Order of 28 October 2008

HEADNOTES:

1. For lecturers at institutions of higher education, the core of the freedom of scholarship is their right to be responsible for their subject in research and teaching. Where state measures that affect their position as lecturers in institutions of higher education with the status of civil servants relate to aspects of their work that are specifically relevant to scholarship, Article 5.3 of the Basic Law (Grundgesetz - GG) and not Article 33.5 of the Basic Law is the standard of review.
2. The Basic Law permits theology faculties to be established at state institutions of higher education within the scope of the state’s right and duty to organise education and scholarship at the state universities. In doing this, the state must take account of the right of self-determination of the religious community whose theology is the subject of teaching.
3. The freedom of scholarship of university lecturers of theology finds its limits in the right of self-determination of the religious community and in the right of the faculty, protected by Article 5.3 of the Basic Law, to preserve its identity as a Theology Faculty and to fulfil its duties in the training of theologians.
4. Decision on the right of lecturers at institutions of higher education to participate in academic training.

Order of the First Senate of 28 October 2008
– 1 BvR 462/06 –

in the proceedings on the constitutional complaint of Prof. Dr. L ...,

- authorised representative:

Lawyers … –

RULING:

The constitutional complaint is rejected as unfounded.

EXTRACT FROM GROUNDS:

In his constitutional complaint, the complainant challenges an order of G. University in G., which has been confirmed by the administrative courts at all instances, by which in place of the subject “New Testament”, for which he had previously been responsible as a lecturer at an institution of higher education, he was allocated the subject “History and Literature of Early Christianity” (now renamed “Early Christian Studies”), to be responsible for it in teaching, research and further training.

I.

1. Since 1983, the complainant has been a professor in the Theology Faculty of G. University in G. Before he was appointed a professor, the Land (state) church office of the Land Protestant Lutheran Church, as provided in Article 3.2 of the Treaty of the Land Lower Saxony with the Protestant Churches in Lower Saxony of 19 March 1955, the Loccum Treaty (Lower Saxony Legal Gazette (Niedersächsisches Gesetz- und Verordnungsblatt - Nds. GVBl ) pp. 159 et seq.), expressed a favourable opinion on the complainant’s declared belief and teaching.

By an order of installation of 4 March 1983, the Lower Saxony Ministry for Science and Art then appointed him to be responsible for the subject “New Testament” in teaching, research and further training in the Theology Faculty. The right to alter the nature and scope of the complainant’s field of activity was reserved, with reference to § 55.3 sentence 2 of the Lower Saxony Higher Education Act (Niedersächsisches Hochschulgesetz – NHG ) – of 1 June 1978 (Lower Saxony Legal Gazette pp. 473 et seq.). The subject “New Testament” is one of a total of five theological seminars which taken together form the basic framework of theological teaching and research at G. University in G.

In December 1998, by an order of the President with reference to § 50.3 of the Lower Saxony Higher Education Act (as amended on 24 March 1998, Lower Saxony Legal Gazette pp. 300 et seq.), the university conferred on the complainant a special status outside the regular training arrangements. § 50.3 of the Lower Saxony Higher Education Act reads as follows:

The nature and scope of the duties to be performed are based, taking subsections 1 and 2 into account, on the structure of the employment relationship and the description of the position. The determination of the duties must be subject to a review at appropriate intervals.

The complainant was engaged to be responsible from that date on in teaching, research and further training for the subject “History and Literature of Early Christianity”. This subject was allocated to the Institute for Special Research (Institut für Spezialforschungen ). 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”.

2. Before this transfer to different teaching duties, there was a dispute lasting several years between the complainant and representatives of the Protestant Church; this was increasingly aggravated by the academic writings of the complainant published from 1994 on and by his public pronouncements in a large number of newspaper articles and interviews. The complainant went through an academic and personal development which, according to himself, induced him in 1998 to publicly renounce his Christian faith in totality, although he did not formally leave the Protestant Church (see Lüdemann, Der große Betrug – Und was Jesus wirklich sagte und tat , 1998, pp. 9-18).

Both the council of professors of the Theology Faculty and the Confederation of Protestant Churches in Lower Saxony, in a letter to the Lower Saxony Ministry of Science and Cultural Affairs of 2 November 1998, called for the complainant to be removed from the organisation of the university Theology Faculty, on the grounds that by reason of his renunciation of Christianity the complainant could no longer be involved in the training of theologians who wanted to be ministers or teachers of religious education. Following this, there were talks between the council of the Theology Faculty, the Confederation of Protestant Churches in Lower Saxony and the Lower Saxony Ministry of Science and Cultural Affairs. These talks resulted in the complainant being transferred within the Theology Faculty, by the initial order challenged herein, to a subject that was not related to a particular religious denomination.

II.

The complainant’s objection was unsuccessful, and he then commenced legal proceedings, which were unsuccessful at all instances.

1. The Administrative Court dismissed the action in a judgment of 15 May 2002. It stated that until the disputed measure was ordered, the complainant had held a public office which was related to a particular religious denomination. Consequently, the competent state authority had had the power to draw conclusions from the fact that as a professor of theology, according to his own statements, he no longer believed in Christianity, and in all fundamental questions of Christian doctrine he held opinions deviating from those of the Protestant Church, and he expressed these beliefs emphatically and with great effort in the media. In particular, the court stated, it was possible for the state authority to put the complainant under an obligation to conduct his activities as an academic researcher, teacher and examiner outside the courses of study related to a particular religious denomination. His freedom of scholarship was not violated, since the holder of a professorship related to a particular religious denomination was subject to intrinsic limits in exercising his profession. The complainant was able to continue his research and teaching in a field of activity very similar to his previous subject.

