MUHJ86-01/111/Decision of the German Federal Constitutional Court

Messages from the Universal House of Justice, 1986-2001
Decision of the German Federal Constitutional Court

27 MAY 1991

To all National Spiritual Assemblies

Dear Bahá’í Friends,

111.1 In the Riḍván message of the Universal House of Justice, reference was made to an extremely significant decision of the Federal Constitutional Court in Germany. Since this decision may be of assistance to National Spiritual Assemblies in other countries where difficulties are experienced in obtaining recognition for the Faith, or where the Spiritual Assemblies meet with complications in acquiring legal incorporation, the House of Justice has instructed us to send you the enclosed three documents:

The decision of the Federal Constitutional Court, in German
A translation of this decision into English
An elucidation of the abbreviations used in the above
A brief outline of the background to the decision and indications of its importance, drawing on an article by Dr. Udo Schaefer published in Bahá’í Nachrichten (the newsletter of the German Bahá’í community).

111.2 We should mention that it proved very difficult indeed to translate the decision into English, since the forms and concepts of German Law differ radically from those of English Law. There is often, therefore, no exact equivalence of terminology. Nevertheless, the English translation is sufficiently faithful as to convey a clear impression of the original.

With loving Bahá’í greetings,

DEPARTMENT OF THE SECRETARIAT

Guiding Principles
for the decision of the Second Senate of 5th February 1991
[Translation—from German]
2 BvR 263/86

111.3 1. A community's mere assertion and self-understanding of professing a religion and of being a religious community cannot justify reference for it and its members to the guarantee of religious freedom of Art. 4, par. 1 and 2 GG; rather it must be a religion and a religious community in fact, according to spiritual content and outward appearance. To examine and determine this in case of dispute is the duty of the organs of the State, of the courts in the final analysis, in application of the ruling of the State's legal system.

111.4 2.

a) To the freedom of religion in the meaning of Art. 4, par. 1 and 2 GG belongs also the freedom of religious association, arising from this regulation in connection with the relevant Weimar Church Articles included by Art. 140 GG.

b) The guarantee of freedom of religious association contains also the freedom to form a religious association and organize according to one's common faith. This does not mean the right to a particular legal form, such as that of an incorporated association or some other form of corporation; what is guaranteed is the possibility of legal existence in some form or other, including participation in general legal proceedings.

Federal Constitutional Court
In the Name of the People
In the Proceedings on the Constitutional Appeal
[Translation—from German]
2 BvR 263/86

111.5 1. of the "Spiritual Assembly of the Bahá’ís of Tübingen, with its seat in Tübingen," represented by the Chairman, Mr. S. . . ,

111.6 2. of Mr. S. . . ,

111.7 3. of Mrs. S. . . ,

111.8 4. of Mrs. S. . .

- Represented by: Attorneys Dr. Michael Uechtritz, Dr. Hans Schlarmann, Birkenwaldstrasse 149, Stuttgart 1 -

against

a) the decision of the High State Court Stuttgart of 27 January 1986 - 8 W 252/85 -,

b) the decision of the State Court Tübingen of 8 May 1985 - 5 T 34/84 (FGG) -,

C) the decision of the District Court Tübingen of 8 December 1983 and of 2 January 1984

- GReg. 11 922/83 -

the Federal Constitutional Court - Second Senate - with the participation of Judges

Vice-chairman Mahrenholz,

Böckenförde,

Klein,

Grasshof,

Kruis,

Franssen,

Kirchhof,

Winter

decided on 5 February 1991:

The Decisions of the High State Court Stuttgart of 27 January 1986 - 8 W 252/85 -, of the State Court Tübingen of 8 May 1985 - 5 T 34/84 (FGG) - and of the District Court Tübingen of 8 December 1983 and of 2 January 1984 - GReg. II 922/83 - violate the basic rights of the appellants accorded by Article 4, paragraphs 1 and 2 of the Constitution. They are repealed. The case is referred back to the District Court.

The State of Baden-Württemberg has to reimburse the appellants for the necessary expenses.

Reasons

A.

111.9 Subject of the Constitutional Appeal is the question to what extent Art. 4, par. 1 and 2 GG requires that the individuality of a religious association, considering and organizing itself as part of a religious community, must be taken into account in the interpretation and application of regulations of corporate law of the Code of Civil Law.

I.

111.10 The Religious Community of the Bahá’ís, constituting a religious movement arisen out of Shí’ih Islam, is represented in a multiplicity of countries. It is hierarchically organized and is currently governed by the "Universal House of Justice," consisting of nine elected members, with its seat in Haifa (Israel). In countries with a considerable number of local communities, a nine-member National Spiritual Assembly is elected annually in an indirect election by the totality of its members. In the Federal Republic of Germany this is established as a registered association; in other countries it makes use of other legal forms of association or incorporation according to the laws valid there. As governing bodies on a local level, Local Spiritual Assemblies also consisting of nine members are elected by the believers of the local community, and are responsible for regulating local affairs.

