German Federal Court Refuses To Order Removal Of Medieval Antisemitic Sculpture

As reported by AP, Germany's Federal Court of Justice yesterday refused to order a Wittenberg church where Martin Luther once preached to remove a 730-year old antisemitic sandstone relief carved on the outside of the church. The sculpture is known as the "Judensau" or "Jew pig".  A display explaining the history of antisemitism in Germany was added in 1988. While the full opinion is not yet online, the Court issued a press release summarizing the Court's decision. The press release describes the sculpture:

It shows a sow whose teats are being suckled by two people who are identified as Jews by their pointy hats. A person, who can also be identified as a Jew by his hat, lifts the sow's tail and looks into her anus. In 1570, the inscription "Rabini Shem Ha Mphoras" was placed over the sow, based on two anti-Judaist writings published by Martin Luther in 1543.

The press release also summarizes the Court's holding that while the sculpture was originally "massively defamatory," a bronze base and and a nearby display added in 1988 remedied the situation:

From the authoritative point of view of an unbiased and reasonable observer, it has ... converted [the sculpture] into a memorial for the purpose of commemoration and remembrance of the centuries-long discrimination and persecution of Jews up to the Shoah and distanced itself from the defamatory and anti-Jewish statement - as expressed in the relief when viewed in isolation.

Report Criticizes Cardinal Who Later Became Pope For Not Acting On Sex Abuse Reports

A German law firm yesterday released a lengthy report (full text in German) on sexual abuse by clerics and employees in the Archdiocese of Munich and Freising from 1945 to 2019.  The report is of particular interest because then-Cardinal Joseph Ratzinger who later became Pope Benedict XVI headed the Archdiocese from 1977 to 1982. Vatican News Service summarizes the Report's findings:

At least 497 people were abused in the Archdiocese of Munich-Freising over a period of almost 74 years (from 1945 to 2019). Most of them were young; 247 are male victims and 182 are female. Sixty percent of the victims were between the ages of 8-14. The report identifies 235 perpetrators of abuse including 173 priests, nine deacons, five pastoral workers, 48 people from the school environment.

According to NPR:

The report ... contradicts Benedict's long-running denial that he covered up or ignored abuse.

Two of the cases involved two perpetrators who committed the abuse while Ratzinger was in office.... The two were kept in pastoral work after being punished by the judicial system. A third case involved a cleric who had been convicted by a court outside Germany and was put back into service in the Munich archdiocese despite evidence showing Ratzinger knew of the man's past....

The law firm's report also criticizes Cardinal Reinhard Marx, who is currently the archbishop of Munich and Freising, for his role in two cases in 2008.

EU Court of Justice Says Neutral Ban On Employees Wearing Any Religious Or Political Symbols Is Permitted

In IX v. WABE eV, (CJ EU, July 15, 2021), the Court of Justice of the European Union gave preliminary rulings in two cases from German Labor Courts on the extent to which employers can ban employees from wearing visible political, religious or philosophical signs in the workplace.  At issue was whether applying such a ban to Islamic headscarves constitutes either direct discrimination or indirect discrimination. EU Directive 2000/78 allows apparently neutral rules that particularly impact persons of a specific religion or belief only if they are "objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."

In one case, at issue was whether a day care center could apply such a ban to a special needs teacher. The court held the ban does not constitute direct religious discrimination "provided that that rule is applied in a general and undifferentiated way." It held that the ban would not constitute prohibited indirect discrimination if the policy meets a genuine need on the part of that employer; the difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, and the ban is limited to what is strictly necessary.

The second case involves a sales assistant/ cashier at a drug store. The employer's policy only banned "conspicuous, large-sized political, philosophical or religious signs." The Court concluded that a ban limited to the wearing of conspicuous, large-sized signs cannot be a neutral policy since the wearing of any sign, even a small-sized one, undermines the ability ... to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy of neutrality."

AP reports on the decision. [Thanks to Scott Mange for the lead.]

