The persistence of religious establishments in the contemporary world leads to some curious church-state issues. "Curious" would accurately describe the situation in the Federal Republic of Germany, whose constitution (the Grundgesetz or Basic Law) on the surface mandates a separation of church and state with the affirmation: "There shall be no state church." However, the document permits "religious societies" to form corporations under public law and entities them to levy taxes on the basis of the civil taxation lists. It also allows them the right to "public subsidies" on the basis of a law, contract, or special grant, authorizes them to "provide religious services and pastoral work" in the army, hospitals, prisons, and other public institutions, and recognizes Sundays and holidays "as days of rest and of spiritual improvement." Although the entire school system "shall be under the supervision of the state," parents and guardians may decide whether their children receive religious instruction. Such courses form part of the regular curriculum and "shall be given in accordance with the tenets of the religious community concerned. (1) Thus the Federal Republic, like the earlier Weimar Republic, adopted a strongly accommodationist stance toward the churches that prior to the demise of the Empire (Reich) at the end of World War I enjoyed the linkage of "throne and altar." Most of the institutional connections between church and state were essentially retained in the post-1918 era of separation. (2)
The principle in Article 149 of the 1919 constitution that the theological faculties at public universities would be maintained was not rescinded in the post-World War II Basic Law. During the Weimar years, the federal government concluded agreements with the various states (Lander) regulating the theological faculties which insured that they would remain as confessionally (Protestant or Catholic) oriented as they had been before. The Federal Republic of Germany, formed in the western occupation zones in 1949, merely renegotiated the old contracts to bring them into conformity with the new geopolitical realities. This brief history provides the backdrop for the intriguing case of Dr. Erich Geldbach.
THE GELDBACH APPOINTMENT AT THE UNIVERSITY OF BOCHUM
In November 1993, the dean of the Protestant Theological Faculty of the Ruhr University Bochum, a state university in North Rhine-Westphalia, invited Dr. Geldbach to apply for the vacant chair in ecumenical studies at his institution. (3) The faculty had been searching since April when the previous occupant, Professor Konrad Raiser, left for Geneva to assume the post of General Secretary of the World Council of Churches. Geldbach was a well-known Baptist theologian and specialist in the area of ecumenical history and theology who was serving in a research position at the Confessional Studies Institute in Bensheim. (4) He agreed to stand for the position and was one of five people brought in for trial lectures in January 1994. In the ensuing months, the faculty, following standard procedure, placed Geldbach at the top of a short list of three nominees that went to the University Senate. After the Senate approved the list, it was forwarded on to the responsible ministry in Dusseldorf, the state capital, where the minister agreed to appoint him. However, opposition within church circles would delay the final decision for two more years.
The puzzling events that transpired between the solicitation of Geldbach in 1993 and his actual appointment in February 1997 demonstrate the politically charged and institutionally complex process of appointments to Protestant theological faculties in German universities. (5) More importantly, they point to persistent structural flaws in the church-state system that render it ripe for abuse and have contributed to instances of discrimination against religious minorities. This essay explores both the constitutional and institutional structure of the German system using the appointment of Erich Geldbach as a case study to shed light on the ideological motivations behind its design and its recurring failures in protecting the religious rights of minority groups.
An inspection of this ease will reveal a number of things. First is the unique nature of the German professoriate, and especially the role of the theology professor. A person in this profession has a unique status in German society, functioning much like an "exalted civil servant" at the critical nexus of academics, religion, and politics. At times in the nation's history, that role has included the reinforcement of a collective ethos in the quest for national and social unity. Second, the case demonstrates that, given the reality of pluralism in modern Germany, theologians will have increasing difficulty in fulfilling their responsibilities to the satisfaction of both church and state, as well as to the people of the country collectively. Third, the three specific institutions involved in this case--churches, theological faculties, and state ministries--each play a significant role in such appointments although their boundaries of authority are ambiguous. Finally, the case exposes the reality that the "established" churches (6) continue to exploit their privileged positions in relation to and at the expense of minority faiths. This traditional role in society is reinforced by the country's institutional structure, although its legal basis is questionable. Old cultural habits die hard, and Professor Geldbach's difficulties in attaining his well-deserved position in the German academy illustrate how this pervasive spirit of church-state cooperation that dates back to the sixteenth century continues to plague the democratic and pluralistic Germany of today. (7)
THE RELIGIOUS ESTABLISHMENT IN GERMANY
On first inspection one might infer that, from a purely constitutional perspective, the Geldbach fiasco should never have occurred. The Weimar Constitution of 1919 ended the overt state subsidization of the German churches and guaranteed (Article 136) that the "enjoyment of civil and political rights, as well as admission to official posts, is independent of religious creed." As mentioned above, this and the other articles dealing with religion and religious associations were incorporated into the Basic Law for the Federal Republic of Germany in 1949. The "catalogue of basic rights" was placed at the forefront of the Basic Law to "signify its paramount importance." (8) Article 4, section 1 states: "Freedom of faith and of conscience, and freedom to profess a religious or philosophical faith, shall be inviolable." (9) Of the "new" liberties articulated here, the one most pertinent to the Geldbach case is section 3 of article 3. It reads: "No person shall be favored or disfavored because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions." (10) Yet despite these liberal constitutional principles articulated in classic rights language, Dr. Geldbach had great difficulty in overcoming the institutional intransigence in the German bureaucracy to assume his position on the Ruhr University faculty.
One idiosyncrasy of the constitution needs to be mentioned. The counterpart to the Basic Law's enumeration of individual liberties is its characterization of the Federal Republic of Germany as a "social federal state" in Article 20, section 1. No specific definition is given to this phrase. However, Douglas Klusmeyer suggests that the "lack of specification does not mean that the term is a mere constitutional adornment or wishful aspiration.... As a constitutional norm, the principle does not prescribe the policies by which government should promote social justice, but it does legitimize state intervention in the economy, the redress of gross inequalities, and the implementation of public welfare measures." (11) This suggests the possibility that certain state policies incorporated under the banner of "public welfare measures'" may infringe upon individual rights, especially those of minority groups, which the constitution attempts to guarantee. Any existing "stratification" of rights, among religious or other groups in Germany, may result in the development or exacerbation of inequalities as the government enacts policies designed to promote the general public welfare.
Some stratification of religious rights is evident in German society, and it is reinforced by the constitutional sanction of certain institutional linkages between church and state that enables a significant degree of state sponsorship of religion. For example, as opposed to voluntary support from their adherents through tithing and donations, the two major German Christian faiths are funded primarily through taxation. (12) The Protestant regional churches (Landeskirchen), that is, the official churches of the various German states whether they be Lutheran, Reformed, or United, receive much of their income through the church tax. Tax revenues make up between 50 and 60 percent of total church income, with the rest largely resulting from subsidies received as compensation for the loss of church property through the "secularization process." (13) Roman Catholic churches too are supported through this government taxation and subsidization structure. As William Downey puts it, the state "effectively passes the plate for the church and is paid by the church for its services." (14) The smaller "free churches," such as the Baptists and Methodists, do not participate in this system, largely due to doctrinal proscriptions on accepting funding from the state. These subtle institutional distinctions establish a basis for discrimination among German religious groups that ultimately affect the treatment of individuals in the society.
Exacerbating the situation is the federal/state structure of Germany that allows the individual states (Lander) considerable latitude in defining policies that affect their regional...