II.

111.11 1. The appellant under 2) is chairman, the appellants under 3) and 4) were further elected officers of the appellant under 1). On 14 February 1983 the appellant under 2) as chairman of the governing body applied to the District Court Tübingen for registration of the appellant under 1) in the Court's Register of Associations. The By-Laws on which this application is based contain the following regulations, which are significant here:

Article 2

111.12 Purpose of the Association

I. The purpose of the Spiritual Assembly of the Bahá’ís of Tübingen is the administration of all the affairs of the Bahá’í Community in Tübingen according to the teachings and administrative principles of the Bahá’í Religion, as they appear in the Appendix following the By-Laws. . . .

II. Accordingly the Spiritual Assembly exclusively and directly pursues charitable and religious purposes and purposes of public benefit in the sense of the paragraph on "Tax-favored purposes" in Tax Law.

III. The Spiritual Assembly acts in a disinterested capacity and does not pursue purposes for its own economic benefit.

Article 3

111.13 Establishment of Membership

I. . . .

II. The members of the Spiritual Assembly are elected by the voting members of the Bahá’í Community from amongst their midst by secret ballot with simple plurality vote, for the duration of one year, or until the election of their successors. This election takes place on 21 April of each year at the Annual Convention of the Bahá’í Community. Details are regulated by Article 10.

III. . . .

Article 4

111.14 Termination of membership

I. Membership is terminated by the expiration of time and new election of the Spiritual Assembly, by resignation, by removal, by leaving the Bahá’í Community of Tübingen.

II. The removal of a member of the Spiritual Assembly falls within the competence of the National Spiritual Assembly of the Bahá’ís of Germany.

Article 5

111.15 By-Election

I. Vacancies in the membership of the Spiritual Assembly are replaced by election at a special meeting of the Bahá’í Community duly called by the Spiritual Assembly for this purpose. As long as the number of members of the Spiritual Assembly does not fall below 5, its decision-making competence is maintained.

II. If the number of vacancies is higher than four, so that the Spiritual Assembly is no longer competent to make decisions, the election is carried out under the supervision of the National Spiritual Assembly.

Article 9

111.16 Meeting of the members

I. . . .

II. All subsequent meetings are called informally (in writing, by telephone or orally) by the Secretary of the Spiritual Assembly at the request of the Chairman or, if he is prevented, by the Vice-chairman, or at the request of three members of the Assembly or by decision of the Assembly in advance. . . .

III. . . .

IV. . . .

Article 11

111.17 The National Spiritual Assembly

I. The institution superior to all the Spiritual Assemblies in the Federal Republic is the National Spiritual Assembly of the Bahá’ís of Germany e.V.

It decides

a) . . . and b) . . . ;

c) about the area of jurisdiction of the Local Spiritual Assembly;

d) . . . to f) . . .

Article 13

111.18 Amendment of the By-Laws

I. . . .

II. Amendments to the By-Laws require the approval of the National Spiritual Assembly of the Bahá’ís of Germany. They become effective on registration in the Court's Register of Associations.

Article 14

111.19 Dissolution

I. The dissolution of the Spiritual Assembly can result

a) from an absolute majority decision taken by the members of the Assembly in a meeting of the members called exclusively for this purpose,

b) from an absolute majority decision of the National Spiritual Assembly.

II. In case of the dissolution of the Spiritual Assembly its assets are transferred to the National Spiritual Assembly of the Bahá’ís in Germany, which must use them directly and exclusively for charitable and religious purposes and purposes of public benefit.

111.20 2. The District Court indicated questionable legal points of a formal and material kind in the registration procedure and demanded rectification. The appellant under 1) was stated to lack particularly the necessary legal independence, because its existence is dependent on the one hand on the local community, and on the other on the National Spiritual Assembly. The appellants counter-claimed that the institutional structure of the worldwide Bahá’í Community rests on a divine foundation and cannot be changed by them. As, according to the Constitutional Law of the Bahá’ís, all power of jurisdiction lies with the elected bodies, these should be given legal capacity in order to be able to participate in legal proceedings. The District Court rejected the application for registration with decision of 8 December 1983, and another application of 22.12.1983 with decision of 2 January 1984.