German Top Court Upholds Hijab Ban For Legal Interns Involved In Official Proceedings

In a decision handed down last month, but not published until yesterday, Germany's Federal Constitutional Court in a 7-1 decision rejected a challenge by a legal intern to the requirement that she remove her hijab when involved in court hearings.  The full decision in German is here. In a press release, the court summarized the decision:

In an order published today, the Second Senate of the Federal Constitutional Court rejected as unfounded the constitutional complaint of a female legal trainee (Rechtsreferendarin) in the Land Hesse; the complaint was directed against the ban on wearing a headscarf when performing certain official tasks. Under constitutional law, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal trainees must be respected. While this duty amounts to an interference with the complainant’s freedom of faith and other fundamental rights, it is justified. Such an interference can be justified by the constitutional principles of the state’s religious and ideological neutrality and of the proper functioning of the justice system as well as by the negative freedom of religion of others. In the case at hand, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing religious symbols in the courtroom, or to allow her to do so.

German Court Refuses To Order Removal of Anti-Semitic Church Carving

AFP reports that an intermediate appellate court in the German state of Saxony-Anhalt has refused to order the removal of a 13th century anti-Semitic bas relief on a church in the town of Wittenberg. The court concluded that the carving, known as the Judensau (Jews' sow), did not harm Jews' reputation because it was embedded in a broader memorial and was accompanied by a sign put up in 1988 explaining it in context.

German Court Says Sikhs Not Exempt From Motorcycle Helmet Law

DW reports that Germany's Federal Administrative Court has ruled that religious freedom objections are not sufficient to exempt Sikhs from Germany's law requiring motorcyclists to wear helmets. According to DW:

The Federal Administrative Court in Leipzig rejected a Sikh man's appeal, who had argued that the helmet would not fit over his turban.

"People wearing a turban on religious grounds are not for that reason alone exempt from the obligation to wear a helmet," the presiding judge, Renate Philipp, said, adding that the claimant has to accept this restriction to his freedom of religion, as it serves to uphold the rights of others, too....

The Leipzig court argued that the obligation to wear a helmet not only protects the driver but also keeps other drivers from being traumatized if they cause heavy injury to someone driving without a helmet.

The court also said a driver wearing a helmet would be better placed to help others in case of an accident.

German Court Rejects City's Ban On"Burkini"

Breibart News today reports:

The ban on the sharia-compliant swimwear known as the “burkini” has been overturned by the higher administrative court in the German federal state of Rhineland-Palatinate after a judge decided the ban violated the constitution.

The ban originated in the city of Koblenz and began on the 1st of January but was challenged by a Syrian asylum seeker who claimed that she required the swimwear for religious reasons and also needed to use the swimming pool because she suffers from back problems...

 According to the Higher Administrative Court, the ban violated the German constitution’s requirement for equal treatment. The city had argued that the burkini made it impossible to know whether or not those wearing them suffered from any hygienic issues or diseases....

Bavarian Court Upholds Ban On Judges and Prosecutors Wearing Hijab

In Germany, Bavaria's constitutional court yesterday upheld a Bavarian law banning judges and prosecutors from wearing religious symbols in the courtroom. The court said that officials administering justice have a special obligation to be neutral in religion and ideology.  The ban was challenged a Muslim group that objected to the ban's application to the wearing of Islamic head scarfs. DW reports:

The judge voiced the opinion that the ban, which also forbids officials to wear religious symbols such as crosses or a kippa — or yarmulke — during court proceedings, did not go against laws on religious freedom or equality....

The Islamic group had argued that the ban violated both laws, as the Christian symbol of the cross hangs in Bavarian courtrooms.

This argument was not accepted by the court, which maintained that the presence of crosses was a different matter, as it was determined by the court administration and cast no doubt on the neutrality of individual judges or lawyers.

The court also said the ban did not discriminate against women, as other items of clothing with religious significance that were worn by men were also forbidden.

European Court Upholds Removal of Children From Home Schooling

In Wunderlich v. Germany, (ECHR, Jan. 10, 2019), the European Court of Human Rights in a Chamber Judgment upheld Germany's three-week removal of four children from their parents' home after the parents insisted on home schooling them and refused to send them to state schools.  The court held that there was no violation of Art. 8 of the European Convention on Human Rights (Right to Respect for Private and Family Life). the Court said in part:

The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system.

ADF issued a press release announcing the decision.

