I.

Introduction

1) The legislators task

From the outset, religions and comparable ideologies have formed an inte-
gral part of the social and intellectual existence of humankind. Where man
seeks to cope with his invariable helplessness in the face of such fundamen-
tal questions as his origin, his future, and his position in the universe, or
where, perhaps even more frequently, rather non-metaphysical problems
happen to cause individual distress of a certain degree, they have not ceased
to serve as a paramount source of apparently indispensable support to the
present day. On the other hand, they have indisputably proved to be highly
effective tools for controlling and influencing human behaviour, the use of
which is and has been based on motives of controversial moral quality. As
an empirical fact, and for reasons of only fractional present importance, par-
ticularly institutionalized ideologies appear to be capable of generating emo-
tions and ambitions of unique strength.1 Few of them can, where being suffi-
ciently disseminated, look back on a genesis free from outvote, suppression,
or forcible conversion of dissenters. Conversely, the beginnings of numerous
religious/ideological movements have been faught embitteredly on the part
of hostile and intolerant majorities, or by adherents of already established
doctrines. Moreover, and from a constitutional point of view perhaps most
importantly, the respective interrelations between church2 and state have
often turned out to play a key role as determinants of the likelihood of such
undesirable events to occur.
In the context of legal analysis, therefore, various questions require conside-
ration: e.g., to what extent are the respective constitutional provisions appro-
priate, i.e. effective, to protect the individuals freedoms as related to reli-
gion, faith, conscience and creed from inadmissible interference; to afford,
therein, usable tools for identifying and delimiting conflicting spheres of in-
terest, as well as to define, in particular, the states corresponding competen-

1
Obviously, for both the genuine adherent and the calculating representative of such an ideo-
logy vital interests may depend on its maintenance and/or prevalence, namely the formers
entire concept of self-understanding, and an essential prerequisite of a considerable share, if
not all, of the latters financial and political power.
2
The phenomenon of which may be taken as a prime example for the successful institutio-
nalization of ideologies.

1
ces and duties as to allow ideologies to undergo institutionalization while
ensuring them not to gain undeserved dominance or to facilitate undue pres-
sure to be exerted on non-adherents?
To provide an according overview will be attempted in the following.

2) Supremacy of federal constitutional law

Both the German and the U.S.-American legal system are denoted by a fede-
ral structure, i.e. they comprise provisions originating from either federal or
state legislation.3 The respective constitutions are the Basic Law of the Fe-
deral Republic of Germany (1949) and the Constitution of the United States
of America (1787),4 both of which take precedence over any inconsistent act
of the legislature,5 the executive and the judiciary,6 no matter whether at fe-
deral or state level, respectively.7

3
For the purposes of the present study, supranational law is not taken into account.
4
In the following, GG (Grundgesetz/Basic Law) and USC (U.S.-Constitution) indicate
provisions of either constitution, both as amended pursuant to Art.79 GG and Art.V USC,
respectively.
5
Inconsistent legislation may, however, be admissible, where acts of the legislature
1) constitute a valid amendment to the German Basic Law under Art.79 GG, which requires
any such amendment a) to be enacted by an affirmative vote of two thirds of both Houses of
the Parliament (Art.79, s.2) [Bundestag and Bundesrat], b) to be expressly indicated by that
law as amending or supplementing the text of the Basic Law (Art.79, s.1), as well as c) not
to affect, in principle, the federal system, insofar as the states are entitled to participate in
the legislation, or any of the basic principles laid down in Arts.1 and 20 (Art.79, s.3) [the
former of which is, above all, intended to safeguard [t]he dignity of man, besides further
(unspecified) inviolable and inalienable human rights];
2) constitute a valid amendment to the U.S.-Constitution under Art.V USC, which requires
any such amendment a) to be proposed by two thirds of both Houses of the Congress, or by
a convention called by the Congress on the application of the legislatures of two thirds of
the several states, b) to be ratified by either the legislatures of, or the conventions in, three
fourths of the several states, as well as c) in no manner to affect the provisions of Art.I, s.9
(1), (4) (practically effective only until 1808), and not to deprive any state, without its con-
sent, of its equal suffrage in the Senate. (Notably, since 1808 there are no substantive con-
straints as respects amendments to the U.S.-Constitution, apart from the obstacle imposed
by the last provision of Art.V.)
6
However, inconsistency with federal constitutional provisions may not per se affect the
validity of verdicts either of the German Federal Constitutional Court [where having acted,
actually or supposedly, intra vires, its verdicts enjoy the force of law: Art.94, s.2 GG], or
of its American counterpart, the U.S. Supreme Court (in the following referred to as the
SC): compare Cooper v. Aaron, 358 U.S. 1 (1958), where the Court, by unanimous deci-
sion, inferred from one of then-Chief Justice Marshalls statements in Marbury v. Madison,
1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (1803) [It is, emphatically, the province and duty of the
judicial department, to say what the law is.: ibid. at p.177], . . . the basic principle that the
federal judiciary is supreme in the exposition of the law of the Constitution, . . ., ibid. at p.
18; This view has, however, been subject to controversies since Katzenbach v. Morgan, 384
U.S. 641 (1966).
7
See Art.20, s.3 GG: Legislation shall be subject to the constitutional order; the executive
and the judiciary shall be bound by law and justice., Art.31: Federal law shall override
Land law., and Art.1, s.3: The following basic rights [including those afforded by Art.4]

2
3) Art.4 GG and Amendment I USC
The key provisions concerned with the present subject matter read as follows:
Art.4 GG: Freedom of faith and creed
(1) Freedom of faith, of conscience, and freedom of creed, religious or ideo-
logical, shall be inviolable.
(2) The undisturbed practice of religion is guaranteed.
(3) No one may be compelled against his conscience to render war service
involving the use of arms. Details shall be regulated by a federal law.
Amendment I USC (1791):
Congress shall make no law respecting an establishment of religion, or pro-
hibiting the free exercise thereof; . . .

II. Systematic features and genesis

1) Systematic features

a) Art.4 GG
Art.4 GG affords human rights, as opposed to mere civil rights.8 Although
officially headed Freedom of faith and creed,9 its objects of protection fall
into faith and conscience.10 Matters of creed (s.1) and practice (s.2) are re-
cognized as components of a unitary right to freedom of faith,11 whereas the
general conscience clause of s.1 operates separately from the more specific
provision of s.3, first sentence.12 Furthermore, it must be noted that Arts.
136-139, 141 of the Constitution of the Weimar Republic (1919),13 which

shall bind the legislature, the executive and the judiciary as directly enforceable law.
Compare also Art.VI, ss.2 and 3 USC, Pfeffer, p.23, and, being the first and ever since unre-
pealed judicial acknowledgement of the entire applicability of Amendment I to the states:
Everson v. Board of Education, 330 U.S. 1 (1947), at p.4: . . . the First Amendment which
the Fourteenth Amendment[s due process clause] made applicable to the states.
8
Richter/Schuppert, p.129; v. Mnch/Kunig, p.306, para.6; Except for rights related to mat-
ters of conscience (Art.4, s.1, second case, s.3, see Jarass/Pieroth, p.149, para.43), Art.4
may also be invoked by domestic associations and juristic persons: BVerfGE 83, 341, 353;
9
emphasis added;
10
Jarass/Pieroth, p.131, para.1;
11
BVerfGE 24, 236, 245; contentious; arguing for a set of independent freedoms: e.g. v.
Mnch/Kunig, p.304, para.1, who, moreover, point out that the rights (or sub-rights) arising
from Art.4 may offer difficulties as regards sharp delimitation in borderline cases, ibid.;
12
S.3 is lex specialis in relation to s.1: Schmidt-Bleibtreu/Klein, p.211, para.6;
13
see Appendix, p.--; in the following referred to as the WRV (Weimarer Reichsverfas-
sung);

3
contain rules primarily concerned with the legal interrelation between
church and state, remain in force according to Art.140 GG.
Since Art.4 is essentially intended to protect individual convictions from un-
due interference,14 its interpretation is necessarily influenced, above all, by
Art.2, s.1 (Rights of liberty), Art.3, s.3 and Art.33, s.3 (anti-discrimination
clauses), Art.5 (Freedom of expression), Art.6, s.2, first sentence (care and
upbringing of children), Art.7, ss.2-5 (religious instruction of children and
establishment of private schools), Art.8 (Freedom of assembly) and Art.9
(Freedom of association).15

b) Amendment I USC
Amendment I USC, too, affords rights invokable not only by U.S.-citizens.16
It classifies unconstitutional government action17 according to such respec-
ting an establishment of religion and such prohibiting the free exercise
thereof. Thus, the provision rests on two pillars:18 one intended to deter-
mine the extent to which government action may affect religious establish-
ments,19 the other, more generally, intended to determine the extent20 to
which such action may restrict the free exercise of religion.21 It has been
claimed, that there is . . . nearly universal agreement that the paramount
concern of both Religion Clauses is to protect . . . the freedom to pursue (or
not to choose) a religious faith.22 This view is clearly supported by the fact,

