Protection of Religious Freedom in Constitutional Law

© Mohr Siebeck

How does the liberal constitutional state deal with heavy criticism of religion in public and with its impact? Are there legal possibilities or even duties to solve the problems related? As far as German constitutional law is concerned, the theory of a conflict of fundamental rights is predominant to describe the legal constellation. The person that heavily criticizes religious ideas or insults religious adherents invokes his or her fundamental subjective right to freedom of expression. On the other hand, people who feel insulted and marginalized by heavy criticism refer to the fundamental right to freedom of religion. Based on that, they ask the state - the authorities, courts or parliament - for assistance or even intervention.

The study examines the content of the fundamental subjective rights to freedom of expression and freedom of religion as well as their specific effects. This analysis challenges the viability of the theory of a conflict of rights. Furthermore, it provides the basis for an evaluation of the law already in effect. In this sphere, special attention is turned to German criminal law where the insult of religious ideas is only punished as far as it is suitable to disturb public or social peace. At this point, it becomes evident that heavy criticism of religious ideas and insult of religious adherents evokes serious dangers for the principle of monopolization of violence on behalf of the state and also for integration. Due to this connection the study also focuses on the existence and the content of objective constitutional principles which might restrict the speaker’s right to freedom of expression.

Literature: Rox, Barbara: Schutz religiöser Gefühle im freiheitlichen Verfassungsstaat? (Jus Ecclesiasticum, vol. 101), Tübingen: Mohr Siebeck 2012.