Religiöse Symbole und staatliche Neutralität

The principle of religious neutrality is one of the most fundamental concepts in German constitutional law concerning religion. Yet, its precise content and its relationship to other constitutional requirements is all but clear. The essay attempts to illuminate these questions for one particular area, namely the confrontation with religious symbols in public spaces. It suggests that instead of viewing all questions arising in that context as questions about the nature and scope of the principle of religious neutrality, one should align the different constitutional requirements more closely towards the different types of arguments brought forward in the discussion. More precisely, only arguments referring to a possibly problematic identification of the state with a particular religion, that is arguments which refer to the relationship between the religious symbol and the state, should be tied to the principle of religious neutrality. In contrast, two other lines of argument often connected with this principle better fit other constitutional requirements. This concerns first, arguments referring to a problematic influence on the persons confronted with a religious symbol and second, arguments referring to the possibility (not the obligation) for the state to set up particularly religiously distanced spaces. The former should only be connected to the negative side of the right to religious liberty; the latter can be tied to the special duty of loyalty of the civil servants operating in those spaces. This three-track model can be used to reconstruct the jurisdiction of the Federal Constitutional Court (FCC) from Kruzifix to Kopftuch III. The model can resolve incoherences and unclarities in those decisions while staying faithful to the FCC's central normative stipulations. Furthermore, it can shed light on two questions about the structure of the principle of religious neutrality, which have come to the forefront in recent years. The first is whether the principle presents a strict prohibition on non-neutral behaviour or whether it can be balanced against other, countervailing constitutional positions. The second is whether it confers subjective rights to those confronted with non-neutral actions of the state or not. Viewed through the lens of the presented model, it becomes apparent that the principle of religious neutrality loses its distinctive quality, if it is understood as amenable to balancing, while a subjectivation of the principle poses no such problems. On the contrary, the principle fits well into a model of fundamental rights and can coherently be understood as an element of the guarantee of religious liberty.