14
compare infra III.1), p.7;
15
Art.4 is lex specialis in relation to Art.2, s.1 (BVerfGE 17, 302, 306), Art.5 (BVerfGE 32,
98, 107), Art.8 and Art.9 [Jarass/Pieroth, p.133, para.5, providing further reference (in the
following: p.f.r.)], lex generalis in relation to Art.7, ss. 2-5 (Jarass/Pieroth, p.133, para.5,
p.f.r.), and undergoes parallel application besides Arts.3, s.3, 33, s.3 GG and Art.136, s.2
WRV (BVerfGE 79, 69, 75). As regards the overall relation between Art.4 GG and Arts.
136-139, 141 WRV, the provisions have been held to form an organic whole (BVerfGE
53, 366, 400; 70, 138, 167) and thus said to require interpretation in mutual accord (Ja-
rass/Pieroth, p.132, para.2).
16
The religion clauses have been held capable of entitling both aliens and domestic juristic
persons: see, e.g., U.S. v. Schwimmer, 279 U.S. 644 (1929), and Presbyterian Church in the
U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969);
17
i.e. federal and state legislative, executive and judicial action: see supra note 7;
18
which may overlap as well (compare supra note 11): Abington School District v.
Schempp, 374 U.S. 203 (1963), at p.222;
19
providing, thus, a key reference to collective manifestations of religious faith;
20
In both instances, the admissible extent of interference is, literally speaking, required to
be non-existent: see, e.g., Walz v. Tax Commission, 397 U.S. 664 (1970), at p.669, recogni-
zing the absolute terms which characterize both religion clauses.
21
conceptually referring to both collective and individual manifestations of religious faith;
22
Choper, p.11, p.f.r.;

4
that no judicial decision on an Amendment I-claim involving contemplations
of issues exclusively attributable to the establishment clause has been han-
ded down to the present day. On the other hand, controversies solely related
to free exercise issues do occur.23 There is no general rule as to which provi-
sion takes precedence, although the free exercise clause should, according to
Tribe, be dominant when it conflicts with the anti-establishment princi-
ple.24
Due to its principal object of protection, any interpretation of Amendment I
requires consideration to be shown for the underlying values of constitutio-
nal provisions serving comparable ends, such as Art.VI, last sentence (reli-
gious test as qualification to public office), the second and third clause of
Amendment I (freedom of speech and the press, right to association, peaceful
assembly and petition) as well as the due process clauses of both Amend-
ment V and XIV.

2) Genesis

a) Art.4 GG
The Parliamentary Council, entrusted with the elaboration of the post-Wei-
mar constitution, developed no profound controversies as to the first two
sections of Art.4 GG. There had been general agreement that the fundamen-
tal rights section was, above all, to deal with the subjective rights of the in-
dividual, while the sociopolitically explosive issue of the legal status of
the churches ought to undergo regulation elsewhere.25 Deeper conflicts,
however, came to light with respect to the war service clause of s.3, resul-
ting in a first draft merely containing the guarantee of the inviolability of
faith, individual conscience, and conviction, besides the final undisturbed
practice clause.26 In the course of the discussions it had been pointed out,
that moral principles and convictions also required protection through
these guarantees, as a confinement to religious certainties was too nar-

23
compare, e.g., U.S. v. Schwimmer (supra note 16);
24
14-8, p.1201;
25
Wassermann, pp.356,357, para.6; see also Art.140 GG;
26
Wassermann, ibid.;

5
row.27 Therefore, the established freedoms were subsequently supplemen-
ted by the freedom of religious and ideological creed. A final decision on
certain further proposals became dispensable, when the Parliamentary Coun-
cil eventually agreed to adopt Arts. 136-139, 141 WRV via Art.140 GG.
In May 1949, Art.4 was ratified as part of the Basic Law by more than two
thirds of the German states.28 As a result, the legal position under the WRV
had been re-established with the following novelties: a), as regards the free-
dom of faith and conscience, non-religiously founded convictions had un-
dergone an explicit elevation to potential objects of protection, b) an accor-
ding freedom of creed had been introduced, and c) the former possibility of
restricting the right to undisturbed practice of religion in accordance with
the principle of the so-called Gesetzesvorbehalt (which prohibits restric-
tions unless imposed in pursuance or by means of federal law), had been
excluded.29

b) Amendment I USC
The functional counterpart of the German Parliamentary Council,30 a com-
mittee appointed by the first Congress sitting under the U.S.-Constitution,
tackled its task some one and a half centuries earlier than the framers of the
Basic Law. The still predominant31 view of the history of Amendment I has
been set forth by the SC in Everson v. Board of Education,32 recognizing, in
particular, the leading roles played by James Madison and Thomas Jeffer-
son in the drafting and adoption of the religion clauses.33 In essence, two
principles emerged from the Courts historical observations: that individual
religious liberty [can] be achieved best under a government which [is] strip-
ped of all power to tax, to support, or otherwise to assist any or all reli-

27
Wassermann, ibid.;
28
compare Art.144, s.1 GG; (Only Bavaria withheld consent.)
29
Wassermann, pp.356,357, para.6; see also Schmidt-Bleibtreu/Klein, p.212, para.8a;
30
in being entrusted with the drafting of constitutional basic-rights provisions;
31
Gunther/Sullivan, Ch.14, s.1, para.1b, p.1464;
32
supra note 7; The very diversity of views regarding the motives and considerations of the
First Amendments framers suggests the absence of exploitable records.
33
ibid. at p.13; This appreciation mainly referred to Madisons Memorial and Remon-
strance against Religious Assessments (1785), Jeffersons authorship of the Virginia Act for
Establishing Religious Freedom (1786), and Madisons more direct contribution to the
drafting of Amendment I as chairman of the aforementioned committee.

6
gions, or to interfere with the beliefs of any religious individual or group34
(i.e. separatism), and that a true religion [does] not need the support of
law35 (i.e. voluntarism). According to a minority view, however, the fra-
mers had not sought to impose such far-reaching restrictions upon state ac-
tion, but intended to permit all those measures, which do not reveal govern-
mental preferences for some religious faiths over others.36 One attempt to
rebut this argument has been made by Justice Souter,37 who claimed, on the
basis of the textual development of Amendment I, that the drafters had con-
sciously chosen a wording not only banning state action affecting single, but
all establishments of religion.38
Beside nine further amendments, Amendment I became part of the U.S.-
Constitution after ratification by the tenth state legislature in December
1791.39

III. Scope

1) Art.4 GG
In essence, the rights afforded by Art.4 GG are to protect the individuals
convictions from governmental and social suppression.40 The German Fe-
deral Constitutional Court41 has inferred this objective from Art.1, s.1 in
conjunction with Art.2, s.2, holding that [i]n a state, where human dignity
is recognized as the supreme value, and where, at the same time, a commu-
nity-building value is awarded to the free self-determination of the individu-
al, the freedom of faith allocates to the individual a legal sphere free from go-
vernmental interference, in which it may pursue a way of life in accord with
its convictions.42

34
ibid. at p.11 (emphasis added);
35
ibid. at p.12 (contemplating Madisons Remonstrance);
36
Justice Thomas (concurring) in Rosenberger v. University of Virginia, __ U.S. __ (1995),
at p.4 (emphasis added);
[http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=000&invol=U10271];
37
concurring in Lee v. Weisman, 505 U.S. 577 (1992);
38
ibid. at pp.612 et seq.;
39
Pfeffer, p.21; compare also Art.V USC;
40
Richter/Schuppert, p.129;
41
In the following referred to as the FCC.
42
BVerfGE 32, 98, 106;

7
Although Art.4 explicitely refers to ideologies only in connection with
creed, the Court has recognized a unitary right to freedom of faith to em-
brace both religious and ideological convictions,43 thereby implying an ac-
cording delimitation to be dispensable.44 Both religions and ideologies have
been said to be based on an overall interpretation of the world, . . . con-
cerned with the position of the individual [therein], with its origin, its des-
tiny and its relation to superior powers or deeper spheres of existence.45
Moreover, the Court has declared that the undisturbed practice guarantee of
s.2, which for the individual already operated through s.1, merely clarified
that corresponding rights may also be invoked on the part of domestic faith
groups.46

a) Freedom of faith: Art.4 s.1, first, third, and fourth case, s.2 GG
As already observed,47 the freedom of faith includes the freedom of religious
and ideological creed as well as the right to undisturbed practice of religion.
Basic terminologic definitions,48 per se necessarily of limited usability, read
for instance as follows: Faith is the totality of the individuals religious
and ideological convictions,49 creed is the communication [of such con-
victions] to the outside world,50 and faith is attributable to religion or
ideology where it refers to extemporal powers and causality51 or consti-
tutes a non-religious, overall interpretation of the world,52 respectively.
Three characteristics of faith have been acknowledged as essential: its
principally being based on a decision dictated by the individuals con-