111.21 3. The immediate appeal of the appellants under 2) to 4) against the decisions of the District Court of 8 December 1983 and 2 January 1984 was rejected as unjustified by the State Court on 8 May 1985. The Association's By-Laws presented were stated to violate § 37 par. 1 BGB, as well as the principle of corporate autonomy. Art. 9 par. 2 of the By-Laws, which gives the provisions for calling a meeting of the members, was stated not to do justice to the protection of the minority called for in § 37 par. 1 BGB. The legal provision demands that the number of members at whose request a meeting of the members is to be called be fixed proportionately, so that allowance will be made for future changes in the strength of the Association. The membership of the Association could drop to five without resulting in legal incapacity to make decisions. In this case the number of three members fixed in Art. 9 par. 2 no longer represents a minority. Above all it was pointed out that the By-Laws contain regulations leading to a legal and organizational dependence of the Association on a third party and are thus incompatible with the principle of independence and self-administration of associations. On the one hand through Art. 4 par. 2, 11 par. 1, 13 par. 2, 14 par. 1 letter b, and through further regulations, the National Spiritual Assembly as a nonmember of the Association is to be given the right of decision-making in the removal of members, amendment of the By-Laws, dissolution of the Association and other matters concerning the Association; on the other hand the Bahá’í Community is to decide through elections on the establishment and the duration of the membership, according to Art. 3 par. 2 and 4 par. 1. Such wide-ranging influence by a third party in the organization of an association is inadmissible.

111.22 4. The High State Court Stuttgart rejected as unjustified the further appeal of the appellants under (2) to (4) with decision of 27 January 1986 (OLGZ 1986, p. 257). It noted that Art. 9 par. 2 of the By-Laws violates § 37 par. 2 BGB, because it does not ensure, with a possible change in the number of members, that the call for a meeting of the members has to follow the request of a minority. The By-Laws are furthermore not reconcilable with the principle of independence and self-administration of the Association (corporate autonomy). Art. 14 par. 2 letter b, according to which the National Spiritual Assembly can dissolve the Association, violates § 41 BGB. It is inadmissible to give the right to an external third party to dissolve the Association against the wish of its members. Insofar as jurisprudence had judged such regulations in individual cases to be admissible (KG, DJ 1936, p. 1948; OLG Karlsruhe, JW 1936, p. 3266; OLG Stuttgart, Das Recht [The Law] 1936, col. 151), these decisions had been made in the time of National Socialism and their reasoning was not convincing. The election of the members by the Bahá’í Community, as envisaged in Art. 3 par. 2 and Art. 4 par. 1 of the By-Laws, violates § 38 and 58 No. 1 BGB. The form by which a new member joins and the declaration of acceptance could indeed be regulated in the By-Laws in any way that is desired, and membership can be tied to certain preconditions. But in principle the Association is to be free to decide whether to accept someone as a member, as long as it is not, as a vitally important Association with monopoly status, exceptionally obliged to accept members. Apart from these individual regulations, the overall picture of the By-Laws shows such a strong third-party influence that there can no longer be a question of autonomous action on the part of the Association. Significant hereby are the National Spiritual Assembly's rights of intervention, according to Art. 4 par. 2 (removal of a member), Art. 11 par. 1 letter c (right of decision-making on the area of jurisdiction), Art. 13 par. 2 (reserving approval for amendment of the By-Laws), Art. 14 par. 2 (transfer of the assets to the National Spiritual Assembly in case of the dissolution of the Association). The By-Laws contain a renunciation of the autonomy of the Association not in accordance with corporate law.

III.

111.23 The Constitutional Appeals are addressed against the decisions of the High State Court and of the State Court as well as—in the relevant interpretation of the brief of the Constitutional Appeal—against both decisions of the District Court. The appellants presented an expert opinion by Prof. Dr. Friedrich Muller on this and claim essentially:

111.24 1. The Constitutional Appeals are admissible. The required interest for legal protection is established. This is not contravened by the fact that the rejection of the application to register was based also on an objection to Art. 9 par. 2 of the By-Laws, which the appellants had agreed to change. Should an application again be made after amendment of this provision of the By-Laws, it would again be rejected because of the other provisions of the By-Laws which were questioned by the High State Court, in which case there would probably be no reexamination of the case.

111.25 2. The High State Court has interpreted the corporate law of the Code of Civil Law incorrectly, and has especially misunderstood the content and significance of Art. 4 par. 1 and 2, Art. 144 GG in connection with Art. 137 par. 3, 4 WRV.

a) Contrary to the interpretation of the High State Court § 41 par. 1 BGB does not prevent the transfer to a third party of the right to dissolve the Association. This is certainly true when the assembly of the members has this right as well. The provisions of the By-Laws for the election of the members of the Association by the Bahá’í Community and the termination of their membership due to new elections are in accordance with §§ 38 and 58 BGB. As is shown from §§ 25 and 40 BGB, State Law leaves it to the Association to make such provisions. No objections can be derived from the Code of Civil Law either against the competence of the National Spiritual Assembly to remove a member of the Local Spiritual Assembly (Art. 4 par. 2 of the By-Laws), or to the definition of its area of jurisdiction (Art. 11 par. 1 letter c), or to the duty of approval for amendment of the By-Laws provided for in Art. 13 par. 2, or to the transfer of assets of the Spiritual Assembly in case of its dissolution to the National Spiritual Assembly (Art. 14 par. 2). Altogether the provisions of the By-Laws contested by the High State Court did not grant an inadmissible outside influence of a third party on the appellant under 1). Its integration in the hierarchical structure of the Religious Community of the Bahá’ís is of necessity given by its rules and principles, which are based on divine Revelation.

