State Islam Would Be Unconstitutional

The Muslims will have to organise if they want to ensure themselves of a place within the system of constitutional law on religion. In order to conduct negotiations on religious matters the neutral state requires someone to talk to. A commentary by canon lawyer Hans Michael Heinig

Symbolic Picture of Islam in Germany and the German Constitution (photo: dpa/DW)
The religious and ideological neutrality of the state in religious disputes is among the great achievements of European civilisation, says Hans Michael Heinig

​​ In Germany's daily Frankfurter Allgemeine Zeitung on March 16, Necla Kelek posed the question of who was going to protect the silent majority of Muslims in Germany from the traditionalists of the Islamic associations. The answer she proposed was that the German Interior Minister should abandon state impartiality in religious questions and show contempt for organised Islam by continuing the German Islam Conference without any association representatives. One can only hope that the minister will decide not to listen to his recently appointed advisor. The basic principles upon which our free and liberal society is based would be difficult to defend were we to adopt religious bias.

It took a terrible death toll in the wake of the religious civil war to suspend the question of religious truth in politics. The religious and ideological neutrality of the state in religious disputes is among the great achievements of European civilisation. It is also one that is reflected in the German constitution. According to the Federal Constitutional Court, the state is "home to all citizens".

"There can be no taking sides"

The constitution forbids the setting up of a state church, which, therefore, means there can be no state Islam either. There is no place within our constitutional system for the Kemalist solution of a state-led Islam. Nor can the state afford to take sides in any conflict between conservative and progressive factions within a religion. Were the interior minister to respond to the call to relinquish his role as mediator, he would be committing a violation of the constitution.

Ultimately, any criticism of Islam based purely on anti-Islamist anger runs the risk of doing the very thing it accuses the Islamic associations of doing, exploiting the state in the name of a religious-political power struggle.

Participants at the third Islam Conference, March 2008 (photo: AP)
The symbolic integration of Islam into the political system: Germany's first Islam Conference

​​ Of course, the state protects Muslims against any violent forms of Islam that violate German law, just as it does non-Muslims also. But it is only the German Muslims who can protect themselves against a "false" Islam. Those who feel that they are not being properly represented by the "hardliners" in the associations have to organise. That is the way the game is played in a liberal democracy. When groups of people unite they form a stronger whole and have greater political influence.

This applies as much to motoring organisations or trades unions as it does to a religious association. A state that maintains a neutral religious ideology has no other choice than to cooperate with the Islamic associations produced by its society. It may not create a partner particularly agreeable to itself.

Associations represent members, intellectuals represent no one

Reading Necla Kelek one can easily come to the conclusion that she sees all Muslim associations as a conspiracy to disenfranchise the individual believer. Without religious communities able and ready to cooperate with one another, however, the state could not give Islamic religious instruction, train Imams in state universities, nor organise the spiritual counselling of military personnel or prisoners. Religious communities unite their members. Membership gives a feeling of belonging.

Necla Kelek (photo: dpa)
"Religiously biased": Necla Kelek, German feminist and social scientist of Turkish descent

​​ A state committed to neutrality and freedom of religion can build on this if it creates spaces for public religion and promotes religions as culturally important. The community has a strong interest in the well-known public forms of canon law and the promotion of religion, because in this way the state can stimulate what is best in the social form religion and counter destructive tendencies without sacrificing its neutrality in religious matters.

So long as the vast majority of religious Muslims in Germany decline to exercise their fundamental right to religious freedom of association, German society will have to live with the consequences of this sort of refusal to integrate. The existing associations can hardly be blamed. They represent their members. No more and no less. It cannot be claimed, therefore, that they are representative of Muslim life in Germany in its entirety.

Without the cooperation of the already existing associations, however, the German Islam Conference is doomed to failure. Individual Muslims are no substitute for the associations. Intellectuals and artists are not legitimised by anyone and need not justify themselves to anyone.

Islam Conference at crossroads

By including such figures in the German Islam Conference, former interior minister Wolfgang Schäuble was trying to respond to the existing associations' inadequate reflection of the diversity of Islamic life in Germany. For a consultative body with no executive decision-making powers the solution was understandable, or at least acceptable, and at the same time reduced the political pressure on the majority of Muslims to organise themselves in accordance with the constitutional requirements.

Now, however, the Islam Conference model is threatening to take on a life of its own. Only recently, Germany's Science Council advised the setting up of chairs of Islamic theology at state universities based on this concept. A reasonable organisation of constitutional law on religion is hardly likely to come about on this basis however. It would amount to a special privilege and as such hardly reconcilable with the constitutional promise of equal treatment for all religions and ideologies.

The German Islam Conference has reached a crossroads. Its constitution led to the symbolic integration of Islam into the political system. The stolid silence between state and organised Islam under the SPD-Green Party coalition came to an end. Schäuble even went so far as to consciously include some of the more disreputable members of the Islamic associations in his invitations. This was linked to the hope that public recognition would change those who received the attention.

The state expects the solidarity of the associations

This was, to some extent, probably a forlorn hope. Currently, representatives of the IGMG (Islamic Association Milli Görüş) find themselves facing criminal charges that go beyond the mere suspicion of political extremism. The current interior minister, Thomas de Maizière, had to respond to this for the latest session of the Conference. He suspended the membership of the Islamic Council, which is dominated by the IGMG. Now, however, the other associations are hesitating over their further participation in the Islam Conference.

Germany's former Interior Minister Wolfgang Schäuble (photo: picture-alliance/dpa)
"Islam is at home in Germany": Wolfgang Schäuble, Germany's former interior minister and initiator of the first Islam Conference

​​ This is understandable given that the associations had formed a joint coordinating council and the DITIB (the Turkish-Islamic Union for Religious Affairs), ZMD (Central Council of Muslims in Germany) and VIKZ (Association of Islamic Culture Centres) now feel themselves obliged to consider the matter. This type of cooperation was something the politicians had been repeatedly calling for. It might have been wiser, therefore, to declare certain individuals undesirable rather than suspend the whole association.

Following the elections and consequent change in leadership, it took the interior ministry some time to come up with a concept for the second phase on the Islam Conference. The delay was unfortunate given that the Conference had been successful until then, and particularly since the integration of Muslims is such a key issue in German society.

Among the priorities the interior minister wants the Islam Conference to turn its attention to in the future are the need to find solutions on the questions of religious education and the training of imams. But these are things the government does not have the powers to do single-handedly. School and university policies are the responsibility of the individual states. The proposed increased participation from the Länder is, therefore, now urgently needed.

Dictates of the pragmatic

It is worth remembering that one of the key aims of Schäuble's Islam Conference was to provide a national platform where fundamental questions could be discussed alongside the small-scale development of local alliances and the initiatives of the Länder on individual questions of state church law.

The Islam Conference explored various forms of the societal conception of the relationship between religion and politics, of cultural freedom and societal expectations, of successful integration and undesirable marginal existence, of religion's own response to averting danger and the productive contribution of the religions to the common good. Therein lies an intrinsic value that should not be underestimated.

Politics nowadays is always about tangible concrete issues. It is subject to the dictates of the pragmatic. But sometimes it is the discussion of the general that is the tangible and mere talking pragmatic.

Hans Michael Heinig

© Frankfurter Allgemeine Zeitung / 2010

Hans Michael Heinig teaches public law at Göttingen and is head of the juridical department of the EKD (Evangelical Church in Germany).

Translated from the German by Ron Walker

Editor: Lewis Gropp /

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