43
BVerfGE 12, 1, 3/4; 32, 98, 106 (see also supra note 11); Consequently, the right to un-
disturbed practice of religion equally applies to ideologies (compare also Art.137, s.7
WRV). A criticism of this decision by v. Mnch/Kunig (p.310, para.19), based on an exami-
nation of the framers intent [compare supra II.2)a), p.5], and on the observation that a se-
parate naming in connection with creed was, under the FCCs interpretation, plainly
redundant, does not lack plausibility.
44
explicitely, then: BVerwGE 90, 1, 4; decision of the Federal Administrative Court (in the
following referred to as the FAC);
45
Jarass/Pieroth, p.134, para.6;
46
BVerfGE 24, 236, 245/246;
47
see supra II.1)a), p.3;
48
As to the admissibility of such definitions (or circumscriptions), v. Mnch/Kunig observe
that a lack of circumscribability, or an according prohibition, logically comprises a general
lack of legal tangibility: p.310, para.18.
49
BVerfGE 32, 98, 106;
50
v. Mnch/Kunig, p.315, para.33;
51
v. Mnch/Kunig, p.311, para.19, p.f.r.;
52
v. Mnch/Kunig, p.315, para.35, p.f.r.;

8
science,53 its generating of obligations which, in the case of non-compli-
ance, necessarily force the individual into a serious moral dilemma,54 and
its constituting a system of statements, judgements, or assessments, which
provide criterions capable of determining the individuals decision in a spe-
cific situation.55

aa) State neutrality

Although Art.4 does not explicitly require governmental neutrality in faith
matters, a certain degree of such neutrality is obviously an essential prerequi-
site for any effective protection of the freedom of faith. The FCC has infer-
red an according constitutional command from Arts.4, s.1, 3, s.3, 33, s.1 GG
in conjunction with Arts.136, ss.1 and 4, 137, s.1 WRV, holding these provi-
sions to prohibit the establishment of an official belief by the state and [to]
interdict alike the favouring of specific denominations as well as the exclu-
sion of dissenters.56 Three principles serve specifying purposes in this con-
text, namely those of non-identification, tolerance, and parity.57
The principle of non-identification compels the state to exercise restraint to-
wards the aims, substances and activities of religious or ideological groups.58
Art.137, s.1 WRV (prohibition of state church), constituting its basis, does
not, however, require the state to be entirely areligious or atheistic.59 In the
context of religiously characterized public schools, e.g., the Court has sought
to specify this principle by balancing the undisturbed practice interests of a
Christian majority against those of a dissenting minority, concluding, that
the introduction of Christian references into the structure of public elemen-
tary schools was permissible, as long as there was a minimum degree of

53
Jarass/Pieroth, p.134, para.6, p.f.r. (emphasis added); Gewissensentscheidung means li-
terally translated conscience-decision and is presently circumscribed as decision dictated
by the conscience.
54
Jarass/Pieroth, ibid., p.f.r. (emphasis added);
55
Wassermann, p.360, para.14, p.f.r. (emphasis added); The latter characteristic also serves
as touchstone in the delimitation of faiths from opinions as protected by Art.5 GG.
56
BVerfGE 93, 1, 17;
57
Richter/Schuppert, p.132;
58
In the following, the terms group, community, association and organization are
used synonymously. As to the equal status of religious and ideological associations: com-
pare Art.137, s.7 WRV.
59
Compare, e.g., BVerfGE 93,1,22: In discharging its educational task, as allocated by Art.
7, s.1 GG, the state needs not do without [introducing] any religious-ideological referen-
ces.

9
compulsion, no claim of obligingness of Christian doctrines, and, as a
matter of principle, receptiveness towards alternative ideological and reli-
gious . . . values.60 In the Schoolprayer verdict,61 e.g., the Court has re-
fused to regard as state identification the participation62 of public elemen-
tary school teachers in supra-denominational prayers during lessons,63 argu-
ing as follows: According to Arts.6, s.2, first sentence (parents right to
bring up their children), 4, ss.1 and 2 (freedom of faith and right to undis-
turbed practice of religion) and 7, s.1 (educational task of the state), the state
was entitled to create the organizational framework for, and to permit or
itself to prompt to the prayer in pursuance of the wish of the parents or the
pupils. The state, here, does not order, it makes an offer which may be
accepted by the class.64 Provided that the participation of the pupils was
based on complete voluntariness,65 then, the state did no more than exer-
cise its right to shape public schooling [Art.7, s.1] in a way as to enable
those pupils, who are willing to do so, to bear - even though only in the re-
stricted form of a general and supra-denominational appeal to God - witness
to their religious belief.66
Tolerance, as directly connected to the principle of non-identification, de-
mands special efforts to be made in order to protect faith minorities in all
those instances, where the state has, by accommodating undisturbed practice
interests of a majority, allowed a perceivable degree of religious influence to
enter the public sphere.67
Eventually, the principle of parity emerges from Art.3, s.3,68 according to
which [n]o one may be prejudiced or favoured because of . . . his faith, or
his religious or political opinions. To stay with state action in the field of

60
BVerfGE 41, 29, 51; Accordingly, Jarass/Pieroth observe just a moderate separation of
church and state under the Basic Law: p.133, para.4. Model/Mller object to the Courts
interpretation that the provided criterions were hardly meaningful and instead emphasize
everyones right to refuse choosing between the involuntary participation in religious activi-
ties and an equally involuntary (express or implied) disclosure of ones faith: p.107, para.8.
compare also Art.136, s.3, first sentence WRV.
61
BVerfGE 52, 223 et seq.;
62
ibid. at p.239;
63
a conventional procedure in all classes of this school: ibid. at p.240;
64
ibid. at p.240 (emphasis added);
65
ibid. at p.239;
66
ibid. at p.241;
67
Richter/Schuppert, p.133;
68
in conjunction with Art.33, s.3 GG and Art.136, s.2 WRV;

10
public education, this rule mandates, e.g., that all faith communities must be
equally able to introduce references to their faiths, provided that they are
able to mobilize a sufficient degree of interest on the part of the parents.69

bb) Individual protection

(I.) Protected conduct
The individual freedom of faith protects the inner freedom to form or adopt
religious and ideological convictions as well as the outer freedom to disclose
and disseminate them.70 It guarantees, most generally, the right of the indi-
vidual to align its entire behaviour with the theories of its religious or ideo-
logical convictions, and to act accordingly.71 Thus, it covers, e.g., the parti-
cipation in ritual actions and religious or ideological celebrations and cus-
toms,72 the establishment of according organizations,73 the right to resign
from such organization at any time,74 the wooing away of adherents from
other faiths,75 and the observance of rules regarding clothing or hairstyle.76
As every fundamental right afforded by the Basic Law, the individual free-
dom of faith is violated, where state action constitutes a non-justifiable in-
terference.

(II.) Interference
Interference is every regulation, or actual and significant obstruction, of
the protected action by the state;77 in the context of Art.4, e.g., by actively
facilitating the levying of taxes on the part of a faith organization,78 or by

69
Richter/Schuppert, p.133; Where state action happens to be admissible or necessary under
the principles of non-identification, tolerance and parity, the means possibly required to fi-
nance according measures may be taken from the general tax revenue: v. Mnch/Kunig, p.
324, 325, para.57, p.f.r.;
70
BVerfGE 32, 98, 106/107; The freedom of faith also operates negatively, i.e. it allows the
individual not to form or adopt a faith, to reject a specific faith, and not to disclose its faith:
compare BVerfGE 41, 29, 49; 46, 266, 267; 65, 1, 39; see also Arts.136, s.3, first sentence,
s.4, 141 WRV;
71
compare BVerfGE 33, 23, 28; 41, 29, 49;
72
Jarass/Pieroth, p.135, para.7;
73
BVerfGE 83, 341, 354; see also Art.137, s.2, first sentence, s.7 WRV;
74
BVerfGE 44, 37, 49;
75
BVerfGE 12, 1, 4;
76
Jarass/Pieroth, p.135, para.7, p.f.r.;
77
Jarass/Pieroth, p.136, para.11, p.f.r.;
78
BVerfGE 30, 415, 423 et seq., 44, 37, 50 et seq.; i.e. obstruction of conduct in accord
with the decision not to support a specific faith organization;

11
prescribing a specific religious symbol to be placed in courtrooms.79 Such
interference has been affirmed, e.g., where courts apply criminal provisions
to actions dictated by faith,80 where the state materially discriminates against
persons on faith grounds,81 or fails to protect religious/ideological practice
from undue interference on the part of third persons.82
(III.) Non-justifiability
State interference is justifiable, where it takes place outside the limits of the
right under consideration.83 In principle, fundamental rights may be restric-
table by means of federal legislation or inherently limited by colliding con-
stitutional law.84 The freedom of faith has been attributed to the latter group,
i.e. recognized as unrestrictable by federal law,85 but to require balancing
against competing constitutional values.86 Positive and negative freedom of
faith may restrict one another87 and are essentially of the same quality.88