2. The Higher Administrative Court dismissed the complainant’s appeal in a judgment of 8 June 2004. As grounds for this decision, it essentially stated as follows:

The statutory basis for the measure in issue is § 50.3 of the Lower Saxony Higher Education Act as amended on 24 March 1998. Admittedly, in view of the freedom of scholarship, alterations to the official duties of a professor are possible only within his subject. In this case, it was possible to use this possibility, because the only effect of the alteration of duties was that the subject for which the complainant was responsible is no longer related to a particular religious denomination. But this does not lead to a change in his research and teaching activities. The notice that his courses were “not part of the course of studies to train prospective theologians” has only indirect effects. The fact that he has ceased to be an examiner also follows only indirectly from the alteration of his duties, since participating in examinations requires him to be responsible for a subject that is related to a particular religious denomination. For the Theology Faculty to continue to function, it is necessary for the complainant to be transferred to other duties. The public office originally conferred on him as a professor of theology in the Theology Faculty is related to a particular religious denomination. The theology professors in a Theology Faculty also have an ecclesiastical duty. This is shown in the right granted by the Loccum Treaty to the competent church authority to express its opinion on the candidate’s teaching and belief before a full professor or an extraordinary professor is appointed. On the part of the state, this recognises the legitimate interest of the churches in filling posts with qualified persons who guarantee that they will appropriately represent the teachings of the church on an academic level. The right of the churches, guaranteed by the constitution, to organise and administer their affairs independently also applies to the university training of theologians. The state has an interest of its own in ensuring that the training of the holders of public office of a large, influential religious community is not conducted in ecclesiastical sequestration, but in the framework of a state university, with the possibility given there of the exchange of academic knowledge. The organisation of the university training of theologians is therefore a collective affair of state, university and church. This justifies the alteration of the sphere of duties of the professorship related to a particular religious denomination if the belief originally claimed by the office-holder and confirmed by the church no longer exists. That is the situation in the present case: the subject “New Testament”, which is to be the responsibility of a person holding a public office related to a particular religious denomination, can no longer credibly be the responsibility of the complainant if in talks and publications he questions Protestant faith and the essential doctrines of faith in such a way.

The measure challenged represents the most even-handed equilibrium between, on the one hand, the constitutional principles of freedom of scholarship and the requirement that employment must be appropriate to an office, and on the other hand, the church’s organisational sovereignty. The duty now allocated to the complainant differs from his previous duty primarily in that it is no longer related to a particular religious denomination. With the exception of the fact that the complainant’s subject is no longer related to a particular religious denomination, this alteration entailed no further differences in content. The fundamental right of freedom of scholarship is therefore not violated. The same applies with regard to an infringement of the requirement that employment be appropriate to an office, of the requirement that the state be neutral in ideological and religious matters, of the requirement of non-denominational entry to public offices and of the complainant’s freedom to profess a belief. For the holder of an office which is related to a particular religious denomination, all these rights are restricted by the constitution itself (Article 140 of the Basic Law in conjunction with Article 137.3 of the Weimar Constitution (Weimarer Reichsverfassung - WRV )). With regard to the principle of proportionality, there are no reservations as to the exercise of discretion.

The allocation of the subject to the Institute for Special Research and the notice that the complainant’s courses are “not part of the course of studies to train prospective theologians” do not influence the content of the complainant’s research and teaching either. The effects are only indirect and relate to the staffing and equipping of the chair and the reduced number of students as a result of the fact that the subject is not relevant to the examinations. The complainant is free to influence the existing regulations for the post-doctoral lecturing qualification, for doctorates and for examinations in order that he may be involved in examinations.

3. The Federal Administrative Court dismissed the complainant’s appeal on points of law in a judgment of 3 November 2005.

It stated as follows: the interpretation of § 50.3 of the Lower Saxony Higher Education Act contains no grounds for an appeal on points of law. The university was responsible for altering the nature and scope of the complainant’s duties. This alteration required only the consent of the Minister of Science and Art. The university was also entitled to alter the complainant’s duties. By renouncing the Christian faith, the complainant created a situation that necessitated and justified the encroachment on his rights protected by Article 5.3 sentence 1 of the Basic Law.

The lecturers with the status of civil servants in the Theology Faculty hold a position related to a particular religious denomination, whose obligations follow from the fact that this faculty is also related to a particular religious denomination. The subject they teach, theology, is only conceivable as a subject dependent on belief with a denominational orientation. In contrast to the subjects of other faculties, this belief, orientated to a denomination, is, for theology, not only a subject, but also the requirement, foundation and goal of its search for knowledge. It is therefore the duty of the Theology Faculty not only to explore and comprehend belief with the instruments of scholarship, but also to develop it and to be involved in proclaiming it.

As an institution dependent on belief, the Theology Faculty is itself part and function of the Protestant Church. Its mission and at the same time its purpose is the preparatory theological training of the prospective ministers of the Protestant Land churches in Lower Saxony. The theology lecturers employed there are also subject to this obligation. The lecturers at an institution of higher education must be personally suitable to guarantee the preparatory training of a minister. As a criterion of suitability, this requires not only that they are objectively committed to a denomination, but also that they are personally loyal to their belief. In this present case, the university rightly pursued the objections on the part of the Confederation of Protestant Churches of Lower Saxony and of the lecturers of its Theology Faculty. It is undisputed that the complainant no longer accepts that the creed of the Protestant Church is true and binding on himself. The university was therefore entitled to take account of this lack of qualification of the complainant and to take measures, which were suitable and necessary, to ensure that the doctrine held by its Theology Faculty remains in conformity with the duty based on the Loccum Treaty that its lecturers be committed to a religious denomination. For this purpose it was at least necessary to remove the complainant from the training of prospective theologians for the Protestant Land churches and to remove him from responsibility for his subject insofar as this is a central and obligatory examination subject for prospective ministers and teachers of religious education.

