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German Courts Decide Who is Jewish: On the Agreements Between the German State and Jewish Groups, and the Resulting Litigation

Published online by Cambridge University Press:  24 April 2015

Greg Taylor
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On January 27, 2003, amid much publicity, a path-breaking agreement was signed between the Federal Republic of Germany and the Central Council of Jews in Germany. The historical background to, and the historic nature of, such an agreement needs no explanation. This agreement is worthy of scholarly review not only because of the manner in which the agreement came about, its provisions, and its place in the German legal system, but also because of critical assumptions it makes about what it means to be Jewish from the perspective of a modern secular nation-state attempting to respond to the aftermath of the Holocaust.

Because it sheds light on the difficulty of framing Jewish identity for purposes of secular law, however, I will first evaluate litigation currently in progress under a different but related agreement with the German State of Saxony-Anhalt. This litigation was brought by a liberal Jewish religious community that claims it has been unjustly excluded from the distribution of state subsidies made available to Jewish organizations under an agreement between that State and the Central Council of Jews. The litigation forces answers to difficult questions: what is the legal status of such agreements, who has the right to decide who counts as Jewish under them, and who speaks for the Jewish community in Germany?

Type
Articles
Information
Journal of Law and Religion , Volume 20 , Issue 2 , 2005 , pp. 397 - 421
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2004

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References

1. The German name for it is Vertrag; Staatsvertrag is also sometimes used for this or other agreements with Jewish and other religious groups. Vertrag is die German word for “treaty” as well as “contract,” so that the word Staatsvertrag could be translated as “state treaty” and the word Vertrag as “treaty” or “contract.” However, “treaty” would be quite misleading in English, as it would suggest that die agreement has a status in international law which it clearly does not have. “Contract,” too, would sound odd. Accordingly, the all-purpose English word “agreement” has been used throughout this Article.

2. The agreement and the statute giving effect to it are reproduced in the Appendix in this author's translation.

3. In this Article, “state” is used as the general word for any governmental apparatus, and “State” for the sixteen German equivalents to the fifty States of the United States of America.

4. BVerfGE6, 309.

5. Vulpius, “Verträge mit der Jüdischen Gemeinschaft in den neuen Ländern” NVwZ 1996, 759, 760.

6. Vulpius, NVwZ 1996, 759, 760.

7. Vulpius, NVwZ 1996, 759, 760.

8. As this article went to press, a Bill (printed paper no. 4/624) had just been passed by the State legislature to approve this agreement (29 April 2005; BbgGBl 2005 1 158).

9. For the dates of the agreements with the other four States, see Fuchs, , Das Staatskirchenrecht der neuen Bundesländer 12f (Mohr Siebeck, Tübingen 1999)Google Scholar.

10. BGBl 1990 II 885, 1194—§ 2 (3) of the Church Tax Act. The States have however since enacted their own statutes, although these preserve the rights conferred in 1990 (see for example § 14 of the Saxon Church Tax Act of 14 02 2002, SächsGVBl 2002, 82, 84)Google Scholar.

11. Vulpius, NVwZ 1996, 759, 762, who gives references to various contributions to the debate about whether the Reunification Treaty created this status or merely recognized a preexisting status, a question which is of no importance for the topic discussed here. See also Higher Administrative Court for the State of Saxony-Anhalt, unreported judgment of 11 November 2004, A 2 S 339/98, p. 12.

12. This figure is calculated by adding to the five new States in which the possibility at least potentially existed to the eight old States in which it was actually happening (Giloy/König, , Kirchensteuerrecht in der Praxis 16–20 (Luchterhand, Berlin 1993))Google Scholar. Berlin, which has an old part and a new part, is one of the eight old States in which it was actually happening.

13. Vulpius, NVwZ 1996, 759, 762; Vulpius, “Charakter einer Jüdischen Gemeinde” LKV 2004, 496, 496Google Scholar. This State Association has since been dissolved and replaced by separate associations for each of those three States.

14. The word used in the original German is Gewalt, a difficult word to translate as it can be used for a number of different concepts in English. The author has chosen the nearest available sense equivalent.

15. “Inc.” is ambiguous in American legal English; the German version indicates clearly that the plaintiff is a private-law not-for-profit corporation, not a company.

16. BVerwGE 116, 86, 87; Higher Administrative Court for the State of Saxony-Anhalt, unreported judgment of 11 November 2004, A 2 S 339/98, p. 2.

17. BVerwGE 116, 86, 87.

18. Unreported judgment of 11 November 2004, A 2 S 339/98, p. 13.

19. Vulpius, LKV 2004, 496, 497.

20. BVerwGE 116, 86, 89.

21. BVerfG (Kammer), NJW 1999, 350 and BGH, JZ 2000, 1111 are two recent cases which came to opposite conclusions on the facts.

22. Kästner, “Tendenzwende in der Rechtsprechung zum staatlichen Rechtsschutz in Kirchensachen” NVwZ 2000, 889; Nolte, , “Durchbruch auf dem Weg zu einem gleichwertigen staatlichen Rechtsschutz in ‘Kirchensachen’?!” NJW 2000, 1844Google Scholar; note however Maurer, Case Note, JZ 2000, 1113; Maurer, Case Note, JZ 2002, 1104, 1104.

23. The history and the various views are sketched in von Camphausen, (Freiherr), Staatskirchenrecht: ein Studienbuch 19–25 (3rd ed., CH. Beck, Munich 1996)Google Scholar.

24. Outside the purview of the Courts in England as well: R v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth; ex parte Wachmann [1992] 1 WLR 1036Google Scholar.