79
BVerfGE 35, 366, 375 et seq.; i.e. obstruction of conduct in accord with the decision not
to participate in a hearing/trial under the Cross;
80
BVerfGE 32, 98, 106 et seq.;
81
BVerfGE 79, 69, 75; see also Art.136, ss.1 and 2 WRV; Such discrimination may occur,
e.g., in the form of a refusal to grant benefits, or of selectively granted benefits: Jarass/Pie-
roth, p. 137, para.13.
82
BVerfGE 93, 1, 16;
83
BVerfGE 12, 1, 4;
84
see, e.g., Art.4, s.3; so-called Gesetzesvorbehalt [compare supra II.2)a), at p.5]; The
concept of inherent constitutional limits is based on the doctrine of the Einheit der Verfas-
sung [= unity of the constitution]: BVerfGE 52, 223, 246;
85
(Admissible are, obviously, valid amendments to the Basic Law: compare supra note 5.);
compare BVerfGE 33, 23, 31; 93, 1, 21; v. Mnch/Kunig, p.323, para.53; contentious; for a
Gesetzesvorbehalt arising from Art.136, s.1 WRV: e.g. Jarass/Pieroth, p.139, para.17, p.f.r.;
The FCC has recognized a limited Gesetzesvorbehalt to arise from Art.136, s.3, second
sentence WRV, holding admissible an obligation to disclose ones denomination on occa-
sion of a national census (BVerfGE 65, 1, 38 et seq.) and in connection with federal income
taxation (BVerfGE 49, 375, 376).
86
BVerfGE 44, 37, 50; Limits may arise particularly from colliding fundamental rights of
others: BVerfGE 41, 88, 107 (no difficulties, therefore, as regards human sacrifices or the
burning of witches). Where state action is necessary to safeguard competing constitutional
values, such interference requires parliamentary approval: Jarass/Pieroth, p.139, para.19.
As regards the general observance of criminal laws, the FCC has (inconsistently: compare
supra note 85) held, that the state might not reasonably apply such law, if, thereby, the pur-
pose of state punishment (i.e. retaliation, prevention, and rehabilitation) could not be
achieved in the specific case, that this situation was present, where the accused did not lack
respect for the legal order and had himself sought to safeguard the right protected by the
law by acting as he did, and that such action must have been chosen in pursuance of a su-
perior command of faith: BVerfGE 32, 98, 108/109. (Facts of the case: contrary to medi-
cal advice, husband preferred attempting to save wife, who was in a highly critical condition
after just having given birth, by means of prayer; wife died: failure to give assistance, 330c
of the German Criminal Code.)
87
BVerfGE 52, 223, 241;
88
Jarass/Pieroth, p.139, para.19, p.f.r.;

12
In balancing individual basic rights against competing constitutional values,
the FCC has appeared to focus on the notion of reasonableness, i.e. on the
question whether a claimant can reasonably be expected to accept a specific
interference with his or her constitutional rights.89 Even though only in prin-
ciple, the Court has denied unreasonableness in the absence of any compul-
sion to identify oneself with a specific faith or otherwise to act positively in
any manner.90 In the Schoolprayer verdict,91 e.g., it held constitutional the
teacher-directed saying of a supra-denominational prayer during lessons, on
the basis of the observation that both as a rule and in the present case a pupil
(or a pupils parents), who felt violated in his (their) negative freedom of
creed (right to bring up their children according to their religious or ideolo-
gical convictions [Art.6, s.2, first sentence in conjunction with Art. 4, s.1]),
was able to avoid participation in the prayer in a reasonable way (could
reasonably be expected to accept corresponding adverse effects).92 Firstly,
the Court appreciated that a single pupil who makes use of the possibility to
refuse participation may be compelled each time to act visibly different
than the rest of his classmates,93 and thus appeared to be potentially en-
dangered of being forced into an outsider-role.94 However, particularly the
teachers were obliged by the binding educational targets of the respective
state constitutions95 to counteract such developments, i.e. he or she must
inform the pupils in an appropriate manner, and with due pedagogical vi-
gour, of the right of every individual to freedom of faith or not to partici-

89
compare, e.g., BVerfGE 35, 366, 375, holding that dissenters do not as a rule experience
[the putting up of crosses in courtrooms] as unreasonable (emphasis added); BVerfGE 93,
1, 22: It is the task of the state legislator, who must seek in the public development of an
informed opinion a compromise which is reasonable for all, to resolve the inevitable ten-
sion between the negative and the positive freedom of religion. (emphasis added);
90
BVerfGE 35, 366, 375/376 (Cross in the courtroom verdict): For the mere presence of
the cross neither requires [dissenters] to identify themselves with the ideas or institutions
symbolically embodied therein, nor to behave actively in any manner.
91
compare supra note 61;
92
compare supra note 89; physical presence during the prayer could be refused;
93
ibid. at p.248;
94
ibid. at p.248; Indeed, the position of a pupil in a class is . . . more difficult than that of
an adult citizen who publically discloses his differing conviction by means of non-participa-
tion in certain activities. This is especially true for the younger schoolchild who is still hard-
ly able to critically self-assert his own position against his sourroundings; in general, he is,
in the schoolprayer issue, put into a conflict which is not carried by himself, but by his pa-
rents or guardians, on the one hand, and the parents of other pupils or the teachers, on the
other hand: ibid. at pp.248,249 (emphasis added);
95
i.e., inter alia, to promote the spirit of tolerance: ibid. at p.251;

13
pate in religious activities. Moreover, a teacher was required to work to-
wards such an atmosphere in the class, that the praying pupils take the devi-
ant behaviour of their dissenting classmate for granted and [thus] do not
force him into an outsider-role.96 Therefore, the Court concluded that it
can regularly be ruled out that a non-participating pupil gets into an outsi-
der-role.97 The onus of establishing the presence of exceptional circum-
stances which might nevertheless constitute an unreasonable interference
with the negative freedom of faith lay, besides, with the claimant and was
subject to examination from case to case.98 In the Crucifix verdict,99
then, the FCC invalidated a state school ordinance prescribing crosses to be
put up inside the classrooms of public schools, holding that no-one might
reasonably be expected to bear a situation, created by the state, in which the
individual is exposed without alternative to the influence of a specific faith,
to the acts [or] to the symbols in which [such faith] manifests itself.100

cc) Collective protection

Faith communities are recognized as such if their purpose is to cultivate or
promote a religious or ideological creed or to preach the faith of their mem-
bers.101 They do not lose their character solely due to participation in the
political sphere.102 Included are also all institutions, which are assigned to
the church in a certain way, of whatever legal form, provided that they are,
in regard of their purpose, and according to the self-understanding of the
church, appointed in order to perform a part of its task.103 Such status has
been granted, for instance, to a catholic youth association (having no legal
capacity),104 denominational hospitals105 and educational institutions.106

96
ibid. at pp.250,251;
97
ibid. at p.252;
98
ibid. at p.253;
99
BVerfGE 93, 1 et seq.;
100
ibid. at p.16;
101
BVerfGE 19, 129, 132; 70, 138, 160 et seq.;
102
BVerwGE 37, 344, 363;
103
compare BVerfGE 53, 366, 391; 57, 220, 242;
104
BVerfGE 24, 236, 247; see also Art.138, s.2 WRV (as regards equal treatment);
105
BVerfGE 53, 366, 391;

14
(I.) Protected conduct
Firstly, the collective freedom of faith protects all those activities of reli-
gious and ideological communities, which are already covered by the indivi-
dual freedom of faith of the respective participants.107 Moreover, it includes
the right to exist [as an association] and to [undisturbed collective] activity
as regards form, substance, participation, and way of practice - within the fa-
mily, at home, or publically - . . . provided that [the association] keeps with-
in certain concurring, fundamental moral views of the contemporary civi-
lized peoples.108 It covers, e.g., the peal of bells,109 religious-charitable col-
lections,110 church supported nursing111 and private school education.112 Art.
137, s.3 WRV guarantees the communitys right to self-determine its own or-
ganization, administration and internal legislation,113 e.g. employment ar-
rangements,114 membership,115 levying of fees and charges,116 and church ju-
risdiction.117 However, where churches operate under public law118 and per-
form activities conferred on them by the state, and where such activities
serve the fulfilment of public tasks, no protection is available under Art.4.119
(II.) Interference
As to the definition: see supra III.1)a)bb)(II.), p.11.
Interferences have been affirmed, e.g., where the state warns of a specific re-
ligious or ideological group,120 or supports organizations who aim at the
fight against certain religious/ideological associations.121 The unequal treat-
ment of different faith communities may also amount to an interference with
collective faith interests,122 unless such treatment is based on actual differ-

106
BVerwGE 72, 135, 138 et seq.;
107
Jarass/Pieroth, p.141, para.24; compare supra III.1)a)bb)(I.), p.11;
108
BVerfGE 24, 236, 245;
109
BVerwGE, 68, 62, 68;
110
BVerfGE 24, 236, 247;
111
BVerfGE 70, 138, 163;
112
BAGE 47, 144, 149;
113
BVerfGE 72, 278, 289;
114
BVerfGE 70, 138, 165;
115
BVerfGE 30, 415, 422;
116
exluding, however, taxation: BVerfGE 19, 206, 217 et seq.;
117
BAGE 71, 157, 160;
118
compare Art.137, s.5 WRV;
119
Jarass/Pieroth, pp.142, 143, para.27, p.f.r.;
120
BVerwGE 82, 76, 79;
121
BVerwGE 90, 112, 119;
122
BVerfGE 93, 1, 17;