By allocating him the new area of responsibility, the university chose a way of remedying the grievance without detriment to the complainant’s status as a professor with the status of a civil servant. At least in its main emphasis, the new area of responsibility relates to the New Testament and its reception. Here too it is possible to present the spiritual development of belief as a historical phenomenon. The exclusion of the complainant from training related to a particular religious denomination of prospective theologians of the Protestant Church of Lower Saxony is the inevitable consequence of his free decision to renounce his belief in Christianity with its commitments. By reason of its dual function as a state academic institution on the one hand and as an institution of church teaching and training arrangements related to a particular religious denomination on the other hand, the Göttingen Theology Faculty is a joint affair of state and church. The state has the right to lay down the career qualifications of the staff, while the church has the sole right to enforce its standards in establishing the content of the teaching, in selecting the teaching staff and in preparing and holding the examinations which it also recognises. This church’s right follows from the church’s right of self-determination guaranteed by Article 140 of the Basic Law in conjunction with Article 137.3 of the Weimar Constitution.

The even-handed equilibrium that is necessary where fundamental rights conflict only takes effect in the relationship between the state and the lecturer. It is achieved by the state, which is neutral in ideological matters, refraining from drawing consequences as to status from the loss of a qualification which arises from concerns specific to the church. The complainant continues to be a professor at the university, even in the Theology Faculty. He is able to present and disseminate his academic tenets and knowledge without censorship and without detriment to his status as a university lecturer. In order to preserve the church’s right of self-determination, he is merely prevented now from exercising his profession within the scope of a subject that is related to a particular religious denomination and obligatory for prospective ministers and teachers of religious education and from proclaiming his views as part of “the courses of study to train prospective theologians”. The new sphere of duties is appropriate to his office. The complainant can use his theological knowledge and continue his research and teaching. In addition, in his new sphere of duties he remains entitled to take on doctoral and post-doctoral candidates.

III.

In his constitutional complaint, the complainant challenges the decisions made in the administrative process and in the proceedings before the administrative courts. He challenges an infringement of Article 4.1, Article 5.3 sentence 1 and Article 33.3 sentence 2 and Article 33.5 of the Basic Law with the following arguments:

1. An encroachment on the freedom of scholarship of Article 5.3 of the Basic Law occurs, at all events, if a professor is allocated a different subject and as a result his previous area of research and teaching is changed. Even if the new subject “History and Literature of Early Christianity” is based on the subject “New Testament”, the two subjects are fundamentally different. In addition, there is no doubt that the challenged measure taken by the university was occasioned solely by the complainant’s renunciation of Christian belief. This constitutes an encroachment on his individual freedom of faith under Article 4.1 and 4.2 of the Basic Law, which covers lack of faith in the historical truth of essential Christian doctrines and the dissemination of this in speech and writing. The measure encroaches on Article 33.3 of the Basic Law, since the complainant is excluded from the regular training of theologians because his convictions deviate from the Christian faith. Finally, the challenged measure resulted in the complainant being deprived of all possibilities of participation in examining and is therefore not compatible with Article 33.5 of the Basic Law.

2. The encroachment on his fundamental rights is not justified.

There is not even a sufficiently specific statutory basis. None of the provisions of the law relating to Land civil servants or Land universities contains an obligation that a theology lecturer or any other university lecturer has to be convinced of the truth of the content of his teaching. In particular, § 50.3 sentence 2 of the Lower Saxony Higher Education Act does not contain any qualification requirement in the nature of a personal creed. In addition, the relevant provisions of the Loccum Treaty govern only the procedure to be applied when a theology professor is appointed. In particular, there is no provision envisaging a later review of a professor who has once been appointed.

Moreover, the relevant fundamental rights are not restricted by any conflicting fundamental rights of third parties or by any community values with constitutional status. It is true that Article 140 of the Basic Law in conjunction with Article 137.3 sentence 1 of the Weimar Constitution guarantees the Protestant Church of Lower Saxony the freedom to organise its affairs independently. But it does not follow from this that the organisation and administration of the theology faculties are purely church matters. On the contrary, in such cases the fundamental rights affected, in particular the freedom of scholarship of the teaching staff on the one hand and the church’s sovereignty of self-organisation on the other hand, must be weighed against each other in case of conflict. However, in the present case there is no conflict. Under Article 137.3 sentence 1 of the Weimar Constitution, the church’s right of self-determination is guaranteed only “within the limits of the statutes valid for all”. The fundamental right guaranteed is therefore defined in more detail by law below the constitutional level, in particular by the Loccum Treaty. In the Loccum Treaty, the Protestant Churches of Lower Saxony waived the right of subsequent assessment of and objection to the professors employed in the Theology Faculty. Consequently, such an objection cannot be categorised by the state as a concern relevant to fundamental rights.