b) The denial of legal capacity violates the constitutional rights of the appellant under 1) as derived from Art. 4 par. 1 and 2 GG and violates Art. 140 GG in connection with Art. 137 par. 3 and 4 WRV. These provisions of the Constitution comprehend an organizational structure for a religious community, including the right to seek legal capacity for an administrative institution of the community. In the understanding of the Bahá’ís, which is relevant here, it is an unyieldable principle that the administrative institutions of the local communities, but not the communities themselves, should attain legal capacity. The Constitution in Art. 140 GG in connection with Art. 137 par. 2 to 5 WRV gives religious communities the basic right of choice as regards their legal form. Since the Bahá’ís were denied the status of 'Körperschaft des Öffendichen Rechts' [Corporate Body under Public Law] which they sought, the appellant under 1) must be granted legal capacity under Civil Law. Even if the High State Court's interpretation of corporate law for nonreligious associations should be correct, its effect on the appellant under 1) is more serious because of his religious aims and the necessity of integration in the national and international order of the Bahá’ís which they require, and thus it cannot be applied to him.

111.26 The appellants under 2) to 4) as officers of appellant under 1) suffer violation of their right, protected by Art. 4 par. 2 GG, to carry out administrative activities for the religious community.

IV.

111.27 On the Constitutional Appeal the Federal Minister of Justice and the Ministry for Justice, Federal and European Affairs of Baden-Württemberg have given their opinion. Both consider the Constitutional Appeal unjustified.

111.28 1. The Federal Minister of Justice explains that the right to be granted legal capacity for the appellant under 1) cannot directly be derived from Art. 4 par. 2 and Art. 140 GG in connection with Art. 137 par. 3 WRV by referring to the contents of belief of the Bahá’í Religion. Art. 4 par. 2 GG obliges the State to respect belief and to protect the practice of religion, but not to create legal regulations which correspond to the particular contents of belief of individual religious communities. It is questionable whether Art. 137 par. 3 WRV covers the attainment of legal capacity by the appellant under 1); Art. 137 par. 4 WRV, which is not directly applicable to the appellant under 1) as a mere sub-organization of a religious community, gives an explicit regulation just for this area. In any case, the Spiritual Assembly can attain legal capacity only according to the general prescriptions of Civil Law; lesser requirements than those demanded in Art. 137 par. 4 WRV for the registration of a religious community as an association, could not apply in this case. The Courts, in their decision on the registration of the appellant under 1), have not misunderstood the meaning and significance of Art. 140 GG in connection with Art. l37 par. 3 and 4 WRV.

111.29 2. According to the view of the Minister of Justice, Federal and European Affairs of Baden-Württemberg, the By-Laws violate not only individual regulations of the compulsory law. They also depart significantly in their totality from the type of autonomous association regulated in the Code of Civil Law, and so expose the appellant under 1) to dominating third-party influences, that the decision of the High State Court cannot be contested in the light of the regulations of corporate law of the Code of Civil Law. Even when taking the relevant Constitutional Law into necessary consideration, no other result can obtain. The appellants have not so far proven conclusively that the belief of the Bahá’ís demands in particular the organizational rules considered irreconcilable with the regulations of the Code of Civil Law. It is suggested rather that the teachings of the Faith grant a certain flexibility in the arrangement of details of the organizational structure.

B.

111.30 The Constitutional Appeals are admissible.

111.31 1. The appellant under 1) is entitled to make the Constitutional Appeal. As a union of persons he can, independent of given legal capacity, claim the possible violation of a constitutional right (cf. BVerfGE 3, 383 <391>). The Constitutional Appeal specifically concerns the question whether the appellant under 1) can be denied registration as an association and thus the attainment of legal capacity, without violation of his constitutional right from Art. 4 par. 2 and 2 GG.

111.32 The appellant under 1) asserts that his freedom of religious practice is violated by the fact that with the denial of his registration in the Court's Register of Associations it has been made impossible for him to organize in accordance with the internal constitution prescribed essentially and imperatively by the belief of the Bahá’ís. Thus the protection of the Constitutional Law of religious freedom is infringed. The claim of the appellant under 1) is adequately substantiated; according to his presentation the material and vital areas of religious freedom are concerned and there appears a possible violation of the guarantee of the Constitutional Law.

