in Germany - for now this wall staysup.
Free Inquiry; 9/22/1995; Cohen,
The German Federal Constitutional
Court recently became the subject of controversy when it ruled
against a Bavarian law requiring the display of crucifixes in
public school classrooms. Many had protested the ruling, saying
that it was incomprehensible and contrary to German values, with
some even comparing it to a 1942 Nazi decree. On the otherhand,
there are also those who believe that the court's decision is
In a period when church/state
separation in the United States is being eroded, it is heartening
to read of a landmark church and state case in another country
where the highest court acts on principle and hands down an unpopular
decision. On August 10, 1995, the German Federal Constitutional
Court made public its ruling striking down a provision of the
Bavarian State Educational Code that called for the display of
a crucifix in every public school classroom. In a country written
off by American Christian fundamentalist missionaries as hopelessly
post-Christian, this decision caused a furor.
In 1987, six-year-old Elina
Seler was enrolled by her parents for her first day of school
in Schwandorf, northern Bavaria. The Selers are adherents of
Rudolf Steiner's spiritualistic philosophy, "Anthroposophy,"
and Elina had not been raised on Catholic lore as Bavarian children
normally are. Mr. Seler described Elina's first day of school
this way: "My daughter was forced to look up at an eighty
centimeter high naked, blood encrusted dead man that hung right
in her face."
Having never become desensitized
to the gory imagery of the Crucifixion, little Elina was terrified.
Mr. Seler complained about the crucifix, as twenty or so other
Bavarian parents have done every year. Instead of issuing the
usual flat refusal, the school offered to substitute a plain,
Protestant-style cross with no corpus for the crucifix in Elina's
classroom. The Selers took all three of their children out of
school in protest, relenting only when the authorities threatened
to prosecute them for truancy. Their legal complaint challenging
the crucifix was decided against them in the Bavarian state courts
in 1991. They appealed to the Federal Constitutional Court.
The Federal Constitutional
Court held that "the introduction of a cross or crucifix
into the classrooms of a compulsory-attendance nonparochial school
violates Article 4 Section 1 of the Basic Law."(1) The court
went on to explain that the essence of the violation consists
of forcing an individual to have contact with the devotional
paraphernalia of another religion, and implied that all the crucifixes
in public school classrooms in Bavaria would have to be taken
down. The decision also spoke of protection of minorities.
The decision prompted a torrent
of extravagant rhetoric - a veritable field day for political
posturing - on the part of conservative political leaders. They
seemed unable to understand how the crucifix could signify something
banefully different to some people than it signifies to them.
Chancellor Helmut Kohl - also chairman of the ruling Christian
Democratic Party - described the decision as "incomprehensible."
According to him, the decision calls upon society to dispense
with a symbol standing for all the positive "values of our
Others complained that for
dissidents and freethinkers to resort to the courts to force
the crucifixes to be taken down amounts to failure by them to
appreciate and reciprocate the tolerance accorded them in Germany.
These critics point out the folkloric connotation that Catholic
paraphernalia has in Bavaria. Crucifixes are widely displayed
in a purely decorative way there. It seems that Catholic conservatives
in Germany hold the crucifixes to be vitally important, even
while criticizing their antagonists for taking a strong stand
on such a trivial issue. Still others compared the ruling of
the Constitutional Court to the forcible replacement of the crucifixes
with pictures of Hitler during the Third Reich.(2) The chief
editor of Die Welt, a leading national right-leaning newspaper,
was hastily fired for writing an editorial praising the court's
decision. A member of the Bavarian State Parliament from the
Green Party(3) explained, "The cross is the raw nerve."
The resemblance of all this
to commonplace political posturing in the United States is remarkable,
considering how different the backgrounds of the two countries
are. In the more remote history of Germany, nobles struggled
against the power and wealth of the Roman church - during the
Reformation and at many other times.(4) After World War II, the
desire to reconstitute normal life led to a larger role for the
churches than their actual importance and influence would have
justified. In former West Germany, the Roman Catholic church
and the "Evangelical" (i.e., Lutheran) Protestant church
were officially established, and depended on church tax collected
on their behalf by the government from each individual church
member. Each established church controls considerable expenditure
of public money, as well as the teaching of certain subjects
in the universities and in some cases public schools.
The strong institutional position
of the two established churches is not indicative of their actual
influence, which is less than in the United States. The Protestant
church in Germany is much like stateside "mainline"
liberal Protestantism in its views. As in the American Catholic
church, a wide chasm separates the views of the German Catholic
hierarchy from those of the laity.(5)
There is nothing comparable
to stateside Protestant fundamentalism in Germany (although special
doctrine sects such as Jehovah's Witnesses and Christian Science
have footholds). The real situation is one of passive rather
than active support for the established churches by the German
Until reunification, West
Germans enrolled in the church of their forebears as a matter
of course. The high costs of reunification caused taxes in Germany
to skyrocket. The pocket money that could be saved by disenrolling
from one's church and avoiding the payroll deduction for church
tax - the equivalent of thirty or forty U.S. dollars per month
for most people - now makes a noticeable difference in an average
family's budget. Disenrollments, which held steady at about 200,000
per year in former West Germany prior to reunification, are expected
to reach 600,000 for 1995. The church hierarchies are worried
about the resulting erosion in their revenues.(6)
The condition of the churches
in what had been Communist East Germany is a special and in some
ways sad case. To belong to a church there under the old regime
caused one to be regarded as "lost to socialism" and
ineligible for any position of trust or responsibility. So, for
many of the most thoughtful and responsible people unwilling
to go along with the Communist regime and not allowed to leave
the country, the churches were the only available avenue of expression.
