The German principle of “church autonomy”
German law opts for “church autonomy”, rather than “separation of church and state”. According to the Constitutional Court this lets the churches run huge enterprises (at public expense) where state employment laws do not apply, and the churches are free to make their own. This can mean that these employees can legally be fired if their personal lives don't conform to church rules.
Excerpt from: Dr. Matthias Mahlman,
“Discriminations based on religion and belief, German”, 23-06-2004,
[European Commission] Reports from independent legal experts on the implementation of anti-discrimination laws
The Weimar Constitution abolished any “state church”. This means the separation of secular and religious spheres and creates on the other hand the constitutional space for the autonomy of the churches. Art 137.3 of the Weimar Constitution forms the concrete legal basis for the autonomy of the churches incorporated in German constitutional law. The content of this autonomy has been unfolded by some landmark decisions of the Federal Constitutional Court. According to this jurisdiction the church is autonomous in organisation and administration. This autonomy is not only limited to the inner organisation of the churches but encompasses all institutions related with the church independent of their legal form. Only precondition is an inner relation to the religious mission of the church. Whether such an inner relation exists is not to be determined by state institutions, most importantly by the courts. It is solely up to the churches to determine the scope and limit of its religious mission. For the Christian Churches it is e.g. accepted that due to the principle of charity all charitable activities like running kindergartens, hospitals etc. are encompassed by the religion mission of the Christian faith. Acts concerning the inner sphere of the church are not acts of public power and thus not regulated by public law.
Given this regulatory autonomy, general provisions of law do not apply to the churches. According to the Federal Constitutional Court the Work Constitution Act [the law governing industrial relations within a company (Betriebsverfassungsgesetz)] e.g., is not applicable to hospitals as employers. The Works Constitution Act contains in this respect a general provision (Sec. 118.1) that exempts from its application all enterprises that are of a directly or predominantly – among others – confessional nature. Another regulation (Sec. 118.2) exempts churches directly from its application.
According to Art. 140 Basic Law and Art. 137.3 Weimar Constitution the autonomy of the church is limited by the laws applicable to all. This provision on limitations has been interpreted by the Federal Constitutional Court narrowly. These laws are understood as such laws that have for the church the same meaning as for everybody else. Given the special mission of the churches e.g. the labour laws have not the same meaning for the churches [as] for anybody else. They are thus not able to limit the autonomy of the churches irrespective of this special status.
This special legal position is of considerable practical importance. The Federal Constitutional Court held that the Churches are free to choose the legal form by which they regulate their affairs. If they take advantage of private autonomy, they are in principle under the regiment of general labour law. The special position of the church has, however, to be considered in its application. For example, the church can expect that the employees abide by the special duties of loyalty as determined by the churches. In this determination they are, as indicated, free. It is dependent on the inner structure of the church who is the determining authority and who is not. In a hierarchical structure, it is the authority at the top.
The legal autonomy of the churches finds thus its limit in the laws applicable to all, e.g. the laws regulating the termination of contracts but interpreted in the light of the autonomy of the churches. There are e.g. in consequence special reasons for termination of employment contracts if special duties and obligations to loyalty are violated. Thus a doctor in a religious hospital can be dismissed if she leaves the church or marries a divorced man, if this contradicts the ethos of the church concerned.