111.33 2. The appellants under 2) to 4) claim that the denial of registration to the appellant under 1) makes it impossible for them to organize themselves in the framework of their religious community according to the binding prescriptions of the Revelation underlying it, and thus to practice their religion. With this presentation they have sufficiently proven the possibility of a violation of their constitutional right from Art. 4 par. 1 and 2 GG, which is also an individual constitutional right. That the appellants under 3) and 4) no longer belong to the Local Spiritual Assembly, has not lessened their original interest in a decision of the case. How a change in the situation affects a Constitutional Appeal already made, is to be decided in each individual case, taking into consideration the contested act of sovereignty underlying the appeal, the significance of the constitutional guarantee appealed to and the purposes of the Constitutional Appeal (BVerfGE 76, 1 <38>). In the present case the basic significance of the Constitutional Question brought up is to be considered, and further, that the appellants under 3) and 4) can again become members of the Local Spiritual Assembly of the Bahá’ís in elections, and further court proceedings in case of renewed applications for registration in the Court's Register of Associations are possible (cf. also BVerfGE 21, 139 <143>).

111.34 3. The legitimate interest to take legal action as basis for the Constitutional Appeal is not vitiated through the High State Court's having based its decision also on the consideration not contested by the appellants, namely that Art. 9 par. 2 of the By-Laws does not guarantee, as regards calling a meeting of the members, the protection of minorities required in § 37 par. 1 BGB. Thus, this is obviously a question which plays only a subordinate role in the court proceedings. The appellants are ready to amend the By-Laws on this point. They cannot be expected to again go through a hopeless application after such an amendment.

C.

111.35 The Constitutional Appeals are justified.

The decisions of the Courts do not do justice to the significance of the constitutional right of freedom of religious association, guaranteed in Art. 4 par. 2 and 2 GG in connection with Art. 140 GG/137 par. 2 and 4 WRV, for the interpretation (and application) of the corporate law of the Code of Civil Law, and they thereby violate the constitutional rights of the appellants.

I.

111.36 The Local Assembly of the Bahá’ís of Tübingen and the believers of the Bahá’í Community are entitled to the constitutional right from Art. 4 par. 1 and 2 GG. A community's mere assertion and self-understanding of professing a religion and of being a religious community cannot justify reference for it and its members to the guarantee of religious freedom of Art. 4, par. 1 and 2 GG; rather it must be a religion and a religious community in fact, according to spiritual content and outward appearance. To examine and determine this in case of dispute is the duty of the organs of the State, of the courts in the final analysis,—in application of the ruling of the State's legal system. These cannot decide freely in such a case, but must base their decision on the concept of religion to which the meaning and purpose of the fundamental guarantee refers, as intended or set forth in the Constitution. In the present case it is not necessary to go more deeply into this, as the character of the Bahá’í Faith as a religion and of the Bahá’í Community as a religious community is evident, in actual everyday life, in cultural tradition, and in the understanding of the general public as well as of the science of comparative religion.

II.

111.37 Religious freedom in the meaning of Art. 4 par. 1 and 2 GG also includes freedom of religious association as it follows from this regulation in connection with the relevant Weimar Church Articles which are included by Art. 140 GG.

111.38 1. Freedom of religious association is not expressly mentioned in Art. par. 1 and 2 GG; specifically guaranteed are freedom of religion, conscience, religious and ideological belief, as well as the freedom of religious practice. According to the judgments of the Federal Constitutional Court the freedom of religion guaranteed in Art. 4 GG has to be understood in a comprehensive manner (cf. BVerfGE 24, 236 <244 ff.>). The intention of the framer of the Constitution, after the experience of religious persecution by the National Socialist regime, was aimed at guaranteeing freedom of religion not just as particular partial freedoms, but fully. In any case none of the rights to religious freedom, which had been recognized in the Weimar Constitution as the result of hundreds of years of historical development, should now be excluded. A part of these rights to religious freedom was freedom of religion and conscience, including freedom of belief, freedom of private and public religious practice (freedom of worship) and freedom of religious association (cf. Art. 135, 137 par. 2 WRV and G. Anschütz, Die Religionsfreiheit [The Freedom of Religion], in: Anschütz/Thoma (Publ.) HDStR, vol. 2, 1932, § 106, p. 681 ff.).