15
ences between the communities123 and constitutes an appropriate, neces-
sary and proportionate means for the achievement of its underlying pur-
pose.124 As corresponding touchstones have been recognized, e.g., size and
dissemination, degree of public impact, as well as cultural and sociopolitical
performance.125 Apart from the exceptions of Art.141 WRV, there are no
claims to state benefits available under the collective freedom of faith.126
(III.) Non-justifiability
As to the definition and potential limits arising from constitutional law: com-
pare supra III.1)a)bb)(III.), pp.12 et seq.
Purely internal affairs of faith communities are not subject to federal legisla-
tion.127 An internal affair is present, where the corresponding activity or ac-
tion does not produce any effects outside the sphere of the community, and
if it affects members only in their quality as such.128 Affairs not classifiable
as purely internal are subject to the law valid for all (Art.137, s.3, first sen-
tence WRV).129 Any interference in pursuance of such law itself requires par-
liamentary approval130 and must be proportionate in relation to its under-
lying purpose.131

b) Freedom of conscience, Art.4 s.1, second case GG

The freedom of conscience may be invoked by natural persons only.132 It pro-
tects the freedom to develop ones conscience as well as to decide and act
accordingly.133 The FAC has defined conscience as the [individuals]
cognition of the permitted and the forbidden, and [its] feeling of being ob-
liged to act according to that cognition . . ..134 The FCC, then, identified a
decision dictated by the conscience as every sincere moral . . . decision,

123
compare BVerfGE 19, 1, 8/10; BVerwGE 87, 115, 127;
124
Jarass/Pieroth, p.144, para.31, p.f.r. (emphasis added);
125
BVerwGE 87, 115, 127 et seq.;
126
Jarass/Pieroth, p.145, para.33; compare also BVerfGE 93, 1, 16: Art.4, s.1 GG, however,
awards to the individual and the religious communities no general claim to express their [re-
ligious/ideological] convictions with governmental support.
127
compare BVerfGE 42, 312, 334; 66, 1, 20;
128
Jarass/Pieroth, p.145, 146, para.34, p.f.r.;
129
compare BVerfGE 72, 278, 289; BVerwGE 68, 62, 66;
130
Jarass/Pieroth (supra note 86);
131
BVerfGE 53, 366, 404; requiring a balancing of collective freedom of faith against the
objective of the restricting law;
132
compare supra note 8;
133
BVerfGE 78, 391, 395; Model/Mller, p.104, para.3;

16
which the individual . . . experiences as binding and unconditionally obli-
ging in a specific situation, so that it could not act contrary [to that decision]
without getting into a serious moral dilemma, and recognized a moral deci-
sion to be one determined by the [individuals] notions of good and
evil.135 An enquiry into the basis of a specific decision is permissible only
to the extent to which such enquiry is necessary to determine whether the
decision was in fact dictated by the conscience.136 An individual who seeks
to rely on the freedom of conscience must demonstrate the presence of a de-
cision meeting this requirement, and, in relation to subsequent action, its
obliging force.137 Due to the inherent difficulties involved in providing
such proof, the standard must not be too strict.138 As to the standard for
non-justifiable interferences: compare supra III.1)a)bb)(III.), pp.12 et seq.

2) Amendment I USC
In essence, both religion clauses are intended to protect the individuals
freedom to pursue (or not to choose) a religious faith.139 Ideological con-
victions and (non-religiously determined) decisions or actions dictated by
ones conscience are not recognized as potential objects of protection,140 al-
though the SC has occasionally appeared to depart from this stance by also
accepting as adequately religious personal convictions which constitute a be-
lief [occupying] a place in the life of its possessor parallel to that filled by
the orthodox belief in God,141 or causing, while deeply held, the indivi-
duals conscience to give [him or her] no rest or peace in the case of non-
observance.142 The classic143 Court definition of religion had recognized

134
BVerwGE 7, 242, 246;
135
compare BVerfGE 12, 45, 55; 48, 127, 173;
136
Schmidt-Bleibtreu/Klein, p.212, para.8;
137
BAGE 62, 59, 69;
138
Wassermann, p.379, para.51;
139
compare supra note 22;
140
see, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972), . . . to have the protection of the Re-
ligion Clauses, the claims must be rooted in religious belief. (ibid. at p.215) and: . . . if the
Amish asserted their claims because of their subjective evaluation and rejection of the con-
temporary secular values accepted by the majority, . . . their claim would not rest on a reli-
gious basis. (ibid. at p.216); remarkably indistinct as to this fact: Gunther/Sullivan, Ch.14,
s.1, para.4, pp.1468,1469;
141
U.S. v. Seeger, 380 U.S. 163 (1965), at p.166 (emphasis added);
142
Welsh v. U.S., 398 U.S. 333 (1970), at p.344; Both Seeger and Welsh rested on an inter-
pretation of federal statutory provisions (concerned with the issue of conscientious objec-

17
the term religion to refer to ones view of his relations to his Creator, and
to the obligations they impose of reverence for his being and character, and
of obedience to his will . . . and held the availability of individual rights re-
lated thereto to be restricted only by the laws of society . . . and the morals
of its people.144 Moreover, the judiciary had been considered competent to
determine whether a specific belief was in fact of religious nature.145 Subse-
quently, and above all due to the rapidly growing diversity of religious life
in the United States, the SC felt unable to uphold such narrow definition and
decided in various cases to let also suffice beliefs which are neither accep-
table, logical, consistent, or comprehensible,146 nor firmly determinative of
the individuals behaviour,147 or free from diverging interpretations by its ad-
herents,148 provided that they are held with the strength of traditional reli-
gious convictions.149
As already observed,150 Amendment I comprises two mandates intended to
safeguard religious liberty: one banning government action affecting estab-
lishments of religion, the other forbidding any such action to restrict the free
exercise of religion. It has been pointed out, that there appears to be a na-
tural antagonism between these two commands.151 Indeed, government ac-
tion which is required, and accordingly seeks, to ensure that free exercise
rights remain uninhibited, may in fact amount to an unconstitutional recog-
nition/preference of one or more religious establishments,152 whereas if the
government fails to show consideration for any religious aspects whatsoev-

tion to war), which, as regards the SCs definition of religious belief, directly clashes
with its corresponding statements in Yoder: Tribe, 14-6, p. 1183; compare supra note 140;
143
Abraham/Perry, p.225;
144
Davis v. Beason, 133 U.S. 333 (1890), at p.342; A decision, which Nowak/Rotunda pre-
sumably overlooked when claiming that [t]he Court has never ruled on whether the beliefs
must be theocratic (God centered) to be religious beliefs . . . (Ch. 17, p.1285).
145
Tribe, 14-6, p.1179, p.f.r.;
146
Thomas v. Review Board, 450 U.S. 707 (1981), at p.714; compare also U.S. v. Ballard,
322 U.S. 78 (1944): The law knows no heresy . . . and Men may believe what they can-
not prove. . . . Religious experiences which are as real as life to some may be incomprehen-
sible to others.: ibid. at p.86;
147
Courts should not undertake to dissect religious beliefs because the believer admits that
he is struggling with his position . . .: Thomas (note 146), ibid. at p.715;
148
Intrafaith differences . . . are not uncommon among followers of a particular creed, and
the judicial process is singularly ill equipped to resolve such differences in relation to the
Religion Clauses.: ibid.;
149
Welsh (supra note 142), ibid. at pp.333,334;
150
see supra II.1)b), p.4;
151
Nowak/Rotunda, Ch.17, p.1218;
152
see, e.g., McCollum v. Board of Education, 333 U.S. 203 (1948);

18
er, the result might constitute a violation of the free exercise rights of certain
believers.153

a) Ban on state action respecting an establishment of religion, . . .