Even if the church had a subsequent right to object, there would at all events not be the required even-handed equilibrium between the conflicting fundamental rights. The university did not weigh rights against each other within its discretion. Substantively, the totality of the complainant’s fundamental rights affected outweigh the church’s right of self-determination. This right is not appreciably infringed by the complainant being responsible for the university training of prospective theologians, since the teacher’s inner attitude has no effect on the objective imparting of the content of the teaching. On the other hand, the transfer significantly and comprehensively impairs the complainant’s rights in this connection. A conflict cannot be resolved by stating that until his transfer the complainant held a public office related to a particular religious denomination and now, lacking belief, he has to give it up. For the concept of a public office related to a particular religious denomination is merely an abbreviated description of a state of affairs that arises from the conflict between state and church interests. It is therefore the interests actually affected in the individual case that must be considered when assessing the extent of a theology professor’s denominational commitment. The university should at least have organisationally integrated the complainant and the subject allocated to him into the current regulations for study, procedure and examinations.

IV.

G. University in G., the Protestant Church in Germany (Evangelische Kirche in Deutschland ), the German Bishops’ Conference (Deutsche Bischofskonferenz ) and the German Association of University Professors and Lecturers (Deutscher Hochschulverband ) submitted opinions on the constitutional complaint. The Protestant Theological Conference (Evangelisch-theologischer Fakultätentag ) and the Confederation of Protestant Churches in Lower Saxony (Konföderation evangelischer Kirchen in Niedersachsen ) adopted the opinion of the Protestant Church in Germany.

1. G. University in G. regards the constitutional complaint as unfounded.

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2. The Protestant Church in Germany essentially agrees with the arguments of the Federal Administrative Court. …

3. The German Bishops’ Conference also regards the constitutional complaint as unfounded. …

4. The German Association of University Professors and Lecturers is of the opinion that the complainant’s fundamental right under Article 5.3 of the Basic Law has not been infringed.

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B.

The constitutional complaint is admissible but is unfounded. The challenged measure of the university and the decisions of the administrative courts do not infringe the fundamental rights of the complainant.

I.

Admittedly, the transfer encroaches on the complainant’s fundamental right under Article 5.3 sentence 1 of the Basic Law (1, 2), but this encroachment is justified (3).

1. Article 5.3 sentence 1 of the Basic Law gives everyone who works in academia, research and teaching a fundamental right to free scholarly activity (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts - BVerfGE) 15, 256 (263-264); 88, 129 (136)). Scholarship is a space of autonomous responsibility, in principle not other-directed (see BVerfGE 35, 79 (113); 47, 327 (367); 90, 1 (12); 111, 333 (354)). The core area of scholarly activity is constituted by the processes, practices and decisions which rest on the basis of academic autonomy in the search for knowledge, its interpretation and dissemination (see BVerfGE 35, 79 (112); 47, 327 (367); 90, 1 (11 -13); 111, 333 (354)). As a defensive right, this fundamental right protects scholarly activity against state encroachment and gives the individual scholar an absolutely protected autonomous space (see BVerfGE 35, 79 (112-113); 47, 327 (367); 88, 129 (136); 90, 1 (11-12)).

For lecturers at institutions of higher education, the core of the freedom of scholarship is their right to be responsible for their subject in research and teaching. The freedom is therefore also substantially influenced by the position allocated to them, that is, their teaching position. Consequently, where state measures that affect their position as lecturers in institutions of higher education with the status of civil servants relate to aspects of their work that are specifically relevant to scholarship, Article 5.3 of the Basic Law and not Article 33.5 of the Basic Law is the standard of review (see BVerfGE 35, 79 (147)).

2. There was an encroachment on this fundamental right of the complainant when, by the order of 17 December 1998, he was allocated in place of the subject “New Testament” the subject “History and Literature of Early Christianity” (now renamed “Early Christian Studies”) for which he was made responsible. This removed the complainant from his previous field of teaching in the training of theologians.

Admittedly the complainant may continue without hindrance to offer courses and to teach the students the results of his research. He is also still at liberty to research and to publish in a field specified by himself, which he does.

But the content of the freedom of teaching cannot be specified independently of the subject to be taught; on the contrary, it comprises the freedom of teaching the subject allocated to the lecturer. A change of this subject therefore necessarily affects the content of the freedom of teaching. Following the transfer, the complainant can no longer offer the courses relating to the subject “New Testament”, hold examinations in this subject and supervise doctoral and post-doctoral candidates. The fact that he can teach courses with quite similar content does not alter the encroachment on his freedom of teaching; at best, it may influence its weight.

The freedom of scholarship is also affected by the fact that the measure is a state reaction to the complainant’s teaching and research. It is occasioned by positions in speech and writing which he developed in the exercise of his freedom of scholarship. By being moved from a core subject to a peripheral subject that is not relevant to training, he is given a position that is markedly diminished in its significance in the university’s teaching and research context - also with consequences, for example, for funding -, and this happens in reaction to specifically academic pronouncements and positions of the complainant. This connection between scholarly positions developed by a lecturer at an institution of higher education and state alterations to his position in the university, against his will, makes the measure an encroachment on the freedom of scholarship. For it is this that realises the danger against which Article 5.3 sentence 1 GG is specifically intended to protect.

3. However, the encroachment is justified with regard both to the church’s right of self-determination (Article 140 of the Basic Law in conjunction with Article 137.3 of the Weimar Constitution) and to the rights of the faculty, which in turn are protected by Article 5.3 of the Basic Law.