European Court Says Catholic Hospital May Have Illegally Fired Doctor

In IR v. JQ, (COJ, Sept. 11, 2018) the Court of Justice of the European Union held that in Germany, a Catholic hospital may have discriminated illegally when it dismissed the head of its Internal Medicine Department for remarrying in a civil ceremony without his first marriage being annulled. According to the press release summarizing the Grand Chamber's holding:

[T]he national court hearing the action must satisfy itself that ... the religion or belief is a genuine, legitimate and justified occupational requirement in the light of the ethos in question.

... [T]he Court observes that adherence to the notion of marriage advocated by the Catholic Church does not appear to be necessary for the promotion of IR’s ethos due to the importance of the occupational activities carried out by JQ, namely the provision of medical advice and care in a hospital setting and the management of the internal medicine department which he headed. Therefore, that does not appear to be a genuine requirement of that occupational activity. This is corroborated by the fact that similar posts were entrusted to employees who were not of the Catholic faith and, consequently, not subject to the same requirement to act in good faith and with loyalty to IR’s ethos....

However, it is for the Bundesarbeitsgericht to determine whether IR has established that, in the light of the circumstances of the case, there is a probable and substantial risk that its ethos or its right of autonomy will be undermined.

National Secular Society reported on the decision.

German Labor Court Upholds Ban On Primary School Teacher Wearing Hijab

In 2015, Germany's Constitutional Court invalidated a blanket ban on Muslim teachers wearing the hijab (head scarf) while teaching. However it held that hijabs could be banned in individual cases where a concrete danger is posed. (See prior posting.)  Yesterday a labor court judge in Berlin upheld the city's neutrality law that prohibits all religious clothing for public school teachers, police officers and judicial employees, saying that it does not violate a teacher's constitutional right to religious freedom.  The ruling came in the case of a primary school teacher who asserted the right to wear a hijab.  Justice Arne Boyer ruled that neutrality takes precedence over free religious expression.  A court spokesman clarified the ruling, saying that while primary school children should be free of the influence that can be exerted by religious symbols, the teacher could could continue to wear her hijab while teaching older students in a public secondary school.  Deutsche Welle and PressTV report on the decision.

In Bavaria, State Buildings Will Display A Cross

According to Evangelical Focus, in Germany this week the Minister President of the state of Bavaria has ordered every state administration building to hang a Christian cross in the building entrance.   Minister President of Bavaria, Markus Söder says that the cross is "a fundamental symbol of the Christian Western identity" and is an "expression of the spiritual and cultural character of Bavaria."  The order does not apply to municipal and regional district buildings, but they are encouraged to follow the example set by the state government. Opposition political parties in Bavaria criticized the order.

European Court Interprets Provision Allowing Churches To Hire On Basis of Religion

In Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, (CJEU, April 17, 2018), the Court of Justice of the European Union in a preliminary ruling by its Grand Chamber interpreted Council Directive 2000/78/EC which bars employment discrimination on the basis of religion or belief.  The Directive creates an exception for existing national practices as to "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief."  It provides that in such organizations:

a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

In the request for an interpretation from the German Federal Labor Court, the European Court held that effective judicial review must be available as to whether an occupational requirement that one hold particular religious beliefs is genuine, legitimate and justified.  It went on to define how national courts should interpret the exception:

 Thus the lawfulness ... of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world....

... [T]he church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.

.... As the principle of proportionality is one of the general principles of EU law ..., the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued.

Law & Religion UK has more on the decision.

European Court Upholds Germany's Removal of Children From Religious Sect Parents

Last week in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany, (ECHR, March 22, 2018), the European Court of Human Rights in Chamber Judgments upheld the action of a German Family Court against claims by four families asserting their Article 8 Convention right to respect for private and family life.  A press release from the European Court described last week's decisions:

The cases concerned the partial withdrawal of parental authority and the taking into care of children belonging to the Twelve Tribes Church (Zwölf Stämme), living in two communities in Bavaria (Germany). In 2012 the press reported that church members punished their children by caning. The reports were subsequently corroborated by video footage of caning filmed with a hidden camera in one of the communities. Based on these press reports, as well as statements by former members of the church, the children living in the communities were taken into care in September 2013 by court order. The proceedings before the European Court have been brought by four families who are members of the Twelve Tribes Church. They complain about the German courts’ partial withdrawal of their parental authority and the splitting up of their families.

