Overview of church law for Germany
I would like to start the exit assignment of this cours by giving a general overview of church law in Germany for better understanding. Mainly this is translated from the lecture given by Professor Doctor Ulrich Rhode “Religion und Religionsgemeinschaften im staatlichen Recht” – Religion and religious communities in national law (Rhode “Religion”).
Following Art. 3 1 GG (German Constitution) all Religious communities are equal before the law.
Advantages that are given to one religious community have to be granted under comparable terms to other religious communities.
The principal of equality Art. 3 1 GG does not forbid substantial inequality if there are justifiable reasons.
Justifiable reasons for substantial unequal treatment can be:
- the number of members (living in Germany)
- The organizational form
- loyalty to the law
Factually there are the following graduations in Germany:
- Religious communities without legal entity
- Religious communities under private law legal entity (primarily as e. V. – registered association).
- Religious communities with the status of statutory corporations (Körperschaft des öffentlichen Rechts KdöR)
- Special rights are granted to the Catholic and Protestant Church as well as to the Jewish Communities (Participation in broadcasting council, Broadcasting time for religious transmission)
- Special right for the Catholic and Protestant Church (Participation in different advisory councils and similar committees)
As an example: ADF has to have within the Bundesland of Hessia around 6060 Members for the time span of 30 years, to be able to make an appeal on receiving statutory corporation status. (Berlin “Körperschaft des öffentlichen Rechts”)
Religious communities can receive legal capacity (Art. 137 IV WRV). To confer legal capacity it does not need to be checked, whether the requesting group is a religious community or not. If a religious group only wants to get legal capacity it only has to acquire the legal form of a "registered association" (e. V.). (Rhode “Religion”)
The German law does not provide an abstract recognition of a group as a “religious community”. There are a number of provisions that grant "Religious communities” special rights. If the state is willing to grant such rights, he implicitly expressed that the religious community has been acknowledged as such
To the rights of “Religious communities” belong mainly:
• The right to give religious education (Art. 7 III GG)
• Right of self-determination (Art 137 III WRV)
• the fundamental ability to acquire the corporate status (Art. 137 V
• Admission to institution chaplaincy (Art. 141 WRV) (Rhode “Religion”).
Besides the Catholics and Protestants only the Alevits have been granted officially the right the give religious education in six Bundesländer (similar to states) (Rhode “Religion”). Religion is taught at public schools. Students who are not Catholic or Protestant (or Alevits) have to attend “Ethic” during that time. Unfortunately many “ethic teachers” are religion teachers and there are a few who actually do the same in both subjects. Parents can take legal actions but many do not know about this (private communication by a religion teacher friend who wishes to stay unnamed).
(Addendum not in the original Essay: After the essay has been aproved, I learned that in some states eg. Hessia the choice of "Ethics" or "Religion" is only made available after 4 years of elementary school were children have to attend "Religion". Legally there should be a choice but in some school a legal battle has to be fought. In some Schools with the choice between Catholic or Protestand in other schools supra-denominational meaning simply Protestant and Catholic together.)
There is no legal definition of religious community. Generally the definition of the textbook of the Weimar Constitution is used as an orientation. There, a religious community is “an association of members of the one and the same confession of faith – or more related creeds – who summarizes them for an area on all sides by the fulfillment of the common confession tasks (Rhode “Religion”).
For ADF to gain legal status in Germany the first step would be to found an association e.V. and maybe try to make it non-profit. Depending on how ADF evolves in Germany the question is if a single grove should attempt this or ADF as a whole resulting in a “German” branch and making some new structures bridging the German branch with the Mother grove. As the minimum Members for the founding of an association are 7 and we have currently 4 members in Germany this step is out of question right now (Addendum: Since this article has been written we passed the minimum members to found an association in Germany. But we decided at the last meeting 2014 that it's a bit to early yet) . There is also the possibility of a foreign association with a registered branch. In due time the advice of a lawyer and a tax counselor is indispensable.
In public view and media presentations a Religion without KdöR is not really officially recognized. (Addendum: Although many Pagan associations have now started to proudly "wear" their status as official recognition as like stated above there is none officially.)
In this essay I ignored laws concerning the KdöR and tried embedding laws about associations that make sense or are informative.
1. List nine (9) laws, or as many as possible if less than nine, concerning clergy that you have found by searching your nearest municipality laws. By municipality, we mean on the village or town level. If there are none, then tell us how you found that out.
The municipal laws in my Town, Gudensberg, Hessia, Germany can be found on the town’s homepage for download under “Satzungen” at https://www.gudensberg.de/index.php?option=com_content&view=article&id=54:satzungen&catid=42:satzungen&Itemid=64
The laws have been translated by me.
Frau Bartel, of the Bürgerbüro Gudensberg, which I contacted Thursday 04.10.12 11:30 told me that if no laws where there always those from the higher body of law would count.
There were no laws concerning clergy (“Geistliche”) at municipality level. For religious communities I’ve found three, the ones under 1. and 2. are also applicable for associations.
The most relevant sections have been bolded and italicized by me.