The three main evils, against which the establishment clause is intended to
afford protection, have been recognized as sponsorship, financial support,
and active involvement of the sovereign in religious activity.154

aa) Everson v. Board of Education

An influential decision in the SCs struggle to give some substance to the
sparse language and broad purposes155 of the establishment clause (a hor-
nets nest indeed),156 Everson v. Board of Education,157 focussed on a me-
taphor first utilized by Thomas Jefferson to illustrate his view of the ideal
interrelation between church and state, i.e. their being parted by a wall of
separation.158 The case involved a challenge of (incidental) bus subsidies to
children attending non-profit parochial schools. Although there was conside-
rable disagreement between the justices as to which specific criteria could
be inferred from the said metaphor, the majority concluded that there was no
breach of the wall in the present case, since the authorizing law does no
more than provide a general program to help parents get their children, re-
gardless of their religion, safely and expeditiously to and from accredited
schools.159 In subsequent decisions, the Court found equally permissible a
government program permitting public schools, upon written request by the
parents, to release pupils during the school day in order to enable them to re-

153
see, e.g., Sherbert v. Verner, 374 U.S. 398 (1963); The Court has struggled to find a
neutral course between the two Religion Clauses, both of which are cast in absolute terms,
and either of which, if expanded to a logic extreme, would tend to clash with the other.
(Walz v. Tax Commission [supra note 20], at pp.668,669). As Nowak/Rotunda put the prob-
lem: [T]he government simply cannot avoid aiding religion in some manner unless it ac-
tively opposes religion - something that is forbidden to do by the free exercise clause.
(Ch.17, p. 1223).
154
Walz (supra note 20), at p.668;
155
Grand Rapids School District v. Ball, 473 U.S. 373 (1985), at p.381;
156
Abraham/Perry, p.221;
157
see supra note 7;
158
ibid. at p.16;
159
ibid. at p.18;

19
ceive religious instruction outside the school premises,160 but outlawed a si-
milar program involving such instruction to be given in the regular class-
rooms of the school building, holding unconstitutional the use of tax-sup-
ported public school buildings . . . for the dissemination of religious doc-
trines and to afford sectarian groups an invaluable aid in that [the state]
helps to provide pupils for their religious classes through use of [its] com-
pulsory public school machinery.161 In Abington School District v.
Schempp,162 then, the SC invoked the principle of governmental neutrality
in striking down a state law providing for the (teacher-supervised and un-
commented) reading of at least ten verses from the Bible, followed by a reci-
tation of the Lords Prayer, at the opening of each school day. Governmental
neutrality in faith matters, it held, was violated where either the purpose
[or] primary effect of state action is the advancement or inhibition of reli-
gion.163 A final criterion, for the time being, was added in Walz v. Tax
Commission,164 prescribing that state action must not lead to an excessive
government entanglement with religion.165

bb) Lemon v. Kurtzman

In distilling the standards developed in previous decisions, the Court even-
tually pronounced a most influential (and yet unrepealed) test in Lemon v.

160
Zorach v. Clauson, 343 U.S. 306 (1952); recognizing the separation-of-church-and-state
problem to be one of degree (ibid. at p.314) and holding permissible that schools accom-
modate their schedules to . . . the religious needs of the people (ibid. at p.315) in the ab-
sence of perceivable coercion (ibid. at p.312); In his dissent, Justice Jackson quite plau-
sibly pointed out, that since the suggestion of shortening everyones school day [in order
to] facilitate voluntary and optional attendance at Church classes . . . is rejected upon the
ground that if they are made free many students will not go to the Church (ibid. at p.324),
the released time program was undeniably founded upon a use of the States power of co-
ercion, ibid. at p.323.
161
McCollum v. Board of Education (supra note 152), at p.212;
162
see supra note 18;
163
ibid. at p.222 (emphasis added); expanding Engel v. Vitale, 370 U.S. 421 (1962), which
struck down a non-denominational school prayer initiated by school officials, stating that it
was, according to the establishment clause, no part of the business of government to com-
pose official prayers for any group of American people to recite as a part of a religious pro-
gram carried on by government (ibid. at p.425) and recognizing that [w]hen the power,
prestige and financial support of government is placed behind a particular religious belief,
the indirect coercive pressure upon religious minorities to conform to the . . . officially ap-
proved religion is plain. (ibid. at p.431, emphasis added);
164
see supra note 20;
165
ibid. at p.674 (emphasis added);

20
Kurtzman:166 First, the statute must have a secular legislative purpose; se-
cond, its principal or primary effect must be one that neither advances nor
inhibits religion; finally, the statute must not foster an excessive [govern-
ment] entanglement with religion.167 As touchstones for the determination
of whether an excessive entanglement was in fact promoted, the majority
identified the character and purposes of the institutions which are benefi-
ted, the nature of aid that the state provides, and the resulting relationships
between the government and the religious authority.168

cc) Lynch v. Donnelly

A clarification of the SCs interpretation of the establishment clause, iso-
lating a particular facet of the purpose-effect prongs previously set forth in
Lemon, has been suggested by Justice OConnor in Lynch v. Donnelly.169
She deemed unconstitutional any government endorsement or disapproval
of religion, and specified this criterion in relation to both a measures pur-
pose and effect by asking whether the measure was either intended, or could
in effect be regarded as, to convey any message of endorsement . . . or dis-
approval of a particular religious belief on the part of the state.170

dd) Examples
Under the establishment clause, the SC has upheld, e.g., a tax exemption of
property exclusively used for religious purposes,171 a state law permitting
parents of elementary and secondary school children to deduct annually cer-
tain shares of educational expenses from their income taxes,172 and a go-

166
403 U.S. 602 (1971);
167
ibid. at pp.612,613 (emphasis added);
168
ibid. at p.615; In this context, the Court also recognized the relevance of a state mea-
sures divisive political potential: ibid. at p.622. Compare also Tilton v. Richardson, 403
U.S. 672 (1971): the potential for divisive religious fragmentation in the political arena
(ibid. at p.688).
169
465 U.S. 668 (1984), at p.687 (concurring);
170
ibid. at pp.691,693;
171
Walz v. Tax Commission (supra note 20), holding that tax exemptions created only a
minimal and remote government entanglement with churches, i.e. an involvement which
was, in any instance, far less than taxing them (ibid. at p.676), and further relying on the
doctrine of non-preferentialism as well as on historical arguments;
172
Mueller v. Allen, 463 U.S. 388 (1983), holding that law to be sufficiently neutral in that
the tax deduction was available for educational expenses incurred by all parents, including
those whose children did not attend sectarian private schools: ibid. at p.397 (emphasis ad-
ded);

21
vernment-sponsored display of a Jewish Chanukah menorah (next to a
Christmas tree and a sign saluting liberty) on public premises.173 On the con-
trary, the Court has invalidated, e.g., statutes providing for state aid for in-
struction in non-religious subjects to church-related and other non-public ele-
mentary and secondary schools (in the form of a 15 percent supplement of
the annual salary to private school teachers using the same instructional ma-
terials as those in the public schools, and of reimbursement for the cost of
teachers salaries, textbooks, and other instructional materials, respective-
ly),174 a state enforced one-minute period of silence in all public schools for
meditation or voluntary prayer,175 and a government-sanctioned display of
a Nativity scene (next to flowers and a sign stating that the display had been
donated by the Holy Name Society) on public premises.176

b) . . . or prohibiting the free exercise thereof; . . .

The free exercise of religion has been held to embrace two concepts, - free-
dom to believe and freedom to act [accordingly].177 Moreover, the SC con-
tinued, [t]he first is absolute but, in the nature of things, the second cannot
be.178
In essence, impermissible encroachments upon free exercise rights fall into
state measures which either deliberately discriminate on faith grounds or,

173
Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989), rejecting state en-
dorsement on the basis of the fact, that the surrounding holiday symbols weakened the me-
norahs religious impact and thus prevented the conveyance of an essentially sectarion go-
vernment message (The mayors sign further diminishes the possibility that the tree and the
menorah will be interpreted as a dual endorsement of Christianity and Judaism.: ibid. at p.
619);
174
Lemon v. Kurtzman (supra note 166), in essence recognizing an excessive government
entanglement in making necessary a permanent state surveillance . . . to ensure that tea-
chers play a strictly nonideological role: ibid. at p.620;
175
Wallace v. Jaffree, 472 U.S. 38 (1985), observing a failure by the state to demonstrate
any secular purpose: ibid. at p.108 (emphasis added);
176
Allegheny County v. Greater Pittsburgh (supra note 173), finding state endorsement in
that the exclusive display of the undoubtedly religious Nativity scene was incapable of being
defended as an essentially secular government display (nothing in the context of the dis-
play detracts from the crches religious message): ibid. at p.598; (compare also supra
note 173);
177
Cantwell v. Connecticut, 310 U.S. 296 (1940), at p.303; Protected is also the negative
freedom to refrain from disclosing or communicating ones convictions by word or act:
Board of Education v. Barnette, 319 U.S. 624 (1943), at p.642; compare also supra notes
70 and 71;
178
Cantwell (supra note 177), at pp.303,304;

22
more commonly, unintentionally burden religious activity in a manner ancil-
lary to a distinct, per se permissible government objective.

aa) Deliberate discrimination: Church of the Lukumi Babalu Aye v. Hialeah

Although the identification of deliberate discrimination through state action
requires, above all, an ascertainment of the decision-makers motives, it
seems clear that a government regulation cannot gain any significance under
the free exercise clause without in fact generating corresponding effects.179
Except for cases of openly discriminatory measures,180 the determination of
a measures underlying motives demands a sensitive inquiry into such cir-
cumstantial and direct evidence of intent as may be available.181 [T]he
only goal [of the enquiry] is to uncover whether the regulation was meant to
implement unspoken antagonism toward persons or groups because of their
religious beliefs.182 In Church of the Lukumi Babalu Aye v. Hialeah,183 e.g.,
the SC inferred the discriminatory purpose of a citys ban on certain types of
animal slaughter from an examination of the legislative record, which it held
to disclose that the texts of the ordinances were gerrymandered with care
to proscribe religious killings of animals but to exclude almost all secular
killings as well as from a conspicuous disproportionality between the ordi-
nances burdening effect on the churchs religious practices and the legiti-
mate ends asserted in their defence.184 The result, achieved pursuant to the
discriminatory purpose, was a norm of insufficiently narrow tailoring
which failed, as applied, to restrict any other conduct185 similarly harmful to

