As part of the current debate in Australia on the adoption of a bill or charter of rights, the experience of other countries is informative. The German Constitution contains a comprehensive catalogue of rights and freedoms. This includes principles protecting religious freedom, most importantly article 4, which declares ‘inviolable’ the ‘freedom of faith, of conscience, and freedom to profess a religion or a particular philosophy’. It also guarantees the ‘undisturbed practice of religion’. Should Australia opt to adopt a charter of rights in any form, it is highly likely that this instrument will contain some protection of cultural and religious freedom. While initially an Australian charter would not be constitutionally entrenched, a comparison with Germany is still helpful because it can be expected that issues encountered under a constitutional charter also arise under a legislative one. The German experience provides examples of the type of social controversies which the courts are called on to decide in relation to the protection of religious freedom.
Issues encountered in Germany seem to belong to two broad categories: first, which kind of behaviour falls within the ambit of freedom of religion and, secondly, to what degree can religious freedom be limited. In relation to the first category, it appears uncontroversial that practices such as praying, conducting Sunday service or ringing of church bells constitute religious behaviour. But what about announcing a charitable drive to collect second hand goods from the pulpit; selling food or drink at religious meetings or refusing to bury an urn in a cemetery? In relation to the second category, even if a type of behaviour is found to be within the definition of freedom of belief, there must be limitations to this freedom. But where should the line be drawn? In the last few decades, the German Constitutional Court was called upon to rule on controversies where one party’s freedom to exercise his or her religion infringed another party’s freedom not to be exposed to religion or religious practices. Many of these occurred within the educational system. Famous examples are the School Prayer Case, where a student’s parents objected to their child’s exposure to school prayer outside of religious education; the Classroom Crucifix Case, where non-Christian parents objected to their child being exposed to crucifixes in classrooms of a public, non-religious school; and the Teacher Headscarf Case where the Court was asked to decide whether an Islamic teacher is entitled to wear a headscarf while teaching in a public school, thus exposing students to a manifestation of her faith. All of these cases saw the Constitutional Court become involved in morally highly controversial disputes, which received a lot of attention from the public and where public opinion was clearly divided. This paper will explain the course which the Court took in resolving these disputes. It will argue that a clause protecting freedom of belief in a charter of rights inevitably involves the courts in disputes which are morally difficult, highly controversial and the subject of much public debate. However, in my view, this is a small price to pay for providing protection of the public’s religious beliefs in a charter of rights. rights inevitably involves the courts in disputes which are morally difficult, highly controversial and the subject of much public debate. However, in my view, this is a small price to pay for providing protection of the public’s religious beliefs in a charter of rights.
Download it from SSRN at the link.
Among the cases Professor Koch discusses is the Gesundbeter (Faithhealer) case. Says Professor Koch,
Another example of the Court's liberal approach to what types of actions fall within the guarantee of free exercise of religion is the Faith-Healer (Gesundbeter) case. In this case the complainant's wife died because he honoured her refusal, on religious grounds, to have a blood transfusion necessitated by the birth of their child. Both husband and wife belonged to the same cult and held the same belief with respect to blood transfusions. He was convicted of a misdemeanour for his failure to provide his spouse with necessary assistance. While he had allowed a doctor to be summoned when irregularities in the birth occurred, he left the decision with respect to transfusion and hospitalization to his wife, who was conscious and mentally competent until her death. The husband brought a constitutional complaint in the Constitutional Court, challenging his conviction by the lower courts on the basis that his actions had accorded with his religious beliefs and claiming that his conviction violated his right to freely exercise his religion. The Constitutional Court emphasized that article 4 generally safeguards the right of the individual to base his or her entire conduct upon the teachings of his or her religion and to act according to these internal convictions. The husband's actions therefore constituted an exercise of religion within the sphere of protection of article 4. (footnotes omitted).
The Federal Constitutional Court is the highest Court in Germany, and hears all questions arising out of federal constitutional (Grundgesetz) issues and questions arising over the fundamental rights of German citizens.
Recent Comments