Saturday, December 16, 2006

Religious Freedom in Germany.

This is a response to "Anonymous'" query as to my thoughts on this article.

I'm not aware of the background for the German Justice Minister's comments on religious freedom and religious schools. I do know, however, that in some European countries there has been public concerns about schools run by religious minorities, in particular those run by Muslim groups. The criticism has been that the children in some of these schools are indoctrinated towards religious intolerance, as well as hatred towards to the West. This may be the background for her statements.

Concerning Germany's law on compulsory school attendance. I think its a bad law and I know of no other European country where home schooling is not allowed. I do, however, believe that society has the right to require education of children and to set standards for that education.

What should always be remembered, when discussing Germany, is the legacy of Nazism. Germany's post-WWII constitution and laws have been set up to avoid extremism ever arising again, while the political establishment has seen it as its main task to guard the country against extremism. Civil liberties have therefore been limited in ways that would not be tolerated in other western democracies. Nazism is, for example, outlawed, as is distribution of Nazi propaganda and literature. Similarly, individuals who are considered to have extreme views, or belong to groups considered to be dangerous to society, have been and are banned from working in civil service positions. This practice, which mainly has been used to discriminate against Communists and Socialists, has been criticised internationally when it has affected religious groups such as Scientology.

Although Germany's outlawing of home schooling and its treatment of groups with deviant beliefs and convictions sometimes amount to discrimination, its laws must be seen the context of in Germany's history and the political establishments fear of political as well as religious extremism.

Religious freedom is, in my opinion, generally better protected in America than Europe. I can offer three reasons for this: First the 1st Amendment (both the 'free exercise' and 'non-establishment' clauses playing a vital rule). Secondly, the idea that America was founded by individuals fleeing religious persecution is very strong, which makes religious freedom trump every other civil liberty in the US. Thirdly, religious groups have more political power in the US.

Except for France, Europe has no tradition of church and state separation. This has lead, even in recent times, to religious discrimination, in particular in countries where the Catholic faith is very strong, i.e. Ireland, Italy, Spain etc.. Religious freedom is now entrenched in most European national constitutions and in the European Convention of Human Rights, and particularly the Northern European countries have good protection of religious rights. However, it still doesn't not command the same respect as it does in America for the above mentions reasons.


At 17 December, 2006 01:37, Anonymous Anonymous said...

I enjoyed your article. I've been following what has been going on with homeschooling in Germany for awhile now and it is a difficult situation. In a way, though, the concerns the state and the people have regarding homeschooling are no different than what they were here in the US at the beginning of our modern homeschooling movement. Except that here, as the cases came before the courts, our courts ruled in favor of the parents' rights to direct the education of the child over the interests of the state in education. Once the legality of homeschooling was clear, and the movement began to grow, it gained pretty broad acceptance.

The opposite happened in Germany, making it a little more difficult for organizations to work within the system to liberalize the laws. It seems like most groups would welcome a system like that of some of our more strict states where homeschooling is heavily regulated and there is a high degree of state oversight. I think such a system, through an umbrella school, or through occasional visits with a certified teacher, would work well in Germany, especially in the beginning.

It is difficult to change public attitudes about something with which one has no familiarity. And when so many of the press reports characterize homeschoolers as extremists of one form or another...although in a way, it is natural that the homeschoolers there would be a little more extreme in their views for the simple fact that it is illegal.

At 18 December, 2006 11:48, Blogger Torsten Pedersen said...

Thank you for your comment.

I don't really know very much about the home-schooling situation in Germany. Interestingly I've only heard about it from American evangelical websites. I was mainly trying to put German law and the justice ministers comments into a historical context.

The main problem, if you see it as a problem, is that most Germans probably cannot imagine why parents would want to opt out of either public or private education.

The only other European countries I know about, Britain and Denmark, home schooling is legal and home schooling parents are often aided by local councils in the education of their children.

Home schooling in Britain is relative widespread, arising, I believe, mainly from opposition to the strict testing regime in place here. Also the price of education drives many parents to stay at home and teach their children themselves.

At 21 December, 2006 14:50, Anonymous Anonymous said...


Charles here...

Here is another link (from same website - but newer).

I can understand the concern about extremists. Germany and a few other countries in Europe are obviously sensitive to that - and understandably so. My concern is that here in America, we are starting to follow European trends of Socialism. That smacks against everything we cherish and stand for - well, at least a majority.

Homeschooling does need regulation/monitoring, and I am pretty sure that it does get monitored here in the states. I was homeschooled for 4 years. My father had to report monthly to the state. I am against what has happened in Germany. I hope it does not come to that here.


At 23 December, 2006 14:25, Blogger Torsten Pedersen said...

Charles, interesting article, although I didn't find Michael Farris' argument that International Human Rights law poses a threat to home schooling in the US convincing.

The European Court of Human Rights (ECtHR) decision in "Konrad v. Germany", does not, in my opinion, create any presidence in International Human Rights law for restricting home schooling for three reasons:

1) Its a decision not a judgment. The ECtHR simply dismissed the case as "manifestly ill-founded. The ECtHR held that the European Convention of Human Rights does not contain a provision giving parents exclusive rights over the education of children.

2) The basis for ECtHR decision was the "margin of appreciation" that the ECtHR gives to contracting states. The ECtHR is very hesitant to overrule national courts and laws enacted by democratically elected legislatures. European nations can therefore, with reason, regulate the educational requirements of children.

This decision poses no threat to home schooling rights in other European Countries, particularly not to countries such as Denmark, Finland and Ireland which have provisions for home education in their constitution.

Konrad v. Germany also makes it clear that Germany's "Basic Law" guarantees "the right to establish private schools." The state does therefore not have a monopoly on education, only the right to regulate it.

3) If the US where to ratify the UN Charter on the Rights of the Child, it could only be enforced by US courts. Although US courts could refer to the "Konrad v. Germany" in its decisions, the case contains no authority for any proposition of law other that national law has priority over international law. US court are, however, extremely unwilling to find inspiration from international jurisprudence (for more see Michael Ignatieff book "American Exceptionalism and Human Rights").

As Supreme Court Justice Scalia said in the 2002 case of "Atkins v Virginia" said:
"Equally irrelevant [to decisions of the US Supreme Court] are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people."


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