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Unsuccessful constitutional complaint of a non-believing theology professor challenging his exclusion from training theologians
Press Release No. 14/2009 of 18 February 2009
Order of 28 October 2008
1 BvR 462/06
The complainant has been a professor in the theology faculty of a university in Lower Saxony since 1983 and was originally engaged for the subject "New Testament" in teaching, research and further training. After he publicly renounced the Christian faith, he was required to teach the subject "History and Literature of Early Christianity". This subject was allocated to the Institute for Special Research, and the complainant's courses were announced in the university calendar with the added words "not part of the course of studies to train prospective theologians". The complainant initiated proceedings against this at the administrative courts; his action failed at all instances.
The First Senate of the Federal Constitutional Court rejected the constitutional complaint as unfounded and held that the exclusion from the training of theologians related to a particular religious denomination of a theology professor who had renounced his faith by allocating him another subject is compatible with the freedom of scholarship. The Senate held that in the present case it was permissible for more weight to be attached to the church right of self- determination and the right of the faculty to preserve its identity as a theology faculty and to fulfil its duties in the training of theologians than to the complainant's freedom of scholarship.
In essence, the decision is based on the following considerations:
For lecturers at institutions of higher education, the core of the freedom of scholarship, which is protected by Article 5.3 sentence 1 of the Basic Law (Grundgesetz - GG) is the right to be responsible for their subject in research and teaching. This freedom is also decisively shaped by the teaching position conferred on them. Necessarily, therefore, a change of the subject for which a lecturer is responsible affects the content of freedom of scholarship. When the complainant was allocated the subject "History and Literature of Early Christianity" instead of the subject "New Testament", and as a result he was no longer involved in the training of theologians related to a particular religious denomination, there was an encroachment on the freedom of scholarship. In addition, the freedom of scholarship is affected by the fact that as a result of the transfer from a core subject to a peripheral subject that is not relevant to training, the complainant is given a position that is markedly diminished in its significance in the university's teaching and research context and this represents a reaction of the state to specifically academic pronouncements and ositions. It is this that specifically realises the danger against which Article 5.3 sentence 1 GG is intended to protect.
However, the encroachment on the freedom of scholarship is justified with regard both to the church right of self-determination (Article 140 GG in conjunction with Article 137.3 of the Weimar Constitution (Weimarer Reichsverfassung - WRV)) and to the rights of the faculty, which in turn are protected by Article 5.3 GG.
The freedom of scholarship of university theology lecturers finds its limits in the right of self-determination of religious communities. The Basic Law permits theology to be taught as an academic discipline at state universities. If state theological faculties have been established, the right of self-determination of the religious community whose theology is the subject of the teaching that is related to a particular religious denomination must be taken into account. The position of a lecturer at an institution of higher education may therefore be designed to be related to a particular religious denomination. It cannot and may not be the concern of the state, which is neutral in religious and ideological matters, to make the decision as to whether theological teaching is appropriate to a religious denomination. Instead, this is a right of the religious community itself.
The complainant's freedom of scholarship also finds its limits in the right of the faculty, itself protected by Article 5.3 GG, to preserve its identity as a theology faculty and to fulfil its duties in the training of theologians. The teaching and research duties of a theology faculty are essentially shaped by the need for the teaching to be appropriate to a religious denomination. This function is endangered if the lecturers publicly no longer maintain the beliefs of the church. The existence of a theology faculty would be endangered if the church no longer regarded the doctrine taught there, above all in a core subject such as "New Testament", as appropriate to a religious denomination and consequently no longer accepted its graduates as clergy and did not permit teachers of religious education trained in the faculty to teach religious education related to a particular religious denomination. In the case of Protestant faculties, in addition, the church - unlike the Catholic Church, with its mandatory teaching authority (magisterium) - primarily leaves it to them to ensure that the teaching remains appropriate to a religious denomination.
The measure taken by the university, which is challenged, and the administrative-court decisions were ultimately correct when they weighed the freedom of scholarship of the complainant against the opposing constitutional concerns, and in doing so they observed the principle of proportionality.
The transfer of the complainant from the subject "New Testament", which is related to a particular religious denomination, to the subject "History and Literature of Early Christianity", which is not related to a particular religious denomination, and his removal from the training of prospective theologians, take account of the church right of self- determination and promote the purpose of preserving the functioning of the faculty of theology. The complainant may reasonably be expected to accept the transfer to the new subject, because he retains his position as a lecturer at an institution of higher education and he has been given a subject which is largely similar to his original subject. He may continue without hindrance to offer courses, to research and publish in an area determined by himself, and to impart the results of his research to the students. Nor do the consequences of the transfer for the complainant's position in teaching and examination make the measure unreasonable. However, the fact that the complainant's new subject is not part of the examination and study regulations of the theology faculty has a considerable adverse effect on his freedom of teaching. Lecturers at institutions of higher education have rights to participate in the teaching of students and in the encouragement of the next generation of academics, which give their position its character. But the non-constitutional courts proceeded without infringement of the constitution on the basis that the complainant's new subject may still be integrated appropriately into the study and examination regulations, and that the enforcement of a petition to this effect is not a matter for the present proceedings, but for future negotiations.