Like other fundamental rights granted without reservation, the freedom of scholarship may be restricted by reason of conflicting constitutional law (see BVerfGE 47, 327 (369); 57, 70 (99)); in principle, this too requires a statutory basis (see BVerfGE 83, 130 (142); 107, 104 (120)). A conflict between constitutionally protected fundamental rights is to be solved by recourse to further relevant constitutional provisions and principles and to the principle of practical concordance by interpretation of the constitution (see BVerfGE 47, 327 (369)).

a) The courts originally competent for the case assumed, in a manner that is constitutionally unobjectionable, that the transfer of the complainant could be based on § 50.3 of the Lower Saxony Higher Education Act (as amended on 24 March 1998) and thus on a statutory basis. The provision states that the nature and scope of the duties to be fulfilled by a lecturer at an institution of higher education depend on the structure of the employment relationship and the description of his position, and the determination must be subject to a review at appropriate intervals. According to the interpretation of the non-constitutional courts, which is relevant in the present proceedings, the content of § 50.3 of the Lower Saxony Higher Education Act is not restricted to the mere duty to subject the determination of the duties to be fulfilled by a professor to a review at appropriate intervals, as was done in the case of the complainant in the original order of installation. Under this interpretation, it is also possible to derive from § 50.3 of the Lower Saxony Higher Education Act the authority to unilaterally change the nature and scope of the duties to be fulfilled by a professor as the result of a review. This does not contradict the principle contained in § 50.2 sentence 1 of the Framework Act for Higher Education (Hochschulrahmengesetz - HRG ; § 55.5 sentence 1 of the Lower Saxony Higher Education Act) that professors may only be removed or transferred with their consent. This principle does not relate to the allocation of a position with a different function within the university, which is to be classified as a redeployment (see Waldeyer, in: Hailbronner/Geis, Hochschulrecht in Bund und Ländern , HRG, § 50 , marginal no. 23; see also Reich, Bayerisches Hochschullehrergesetz , 2nd ed. 2000, Art. 12 , marginal no. 7, end).

This interpretation of § 50.3 of the Lower Saxony Higher Education Act is compatible with the Basic Law. When understood in this way, the provision leaves sufficient space for the necessary weighing of the freedom of scholarship and conflicting constitutional rights. In particular, it is also possible here to take into account the limits of the freedom of scholarship which result from the nature of theology faculties for the professors employed there.

b) 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 theology 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.

aa) However, unlike in the case of other important forms of institutionalised cooperation of state and church – religious education (Article 7.3 of the Basic Law), church tax (Article 140 of the Basic Law in conjunction with Article 137.6 of the Weimar Constitution) and pastoral care in institutions (Article 140 of the Basic Law in conjunction with Article 141 of the Weimar Constitution) – the Basic Law contains no provisions relating to theology faculties. In contrast, Article 149.3 of the Weimar Constitution contained an express guarantee that they should be preserved (“The theological faculties at the universities shall be preserved”). Unlike other church articles in the Weimar Constitution, this provision was not incorporated in the Basic Law by Article 140 of the Basic Law.

However, it does not follow from this that the Basic Law decided against the permissibility of theology faculties (so argued also by the whole of prevailing opinion: Solte, Die theologischen Fakultäten im Verfassungsrecht der Bundesrepublik Deutschland , in: Weth/ Gestrich/Solte, Theologie an staatlichen Universitäten? , pp. 102 et seq.; Morlok, in: Dreier, Grundgesetz , vol. 3, 2nd ed. 2008, Art. 140/Art. 137 WRV , marginal no. 23; von Campenhausen, Theologische Fakultäten/Fachbereiche , in: Flämig et al., Handbuch des Wissenschaftsrechts , vol. 1, 2nd ed. 1996, pp. 968-969; Heckel, Die theologischen Fakultäten im weltlichen Verfassungsstaat , 1986, p. 2; Jeand’Heur/Korioth, Grundzüge des Staatskirchenrechts , 2000, marginal no. 332; Czermak, Religions- und Weltanschauungsrecht , 2008, marginal no. 394; Preuß, in: Kommentar zum Grundgesetz für die Bundesrepublik Deutschland (Alternativkommentar zum Grundgesetz – AK-GG ), 3rd ed. 2001, Art. 140, marginal no. 43; a different view is advanced in: Fischer, Trennung von Staat und Kirche , 3rd. ed. 1984, pp. 177 et seq.; von Zezschwitz, Juristenzeitung - JZ 1966, pp. 337-338).

In view of the mere fact that a number of pre-constitutional Land constitutions contained express guarantees of their existence (Article 150.2 of the Bavarian Constitution, Article 60.2 sentence 1 of the Hesse Constitution and Article 39.1 sentence 3 of the Rhineland-Palatinate Constitution), the silence of the Basic Law on the question of the existence of the theology faculties cannot be understood as a decision against their permissibility. The Parliamentary Council simply said nothing on this topic, and it cannot be concluded from this that there was a decision to the contrary, radically breaking with the existing German university tradition, in view of the fact that theology faculties are known to have existed and been accepted at almost all universities of that time and that they were guaranteed in the Land constitutions preceding the Basic Law. Treaties entered into between state and church, in particular the Reichskonkordat , which contained a guarantee of the existence of theology faculties, also argue against such an intention on the part of the Parliamentary Council.