179
Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993), Justice Scalia (con-
curring in part and concurring in the judgement) arguing, that where government has set
out resolutely to suppress certain religious practices, but ineptly adopted [measures] that
failed to do so, I do not see how those [measures] could be said to prohibit the free exer-
cise of religion.: ibid. at p.558 (emphasis added);
180
see, e.g., McDaniel v. Paty, 435 U.S. 618 (1978), where Justice Brennan (concurring)
found a provision of a state constitution (barring all members of the clergy from serving in
the state legislature) to manifest patent hostility toward . . . religion: ibid. at p.636 (em-
phasis added); compare also Choper: The deliberate disadvantage principle plainly applies
to government regulations that discriminate on their face.: p.44 (emphasis added);
181
Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.
S. 252 (1977), at p.266;
182
Choper, p.46;
183
supra note 179;
184
ibid. at p.542 (emphasis added); Those ends were the protection of the public health
and the prevention of cruelty to be inflicted upon animals: ibid. at p.543.
185
than that protected by the free exercise clause;

23
the asserted state interests, and was thus incapable of withstanding scrutiny
under [t]he compelling interest standard, i.e. unconstitutional.186

bb) Incidental burden: From Sherbert to Smith

Prior to its landmark-ruling on Sherbert v. Verner,187 the SC had on several
occasions sought to elaborate criterions determining the impermissibility of
state measures which incidentally burden religious activity. It had observed,
e.g., that the freedom of religious exercise may not be infringed on slender
grounds, but only to prevent grave and immediate danger to interests
which the state may lawfully protect188 or to a substantial interest of the
State,189 as well as that legislative power . . . may reach [religiously moti-
vated conduct] when [it is] found to be in violation of important social du-
ties or subversive of good order,190 always provided that the state cannot
accomplish its purpose by [less drastic means].191
In Sherbert,192 then, the Court took a major step beyond these precedents,
extending and solidifying the principles latent in its previous holdings.193
Justice Brennan, writing for the majority, pronounced the test which was
henceforth to be applied in order to establish or deny the constitutionality of
state regulations incidentally burdening religious activity: An incidental
burden on the free exercise of . . . religion may [only] be justified by a com-
pelling state interest in the regulation of a subject within the States consti-
tutional power to regulate.194 In order to specify the nature of such burden,
Justice Brennan proceeded by pointing out that the measure at issue was re-
quired to constitute a substantial infringement of free exercise rights,
thereby categorically excluding mere de minimis burdens.195 Given such
substantial burden, then, the claimant was held to have established a prima

186
ibid. at pp.545,546;
187
supra note 153;
188
Board of Education v. Barnette (supra note 177), at p.639, (emphasis added);
189
Cantwell v. Connecticut (supra note 177), at p.311, (emphasis added);
190
Reynolds v. U.S., 98 U.S. 145 (1878), at p.164;
191
Braunfeld v. Brown, 366 U.S. 599 (1961), at p.607 (emphasis added);
192
supra note 153;
193
Tribe, 14-13, p. 1255;
194
Sherbert (supra note 153), ibid. at p.403 (emphasis added);
195
ibid. at p.406 (emphasis added); presently observing a sufficiently substantial burden in
that [t]he ruling forces [appellant] to choose between following the percepts of her reli-

24
facie case shifting upon the government the onus of demonstrat[ing] that no
alternative [i.e. less restrictive] forms of regulation would [serve the asserted
state interest] without infringing First Amendment rights.196
Subsequently, the SC has frequently reinvoked Sherbert to strike down mea-
sures due to their failure to support compelling state interests, such as the
enforcement of a criminal statute against Amish families who refused to
send their children to school beyond the eighth grade,197 a denial of
unemployment compensation to a Jehovas Witness who quit his job in a
munitions factory because of his religious objections to war,198 and a same
denial to an employee whose religious beliefs had changed during the course
of her employment.199 On the other hand, the Court has upheld, e.g., a
refusal to relieve an Amish employer (on religious grounds) from paying the
social security tax for his employees,200 a military regulation barring an
Orthodox Jew from wearing a yarmulke while on duty,201 and a U.S. Forest
Services plan to build a road through an area of national forest traditionally
used by several Indian tribes as sacred areas for religious rituals.202

gion and forfeiting benefits, on the one hand, and abandoning one of the percepts of her re-
ligion in order to accept work, on the other hand.: ibid. at p.404 (emphasis added);
196
ibid. at p.407; Finally, the Court did not fail to emphasize that its ruling by no means
promoted the establishment of [appellants] religion . . ., for the extension of unemploy-
ment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more
than the governmental obligation of neutrality in the face of religious differences, and does
not represent that involvement of religious with secular institutions which it is the object of
the Establishment Clause to forestall.: ibid. at p.409;
197
Wisconsin v. Yoder (supra note 140), appreciating the states high responsibility for edu-
cation of its citizens (ibid. at p.213), but holding an additional one or two years of compul-
sory high school education, as applied to the Amish, to do little to serve those interests:
ibid. at p.222;
198
Thomas v. Review Board (supra note 146), holding the coercive impact on Thomas in-
distinguishable from Sherbert: ibid. at p.717;
199
Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 (1987), holding the timing
of the claimants conversion to be immaterial to our determination that her free exercise
rights have been burdened: ibid. at p.144;
200
U.S. v. Lee, 455 U.S. 252 (1982), holding mandatory participation in the social security
system to be indispensable to the fiscal vitality of the system (ibid. at p.259) which
otherwise could not function, for presently granting an according exemption would justify
future myriads exceptions flowing from a wide variety of religious beliefs: ibid. at p. 260;
201
Goldman v. Weinberger, 475 U.S. 503 (1986), [T]o accomplish its mission the military
must foster instinctive obedience, unity, commitment, and esprit de corps: ibid. at p.507
(emphasis added). But compare also Justice OConnor (dissenting), unable to observe in the
majoritys holding even the slightest attempt to weigh the militarys interests against
Goldmans free exercise rights: ibid. at p.528;
202
Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), deny-
ing, as a matter of principle, the capability of governmental programs to impose substantial
burdens in the absence of any tendency to coerce individuals into acting contrary to their
religious beliefs . . .: ibid. at p.440 ; compare also supra note 195; Justice Brennan (dis-

25
In 1990, however, a narrow 5:4 majority of the SC ceased to regard as ap-
propriate an application of Sherbert outside the unemployment compensa-
tion field in the case of Employment Division, Department of Human Re-
sources v. Smith,203 and pronounced that sustaining generally applicable,
religion-neutral laws [incidentally] burdening . . . religious practice in the
absence of a compelling governmental interest204 was the sounder ap-
proach.205 The case involved the claim of two adherents of the Native
American Church, who had been adversely affected by the operation of a
state criminal provision triggered by their religiously motivated consump-
tion of a certain drug, that their right to free exercise of religion had been
unduly infringed upon by the states refusal to grant an according exemp-
tion. In order to substantiate its conclusion (i.e. the permissibility of such
refusal under the new test), the Court started by pointing out that there was
no precedent capable of justifying an exemption on religious grounds from
compliance with an otherwise valid law prohibiting conduct that the State is
free to regulate.206 It continued by distinguishing, inter alia, Wisconsin v.
Yoder207 from the present situation, on the basis of the formers involvement
not of the Free Exercise Clause alone, but . . . in conjunction with . . . the
right of parents . . . to direct the education of their children,208 and its pre-
senting a hybrid situation which had nothing to do with an across-the-
board criminal prohibition on a particular form of conduct.209 Sherbert, on
the other hand, had required the demonstration of a compelling state interest
only to justify an adverse individualized governmental assessment of the
reasons for the relevant conduct210 and had, besides, in recent years ceased

senting) rejected the majoritys distinction between governmental actions that compel affir-
mative conduct inconsistent with religious belief, and those . . . that prevent conduct consis-
tent with religious belief as determinant of impermissible coercion: ibid. at pp.468 et seq.;
203
494 U.S. 872 (1990), at p.883;
204
Justice Scalia (writing the majority opinion), abstracting the Courts previous observa-
tion that if prohibiting the exercise of religion . . . is not the object of the tax but merely the
incidental effect of a generally applicable and otherwise valid provision, the First Amend-
ment has not been offended (ibid. at p. 892) in footnote 2, ibid. at p.886 (emphasis added);
205
ibid. at p.885;
206
ibid. at p.895;
207
see supra note 140;
208
Smith (supra note 203), ibid. at p.872 (emphasis added);
209
ibid. at pp.882,884;
210
ibid. at p.884 (emphasis added);