It was ordinary East German people in 1989 who brought about
that bright, shining, redeeming moment in German history when
protesters poured out of the churches of Leipzig, and - at great
personal risk - brought down a totalitarian regime with the sheer
moral force of their protest. Would that their grandparents had
done something similar in the early thirties!
With the collapse of the Honnecker
regime, leadership opportunities of every kind opened up to East
Germans who had been sidelined in the churches. That opening
abruptly curtailed church participation in the five new German
states. With finances far more straitened than in former West
Germany, few enroll to pay church tax.
So, why is it that "the
cross is the raw nerve"? That could well be because the
economic uncertainty of the German churches parallels a larger
economic uncertainty. More so than in the United States, Germans
are anxious because they know that they can no longer afford
their accustomed high standard of living because of foreign competition,
and taxes skyrocketing to combat deficits, and they realize that
their indispensable cutting-edge status in industry and technology
is slipping away from them. The Christian Democrats in particular
have a narrower parliamentary majority than before the 1994 national
election, and an unclear vision of the future. So, they mutter
about the decline of "western values."
Perhaps the ingredient of
the crucifix controversy most uncharacteristic of Germans is
the widespread talk of disobedience to the Federal Constitutional
Court's decision - the brewing of a kind of "massive resistance."
The most important of the German leaders expressing such a view
is Edmund Stoiber, the Premier of the Bavarian State Parliament,
the counterpart of a governor in the United States. He has declared
his intention to order removal of the crucifixes only in those
instances where there is a complaint. A family like the Selers
would now get its grievance redressed in Bavaria - after the
damage has been done.
At this juncture, it appears
that this controversy cannot go in any direction that would be
good for the rule of law in Germany. The opportunity simply to
obey the decree and make the best of it has already been missed;
to do so would have been an appropriate generous gesture to the
sizeable Muslim minority and the symbolically important Jewish
remnant. If Stoiber's plan is carried out and there follows no
reciprocal exercise of power to enforce the constitutional court's
decree, then there is no rule of law in Germany. If the constitutional
court rehears the case and climbs down from its decree, then
its lack of independence and vulnerability to political pressure
will be painfully obvious. A constitutional amendment to neutralize
the decree would be a frivolous distraction from serious public
business. Such an amendment clearly could not attract the necessary
two-thirds majority in the two chambers of the German parliament.
At best, the protagonists
in the crucifix controversy are in a dilemma of their own making.
They may have set the stage for a constitutional crisis in the
coming months. The controversy will play out, and it will be
the old story of views that cannot stand up to scrutiny coming
under that very scrutiny.
1. "Freedom of faith,
of conscience, and freedom of creed, religious or ideological
(weltanschaulich), shall be inviolable."
2. This claim is not as frivolous
as it may first appear. In 1942, the Nazi Party ordered that
the crucifixes in Bavarian classrooms either by taken down or
displayed only underneath the mandatory Hitler portraits. This
met with widespread grass-roots resistance, and various Catholic
school teachers ignored threats from party officials. There was
a flurry of Catholic resignations from the Nazi Party and boycotts
of local Party functions were staged in protest. More teachers
and administrators engaged in this resistance than the Nazis
could see their way clear to send to Dachau. The Nazi Party backed
down. The behavior of these ordinary Catholic laymen was in sharp
contrast to the well-documented craven complicity of the Catholic
hierarchy with the Hitler regime.
3. A liberal, environmentalist
party with significant strength at all levels in German politics.
4. The term culture war -
Kulturkampf - bandied about so freely by right-wing commentators
in the United States refers to Otto von Bismarck's attack on
the autonomy of the Catholic church in Prussia. He wrested control
of the schools from it, and imposed his own rules on its operation
and elevation of the clergy. He deposed some Catholic bishops
and jailed others at the height of the controversy. Many reference
books contain face-saving references to the church's eventual
victory in the "culture war." But the Catholic church
never recovered its former power in Prussia, even though the
state rules governing its operation were lifted.
5. A public opinion poll in
1994 showed that 87 percent of German Catholics favor abolition
of the requirement of priestly celibacy, and 60 percent regard
the reign of Pope John Paul II as a destructive one. Der Spiegel,
December 12, 1994, (50), p. 81 ff.
Anti-abortion views are, however,
more prevalent in Germany than in the United States. A compromise
national abortion law attempting to resolve the differences of
the two former German nations on the subject was enacted recently.
The law contains ambiguities that make its practical effect unclear.
6. See Der Spiegel, March
6, 1995, (10), p. 76 ff.
Edmund D. Cohen is the author
of The Mind of the Bible-Believer (Prometheus Books).
COPYRIGHT 1995 Council for
Democratic and SecularHumanism, Inc.