Clause that views the clause as a means of protecting private religious choice from government pressure and influence.

   Section II outlines the American context for these issues, focusing on the growing importance of private religious choice analysis in the case law and literature, and concluding with a summary of what the German cases suggest for American private choice reasoning. Section III gives a brief overview of the Articles of the Basic Law that protect religious freedoms. Section IV takes up the Jehovah's Witnesses and religious instruction cases and argues that they suggest weaknesses in the private religious choice analysis in government funding cases in the United States. Finally, Section V addresses the dispute surrounding crosses in the Bavarian schools and the limitations of private religious choice analysis in government religious speech cases.

2. PRIVATE RELIGIOUS CHOICE IN AMERICAN JURISPRUDENCE

   Early Establishment Clause cases worked from the premise that government and religion should remain separate.(32) Separation, the Court reasoned, protects both religion and government from the potentially damaging influence of the other,(33) discourages sectarian rivalries,(34) and keeps the government "neutral."(35) This logic produced the infamous Lemon test, which requires that government action (1) have a secular purpose, (2) that it neither advance nor inhibit religion, and (3) that it avoid entanglement of government and religion.(36) Separation, as the Lemon test suggests, is driven largely by concerns about the institutional relationship between government and religion, not "coercion, loss of liberty, or other individualized interests."(37)

   Private religious beliefs have always, however, created difficulties for the separationist position. In cases involving financial aid to religious organizations, separation itself was at times justified on the grounds that the government may not coerce taxpayers to support (through public financing) religious beliefs with which they disagree.(38) But private religious beliefs also provided the basis for what would become a successful challenge to the core of the separationist position. As ,Justice Stewart pointed out in his lone dissent in Abington School District v. Schempp,(39) secular compulsory public schools cannot be defended as "neutral" to those who favor religious education for their children.(40) Professor Giannella similarly attacked separation as non-neutral in a religious society, reasoning by hypothesis that an all-powerful state would have to build churches in order to remain neutral toward the religious practices of its people.(41) Ultimately, the Court itself failed to follow through on its separationist promise. Instead, it upheld a number of government practices that "aided" religion on the grounds that to deny religious groups the services or money in question would "hamper . . . citizens in the free exercise of their own religion,"(42) or because the financial benefit of the aid accrued largely to private individuals who chose to direct the assistance in ways that benefited religious organizations.(43)

   By the 1990s the argument that the Court improperly disadvantaged religion by promoting an overly secular state had moved to center stage in Establishment Clause scholarship,(44) in part due to general post-modern attacks on the entire project of neutrality.(45) A powerful and pervasive government that excludes religion from public life, critics argued, marginalizes religion and fails to recognize that a secular state has no special claim to either neutrality or constitutional legitimacy.(46) As a result, scholars increasingly focus on government's impact on individual autonomy, reasoning that the Establishment Clause guards against government influence on religious choice or "personal choices concerning religious beliefs and practices."(47) The term "private religious choice" in this Article refers to these "personal choices" or, stated another way, "the individual process of reaching and practicing religious beliefs."(48)

   The claim that religion should "flourish according to the zeal of its adherents and the appeal of its dogma,"(49) without the influence of government, is not new. However, the focus on individual autonomy...