Germany: the Constitutional Court intervenes” “” “

“A pledge on the part of the Land of Brandenburg to present a bill amending the law of the Landtag (regional parliament) before the beginning of the next school year and withdrawal of the lawsuits claiming anti-constitutionality lodged by the defendants after the amended law enters into force”: this, in essence, is what is established by the German Constitutional Court by its sentence issued in Karlsruhe on 11 December. To the parties in the dispute the Constitutional Court has proposed this draft agreement concerning the vexed question of the teaching of so-called LER in Berlin-Brandenburg and asks to know their opinion by 31 January. The issue of the dispute – which has persisted for a decade – was the presumed unconstitutionality of the teaching of what is known as LER, a German acronym summing up the teaching of subjects ranging from ethics to religious traditions – a kind of non-confessional ethics –, which is an obligatory subject on the curriculum for students in schools of the Land of Berlin-Brandenburg, and was adopted by the law on schools of 1996, but in actual fact already tried out since 1992, without students being simultaneously offered religious instruction proper. The local battle. The sentence signals a revaluation of religion as a subject for school teaching, since the new law will have to guarantee that religious instruction be introduced whenever there are at least 12 students in a class to request it, that they be given the real opportunity to attend it, and that no other subjects be taught concurrently with it. The sentence also establishes that religious instruction be provided by the individual religious confessions, that it forms part of the normal school curriculum (i.e. not be extra-curricular), that the Land supports it financially and assists in the training of teachers, and that the teachers themselves, when they do not have a state qualification, be enabled to take part in appropriate training courses. Those who have started legal proceedings and campaigned against the compulsory nature of the LER, not only the Churches and the parliamentary group of the CDU but also numerous associations of parents, have done so by appealing to article 7 para 3 of the Constitution, which upholds the right for religion to be taught in schools – with the exception of non-confessional schools – in agreement with the religious organizations and without any control on the part of the State, whose role is limited to the organizational aspect. The defendants, in this case the government and parliament of Brandenburg, have challenged this appeal, by basing their case instead on another article of the Constitution, no. 141, according to which the previous article 7 ought not to take effect in those Länder in which a different institutional regime existed since 1st January 1949, such as is the case of the Land of Berlin-Brandenburg, which then formed part of the GDR (the former East Germany). The authorities of the Land maintained they were in the right, since, in their view, the Constitution does not preclude any Länder from establishing non-confessional public schools devoid of the teaching of religion as an obligatory subject. The political consequences. So much for the institutional controversy. But the political repercussions of the dispute should also be recalled. In June and July they became front-page news in the national dailies. According to the leader of the CDU parliamentary group in the Bundestag, Friedrich Merz, what was at stake in the dispute was “the strong idea of freedom contained in the Constitution” which imposes a just neutrality on the State, on the basis of which it delegates to religions the role of being the bearers of values. The law of Brandenburg, by contrast, by instituting a vague and neutral ethical teaching on everything that concerns the view of the world, de facto excludes all the Churches and every religious reference from the horizon of students”. Even more categorical was the declaration of Cardinal Karl Lehmann, president of the German Episcopal Conference. Intervening in a radio programme broadcast by the Berlin station “Deutschlandradio” in July, Lehmann declared that the Constitutional Court should have gone further: it should “have finally established whether, contrary to every sense of justice, religious education, for which provision is made by the Constitution, has been denied to children and their parents for over ten years”: religious education – he added – not in the sense of “an advertising campaign to recruit new adepts, but a specific educational offer addressed at young people irrespective of their religious inclination.” In Lehmann’s view, if the State were to authorize LER, it “would directly enter into an educational sphere from which it ought to keep its distance”. Patrizia Collesi