Law # 1 Article 17 Use of the Village Hall (Bürgerhaus) Gudensberg (Stadt Gudensberg Satz 17)
4. Gratuitous use
The village hall can be allocated free of charge to local clubs and associations, the local churches, as well as local chapters of the constitutional political parties for non-profit and cultural events.
In this connection the additional costs to paragraph 3a is not applicable;
to paragraph 3b and 3c is not applicable, if the premises are returned clean and tidy
or the work is done by the organizers.
Law # 2 Article 18 Use of the Community Centers (Dorfgemeinschaftshäuser) Gudensberg (Stadt Gudensberg Satz 18)
4. Gratuitous use
The under point 2. referred rooms and facilities can be allocated free of charge to local clubs and associations, the local churches, as well as local chapters of the constitutional political parties for non-profit and cultural events.
In this connection the additional costs are not applicable (provided that the organizer executes the works referred to under point 3b and 3c)to paragraph 3a is not applicable; to paragraph 3b and 3c is not applicable, if the premises are returned clean and tidy or the work is done by the organizers.
Law # 3 Article 19 Use of the “Kulturhaus Synagoge” (Arts Center Synagoge) (Stadt Gudensberg Satz 19)
§ 1 General
(2) The urban arts center can be used as follows:
a) through the city Gudensberg, particularly for
- Cultural events,
- The registry office for weddings
b) by the music school Schwalm Eder North eV
- For classrooms and meeting purposes
c) by the German Red Cross, local group Gudensberg
- In the contractually agreed scope
d) by religious communities in accordance with the regulations
in § 2
(3) The use by individuals is not foreseen.
(4) Responsible for the provision of premises and equipment is the magistrate
or its respective officer. They issue on request a corresponding use permit.
§ 2 Use by religious communities
The Protestant and Catholic parish in Gudensberg, the Free
Protestant congregation, the Church of God and the Liberal Jewish community
Emet we Shalom and their friends can allocate the “Kulturhaus Synagoge” for a maximum of five events per year. The allocation applies only to events with religious or cultural character. The events have to be duly registered in the City of Gudensberg, whereat municipal events will be given priority.
This text names all “official” religious communities in my town. Being able to use the “Kulturhaus Synagoge” probably would be equal to recognition as a religious community on municipal level by the local authorities.
Additionally associations receive ongoing subventions in accordance how many members they have through the “Vereinsförderrichtlinien” (recommended practice to foster associations), which entitles an association based in Gudensberg to receive yearly financial fosterage depending on the amount of members. (Stadt Gudensberg Satz 27).
Law # 4 2. Ongoing subventions
2.1 The associations of the town of Gudensberg receive for the securing of the organization and the executive board a yearly contribution of
For until 100 Members 25, 00 €
For until 200 Members 50, 00 €
For more then 200 Members 75, 00 €
2. If there is a body of laws between the municipality laws and the state/provincial laws where you live, list nine (9) laws, or as many as possible if less than nine, concerning clergy, that you have found by searching this area.
The body of laws between the town of Gudensberg and the Bundesland (state) is anchored in the bylaws of the Landkreis, which for me is Schwalm-Eder-Kreis.
The laws can be found under “Satzung” at https://www.schwalm-eder-kreis.de/index2.htm
I searched the documents with the words “Geistliche” (clergy), “Religion” (religion), “Kirche” (church), “Glaubensgemeinschaft” (religious community) and “Verein” (association) but couldn’t find any laws. I ignored laws who only dealt with the KdöR.
If no laws are found the next higher law code is accounted for.
3. List nine (9) laws concerning clergy that you have found by searching your state/provincial laws.
The equivalent to state in Germany is Bundesland or short Land. My Bundesland is Hessia. The body of law of Hessia can be found at: https://www.rv.Hessianrecht.Hessian.de/jportal/portal/page/bshesprod.psml
Translation was made by me.
Most laws concern clergy of the KdöR churches including all of the contracts between certain Protestant and Catholic churches and the Bundesland (state). There are a few concerning religious communities though:
Law # 1 Hessian Teacher Education Act (LehrBiG HE 2011)
§ 62 Teaching permit for religion and worldview education
(2) Clergy and appropriate officials of a religious or ideological community, who have received recognition from their church or religious or ideological community to have the competence to issue religious or worldview education, are not subjects to the permission under paragraph 1 for the acquisition of teaching abilities, if between the Bundesland and the church, religious or ideological community an agreement giving the right to grant the lesson has been completed and the agreed requirements are fulfilled.
Until now besides the Protestant and Catholic Church, only the Alevits who are very well organized and have many members have received this right in six Bundesländer (Rhode “Religion”).
Law # 2 Hessian law on care and nursing services in the version of 7 March 2012 (HGBP)
§ 1 Task and goal
(1) The aim of the Act is to provided to dependent older people in need of care and full age people and full age people with disabilities (in need of support and care)
1. to protect their dignity and respect,
2. to protect them from harm to their physical and mental health,
3. respect for their independence and self-determination, including on religion, culture and ideology as well as their gender needs, and to promote,
4. in support of their participation in the life of society as well as its participation in the institutions and
A Pagan falling into this rule should receive help and support in being able to participate at the religious life. Practically it probably would be handled like for soldiers and people in confinement (see further down).
