The Idea of Religious Neutrality and the Cooperation Model Compared in Germany, Austria and Italy

16 Pages Posted: 14 Dec 2018

See all articles by Joshua Moir

Joshua Moir

University of Trier - Faculty of Law

Julia Wagner

University of Trier, Faculty of Law, Chair for Public Law, Comparative Law, Law and Religion, and Public International Law

Date Written: September 28, 2018

Abstract

In recent years, Europe has experienced a move towards religious diversity and pluralism, which is especially caused by the lasting wave of migrants fleeing conflicts in primarily Muslim countries. While in 2010 Muslims formed 3.8% of Europe’s population, the Muslim population would be expected to rise to 14% by 2050. Even if this scenario does not materialise the European Union and its member states, they will be confronted more and more frequently with new challenges to the law regulating the relations between the state and religious organisations and currently unknown religious conflicts: disputes over religious symbols like the Christian crucifix, the Jewish mezuzah or the Muslim hilal in the public sphere, the debate on the Muslim head scarf, burka and niqab worn by teachers, police women or judges and controversies concerning religious practices in schools and universities – the list is almost endless – are only a few examples impressively demonstrating this. Although many of these problems have been the subject of debate within German higher court, federal administrative, and constitutional court cases, particular decisions as the headscarf ban for teachers (BVerfGE 108, 282, BVerfGE 138, 296) or the crucifix ruling (BVerfGE 93, 1) show that the judicial recognized idea of neutrality between state and religion is characterised by inconsistent results and rules: This leads to the paradox situation that in one and the same country Christian crucifixes in classes and court rooms are (predominantly) allowed and desired whereas on the other hand its strictly prohibited for Muslim teachers or legal clerks to wear a head scarf. Lastly, the current legal situation leaves affected people and legal practitioners helpless. This might be linked to the German model of rules regulating the relation between state and religion. The German Grundgesetz follows the so called hybrid or cooperation model – incorporated from the German constitution of 1918 – which is characterised by a basic separation of state and religion, simultaneously the state is responsible for maintaining religious freedom, diversity and plurality. This middle of the road approach be-tween an established church system and secularity is the most prevalent model in Europe. Particularly also our immediate European neighbours Austria and Italy follow this long-lasting co-operation-based tradition. Key objective of our contribution is to examine whether our neigh-bours are facing similar problems to those we have in Germany. In particular, we will focus our attention on the missing legal certainty and clarity with regard to the – positive and negative – freedom of religion. To ensure a comprehensive picture of the ambiguous legal situation our study will analyse and compare the relevant constitutional provisions, particular laws and jurisdiction in Austria, Italy and Germany and evaluate whether or not European countries still give privileges to their Judeo-Christian roots, (will) develop a religion-friendly attitude of neutrality towards all – also the Muslim – religions and world views or choose a way into a secular society. This question needs to be discussed on a multi-national forum, because it is a matter that concerns all European countries. The International Symposium on Religious Pluralism and European Integration provides a suitable framework to answer this question and to get in touch with experts from different fields of research and different ethical, racial and religious backgrounds.

Suggested Citation

Moir, Joshua and Wagner, Julia, The Idea of Religious Neutrality and the Cooperation Model Compared in Germany, Austria and Italy (September 28, 2018). University of Milano-Bicocca School of Law Research Paper No. 18-13. Available at SSRN: https://ssrn.com/abstract=3301174 or http://dx.doi.org/10.2139/ssrn.3301174

Joshua Moir (Contact Author)

University of Trier - Faculty of Law ( email )

54286 Trier
Germany

Julia Wagner

University of Trier, Faculty of Law, Chair for Public Law, Comparative Law, Law and Religion, and Public International Law ( email )

54286 Trier
Germany

HOME PAGE: http://vonungern.uni-trier.de

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