The Court agreed with the German courts that the risk of systematic and regular caning of children justified withdrawing parts of the parents’ authority and taking the children into care. Their decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in absolute terms under the European Convention.

Chamber judgments may be appealed to the Grand Chamber.

German Court Says Church of Flying Spaghetti Monster Is Not a Religion

In Germany, a court in Frankfurt an der Oder has upheld a decision by the Infrastructure Ministry of Brandenburg to deny the Church of Flying Spaghetti Monster (FSM) a permit to put up signs announcing its religious services. As reported this week by The Vanguard, FSM contended that it should be able to erect road signs publicizing its "noodle masses" just as local Catholic and Protestant churches erect signs giving details of their worship services. However the court ruled that FSM is neither a religious community or a community with a common world view.

German Judge Says Litigant May Not Wear Hijab In Court

Daily Sabah reported yesterday that in the German state of Brandenburg, a family court judge has informed a Muslim woman who is suing her husband for divorce that she cannot appear in court wearing a headscarf.  The judge sent a judicial letter to the woman's attorney explaining: "Religiously motivated statements such as headscarves are not allowed in the courtroom and during a hearing."  The Muslim woman bringing the divorce action was originally a refugee from Syria. An appeal has been filed, delaying the divorce hearing originally scheduled for July 27.

Germany's Bundestag Approves Same-Sex Marriage

As reported by BBC and the New York Times, on Friday Germany's Bundestag passed legislation permitting same-sex marriage.  Currently only civil unions are allowed for same-sex couples.  The vote was 393-226 with 4 abstentions.  Chancellor Angela Merkel, while voting against the change, told members of her governing coalition to vote on the issue according to their consciences. The legislation changes Germany's law to read: "Marriage is entered into for life by two people of different or the same sex."  The legislation must still be approved by the Bundesrat (the upper house of parliament) and signed by Germany's president, but neither of those steps appears to be in doubt.

European Court Says German Church Taxes Do Not Violate Religious Freedom

In Case of Klein and Others v. Germany, (ECHR, April 6. 2017), the European Court of Human Rights in a Chamber Judgment held that Germany's church taxes do not violate Article 9 (freedom of religion) of the European Convention on Human Rights.  The holding is summarized in the press release on the case issued by the Court:

[I]n these cases the taxes/fees had been levied not by the State, but by the applicants’ churches – which the applicants were free to leave under German law. As such, in most of the cases the levying and calculation of the taxes/fees had been an autonomous church activity, which could not be attributed to the German State.

However, in one case the State had been involved in levying a special church fee on an applicant who was not a member of the relevant church. This was because the fee which had been levied on the applicant’s wife had been subtracted directly from the applicant’s tax reimbursement claim by way of an off-set – therefore subjecting the applicant to his wife’s financial obligations towards her church. However, this off-set had arisen because the couple themselves had chosen to file a joint tax assessment....

German Top Court Says Muslim School Girl Must Take Part In Mixed Swim Classes

Germany's Federal Constitutional Court-- the country's highest court-- yesterday ruled that an 11-year old Muslim school girl must take part in mixed gender swim classes. According to The Guardian, the girl's parents objected to her taking part even wearing the full-body burkini, saying it still revealed the shape of her body in violation of Islamic law.  The court concluded that there are no binding rules in Islam to define proper clothing.

Merkel Calls For Burqa Ban In Germany

The Los Angeles Times reports that yesterday German Chancellor Angela Merkel called for a ban in Germany on the burqa and niqab that fully cover the face of Muslim women who wear them.  In a policy speech to her party's congress, she said, "Here, we show our faces, so full veiling is not appropriate." She called for a ban to be enacted wherever it is legally possible, such as in courtrooms, public schools and universities, and at traffic stops and police checks. Focusing on the need for acceptance of German cultural norms, Merkel said:

Our law takes precedence over honor codes, tribal or family rules and over sharia law. That has to be spelled out clearly.