Islam rejects technology

Discussion about recognition: Islam and the Basic Law

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After the Federal President's statements on Islam and integration, the discussion continues. Politicians are calling for Germany to finally recognize Islam as a state, others warn against equating Muslim associations with the Christian churches. What is it really about and where the hurdles lie - Thomas Traub on the constitutional background.

Dieter Wiefelspütz (SPD) speaks of an important signal if the state recognizes Islam as a religious community. CSU General Secretary Dobrindt rejects this approach sharply and sees the SPD on a "fundamental wrong track". An equality of Islam with the Christian churches can only demand those who have no idea of ​​the current constitutional law.

But what does the Basic Law (GG) say about the position of Islamic religious communities? What is our constitution about religion?

Anyone who is concerned about the recognition of Islam should first bear in mind that Muslim life in Germany takes place in very different religious orientations and associations, "Islam" does not exist.

Of the four major Islamic associations (DITIB, Central Council of Muslims, Islamic Council, VIKZ), less than 25 percent of Muslims feel represented. Only 20 percent of the 4 million Muslims living in Germany are organized as members in religious associations and communities.

The GG does not provide for "state-recognized" religious communities

In Germany, an association does not have to be officially recognized as a religious community. There is neither a registration requirement nor a state recognition procedure and therefore no distinction between "state-recognized" and other religious communities.

So when one speaks of the "recognition" of Muslim associations as religious communities, this can only mean the granting of the status of a corporation under public law, as the large Christian churches have.

There are historical reasons why the churches in Germany are corporations under public law in accordance with Article 140 of the Basic Law in conjunction with Article 137 (5) of the WRV. The meaning and nature of this special legal status are complex; the great constitutional lawyer Rudolf Smend characterized it as an "enigmatic honorary title".

Special legal status: religious communities as corporations under public law

However, not only the large Christian churches, but also many small religious communities are corporations under public law. Examples of this are Jewish synagogue communities, the Salvation Army and, after years of legal dispute that was finally decided by the Federal Constitutional Court (BVerfG), now also the religious community of Jehovah's Witnesses.

A number of rights are associated with corporate status, which also make it attractive for Muslim associations to pursue this status. For example, religious communities under public law can levy taxes under Article 140 of the Basic Law in conjunction with Article 137 (6) of the Weimar Constitution (WRV). Numerous privileges of corporate religious communities can also be found in other laws: tax exemptions, concessions in the law on fees, protective provisions in criminal law and special regulations in labor and social law.

However, a Muslim community must meet certain requirements in order to obtain the status of a corporation under public law.

Prerequisite: lawful - but not loyal to the state

In Article 140 of the Basic Law in conjunction with Article 137 (5) of the WRV, the Basic Law presupposes that the religious community, through its constitution and the number of its members, guarantees the duration. The BVerfG also requires compliance with the law as an unwritten requirement. A religious community that wants to become a corporation under public law must observe the applicable law and guarantee that its future behavior does not endanger the fundamental principles of the German constitution and the fundamental rights of third parties.

The decisive factor here is not the belief or teaching of the religious community, but its actual behavior. Not every single violation of a law calls into question compliance. A corporate religious community must, however, be prepared to respect law and order and to fit into the constitutional order. This cannot be calculated with mathematical accuracy, but can only be evaluated in the context of a complex forecast. The BVerfG has clearly rejected the demand for a special loyalty of the religious community to the state that goes beyond legal compliance.

The Basic Law also does not justify the requirement that Muslims first have to unite to form a larger, comprehensive association: the Basic Law does not force an inner-Islamic ecumenical movement and the abandonment of different denominational orientations. It is doubtful whether the founding of the Coordination Council of Muslims as another umbrella organization is really the decisive step on the way to becoming a Muslim body.

Can Muslim umbrella organizations be religious communities?

The granting of corporate status to a Muslim community still faces another hurdle: Are the Muslim associations even religious communities? This question sounds surprising at first.

But the term religious community, as used in Art. 137 WRV, is a constitutional term that does not include every form of religious association. Religious community is an association that brings together the members of one or more related creeds for the all-round fulfillment of the tasks set by the common creed.

In essence, it is about the association of natural persons. The large Muslim associations, however, are umbrella organizations that bring together hundreds of independent mosque associations or whose members are in turn umbrella organizations. According to case law, an umbrella organization can also be a religious community itself. Then the community must be held together by an organizational bond that extends from the umbrella organization at the top down to the simple community member.

Widespread problem of Muslim associations: No clear regulation of membership

Closely related to this is the question of the membership of the faithful in an Islamic association. Since organizations do not play an important role in Islam from a theological point of view, there is often a lack of clear rules on personal membership.

A clear regulation of the membership of natural persons is, however, indispensable for a religious community that wants to become a corporation under public law: The right to levy "church" taxes and thus exercise sovereign activity cannot be based on the standard of a vague feeling of belonging, but only on the basis of it legally verifiable membership.

The blanket demand to finally recognize "Islam" as a religious community is just as misleading as the idea that corporate status is reserved for Christian churches. The decisive factor is whether a Muslim association meets the constitutional requirements. This is not a matter of political discretion, but has to be checked legally by the federal states that are responsible for the award.

Thomas Traub is a research associate and doctoral candidate at the Chair of Public Law and Canon Law at the University of Cologne. He was involved in a research project on Islam in public law in the secular constitutional state.