Law # 3 Hessian Holidays Act in the version of 29 December 1971 (HFeiertagsG).
(1) Unless there is no operational need, the employer shall provide to members of the churches and religious communities the opportunity to visit on their holidays, even if they are not public holidays at the same time, the church service.
(2) Likewise, students have to be provided on these holidays with the necessary free time to attend the service.
Law # 4 Second Act to the development of hospitals in Hessia of 21 December 2010 (HKHG 2011)
§ 6 Social and pastoral care
(5) To account for the religious needs of the patients, churches and religious communities have to be given as far as possible the opportunity to conduct religious services and exercise of the pastoral care.
Law # 5 Law on execution of measures for improvement and security in a psychiatric hospital and in a rehabilitation center (Indefinite detention law) of 3 December 1981 (MVollzG HE)
Part 4 worship
§ 30 spiritual welfare
(1) The detainees' can not be denied religious support from a counselor of his religion.
(2) The detainee must have basic religious texts. They may only be withdrawn in case of gross abuse.
(3) The detainees may have objects of religious use in a reasonable extent.
§ 31 Religious Events
(1) The detainee has the right to participate in the establishment of the detention in worship and in the religious events of his religious community.
(2) For the worship or religious activities of a religious community, who the detainee is not a member, he is allowed when their pastor agrees.
(3) The detainee may be excluded from participating in worship or other religious events, if this is necessary for imperative reasons of security or order, the pastor is to be heard before.
§ 32 - Ideological communities
for members of ideological creeds, § 30 and 31 shall apply respectively.
Law # 6 Constitution of the Bundesland of Hessia from 1 December 1946 (Verf HE)
Part IV Government, churches, religious and philosophical communities
(1) Undisturbed and public exercise of religion and freedom of association for religious and ideological communities are guaranteed.
(2) No one shall be forced or prevented from attending a religious act or ceremony or religious exercise or to use a religious oath.
(3) There shall be no state church.
Any church, religious and ideological community allocates and manages its affairs independently within the limits of applicable law for everyone. It gives their offices without the participation of the state or the civil community.
The laws concerning religious welfare of prisoners and youth prisoners are listed under question 11 of this course.
4. List nine (9) laws concerning clergy that you have found by searching your national laws.
Nearly the whole body of Bundesgesetze (national laws) can be found online at: https://www.gesetze-im-internet.de/
some statutes / ordinances are already translated in English and can be found here: https://www.gesetze-im-internet.de/Teilliste_translations.html
Where possible I used the already made translation.
I’ve found few laws concerning clergy that are not directly connected to KdöR. The reporting laws are cited in question 9 of this assignment. The law concerning marriage is cited in question 5. The laws for prison ministry and religious welfare of the prisoner are cited under question 9.
I added some laws concerning religion. Where I found it necessary, the most relevant sections have been bolded and italicized by me.
Law # 1 Code of Administrative Court Procedure in the version of the promulgation of 19 March 1991 (Federal Law Gazette I page 686), most recently amended by Article 9 of the Act of 22 December 2010 (Federal Law Gazette I page 2248) (VwGO)
(1) The following may reject nomination to the office of honorary judge
1. clergy and church officers,
2. lay judges and other honorary judges,
3. individuals who have served for two terms as honorary judges at courts of general administrative jurisdiction,
4. physicians, nurses, midwives,
5. heads of pharmacies who do not employ another pharmacist,
6. individuals who have reached the standard age limit in accordance with Book Six of the Social Code (Sozialgesetzbuch).
(2) It is furthermore possible to be released from acceptance of the office on request in special hardship cases.
It is unclear if Pagan Clergy would actually be accepted as a reason for rejection.
Law # 2 Act Concerning the Execution of Prison Sentences and Measures of Rehabilitation and Prevention Involving Deprivation of Liberty (StVollzG) Section 21 Food in the Institution
The composition and nutritional value of the food in the institution shall be monitored by medical officers. Special food shall be provided on orders from a medical officer. The possibility is to be provided for a prisoner to obey religious instructions with regard to the consumption of food.
Law #3 Works Constitution Act as promulgated by the Act of 25 September 2001, Federal Law Gazette (Bundesgesetzblatt), Part I, p. 2518, last amended by Art 9 Law of the July 29, 2009 (Bundesgesetzblatt, Part I, p. 2424) (BetrVG)
§ 5 Employees
(1) In this Act the term “employee” (male and female) comprises wage earners and salaried employees including persons employed for the purpose of their vocational training, regardless of whether they are engaged in indoor work, in field service, or in tele-work. The term includes persons engaged in home work who work principally for one and the same establishment. Furthermore, (female and male) civil servants and workers of the public service, including persons employed for the purpose of their vocational training, are considered "employees" if they work in establishments organized under private law.