25. von Camphausen, (Freiherr), Staatskirchenrecht 111–114Google Scholar; Korioth, in Maunz/Dürig, (eds.), Grundgesetz: Kommentar (loose-leaf, 43rd update, CH. Beck, Munich02 2004), Art. 140 pp. 177–186Google Scholar provide very similar lists of what is covered by internal religious affairs: doctrine, liturgy, constitution, rules and order generally, education of ministers, rights and duties of members, charitable work, and, perhaps less certainly or in parts only, the administration of religious assets and economic affairs and the law relating to the employment of religious employees.

26. Maurer, JZ 2002, 1104, 1105.

27. Maurer, JZ 2002, 1104, 1105.

28. BVerwGE 116, 86, 91f.

29. BVerwGE 116, 86, 91.

30. BVerwGE 116, 86, 91f.

31. Unreported judgment of 11 November 2004, A 2 S 339/98. Leave to appeal against this decision was refused by the Federal Administrative Court on 28 June 2005 (decision unreported, case no. 7 B 9/05).

32. Unreported judgment of 11 November 2004, A 2 S 339/98, pp. 13f. Emphases in original.

33. §§ 328ff.

34. Germann, Case Note, DVB1 2002, 988, 988; Vulpius, LKV 2004, 496, 496.

35. This does not however inhibit one author from apparently endorsing both options: Germann, DVB1 2002, 988, 988. This endorsement is symptomatic of the extreme lack of clear thought about this question.

36. BVerwGE 116, 86, 88 (“the agreement with the ‘Jewish Community’ in Saxony-Anhalt, which has been transformed into State law”). See also Germann, DVB1 2002, 988, 989; Maurer, JZ 2002, 1104, 1104.

37. Hollerbach, , “Grundlagen des Staatskirchenrechts” in Isensee/Kirchhof, (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland Vol. VI, pp. 510f (2d ed., CF. Müller, Heidelberg 2001)Google Scholar; Müller-Volbehr, , “Das Staatskirchenrecht als Gegenstand der einfachen Gesetzgebung in Bund und Ländern” in Listl/Pirson, (eds.), Handbuch des Staatskirchenrechts der Bundesrepublik Deutschland 292f (2d ed., Duncker & Humblot, Berlin 1994)Google Scholar. A dissenting view is taken in Jeand'Heur/Korioth, , Grundzüge des Staatskirchenrechts: Kurzlehrbuch 195 (Richard Boorberg, Stuttgart 2000)Google Scholar.

38. Sodan in Sodan/Ziekow, (eds.), Kommentar zur Verwaltungsgerichtsordnung (loose-leaf, 5th update, Nomos, Baden Baden 2003), Vol. I, p. 276Google Scholar; Weber, , “Staatliche und kirchliche Gerichtsbarkeit” NJW 1989, 2217, 2223Google Scholar.

39. BVerwGE 116, 86, 89 (“the State Association is merely carrying out a function of the state which has been conferred upon it by State law for it to exercise on its own responsibility”).

40. Maurer, JZ 2002, 1104, 1105.

41. Under Article 73 (3) of the Basic Law.

42. Körper, Fritz Rudolf, Parliamentary Secretary at the Federal Ministry of Home Affairs, Bundestag Debates, 8 05 2003, p. 3599DGoogle Scholar; Körper, Fritz Rudolf, Parliamentary Secretary at the Federal Ministry of Home Affairs, Bundestag Debates, 6 06 2003, p. 4117DGoogle Scholar. The number of people of Jewish descent is much higher, as that figure includes only those Jews registered with community organizations: The Goethe Institute suggests a figure of around two hundred thousand (200,000) persons of Jewish descent, not all of whom, however, will be immigrants. GoetheInstitut, For many Jews, Germany is no longer just a Diaspora, (available at http://www.goethe.de/kug/ges/rel/thm/en66788.htm) (accessed July 25, 2005)).

43. Körper, Fritz Rudolf, Parliamentary Secretary at the Federal Ministry of Home Affairs, Bundestag Debates, 8 05 2003, p. 3600AGoogle Scholar. “Der Tagesspiegel” (Berlin), 20 01 2005, p. 4Google Scholar, reports that consideration is being given to requiring Jewish immigrants to have some command of the German language and not to rely on social security benefits after their arrival.

44. It may be found on the web (available at http://www.liberale-juden.de/cms/index.php) (accessed July 25, 2005)). Like this Article, the organization uses “liberal” and “progressive” interchangeably.

45. Körper, Fritz Rudolf, Parliamentary Secretary at the Federal Ministry of Home Affairs, Bundestag Debates, 8 05 2003, p. 3599DGoogle Scholar.

46. Bundestag Debates, 6 06 2003, p. 4125DGoogle Scholar; Bundestag, Drucksache 15/1109 (Home Affairs Committee); Bundestag, Drucksache 15/1124 (Budget Committee); Bundesrat Debates, 11 07 2003, p. 221B–CGoogle Scholar.

47. Beck, Volker, Bundestag Debates, 6 06 2003, p. 4120CGoogle Scholar.

48. This was asserted in the debate on the Bill by Otto, Hans-Joachim (Bundestag Debates, 8 05 2003, p. 3603C)Google Scholar, although a glance at the web site of the M.P. asserted to be Jewish neither confirms nor rebuts this assertion.

49. Körper, Fritz Rudolf, Parliamentary Secretary at the Federal Ministry of Home Affairs, Bundestag Debates, 6 06 2003, p. 4118D–4119AGoogle Scholar. Emphasis in original.

50. See for example Evangelische Kirch der Kirchenprovinz Sachsen, Synagogengemeinde in Halle gewinnt Streit um Anspruch auf Staatsgeld (available at http://www.kirchenprovinz.de/46020_48564.htm) (accessed July 25, 2005)).

51. 1 Cor 6:1-8.

52. Author's translation of the original: BGB1 2003 I 1597.