Further evidence of the permissibility of theology faculties can be found in Article 7.3 of the Basic Law (see Morlok, in: Dreier, Grundgesetz , vol. 3, 2nd ed. 2008, Art. 140/Art. 137 WRV , marginal no. 23; Czermak, Religions- und Weltanschauungsrecht , 2008, marginal no. 398; Hollerbach, Die Theologischen Fakultäten und ihr Lehrpersonal im Beziehungsgefüge von Staat und Kirche , in: Essener Gespräche zum Thema Staat und Kirche (16), 1982, p. 73). In declaring that religious education is part of the ordinary curriculum, Article 7.3 sentence 1 of the Basic Law makes it clear that providing religious education is a duty of the state and the affair of the state (see BVerfGE 74, 244 (251)). Under Article 7.3 sentence 2 of the Basic Law, religious education is to be given in accordance with the principles of the religious communities. Its orientation to the doctrines of the relevant denomination is laid down in the constitution (see BVerfGE 74, 244 (253)). Thus Article 7.3 of the Basic Law shows that religious education related to a particular religious denomination may be organised by the state and therefore also be a subject taught at state universities and in the training of teachers carried out there (see Czermak, Religions- und Weltanschauungsrecht , 2008, marginal no. 398).

Since the Basic Law therefore neither guarantees nor prohibits theology faculties, the fact that they are permitted ultimately follows primarily from the right and duty of the state – represented by the Länder as sovereign authorities in cultural affairs – to organise education and scholarship at the state universities. The Länder may define their obligation to organise scholarship and teaching at the universities in such a way that it includes theology at university level (see Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts - BVerwGE 101, 309 (316 et seq.)). In this way they make training possibilities for their students available (see BVerwGE 101, 309 (316)) where students have a need of this because they wish to follow relevant occupations, or even merely to acquire relevant knowledge. In addition, the Länder have the right to determine their understanding of scholarship and education in such a way that theology dependent on belief is part of it, in accordance with the traditional understanding at German universities. In this way they do justice in particular, inter alia , to the interests of their universities in a broad spectrum of subjects that promotes interdisciplinary studies (see BVerwGE 101, 309 (317)).

In addition, the creation of theology faculties is also a possibility offered by the state to the religious communities to have their prospective clergy trained not in their own institutions, but together with other students at public institutions (see Heckel, Die theologischen Fakultäten im weltlichen Verfassungsstaat , 1986, p. 32; von Campenhausen, Theologische Fakultäten/Fachbereiche, in: Flämig et al., Handbuch des Wissenschaftsrechts , vol. 1, 2nd ed. 1996, p. 973). In the historical development, what was in the foreground was the state’s interest in not leaving the training of their clergy solely to the churches, in view of the great influence exercised by the churches on the population through their clergy (on the background to this, see Scheuner, Rechtsfolgen der konkordatsrechtlichen Beanstandung eines katholischen Theologen , 1980, pp. 31-32, with further references). Admittedly, in the interest of the freedom of religion, there may not be any control of the clergy by the state, even indirectly, in a pluralistic society. However, there are no fundamental constitutional objections to a state interest in cultural policy which nevertheless exists, that theological training should take place in the freedom of a university and on the academic level of a university.

bb) If the state creates theology faculties, it must take into account the right of self-determination of the religious community whose theology is the subject of teaching.

It is true that theology faculties are state institutions which pursue state targets of education and academic policy. Consequently, a church’s right of self-determination cannot be justified by the fact that the faculties are (also) institutions of the church (so argued also by Emde, Archiv des öffentlichen Rechts - AöR 106 (1981), p. 355 (371 et seq.)). The widespread interpretation to the effect that the theology faculties have a “dual position” as state institutions “to fulfil church obligations” (see von Campenhausen, Theologische Fakultäten/Fachbereiche , in: Flämig et al., Handbuch des Wissenschaftsrechts , vol. 1, 2nd ed. 1996, p. 972; Thieme, Deutsches Hochschulrecht , 3rd ed. 2004, marginal no. 262) or constitute “joint” affairs of state and church (see BVerwGE 101, 309 (313); Hofmann, in: Schmidt-Bleibtreu/Hofmann/Hopfauf, Grundgesetz , 11th ed. 2008, Art. 140 , marginal no. 4), can only be the description of a necessary cooperation between church and religious community (see Morlok, in: Dreier, Grundgesetz , vol. 3, 2nd ed. 2008, Art. 140/Art. 137 WRV , marginal no. 24; H. Weber, Neue Zeitschrift für Verwaltungsrecht - NVwZ 2000, p. 848 (851-852)), but not demonstrate a dual legal nature.

On the contrary, the consultation rights of the religious communities, which they can enforce by invoking their right of self-determination, are the necessary consequence of the state’s decision to teach theology at its universities as the scholarly study of faith related to a particular religious denomination, that is, for example, as Protestant or Catholic theology. As a result of this, theology faculties do not become church institutions, but they do become institutions that have such a central importance for ecclesiastical life that the church’s right of self-determination demands consultation rights.

Firstly, the right of self-determination is affected because the faculties have an obligation to train prospective clergypersons. In addition, as a result of Article 7.3 sentence 2 of the Basic Law, the right of self-determination is also affected with regard to the training of teachers of religious education: the guarantee of religious education “in conformity with the principles of the religious communities” also requires, for the training of teachers of religious education, an organisation that permits the churches to confirm in an appropriate manner (for example by missio canonica or vocation) that the future teachers of religious education have been trained in accordance with these principles.

But the right of self-determination is affected in a yet more fundamental way. If the state decides to teach theology at its universities as the scholarly study of faith related to a particular religious denomination, then truths of faith become the subject of (state) university teaching. Thinking about the content of religious belief and further developing religious doctrines then takes place to a large extent within such faculties, which thus assume a central importance for ecclesiastical life, including the proclamation of dogmatics as its core. But 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 whose theology is involved itself (see Böckenförde, Neue Juristische Wochenschrift - NJW 1981, p. 2101 (2102); Scheuner, Rechtsfolgen der konkordatsrechtlichen Beanstandung eines katholischen Theologen , 1980, p. 56; Mainusch, Die öffentliche Verwaltung – DÖV 1999 , p. 677 (679); Heckel, Die theologischen Fakultäten im weltlichen Verfassungsstaat , 1986, p. 20; Emde, Archiv des öffentlichen Rechts 106 (1981), p. 355 (394); H. Weber, Neue Zeitschrift für Verwaltungsrecht 2000, p. 848 (853)). The right to determine itself what, for example, is (still) part of Catholic or Protestant theology and remains within the scope of the faith therefore touches the core of the church’s right of self-determination with regard to teaching at theology faculties.