(2) The following shall not be considered as employees for the purposes of this Act:
1. in establishments belonging to a corporation, the members of the organs that are legally empowered to represent the corporation;
2. partners in an ordinary commercial partnership or members of another association of persons in the establishment belonging to the partnership or association, in so far as they are empowered by law, its own by-laws or the articles of association to represent the association or to exercise management functions;
3. Persons whose employment is not primarily for the purpose of earning their livelihood but is chiefly inspired by charitable or religious motives;
4. Persons whose employment is not primarily for the purpose of earning their livelihood but principally for their cure or recovery, rehabilitation, moral improvement or education;
5. The spouse, the life partner, as well as the relatives by blood or marriage of the first degree living with the employer.
Law # 4 Copyright Act of 9 September 1965 (Federal Law Gazette Part I, p. 1273), as last amended by Article 83 of the Act of 17 December 2008 (Federal Law Gazette Part I, p. 2586)
§46 Collections for religious, school or instructional use (UrhG)
(1) Reproduction, distribution and making works available to the public shall be permissible after publication where limited parts of works, of small scale literary works and of musical works, individual artistic works or individual photographs are incorporated in a collection which combines the works of a considerable number of authors and is intended, by its nature, exclusively for instructional use in schools, in non-commercial basic and further training facilities or in vocational training facilities or for church use. Making a work available to the public being intended for instructional use at schools, shall be permissible only in cases where the person entitled has given his consent. The purpose for which the collection is to be used shall be clearly stated on the copies, or when making them available to the public.
(2) Paragraph (1) shall only apply to musical works where these are incorporated in a collection intended for use in musical instruction in schools which are not schools of music.
(3) Work on reproducing the work or making the work available to the public may only begin after the intention to exercise the entitlement according to paragraph (1) has been communicated by registered letter to the author or, if his place of residence or whereabouts are unknown, the holder of the exclusive exploitation right and two weeks have elapsed since the letter was sent. If the place of residence or whereabouts of the holder of the exclusive exploitation right are also not known, notification may be effected by publication in the Federal Gazette (Bundesanzeiger).
(4) The author shall be paid equitable remuneration for the exploitation permissible in accordance with paragraphs (1) and (2).
(5) The author may forbid the exploitation permissible in accordance with paragraphs (1) and (2) if the work no longer reflects his conviction and he can therefore no longer be reasonably expected to agree to the exploitation of the work and he has for that reason revoked any existing exploitation right (Article 42). The provisions under Article 136 (1) and (2) shall apply mutatis mutandis.
Law # 5 Code of Criminal Procedure in the version published on 7 April 1987 (Federal Law Gazette [Bundesgesetzblatt] Part I p. 1074, 1319), as most recently amended by Article 2 of the Act of 22 December 2010 (Federal Law Gazette [Bundesgesetzblatt] Part I p. 2300) (StPO)
§57 Instruction Regarding Oath
Before examination, witnesses shall be admonished to tell the truth and instructed as to the criminal law consequences of incorrect or incomplete statements. They shall be informed of the possibility that they may be placed under oath. If they are placed under oath, they shall be instructed on the importance of the oath and on the fact that the oath may be taken with or without religious affirmation.
Law # 6 Act on Regulatory Offences in the version published on 19 February 1987 (Federal Law Gazette [Bundesgesetzblatt] I p. 602), last amended by Article 2 of the statute of 29 July 2009 I 2353 (OWiG)
§ 126 Abuse of Vocational Clothing or Badges
(1) Whoever, without authorisation, wears
1. vocational clothing or a badge which are state-recognised or approved in the Federal Republic being designed for persons engaged in nursing or welfare work, or
2. vocational clothing or a badge of a religious association
recognised by a church or another religious association under public law shall be deemed to have committed a regulatory offence.
(2) Working clothes and badges which so closely resemble those designated in subsection (1) that they may be mistaken for them, shall be deemed equal to those.
(3) The regulatory offence may be sanctioned by a regulatory fine.
I included this law to show, that a Neopagan clergy in Germany should not give in to the idea of wearing a white tab collar.
As the first step to recognition for ADF in Germany would be the founding of an association (e.V.) I decided to include some of the most important laws regarding this too:
Law # 7 Civil Code in the version promulgated on 2 January 2002 (Federal Law Gazette [Bundesgesetzblatt] I page 42, 2909; 2003 I page 738), last amended by Article 1 of the statute of 27 July 2011 (Federal Law Gazette I page 1600) (BGB)
Subtitle 1 Associations
§ 59 Application for registration
(1)The board must apply for the association to be registered.
(2)Copies of the articles of association and of the documents on the appointment of the board must be attached to the application.
(3)The articles of association should be signed by at least seven members and should state the date of their execution.
Law # 8 Civil Code in the version promulgated on 2 January 2002 (Federal Law Gazette [Bundesgesetzblatt] I page 42, 2909; 2003 I page 738), last amended by Article 1 of the statute of 27 July 2011 (Federal Law Gazette I page 1600) (BGB)
Subtitle 1 Associations
§71 Amendments of the articles of association
(1)Amendments of the articles of association are effective only when entered in the register of associations. The board must make notification of the amendment for entry in the register. A copy of the order containing the amendment and of the wording of the articles of association is to be enclosed with the registration. In the wording of the articles of association, the amended provisions must agree with the order on the amendment of the articles of association, unchanged provisions must agree with the most recently submitted full wording of the articles of association and, if the articles of association have been amended without the full wording of the articles of association being submitted, must also agree with the previously-entered amendments.