111.39 This is confirmed by the history of its development. In the consultations of the Parliamentary Council, what was later to be Art. 4 expressly contained the guarantee of the freedom of religious association ("The right of association for religious and ideological societies is recognized"), from its presentation by the Committee of Principles and the first reading in the Main Committee as sentence 2 of par. 1. Only in the fourth reading in the Main Committee on 4 May 1949—after inclusion of the Weimar Church Compromise into the Constitution—this sentence was deleted with the reasoning that it is now unnecessary, because Art. 137 par. 2 WRV is now part of the Constitution (v.Doemming/ Füsslein/Matz, Entstehungsgeschichte der Artikel des Grundgesetzes [History of the Development of the Articles of the Constitution]: JöR, N.E., vol. 1, p. 73 foll.; Parl.Council, HA-Prot., 57th meeting on 4.5.1949, p. 745). From this it follows, according to the intention of the Parliamentary Council, that freedom of religious association is, and is to continue to be, guaranteed in Constitutional Law. It would be totally opposed to this ruling and to the intention of the framer of the Constitution, if it [freedom of religious association] were to be denied merely because of its deletion from Art. 4 which was only made in order to avoid a double guarantee, since it is part of the freedom of religion guaranteed in Constitutional Law. It is rather to be deduced that Art. 4 par. 1 and 2 GG refers for its guarantee of the freedom of religious association to Art. 140 GGI 137 par. 2 WRV and includes its normative content.

111.40 2. The guarantee of freedom of religious association includes the freedom to form and organize as a religious association based on a common Faith. Even the concept of religious association points to the fact that a union on the basis of State Law is intended, and not just a mere spiritual community of worship. The possibility of forming a religious association is to open the way to organizing as a union of people for the realization of a common religious purpose, to give some legal form, and to participate in general legal proceedings. This is not meant as a right to a particular legal form, such as that of an incorporated association or some other form of legal person; guaranteed is, however, the possibility of a legal existence in some form or other, including participation in general legal proceedings.

111.41 It is in conformity with this that Art. 140 GG in connection with Art. 137 par. 4 WRV opens and guarantees to religious communities the possibility of acquiring legal capacity according to the general conditions of Civil Law. These conditions have to be observed by everyone on principle, including religious communities. Nothing is therefore lost, if a religious community or one of its parts cannot acquire a particular legal form it is aspiring to, because of a special organization rooted in its belief. Freedom of religious association demands, however, that the self-understanding of the religious community, insofar as it is rooted in the freedom of religious belief and confession guaranteed in Art. 4 par. 1 GG and is realized in the practice of the religion protected by Art. 4 par. 2 GG, is to be especially considered in the interpretation and application of the relevant law, here of corporate law of the Code of Civil Law (cf. BverfGE 53, 366 <401> m.w.N.). This means not only that the religious community is allowed to make full use of the leeway in organization opened to it by Dispositive Law [i.e. Law that is amenable to negotiation]. Even in the application of compulsory regulations leeways of interpretation are to be used in favor of the religious community if necessary; this must not, however, lead to neglect of imperative consideration of the security of legal proceedings or of the rights of others.

111.42 It would be incompatible with the freedom of religious association, if a religious community, in view of its internal organization, were to be denied participation in general legal proceedings entirely, or this were made possible only under unacceptable conditions.

III.

111.43 The contested decisions do not satisfy the normative content of the freedom of religious association described. The corporate law of the Code of Civil Law admits of taking into account special requirements of internal organization resulting from the individuality of religious associations which are a part of a religious community or in some special relationship to it. Since the legal form of a 'Körperschaft des Öffentlichen Rechts' [Corporate Body under Public Law] is not available to the Bahá’ís (1 following), this is applicable to the Local Spiritual Assembly, from Art. 4 par. 1 and 2 GG (2 following).

111.44 1. The Bahá’í Community cannot acquire the character of a Corporate Body under Public Law according to Art. 140 GG/Art. 137 par. 5 WRV. With this form of organization the existing problems would be solved, because in the framework of a "Corporate Body under Public Law" which in connection with the regulations of Art. 137 par. 5 WRV functions only as a blanket concept, the inclusion into a hierarchical structure, as it appears to be given for the Bahá’ís in their belief, could be fully realized organizationally. This is shown, for example, in the case of the Roman Catholic Church, for which a hierarchical organizational structure is determined which acquires validity in State Law without diminution. Thus, church parishes are established or dissolved by the local bishop alone, after a hearing in the Diocesan Council of Priests, without the advice or the agreement of the priest or the congregation of the church or of a body selected by the congregation being necessary (Can. 515, § 2 i.V.m. Can. 127, §§ 1 and 2 CIC). The appellants have, however, shown that recognition as a Corporate Body under Public Law is out of the question for the Bahá’í Community, according to the relevant recommendations of the Conference of the Ministers of Religion and as the result of an enquiry to the Ministry of Religion of Hesse; it had only about 4,000 to 5,000 members in the Federal Republic in the year 1986, who moreover were divided among approximately 50 local Bahá’í communities. It cannot be said that the denial of recognition as a Corporate Body under Public Law is legally incorrect or even wrong in view of these circumstances and of the criteria of Art. 137 par. 5 WRV. Therefore it is uncertain whether the Bahá’í Community, were the acquisition of the character of a Corporate Body under Public Law possible for it, could be referred to it without losing its right to freedom granted in Art. 4 par. 1 and 2 GG, or would have a choice of legal form.