If theology faculties are created, therefore, the state must take account of the consultation rights of the church, which demand the right to administer its own affairs (Article 140 of the Basic Law in conjunction with Article 137.3 of the Weimar Constitution).

These consultation rights are realised in particular in the exercise of influence of the religious communities on the composition of the faculties’ staff. The position of a university lecturer at a theology faculty may therefore be structured as related to a particular religious denomination, because precisely this is a functional condition of this position, and Article 33.3 of the Basic Law, which provides that a public office may not be made dependent on religious belief, does not contradict it (see Battis, in: Sachs, Grundgesetz , 5th ed. 2009, Art. 33 , marginal no. 44; Korioth, in: Maunz/Dürig, Grundgesetz , Art. 140/Art. 136 WRV , marginal no. 69 (October 2008); Masing, in: Dreier, Grundgesetz , vol. 2, 2nd ed. 2006, Art. 33 , marginal no. 57; a different view is advanced in: Sachs, in: Handbuch des Staatsrechts der Bundesrepublik Deutschland – HStR , vol. V, 2nd ed. 2000, § 126, marginal no. 133; see also Preuß, in: Alternativkommentar zum Grundgesetz , 3rd ed. 2001, Art. 140 , marginal no. 43; Jean d’Heur/Korioth, Grundzüge des Staatskirchenrechts , 2000, marginal nos. 334 et seq.).

The exercise of influence by the church is governed in different way by concordats and treaties between church and state. Under the Loccum Treaty between the Protestant Land Churches and the Land Lower Saxony, the involvement of the church is restricted to submitting an opinion in appointment proceedings. However, this neither excludes the obligation of the state at its state theology universities to take account of the churches’ right of self-determination as to whether the teaching of their theology is appropriate to their religious denomination, nor the right of the church to insist that the state provide a remedy if it regards this appropriateness to their religious denomination as infringed.

The church’s right of self-determination under Article 140 of the Basic Law in conjunction with Article 137.3 of the Weimar Constitution is therefore a constitutional concern which in the present case is suitable to impose limits on the complainant’s freedom of scholarship.

c) The complainant’s freedom of scholarship also finds its limit in the right of the faculty, itself protected by Article 5.3 of the Basic Law (see BVerfGE 15, 256 (262); 21, 362 (373 f.); 31, 314 (322); 111, 333 (352)), to preserve its identity as a theology faculty and to fulfil its duties in the training of theologians.

Encroachments on the freedom of scholarship of a lecturer at an institution of higher education may also be justified by the goal of preserving and promoting the functioning of the institutions of higher education, which in turn is required by Article 5.3 sentence 1 of the Basic Law (see BVerfGE 95, 193 (212); 111, 333 (353-354)) in order that they can fulfil their obligations in teaching and research. 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.

Consequently, the faculty was entitled to regard its duty of training as endangered by the complainant’s courses and public statements. The theology faculty serves to teach theology appropriate to a religious denomination - as shown above, this is constitutionally permissible - and in particular also to train the church’s clergy and the teachers of religious education in relation to a particular 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 grant teachers of religious education trained in the faculty the authority (vocation or missio canonica ) 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 (see H. Weber, Neue Zeitschrift für Verwaltungsrecht 2000, p. 848 (856)). The justification of this confidence on the part of the church is of fundamental significance for the freedom of scholarship of theological teaching and research at Protestant theology faculties. It is therefore part of the fundamental right of the theology faculties under Article 5.3 of the Basic Law to ensure that the denominational teaching given in their field continues to be appropriate to their denomination.

d) 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.

aa) According to the judgment both of the competent Land churches and also – which is particularly important from the aspect of preserving the freedom of scholarship – of the faculty itself, the complainant has left even the traditionally wide confines of Protestant theology. According to his own statements, the complainant does not merely reject central truths of faith, but engages combatively with Christianity and even wishes to use his position in the faculty to persuade students that the church’s doctrine is erroneous. This massively affects the church’s right of self-determination and its functioning. The present case therefore does not call for a decision as to how the freedom of scholarship and the church’s right of self-determination were to be weighed against each other in a less blatant case, in particular if the assessment of the church and the faculty differed.

bb) In these circumstances, the measure was appropriate and necessary to achieve the constitutionally legitimate goals pursued by it.

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’s right of self-determination and promote the purpose of preserving the functioning of the faculty of theology. No more lenient means was evident that would have had less impact on the freedom of scholarship and similarly promoted the legitimate purpose than depriving the complainant of a subject related to a particular religious denomination and allocating him a subject that was not related to a particular religious denomination within the Theology Faculty.

cc) The complainant can also be reasonably expected to accept the allocation of the new subject.