(2)The provisions of sections 60, 64 and section 66 (2) apply with the necessary modifications.
Law # 9 Civil Code in the version promulgated on 2 January 2002 (Federal Law Gazette [Bundesgesetzblatt] I page 42, 2909; 2003 I page 738), last amended by Article 1 of the statute of 27 July 2011 (Federal Law Gazette I page 1600) (BGB)
Subtitle 1 Associations
§ 73 Decrease in numbers of members
If the number of members of the association falls below three, the local court [Amtsgericht] shall, on an application by the board and, if the application is not made within three months, of its own motion, after hearing the board, deprive the association of legal personality.
5. How do laws of your nation, state, or local area responds to Paganism and Neo-Pagan clergy? Are there laws that prohibit certain functions our clergy usually serve (such as divination, counseling, or conducting marriages or funerals)? Does your country implicitly or explicitly state that Neo-Pagans cannot have clergy, or that they cannot perform certain functions or receive similar rights as those from other religions?
As our numbers are very small, Neo-pagan clergy is not actually in the focus of the German laws right now. Theologian Kai Funkschmidt from the Protestant Association for belief (EZW) in Berlin says that Earth Religions are no competition to the three major religions. There are too few followers and too many different groups (Beyert “Glaube in und mit der Natur”)
As long as the diviner involved doesn’t take money for his/her service its ok. The moment money is taken, one should register a trade. (Sichtermann “Therapie und Selbstständigkeit”).
As I cannot see me using divination in counseling but only during ritual, I don’t see any problems arising here. As far as I understood pastoral counseling does not involve the exchange of money, so even if someone else would use divination for a counseling tool as long as money is not involved its ok.
It is very important for people doing counseling, that they stay on the counseling part and don’t use the words healing or alleviation and give the impression that they could be healing, as the healing professions are protected and one has to show that one does no harm. Again, as long as I don’t take money its fine (Sichtermann “Therapie und Selbstständigkeit”).
Marriages: Only the civil registry office is allowed to perform legal binding weddings. This applies to all religions. I am free to perform a religious wedding, but it won’t be legally binding:
Civil Code in the version promulgated on 2 January 2002 (Federal Law Gazette [Bundesgesetzblatt] I page 42, 2909; 2003 I page 738), last amended by Article 1 of the statute of 27 July 2011 (Federal Law Gazette I page 1600) (BGB)
§ 1310 Jurisdiction of the registrar of births, deaths and marriages, curing defective marriages
(1)Marriage is entered into only if the parties contracting the marriage declare before the registrar that they wish to enter into the marriage. The registrar may not refuse his cooperation in the entering into of the marriage if the requirements for the marriage are satisfied; he must refuse his cooperation if it is obvious when the marriage is entered into would be voidable under section 1314 (2).
Funerals: Under the policy of a secular funeral service the management of the course of burial is handled by the funeral home. If desired someone else can lead the ritual as a “free speaker”. As a Pagan clergy I could perform rites taking the position of the free speaker.
(Communication by Frau Bartel of the Bürgerbüro Gudensberg, which I contacted Thursday 04.10.12 11:30)
Neopagan clergy can receive the same rights as the clergy of other religions. It all depends on how many we are and how well organized. Though as you can see in the overview the path is quite long and arduous and truly “per aspera ad astra”.
6. Looking at those laws listed in questions 1 - 4 and how they affect you, are there any specific laws that seem out of place, unfair, or unjust? What is the avenue for change to these laws, and do you see change to these particular laws as necessary?
I am very opposed to some churches being statutory corporations and the special treatment the Catholic and Protestant Church receive. They not only receive the Church Tax from their followers, but about 9 Billion Euros from the state.
The Priests, Deacons and Religion teachers at schools are public officials and therefore paid by the state – and they get really good paid, the starting salary of a priest is comparable to middle management that of a bishop is on a high management level. In my humble opinion as long as Priests & co. are state officials there is a state church, regardless what the constitution says.
For a kindergarden or a hospital it is sufficient to be sponsored 7-14 % by the Church to be regarded as “Catholic” or “Christian”. The rest comes from the state. In my opinion this is false labeling. At the moment a hospital is “Christian” people without confession cannot work there anymore and the workers’ council is dissolved.
Worse with social welfare: At the moment a person is on social welfare, the church receives church tax for them from the state regardless if they are Christians or not.
No-one actually knows how much money the Churches in Germany have – but they are the greatest estate owners in Germany. There have been attempts of bringing these things to the public, but no politician has taken this up. I am keeping track of an association that has an interest in changing this and have taken my information mainly from them (Initiative Kirchenopfer: “Spart euch die Kirche “).
The problem is that many laws are connected to this and changing them would mean brining up a petition with many thousand signatures for each one of them. Many people – even in the Pagan community - are not aware of these facts. The first step therefore has to be to bring this into the awareness of the people. On a long term basis I see the change to these laws as necessary as Germany has enough outstanding debts and 9 Billions per year could be well used otherwise.
