Abstract of the order of 16 May 1995

First Senate
Order of 16 May 1995
1 BvR 1087/91

Headnotes:

1. Displaying crosses or crucifixes in the classrooms of a compulsory state school that is not a faith school violates Article 4.1 of the Basic Law.

2. The third sentence of § 13.1 of the School Ordinance for Bavarian Primary Schools is incompatible with Article 4.1 of the Basic Law and void.

Summary:

I.

The constitutional complaint concerns the display of crucifixes or crosses in Bavarian primary schools, which is required by Bavarian law. The applicants – parents and their school-age children – argue that the crosses displayed in the classrooms of the schools attended by the children run counter to their beliefs.

The applicants sought a court order to remove the crosses from the classrooms frequented by their children over the course of their schooling. They also applied for a preliminary injunction for crucifixes and crosses to be removed pending the conclusion of the court proceedings. The administrative court rejected the application for a preliminary injunction.

The constitutional complaint directly challenges the orders issued in the injunctive proceedings and indirectly challenges the statutory basis for displaying crucifixes or crosses in classrooms.

II.

The First Senate of the Federal Constitutional Court held that the constitutional complaint is admissible and well-founded.

Firstly, the court decision rejecting the application for a preliminary injunction violates the applicants’ right to effective legal protection (Article 19.4 of the Basic Law). This right grants recourse to the courts to challenge any asserted violation of rights by an act of public authority. It also guarantees the effectiveness of legal protection within an appropriate time period. The challenged decision failed to give effect to this right. It found that there were no grounds for issuing a preliminary injunction because the applicants had delayed having recourse to the courts for years and had tolerated the fact that crosses were displayed instead of the originally used crucifixes during that time period. However, the applicants had in fact lodged their request at all levels of the school administration ever since their eldest child was first enrolled in school. They should not be penalised for having originally hoped to reach an agreement outside the court system. The applicants had also agreed to a compromise that was then repeatedly called into question by the school administration, which did not make the concessions agreed between it and the applicants.

Secondly, the challenged decision also violates freedom of faith (Article 4.1 of the Basic Law), which provides that the state may neither prescribe nor prohibit a faith or religion. Freedom of faith guarantees the right to participate in acts of worship that a faith prescribes or through which it is expressed. It also includes the freedom to stay away from acts of worship (negative freedom of faith) – a freedom that also applies to the symbols of a faith or religion. In a society that accommodates different faiths, individuals do not have a right to be protected from expressions of other faiths, acts of worship or religious symbols. However, this must be distinguished from a situation created by the state in which the individual is exposed to the influence of a particular faith and its symbols, without any possibility of avoiding them. Article 4.1 of the Basic Law provides protection precisely for this type of situation.

Freedom of faith requires the state to be neutral towards different religions. The number of adherents or social relevance of a faith are irrelevant in this respect. The state must ensure that it treats different religious and philosophical communities in line with the principle of equality.

In conjunction with the first sentence of Article 6.2 of the Basic Law, which guarantees parents the right to care for and raise their children, Article 4.1 of the Basic Law also protects parents’ right to raise their children when it comes to religious and philosophical beliefs. This includes the right to keep children away from religious beliefs that the parents deem wrong or harmful.

This fundamental right is violated by the challenged provision and the challenged decisions. Given that school attendance is compulsory, the displaying of crosses in classrooms means that pupils are confronted with this symbol during lessons – a situation that is imposed by the state and cannot be avoided by pupils. This distinguishes crosses in classrooms from the frequent confrontation with symbols of different religious beliefs in everyday life.

At school, it is inevitable that the religious and philosophical beliefs of different pupils and their parents conflict with one another. This conflict among different holders of a fundamental right that is guaranteed without reservation must be resolved on the basis of the principle of maximum equilibrium between conflicting interests of equal weight, which requires that the best possible compromise between all positions is found. It is incumbent upon the legislator to resolve the inevitable tension between negative and positive religious freedom, having regard to the principle of tolerance.

The displaying of crosses in classrooms exceeds the limits applicable to schools with a religious orientation. The specific link of the cross to Christian beliefs cannot be denied; it cannot be reduced to a general emblem of Western cultural traditions. Nor can the display of crosses be justified by the positive freedom of faith of Christian parents and their children. Positive freedom of faith is afforded equally to all parents and pupils, not just to Christian ones. The ensuing conflict cannot be resolved according to the majority principle, since freedom of faith is specifically intended to protect minorities. Therefore, displaying crosses in state primary schools is incompatible with Article 4.1 of the Basic Law.

III.

Justices Seidl, Söllner and Haas filed dissenting opinions. Justice Haas considers the complaint to be inadmissible. All three Justices argue that the challenged provision and the challenged court decisions do not violate the applicants’ fundamental rights.

They state that under Article 7.1 and 7.5 of the Basic Law, the federal states are the bodies responsible for the primary school system. The legislator has broad discretion in this respect. The challenged provision does not exceed the limits of this discretion. Given that constitutional law allows the Bavarian legislator to establish Christian schools, it cannot be barred from symbolising the values characterising those schools by displaying crosses in classrooms.

According to the dissenters, the display of crosses in classrooms does not impose unreasonable burdens on affected pupils and their parents. They are not required to display any particular behaviour or pray in front of the cross.

Article 4.1 and 4.2 of the Basic Law jointly guarantee that individuals can actively practise their religion. Resolving the inevitable conflict between negative and positive freedom of faith is incumbent upon the legislator, which must seek to reach a compromise that is acceptable to all parties. Negative religious freedom is not a superior fundamental right that supplants positive expressions of religious freedom in cases of conflict. The necessary balance between the two manifestations of religious freedom must be achieved through tolerance. This has been done in Bavaria.