111.45 2. It is possible in the framework of the corporate law of the Code of Civil Law, and it is demanded by Constitutional Law, that the religious requirements for the internal organization of the Local Spiritual Assembly of the Bahá’ís as a religious association and as part of a religious community be especially considered.

a) The regulations of the By-Laws presented, which were considered by the Courts to be incompatible with the principle of independence and self-administration (autonomy of the Association), on the establishment of membership (Art. 4 par. 2), removal from membership (Art. 4 par. 2) and the dissolution of the Association (Art. 14 par. 1 letter b), the requirements for amendment of the By-Laws (Art. 13 par. 2) and the definition of the tasks of the Association (Art. 11 par. 1 letter c), do not concern those regulations of corporate law which, in the interest of the security and clarity of legal proceedings, regulate the affairs and legal relations with external effects (appointment or removal of the officers, their power of representation, liability of the assets of the Association, liquidation in case of dissolution of the Association etc). They refer solely to the internal organization of the Association.

b) The regulations contested are not in contradiction to the wording of the regulations of corporate law on the internal organization of the Association. The dissolution of the Association regulated in § 41 BGB by decision of the general meeting of members is not excluded but supplemented by the National Spiritual Assembly of the Bahá’ís' right of dissolution; on neither the manner of the establishment of membership, nor on the possibilities for removal, does § 58 BGB contain any regulation; the regulation of § 33 BGB on amendment of the By-Laws is dispositive [not obligatory] (§ 40 BGB); on the definition of the tasks of the Association there is no legal regulation.

c) The courts justify the inadmissibility of the mentioned By-Laws merely on the basis of their incompatibility with the principle of corporate autonomy characterizing corporate law. This principle of corporate autonomy is not expressly laid down in the corporate laws of the BGB; rather it is deduced from jurisprudence and from the doctrine of the totality of regulations, which trace back the bringing into being and organization of an association, as well as the conduct of its affairs, to the will of the members of the association. Its aim, similar to that of private autonomy, is to preserve the character of the association as a union of persons carried on mainly by the will and action of its members (KG, OLGZ 1974, p. 385 <387>; RGRK-Steffen, 12th ed., marginal No. 31 f. before § 21, § 25 marginal No. 1; Staudinger-Coing, 12th ed., introd. remark to §§ 21-54, marginal No. 38; AK-Ott, § 25 marginal No. 15 f.; cf. also Flume, Allgemeiner Teil des Bürgerlichen Rechts [General Part of Civil Law] 1/2, 1983, p. 189 f.). Part of this autonomy is to give institutions which are provided with it the right to give themselves the organization suitable to their aims, and to freely determine it, as long as there are no binding provisions or principles derived from the character of the particular institution which are contrary to it. It is emphasized in jurisdiction that this autonomy can also be practiced in such a way, that the right of self-administration of the association is limited by its Constitution; such a limitation also represents a practice of autonomy; it is therefore a curtailment of autonomy when such regulations are declared inadmissible (cf. KG, OLGZ 1974, p. 385 <387>; Dütz, 2. FS for Herschel, 1982, p. 55 <73 ff.>; a.A. Flume, a.a.O., p. 194 ff.).

111.46 The principle of corporate autonomy, as it is understood in legal judgments and literature, is thus marked by two tendencies in regard to its content, which do not necessarily run parallel: on the one hand it protects autonomy in the formation of the organizational structure of the association according to the free self-determination of the members, to which can also belong integration in a hierarchically organized community; on the other hand it protects the self-determination of the association and its members from a renunciation which almost totally defeats their own self-determination. It does not exclude the possibility, rather it opens up the way, to an equalization in the interpretation and application of both tendencies, by taking into consideration the concrete case, i.e. in relation to the aims and individuality of the Association in question. Thus it is considered consistent with corporate autonomy, to create associations at different levels, inside which the lower-level associations—be they of legal capacity or not—are in a relation of dependency to the superior associations, but do not thereby lose their character as associations, as long as they also pursue tasks independently (Reichert/ Dannecker/Kühr, Handbuch des Vereins-und Verbandsrechts [Handbook of the Law governing Associations and Unions], 4th ed. 1987, marginal No. 2098 ff.; Soergel-Hadding, marginal No. 53 before § 21; BGHZ 90, p. 331).

d) If, in this connection, one considers the individuality of religious associations which are organized as parts of a religious community, it is obvious, in view of the frequently observable hierarchical internal organization rooted in the belief of religious communities, that associations which are part of religious communities, or in a particular relationship to them, wish to be integrated into the hierarchy of their religious community. This cannot automatically be considered as submission to outside third-party influence which threatens the essential independence and self-administration of the association.