I would welcome the abolishment of the statutory corporation status for religious communities and I believe teaching religion should be done privately and belongs out of public schools. This would mean maybe truly thinking about “an abstract recognition as religious community”.
7. How do you see these laws affecting how you serve your Grove, ADF, or the community as a whole?
I would be able to serve my grove and ADF regardless if we would have the status of an association or a non-profit association. To be really on the save side when doing counseling I would probably have to inform the person coming to me that if I learn of planed crimes or that the person would harm him/herself I would have to break the professional secrecy. In this I would probably use the wordings I’m used to concerning psychological therapists, doctors and so on. I know that Paganism has not the custom of confession, but I believe that professional secrecy in pastoral counseling is one of the “unwritten” expectations people have in clergy no matter what religion. All in all I can serve the community.
8. What is the difference between pastoral counseling and other kinds of counseling, and does the law differentiate between these types? What sort of license do you require in your state in order to perform counseling of any type? Does divination fall into this sort of counseling?
Counselor “Berater” in Germany is not per se a protected denomination. Some special counselors are protected, but then they have different titles e. g. Psychological Counselor (HPG) means a psychological counselor through the alternative practitioner law, while psychological Psychotherapist is a protected denomination for Psychologist having approbation.
As long as I am not taking money and I am not giving the impression that I am healing someone I’m on the safe side. This includes divination. The difference is that a priest is relieved of the mandatory reporting laws. It is unclear if this law would count for me too. So to be legally safe I would go by the rules of a therapist / doctor and follow the mandatory reporting laws (see question 9).
I see the differences between pastoral counseling and other types of counseling more with regard to the content, though I could imagine areas where the questions overlap.
9. Describe the mandatory reporting laws in your area and how they affect you as a clergyperson. Explain the process you would go through to file a report if it were necessary.
The mandatory reporting laws are anchored in the German Criminal Code. I bolded and italized the most relevant part:
Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt] I p. 3322, last amended by Article 3 of the Law of 2 October 2009, Federal Law Gazette I p. 3214
§ 138 of the German Criminal Law Code (StGB):
(1) Whosoever has credible information about the planning or the commission of the following offences:
1. preparation of a war of aggression (section 80);
2. high treason under sections 81 to 83 (1);
3. treason or an endangerment of peace under sections 94 to 96, section 97a or section 100;
4. counterfeiting money or securities under section 146, section 151, section 152 or counterfeiting debit cards and blank euro cheque forms under section 152b (1) to (3);
5. murder under specific aggravating circumstances (section 211), murder (section 212), genocide (section 6 of the Code of International Criminal Law), a crime against humanity (section 7 of the Code of International Criminal Law), or a war crime (section 8, section 9, section 10, section 11 or section 12 of the Code of International Criminal Law);
6. an offence against personal liberty in cases under section 232 (3), (4), or (5), section 233 (3), each to the extent it involves a felony, section 234, section 234a, section 239a or section 239b;
7. robbery or blackmail using force or threat to life and limb (sections 249 to 251 or section 255); or
8. offences creating a danger to the public under sections 306 to 306c, section 307 (1) to (3), section 308 (1) to (4), section 309 (1) to (5), section 310, section 313, section 314, section 315 (3), section 315b (3), section 316a or section 316c
at a time when the commission or result can still be averted, and fails to report it in time to the public authorities or the person threatened, shall be liable to imprisonment not exceeding five years or a fine.
(2) Whosoever credibly learns
1. of the commission of an offence under section 89a or
2. of the planning or commission of an offence under section 129a, also in conjunction with section 129b (1), 1st and 2nd sentences,
at a time when the commission can still be averted, and fails to report it promptly to the public authorities, shall incur the same penalty. Section 129b (1) 3rd to 5th sentences shall apply mutatis mutandis in the case of No. 2 above.
(3) Whosoever by gross negligence fails to make a report although he has credible information about the planning or the commission of an unlawful act, shall be liable to imprisonment of not more than one year or a fine.
The exception to this rule is stated under section 139 of the StGB “Exceptions to liability”:
(1) If in cases under section 138 the offence has not been attempted the court may order a discharge.
(2) A clergyman shall not be obliged to report what has been confided to him in his capacity as a spiritual counselor.
(3) Whosoever fails to report an offence, if the report would have had to be made against a relative, shall be exempt from liability if he made earnest efforts to dissuade him from committing the offence or to avert the result, unless it’s a case of
1. murder (section 211 or section 212);
2. genocide under section 6 No 1 of the Code of International Criminal Law, or a crime against humanity under section 7(1) of the Code of International Criminal Law, or a war crime under section 8(1) No 1 of the Code of International Criminal Law;
3. abduction for the purpose of blackmail (section 239a(1)), hostage taking (section 239b(1)) or an attack on air or maritime traffic (section 316c(1)) by a terrorist organization (section 129a, also in conjunction with section 129b(1)).
Under the same conditions an attorney, defense counsel, physician, psychotherapist, or child or youth psychotherapist shall not be obliged to report what was confided to them in their professional capacity. The professional assistants of those persons named in the 2nd sentence above and those persons who work for them as part of their professional education shall not be obliged to report what they learn in their professional capacity.
