The right of religious communities to teach Islamic studies

DO RELIGIOUS COMMUNITIES HAVE THE RIGHT TO TEACH ISLAMIC STUDIES IN PUBLIC SCHOOLS?

Summarized: Islamic religious communities have the fundamental right under Article 7 (3) of the German Basic Law to provide religious instruction in public schools. In practice, the matter is problematic because, according to Article 141, certain federal states are not obliged to introduce religious education and it is not clear what is meant by a ‘religious community’ according to Article 7 (3) anyway. 

Article 7 (3) of the German Basic Law grants religious communities the fundamental right to teach religious education at public schools (with the exception of non-denominational schools) as an ordinary subject. However, in the federal states of Berlin, Bremen and the new federal states (Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt, Thuringia), Article 7 (3) of the Basic Law does not apply due to the special provision of Article 141 of the Basic Law (the so-called Bremen clause). This means that these federal states are not obliged to introduce religious education within the meaning of Article 7 (3) of the Basic Law.¹ The states of Berlin, Brandenburg and Bremen have made use of this right and instead introduced an ethical and religious studies subject and designated religious education as a voluntary subject.²

In practice, it is not clear what a religious community in the sense of Article 7(3) of the Basic Law is, and thus who it is that can assert the right to religious education. According to case law, a religious community is an association that unites members of one and the same creed or several related creeds for the purpose of fulfilling the tasks set by that common creed.³ The mere sharing of a common conviction is not sufficient. The totality of all Muslims, the ummah, would therefore not fulfil this requirement.⁴ However, an association of different faiths (e.g. Sunni, Shiite and Alevi) could constitute a religious community according to the case law. After all, the Qur’an and the sunnah are binding for all Muslims.⁵ With their right to self-determination, religious communities could decide for themselves with which related denominations they would join forces. Whether it makes theological sense is irrelevant with regards to religious education.⁶

In accordance with the freedom of religious association, no specific legal form is required. The religious community does not have to be a public corporation.⁷ What is required is an organizational consolidation of the religious community.⁸ 

In principle, the multi-level structure of an umbrella organization is harmless.⁹ What's more important here, however, is that everyone in the overall organization, from ordinary members of the community to the chairperson, feels committed to the common religious cause and tries to fulfil their task on this basis.¹⁰ In that case, it would not matter that religious community life only takes place at the local level and that the highest level only performs leadership tasks.¹¹ However, according to the Federal Administrative Court, the umbrella organization must be vested in factual authority and competence for performing the religious tasks in its statutes, and the religious authority it claims must have real validity in the entire community down to the mosque congregations.¹² Merely representing the interests of the community externally or coordinating individual activities of the members would therefore not be sufficient. Accordingly, the claim of two Islamic associations to introduce Islamic religious education in North Rhine-Westphalia was recently rejected because the court saw both umbrella organizations as merely representing external interests or as coordinating individual activities of members.¹³  

^{2 Kingreen/Poscher, Grundrechte-Staatsrecht II, 33. Ed. 2017 margin 788.} 

^{3 Federal Administrative Court, case from 23.02.2005, 6 C 2.04, margin 21.} 

^{4 See above case, margin 23.}

^{5 See above case, margin 27.}

^{6 See above case, margin 26.}

^{7 Kingreen/Poscher, Grundrechte-Staatsrecht II, 33. Ed. 2017 margin 787.} 

^{8  Hofmann in: Schmidt-Bleibtreu/Hofmann/Henneke, Grundgesetz-Kommentar, 14. Ed. 2018, Art. 7 margin 58.} 

^{9 Federal Administrative Court, case from 23.02.2005, Az. 6 C 2.04, margin 29.}

^{10 See above, margin 30.}

^{11 See above, margin 32.}

^{12 See above, margin 33.}

^{13 Higher Administrative Court North Rhine-Westphalia, case from 09.11.2017, Az. 19 A 997/02.}