The encroachment is mitigated in his case in that he retains his position as a university lecturer. In addition, he was allocated a subject that is largely similar to his original subject. Nor does the complainant himself call into question the similarity in substance of the subject. As the Federal Administrative Court held in the challenged appeal decision on points of law, it is to be assumed that the complainant “can use his knowledge in virtually the same way as in his previous subject”, for both subjects “at least in their main emphasis” relate to “the New Testament and its reception”. Because the subjects are largely identical, there is only a minor encroachment on the complainant’s freedom of scholarship; he continues to be employed at the Theology Faculty as a university professor and as such he remains free in his research work. He has merely been allocated a subject which has a different name, but whose content is largely identical. This subject specifically permits him to take up the academic topic he found in recent years, the question of whether the New Testament correctly represents religious and historical reality, to present it academically and to publish on it. In these circumstances, the non-constitutional courts were entitled to proceed on the assumption that the concerns described, which conflict with the complainant’s freedom of scholarship and are also constitutionally protected, were to be given more weight.

dd) Nor do the consequences of the transfer for the complainant’s position in teaching and examination make the measure unreasonable.

(1) However, the fact that the complainant’s new subject is not part of the examination and study regulations of the Göttingen Theology Faculty has a considerable adverse effect on the complainant’s freedom of teaching. His classes are not part of any courses of study. Consequently, the complainant’s classes in the university calendar have the notice: “not part of the course of studies to train prospective theologians (including teacher training)”. It was also the declared goal of the measure that the complainant should be allocated a subject within the Theology Faculty, but that this should be outside the regular courses of study.

The consequences exceed the mere de facto difficulties in finding interested students. It is part of the sphere of activities and job description of a professor, customary for as long as universities have existed, to train students and to encourage future academics by supervising doctoral and post-doctoral candidates. University professors have rights to participate in the teaching of students and in the encouragement of the next generation of academics, activities which give their profession and position their character. These duties of training students and encouraging prospective academics give meaning to the existence of universities and thus also to the teaching of professors.

Unlike the exclusion from the training of theologians, the complete exclusion from courses of study relevant to the examinations is also not required by the opposing constitutional concerns, which are used to justify it. It is true that the complainant’s abandonment of the Christian faith gives occasion to exclude him from training prospective theologians, including the addition to his courses of a notice to this effect in the university calendar. In any event, it is in the discretion of the church no longer to recognise him as an examiner for the church examination. However, he can be considered for training in areas that do not require the lecturer to be committed to a denomination.

(2) 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 by the complainant to this effect is not a matter for the present proceedings, but for future negotiations.

The encroachment on his freedom of teaching is already mitigated by the fact that, in the opinion of the Federal Administrative Court, the complainant still has the right to supervise doctoral and post-doctoral candidates. If the university creates a new subject and this is the responsibility of a lecturer with a post-doctoral lecturing qualification, there must also be possibility for students to gain a doctorate or a post-doctoral lecturing qualification in this subject. Regulations for doctorates and post-doctoral lecturing qualifications must, if necessary, be amended if this conclusion cannot be reached by interpretation alone.

With regard to involvement in study and examination regulations, the non-constitutional courts assume that the question of the lawfulness of the transfer must be separated from the question as to what rights the complainant now has with regard to the integration of his new subject. This is correct in that under university law a revised arrangement is difficult to effect as part of the decision to make the transfer. Integration in study and examination regulations requires all persons involved in this, including the complainant, to cooperate. In this process, each of those involved – including the relevant faculties – may rely on Article 5.3 of the Basic Law. It would therefore not easily have been possible for the university to integrate the new subject into study and examination regulations against the will of the faculty in question. Nor is it apparent whether and with what insistence the complainant himself attempted to have his subject integrated into courses of study, for example in the Arts Faculty. In the present proceedings, he is primarily concerned to remain in the training of theologians.

Taking these circumstances into account, there are no constitutional objections to the view of the non-constitutional courts that the question of the future structure of the position is to be separated from the challenged measure and has no effect on its lawfulness. The decisions of the non-constitutional courts do not rest on a fundamental misjudgment of the impact of Article 5.3 of the Basic Law.

II.

In challenging an infringement of Article 33.5 of the Basic Law from the aspect of work appropriate to his position, the complainant asserts nothing over and above the previous extent of review on the basis of Article 5.3 of the Basic Law (see BVerfGE 88, 129 (143)). Nor does the measure, which is permissible on weighing Article 5.3 of the Basic Law and Article 140 of the Basic Law in conjunction with Article 137.3 of the Weimar Constitution, infringe Article 33.3 of the Basic Law (see B I 3 b bb).

III.

Nor has the complainant’s fundamental right under Article 4.1 of the Basic Law been violated.

The freedom of faith protected in Article 4.1 of the Basic Law, in addition to the freedom to form and hold religious and ideological convictions and to acknowledge and disseminate these convictions (see BVerfGE 32, 98 (106); 41, 29 (49); 69, 1 (33-34)), also includes the negative freedom of faith, that is, the freedom to have no religious or ideological conviction or to reject such a conviction (see BVerfGE 41, 29 (49); 108, 282 (301)). The complainant was not deprived of this freedom. He was able to freely acknowledge his rejection of the Christian faith. However, this acknowledgment had detrimental results for his position as a theology professor. Just as with regard to the freedom of scholarship (see B I 2), this connection of a state measure with faith is an encroachment on the fundamental right under Article 4.1 of the Basic Law. But the freedom of faith gives the university lecturer in a theology faculty no further right with regard to his position at the university than Article 5.3 und Article 33.3 of the Basic Law. The obligation of the university lecturer at a theology faculty to teach in a manner that is appropriate to a religious denomination, which is compatible with the constitution, also excludes an infringement of Article 4.1 of the Basic Law if the teaching that is not appropriate to a religious denomination leads to him being excluded from the training of theologians, but not to the loss of his position as a university lecturer.