The Bavarian Crucifix Case

Mark Lindley

August 1997

In Munich I visited last July the supreme court of Bavaria and heard the arguments pro and con as to whether the government may require that crucifixes hang on the classroom walls in the public [State] schools. The national German supreme court in 1995 found it contrary to the German constitution to favor any religion in a school which children from families of all religious persuasions are obliged by law to attend. So one of the main legal arguments for having the crucifix in the Bavarian classrooms has been it does not influence the children in favor of any religion but only serves as a memento of Bavaria's cultural heritage. The other argument has been that Bavaria is a special case, nearly everyone wants the crucifix on the schoolroom wall, the tiny minority who feel otherwise should tolerate it. The court was under intense political pressure to accept these arguments, as a lower court had already done, even though they rest on false premisses. (If the crucifix didn't favor their religion the Catholic hierarchy would not be to determined to keep it; and a substantial minority would rather do without it.) I wondered how history had contrived to put the judges into this predicament.

Bavaria is the southernmost part of Germany and most of its inhabitants are Roman Catholics. Many of them regard Guten Tag ("good day") as an alien Prussian expression and say Gruss Gott ("God greet") instead. Helmut Kohl's "Christian Democrats" (CDU) are not conservative enough for them, so they have their own "Christian Social" party (CSU). It wins only now and then in Munich, but nearly always wins in the rural districts and has a majority in the provincial legislature.

The Enlightenment was weaker in Munich than in cities like London, Paris, Vienna or Berlin. (Its most significant figure in Munich was the Vermont-born Count Rumford, who around 1800 invented the army mess (to replace ad-hoc campfires) and the Oliver-Twist-style poorhouse with centralized heating and with soup for supper, as experiment had shown that water is the most essential nutrient.) Ever since 1802, however, it has been obligatory for Bavarians to send their children to school. And yet one aspect of the post-Napoleonic anti-Enlightenment reaction was that after 1817 in Bavaria, the primary schools were supervised by the church, which mainly meant the Roman Catholic Church. This arrangement remained intact until 1918. After the First World War there was a brief period - about a year - of radically leftist government in Bavaria, but then the army occupied Munich and put an end to it.

Then the Nazi party was founded, in Munich, and seized power throughout Germany in 1933. In 1941, the Nazi governor of one part of Bavaria, Adolf Wagner, ordered the removal of crucifixes from schoolrooms, but the resistance to this order, by the people as well as by the Catholic Church hierarchy, was so strong that it was soon rescinded. Many Bavarian Catholics are still proud of that resistance (by people who did not resist the rest of the Nazi program).

Right after the Second World War, the American army appointed as governor of Bavaria a Social Democrat who had spent the war years in exile. He oversaw the adoption in 1946 of a constitution with various guarantees of civil rights. Yet the Church-State agreements dating back to the 1920s were retained, whereby practically all the primary schools, though paid for by the State, were "confessional." (The nearest equivalent term in everyday English is "denominational.") The new Bavarian constitution provided accordingly that in each such school, the children must all be given a Roman Catholic education or else all of them a Lutheran one.

In 1949 a federal German constitution came into effect. The Bavarian CSU voted against it, because it called for the State to be neutral in religious affairs; but in the end Bavaria chose to accept the constitution because this was the only way to remain part of Germany.

This national constitution left it to the provinces to govern their own schools.

In 1967 the Bavarian supreme court ruled that it was an intolerable encroachment upon religious freedom for a Roman Catholic or a Lutheran child to have to attend a confessional school of the other denomination. So the confessional public [State] schools were doomed. But then the same court ruled that the "demands of our general democratic system" required that children from non-Christian families attending the Bavarian constitution called the new schools "Christian-public" (Christliche Gemeinschaftschule). In those days, 97% of Bavarian families were either Roman Catholic or else Lutheran.

And yet the national German supreme court, having confirmed in 1965 that the State must be neutral in all religious matters, declared in 1975 that this meant that the public schools in Bavaria must not give anyone a Christian indoctrination. The new ruling included, however, a long section allowing the term Christliche Gemeinschaftschule to be retained, provided it was taken to mean that the children would be taught the cultural background of Bavaria's Christian heritage without being influenced ideologically by it.

In the wake of this ruling, the Bavarian Minister of Culture issued in 1983 a directive that every classroom in the public elementary schools must have a cross on the wall. But then in 1986 a Rudolf-Steiner adherent who could not afford to send his three children to a private Rudolf- Steiner school asked the local public schools to let them study in a room without a cross. The school authorities obtained a court order committing him to a mental hospital, but after twelve days of confinement another court ordered him released as the doctors had found no evidence of mental illness. He pursued his request and this led at length to the national supreme court's ruling of 1995, declaring unconstitutional the 1983 Bavarian directive. The local court was thereby obliged to order the crucifixes removed from the classrooms attended by his children; and this was done.

Thereupon the Catholic Church mobilized the biggest political agitation in Bavaria since the Second World War. The provincial legislature, with its CSU majority, passed a law saying that the crucifix must normally be retained and if the parents of a child request formally that it be removed, and if the school principal feels that their request should be taken seriously, then he must make a decision which, while respecting everyone's religious freedom, nonetheless gives particular regard to the majority. In practice this has been taken to mean - as intended - that the majority not only may wear crosses but also will constantly see a large crucifix on the wall at the front of the room. Hence the latest legal challenge.

Perhaps no city in Bavaria has a stronger Roman Catholic pedigree than Augsburg. It was the home base of Martin Luther's main antagonists in Germany, the Fuggers banking family, who marketed the papal "indulgences" against which he protested. But nowadays they are down to their last few hundred million (and are no longer the papacy's main bankers), and Augsburg has a flourishing local branch of the German "League for Spiritual Freedom" (Bund für Geistes- freiheit). Its president, Gerhard Rampp, is a gentle schoolteacher, a former national chess master, and an expert on German church finances. The Lutherans and Catholics sometimes cite his research when criticizing each other. His statistics show that since 1970, the Catholic majority in Bavaria has gone down from 70% to 62% while the self-declared non-religious segment of the population has grown from 3% to 13%. In each of the last half-dozen years, more than 30,000 Bavarians who were born and raised as Catholics have filed written declarations renouncing their membership in the church; and at least 30% (it depends on which poll you read) of all Bavarians today say that they would rather not have the crucifix on the schoolroom walls.

In the case heard by the Bavarian supreme court in July, the Augsburg Bund für Geistesfreiheit was one of the two main plaintiffs, requesting that the provincial law of 1995 be declared invalid. The volunteer attorney for the other main plaintiff was a local judge, Dr. Gerhard Czermak, who is an expert on the legal aspects of Church-State relations in modern Germany.

The hearing lasted all day - longer than expected - as the morning was spent on making and rejecting requests that two of the nine judges excuse themselves from the case. One of them was the lay head of the Catholic Church in Bavaria when it mounted the agitation of 1995. (Bavarian supreme-court justices are elected by a simple majority of the provincial legislature.)

The merits of the case were argued in the afternoon. The chief justice invited the superintendent  of schools to propose some kind of compromise. Perhaps little crucifixes instead of big ones? Perhaps crosses without a corpse? The superintendent wouldn't budge. The court's decision, issued on August 1st, sustained the law intact. The next appeal will be to the national supreme court.

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