(4) Whosoever averts the commission or the result of the offence other than by reporting shall be exempt from liability. If the commission or result of the offence does not take place regardless of the contribution of the person obliged to report his earnest efforts to avert the result shall suffice for exemption from liability.
To file a report I have to contact the police.
This law is quite unclear who falls under clergyman. Probably it is one of those laws that will get disputed when conflict arise. Without talking to an advocate it is uncertain. The safest and legally sure way would be to inform the client about professional secrecy but ask them if it’s ok that I break that in case he / she becomes a threat to himself or others.
For child abuse cases it is possible to notify the youth welfare office anonymously.
10. What are the rules regarding outside worship for any local military base, and what happens if a soldier on that base wants access to a priest who is not in the military or not a military chaplain? If there are no local military bases, what are the general rules?
German Army soldiers are not restricted in their religious practice and can leave the base for outside worship. On a German military base the family barracks (if there are any) are not within the base’s enclosure, so that people can move freely. If a soldier wants access to a priest who is not in the military or not a military chaplain he just goes to him. If for example he is hospitalized in a military hospital he would have to contact the priest himself and give the name and identification number so that the priest can be let in.
Only if the military soldier is part of a group observed by the Federal Office for the Protection of the Constitution it could be possible that he looses his security check, which would make him unfit to work in certain areas. Druidry is not an observed group.
The law is anchored in the central service regulation of the German army: ZDv 10/ 1 Innere Führung “General Code of conduct of leadership within the Bundeswehr”. The translation was made by me:
f) Counseling and practice of religion
671. All Soldiers have a legal right on pastoral care and undisturbed practice of religion.
The military chaplaincy in the armed forces is the from the state desired and supported and of the Churches provided contribution to protect freedom of religious activity, and the pastoral counseling of the soldiers. As part of the Church's work it is done on behalf of and under the supervision of the churches. It is thus a Church among the soldiers and their families, Partnerships and relatives. It is a self-organizing field within the German armed forces.
672. The pastoral care shall give the members of the German armed forces the opportunity to discuss with the military chaplain in addition to religious as well other personal issues.
Church services, baptisms, weddings and funerals, church
community life, participation in military ceremonies and in the care of
the soldiers, as well as assistance concerning injury and death are examples of pastoral accompaniment.
During military operations the chaplaincy is major contribution to reprocess together with the soldiers special personal problems to the point of borderline experiences of human life and alleviates emotional strain.
673. The military chaplains are in their
pastoral activity exclusively subject of ecclesiastical law
and independent of government orders. They are assigned to the military
supervisors to work together.
674. In the armed forces are faith, conscience and religion
for all religious communities and philosophical communities are
guaranteed. This gives rise to the military superiors
- regardless of their personal opinion on religious matters -
of specific tasks in support of and in cooperation
with the military chaplaincy. They have to provide to the military chaplains in the exercise of the pastoral care every reasonable assistance. Additionally, they have to give them the opportunity to comment on all the fundamental issues of internal leadership. Supervisors are required to grant free and undisturbed exercise of religion to all Soldiers regardless which faith community they belong to.
What is meant are the churches that have a statutory corporation status. Military Chaplains are solely from the Protestant and Catholic Church. But as described above it is possible for a soldier to practice his / her faith and have access to Pagan clergy.
11. What are the regulations and options for prison ministry in your county and state?
The regulations for prison ministry are anchored in the penal law (StVollzG):
Prison Act of 16 March 1976 (Federal Law Gazette Part I p. 581, 2088), as last amended by Section 62 (10) of the Act of 17 June 2008 (Federal Law Gazette Part I p. 1010)
§157 Religious Welfare
(1) Chaplains shall be appointed on a full-time basis or engaged by contract in agreement with the respective religious community.
(2) Where the small number of members belonging to a religious community does not justify such religious welfare as is laid down in subsection (1), religious welfare shall be permitted in some other way.
(3) With the consent of the Head of the Institution, the prison chaplains may avail themselves of the services of free religious assistants and engage chaplains from outside the institution for Divine Service and for other religious activities.
As our numbers would be too small a Pagan Chaplain would not be engaged by contract or appointed on a full-time basis. But with consent of the Head of the Institution and with regard to the professionalism shown by the clergy it should be possible to tend to the spiritual welfare of Pagan prisoners.
Berlin.de „Körperschaft des öffentlichen Rechts“. Berlin.de. Web. 6 November 2010. <https://www.berlin.de/sen/kultur/bkrw/koerperschaften.html>.