26
to be applied at all outside the unemployment compensation field.211
Moreover, [to deem] presumptively invalid, as applied to the religious ob-
jector, every regulation of conduct that does not protect an interest of the
highest order, would inevitably mean to court anarchy.212 The Court
concluded by appreciating that several states had permissibly excepted the
sacramental use of the drug presently involved from criminal prosecution
and admitted that leaving accommodation to the political process will place
at a relative disadvantage those religious practices that are not widely en-
gaged in.213 That was, however, the price of democratic government.214
Although Justices Blackmun, Brennan and Marshall were alone in their dis-
sent in the judgement, they were joined by Justice OConnor in rejecting the
majoritys renunciation of Sherbert. They found that todays holding dra-
matically departs from well-settled First Amendment jurisprudence and in-
sisted, contrary to what appeared to be the majoritys main argument, that
there was no denying that [Cantwell and Yoder] expressly relied on the
Free Exercise Clause and that we have never distinguished between cases
in which a State conditions receipt of a benefit on conduct prohibited by
religious beliefs and cases in which a State affirmatively prohibits such con-
duct.215 Instead, the minority held all state action that, in effect, make[s]
abandonment of ones own religion or conformity to the religious beliefs of
others the price of an equal place in the civil community to be subject to
the Sherbert standard without exception.216 While Justice OConnor, then,
found the uniform application of [the states] criminal prohibition to be
essential to accomplish its overriding interest in preventing the physical
harm caused by drug use,217 Justices Blackmun, Brennan and Marshall re-
mained in dissent, for [t]he unusual circumstances that make the religious
use of [the drug] compatible with the States interest in health and safety and

211
ibid. at p.883;
212
ibid. at p.888;
213
ibid. at p.890;
214
ibid. at p.890;
215
Justice OConnor (concurring in the judgement), ibid. at pp.891,896,898 (emphasis ad-
ded);
216
ibid. at p.897 et seq. (emphasis added);
217
ibid. at p.905;

27
in preventing drug trafficking would not apply to other religious claims,218
thus denying the presence of a compelling state interest.
In Church of the Lukumi Babalu Aye v. Hialeah,219 the Court restated the
current position under the free exercise clause as follows: [A] law that is
neutral and of general applicability need not be justified by a compelling go-
vernmental interest even if the law has the incidental effect of burdening a
particular religious practice. A law failing to satisfy these requirements
[i.e. neutrality and general applicability] must be justified by a compelling
governmental interest, and must be narrowly tailored to advance that inter-
est.220

IV. Concurring and diverging patterns

1) Protection of ideological convictions

At first glance, the most conspicuous difference between Art.4 GG and
Amendment I USC seems to be the exclusion, in principle, of ideological
convictions from the latters protective scope.221 Although the First Amend-
ments wording offers clear difficulties as to their inclusion, the SC has at
times appeared willing to ignore this distinction, at least extra-constitutio-
nally.222 Nonetheless it remains true, that the religion clauses do not ack-
nowledge the individuals conscience unless it is found to be religiously de-
termined.
Admittedly, religions are far from equatable with ideologies in all instances;
but it is fair to say, particularly when looking at more recent religious and
ideological phenomena, that there are cases which offer great difficulties of
delimitation, no matter which feature one chooses to focus on.223 Given Art.
4s restrictive requirement of ideologies to constitute a system of state-
ments, judgements, or assessments, which provide criterions capable of de-
termining the individuals decision in a specific situation,224 pointing at a

218
Justice Blackmun (dissenting, joined by Justices Brennan and Marshall), ibid. at p.918;
219
see supra note 179;
220
ibid. at pp.531,532;
221
compare supra III.2), p.17, and note 140;
222
compare supra notes 141,142;
223
Consider, e.g., the doctrines of the Curch of Scientology or esoteric life-management.
224
compare supra note 55;

28
decisive motive for protecting individual convictions in the first place, it
seems at least questionable not to acknowledge their comparably vital im-
portance to people who are not open to religious determination, but never-
theless rely on some sort of detraction from purely rational contemplation.
Under both the German and the U.S.-American constitution, there is, argu-
ably, a certain degree of protection covering alike, e.g., certain modes of
communication of a broad spectrum of personal convictions/opinions.225 If
Choper was right, however, in claiming that almost all decisions of the Su-
preme Court that have vindicated individual rights by invoking the Free Ex-
ercise Clause could just as easily have been resolved under other provisions
of the Constitution,226 the free exercise clause would be no more than sur-
plus. It is not, of course, for quite a share of the individuals actions, where
based on true faith, cannot be labeled, e.g., communication or expression.
Therefore, an equivalent constitutional protection of ideological besides reli-
gious convictions appears desirable.

2) Circumscribing faith and belief

Leaving aside ideologies, the criteria developed under both the Basic Law
and the U.S.-Constitution in order to determine faith (or belief), show ob-
vious similarities: there is agreement as to the requirement of beliefs to be of
sufficient sincerity227 and to impose upon the individual obligations which
generate unacceptable psychic distress if not given way to.228 Although a re-
mote content-based limit has been identified under the Basic Law,229 the ul-
timate subjectivity of faith matters appears equally undisputed.230

225
compare Art.5 GG (Freedom of expression) and Amendment I, second part, first and se-
cond case USC (Freedoms of speech and the press);
226
Choper, p.64 (emphasis added); As regards religiously motivated conduct, the present
writer is unaware the existence of any constitutional provisions capable of affording protec-
tion of a degree even remotely comparable to that arising from the freedoms of speech and
the press, and therefore assumes that Copers statement essentially refers to those provi-
sions.
227
deeply held (supra note 142), based on a decision dictated by the individuals con-
science, i.e. every sincere moral . . . decision . . . (supra notes 53 and 135);
228
causing the individuals conscience to give [him or her] no rest or peace (supra note
142); or forcing the individual in a serious moral dilemma (supra note 135);
229
religious practice as protected within certain concurring, fundamental moral views of
the contemporary civilized peoples (supra note 108);
230
beliefs need not be acceptable, logical, consistent or comprehensible (supra note 146);
sufficient to establish obliging force (supra note 137); compare also notes 136 (substan-
tial enquiries) and 138 (standard of evidence must not be too strict);

29
Disregarding inherent difficulties of evidence, both sufficient sincerity and
obligingness of religious beliefs may be valued as appropriate and effect-
tive criteria for ensuring a fairly exclusive protection of genuine convictions.

3) Church and state: permissible interaction

The Basic Law principles of non-identification, tolerance and parity are
essentially intended to prevent a) formal establishment, b) preferentialism,
and c) the exclusion of dissenters.231 The significance of the latter objective
remains unclear, at least if due observance of the first two targets is presup-
posed. The principle of tolerance appears to owe its existence solely to the
FCCs understanding of non-establishment, which is presently recognized
as questionable. Particularly in the Schoolprayer verdict, the Court sought
to sanction evident state identification by presenting an unmistakably
strained argumentation in order to identify parents and pupils as the true
originators of pious impetus.232 To regard teachers as permit[ting]233 the
saying of prayers during lessons may hardly be called a clear perception of
reality, for the breeding ground of true initiative is surely found in a differ-
rent setting. Moreover, a teachers prompt[ing]234 of schoolchildren to an
activity that constitutes, beyond doubt, more than a mere acknowledgement
of the characterizing cultural and educational factor [of Christianity], as
declared permissible in the Crucifix verdict,235 cannot be justified as a pas-
sive accommodation to the parents will, since there is, in the field of com-
pulsory public schooling, no comparable governmental assistance which
has not previously been approved as expedient for the states interest in ge-
neral education and thereby been removed from the parents sphere of influ-
ence. Therefore, the FCCs interpretation of non-identification must be cri-
ticised as unconvincingly reasoned and supportive of undue dominance of
mainstream religions.
On the contrary, the SCs purpose-effect standard, as combined with the pro-
hibition of excessive governmental entanglement and the mandate of non-

231
compare supra note 56;
232
compare supra note 64;
233
ibid.;
234
ibid.;
235
see supra note 89, ibid. at p.23 (emphasis added);

30
endorsement,236 appears to afford a much more detailed, usable, and thus
forceful safeguard against detrimental church-state alliances. However, the
Courts acknowledgement of permissible accommodation,237 i.e. indirect
governmental promotion of certain beliefs which is not required by the free
exercise clause, offers two major deficiencies: First, and as openly admit-
ted,238 such accommodation is likely to benefit but mainstream religions, an
unavoidable effect of withdrawing state action from constitutional determi-
nation. Second, it seems doubtful whether the religion clauses leave to the
state any leeway between the obligatory protection of free exercise rights
and the otherwise definite mandate of non-establishment. Indeed, exemp-
tions from the latter have been convincingly justified only by referring to the
states responsibility under the free exercise clause,239 which must accor-
dingly be valued as the sole constitutional basis for state action in the field
of religion.

...

236
compare supra notes 167,170;
237
compare supra note 213;
238
ibid.;
239
compare supra note 153;

31