BetrVG 2009 Sec. 5. Web. 4. October 2012 https://www.gesetze-im-internet.de/englisch_betrvg/englisch_betrvg.html
Beyert, Christina 2012 “Glaube in und mit der Natur.“ Web 14. October 2012 <https://www.dw.de/dw/article/0,,16071970,00.html>
BGB 2011. Sec. 59. Web. 4 October 2012 < https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0054>
BGB 2011. Sec 71 . Web. 4 October 2012 < https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0054>
BGB 2011. Sec. 73.. Web. 4 October 2012 < https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0054>
BGB 2011. Sec.1310 . Web. 4 October 2012 < https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0054>
LehrBiG HE 2011 Sec. 62. Web. 4 October 2012 <https://www.rv.Hessianrecht.Hessian.de/jportal/portal/t/26yl/page/bshesprod.psml?doc.hl=1&doc.id=jlr-LehrBiGHE2011pP62%3Ajuris-lr00&documentnumber=5&numberofresults=40&showdoccase=1&doc.part=S¶mfromHL=true#focuspoint>
HBGP 2012 Sec. 1 Web. 4 October 2012 <https://www.rv.Hessianrecht.Hessian.de/jportal/portal/t/110t/page/bshesprod.psml?doc.hl=1&doc.id=jlr-BetrPflGHEpP1%3Ajuris-lr00&documentnumber=15&numberofresults=347&showdoccase=1&doc.part=S¶mfromHL=true#focuspoint>
HFeiertagsG 1971 Sec. 4. Web. 4 October 2012 <https://www.rv.Hessianrecht.Hessian.de/jportal/portal/t/11iw/page/bshesprod.psml?doc.hl=1&doc.id=jlr-FeiertGHE1952pP4%3Ajuris-lr00&documentnumber=37&numberofresults=347&showdoccase=1&doc.part=S¶mfromHL=true#focuspoint>
HKHG 2011 Sec. 6. Web. 4 October 2012 <https://www.rv.Hessianrecht.Hessian.de/jportal/portal/t/14w7/page/bshesprod.psml?doc.hl=1&doc.id=jlr-KHGHE2011pP6%3Ajuris-lr00&documentnumber=58&numberofresults=347&showdoccase=1&doc.part=S¶mfromHL=true#focuspoint>
Initiative Kirchenopfer 2008 “Spart euch die Kirche!”. Print.
MVollzG HE 1981 Part 4 Sec. 30 – 32. Web. 4 October 2012 https://www.rv.Hessianrecht.Hessian.de/jportal/portal/t/ih8/page/bshesprod.psml/action/portlets.jw.MainAction?p1=y&eventSubmit_doNavigate=searchInSubtreeTOC&showdoccase=1&doc.hl=0&doc.id=jlr-MVollzGHEpG4&doc.part=G&toc.poskey=#focuspoint
OWiG 2009. Sec. 126. Web. 4 October 2012 < https://www.gesetze-im-internet.de/englisch_owig/englisch_owig.html>
Rhode, Ulrich „Religion und Religionsgemeinschaften im staatlichen Recht“ Ulrich Rhode. Web 23. September 2012 < https://www.ulrichrhode.de/lehrv/religionsrecht.html>.
Sichtermann, Marie 2007 “Therapie und Selbstständigkeit: Das Handbuch für die Praxis.” Print.
Stadt Gudensberg „Satz 17 Benutzung BGH“ Gudensberg.de. Web. 8. October 2012. <https://www.gudensberg.de/pdf_docs/Satz_17_Benutzungsordnung_BGH.pdf>.
Stadt Gudensberg „Satz 18 Benutzung DGH“ Gudensberg.de. Web. 8. October 2012. <https://www.gudensberg.de/pdf_docs/Satz_18_Benutzungsbedingungen%20DGH.pdf>.
Stadt Gudensberg „Satz 19 Benutzung Kulturhaus Synagoge“ Gudensberg.de. Web. 8. October 2012. <https://www.gudensberg.de/pdf_docs/Satz_19_Benutzungsordnung%20Kulturhaus%20Synagoge.pdf>.
Stadt Gudensberg „Satz 27 Vereinsförderrichtlinien“ Gudensberg.de. Web. 8. October 2012. < https://www.gudensberg.de/pdf_docs/Satz_27_Vereinsfoerderrichtlinien.pdf >.
StPO 2010. Sec. 57. Web. 4 October 2012 < https://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html>
StGB 2009. Sec. 138. Web. 4 October 2012 < https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html>
StVollzG 2008. Sec. 157. Web. 4 October 2012 <https://www.gesetze-im-internet.de/englisch_stvollzg/englisch_stvollzg.html#p0641>
UrhG 2011 Sec. 46. Web. 4 October 2012 < https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html>
Verf HE 1947 Part 4 Sec. 48-49. Web. 4 October 2012 < https://www.rv.Hessianrecht.Hessian.de/jportal/portal/t/ipc/page/bshesprod.psml/action/portlets.jw.MainAction?p1=1k&eventSubmit_doNavigate=searchInSubtreeTOC&showdoccase=1&doc.hl=0&doc.id=jlr-VerfHEpG6&doc.part=G&toc.poskey=#focuspoint>
VwGO 2010 Sec. 23. Web. 4 October 2012 <https://www.gesetze-im-internet.de/englisch_vwgo/englisch_vwgo.html>
ZDv 10/ 1 Innere Führung 2008. Chapter 6. Web. 4 October 2012 <https://www.geopowers.com/Machte/Deutschland/doc_ger/ZdV_Innere_F_hrung_2008.pdf>