aa) Autonomy in the formation and organization of a religious association can be practiced in such a way, that one of the aims of the association is to be part of a religious community and to integrate into the structure determined by its religious laws. Such self-determined aims of integration which, in the case of a religious association, may well represent an expression of the religious self-determination of the members in their common Faith, must not be judged simply as surrender of the self-determination of the association. A limit is reached only when the self-determination and self-administration of the association is ruled out, not only in certain respects as a consequence of the hierarchical integration arising from the religious law, but greatly beyond that; the association would then no longer be carried on mainly by the will of its members, but would become a mere administrative center or would be run for the separate estate of another party (cf. KG, OLGZ 1974, p. 385 <390>; BayObLGZ 1979, p. 303 <308 ff.>).

According to the above, corporate law permits, in the case of a religious association constituted as part of a religious community, that limitations in the autonomous rights of dissolution, removal or activity shall not be considered as inadmissible external third-party influence incompatible with corporate autonomy, as long as they serve, andare limited to, safeguarding integration into the greater religious community in the framework of existing ties of religious law—such as the preservation and identity of belief and basic duties of daily living. With such a limitation to the powers of intervention of a hierarchically superior institution, which only claims for itself some kind of authority over the teachings and corresponding rights of jurisdiction, a sufficient share of self-determination and self-administration of the association is preserved.

bb) By considering the influence of the National Spiritual Assembly specified in the By-Laws in regard to the continuance, membership and activities of the Local Spiritual Assembly as constituting in general an inadmissible third-party influence over the Association, the courts have misunderstood the character of religious associations which, as part of their belief, organize themselves hierarchically as part of a religious community, and thus have misconstrued the significance of the Constitutional Law of freedom of religious association for the interpretation and application of the principle of corporate autonomy. They have considered the National Spiritual Assembly to be an extraneous organization, characterized by different aims and interests, exercising a dominating influence, without considering the unity and mutuality linked to religious law. It is no different with the conclusion concerning the election of the members of the Local Spiritual Assembly by the believers of the local Bahá’í community. These, by virtue of the ties of religious law, are not third parties subjecting the Association to an alien influence from outside and thereby annulling its self-determination; rather, this manner of establishing membership is in accordance with the purpose of the Association to administer the affairs of the local Bahá’í Community as a hierarchical governing body (Art. 2 par. 2 of the By-Laws and Preamble), and it precisely serves its realization.

e) Nor can an inadmissible third-party influence be deduced from the fact that, in case of dissolution of the Association by the National Spiritual Assembly, the assets will fall to it (Art. 14 par. 1 and 2 of the By-Laws). The purpose of this provision of the By-Laws is not that of enabling the National Spiritual Assembly, by making use of its right of dissolution, to seize another's assets for the purpose of increasing its own assets. This is contradicted by the fact that according to the By-Laws no contributions are levied with the purpose of accumulating assets; the financing of the Association is solely through voluntary donations; moreover, the Association has expressly subordinated itself to the legal conditions of charitable purpose (Art. 2 par. 2 and 3 of the By-Laws).

IV.

111.47 The cited decisions therefore violate the appellants' constitutional right from Art. 4 par. 1 and 2 GG in connection with Art. 140 GG/137 par. 2 and 4 WRV, in that they do not sufficiently consider, in the interpretation and application of the meaning of corporate autonomy, the character of the Local Spiritual Assembly as a religious Association and as part of a religious community. They are therefore to be revoked. The case is to be referred back to the District Court for renewed consideration. It will have to examine, among other things, whether the right of dissolution and removal accorded the National Spiritual Assembly, expressed without limits in the By-Laws, is sufficiently limited by the purpose of the Association and the Preamble to the Constitution, in the sense of the explanations under III 2 d) aa), or if an express definition in the By-Laws is needed.

111.48 The decision on the costs follows from § 34a par. 2 BVerGG.

Mahrenholz	Böckenförde	Klein
Grasshof	Kruis	Franssen
Kirchhof	Winter

Decision of the German Federal Constitutional Court
Elucidation of Abbreviations

111.49

Abbreviation	Elucidation in German	Elucidation in English
a.A.	andere Ansicht	Other opinion or view
a.a.O.	am angegeben Ort (bereits vorher zitierte Quelle)	idem. (from the source already cited)
AK-Ott	Kommentar zum Bürgerlichen Gesetzbuch (Reihe Alternativkommentare), 1. Auflage 1979ff. Ott = Bearbeiter	Commentary in the Code of Civil Law (series of alternative commentaries), 1st edition 1979ff. Ott = name of author
BayObLGZ	Bayerisches Oberstes Landespricht, Enscheidungssammlung in Zivilsachen	Bavarian Supreme State Court, Collection of decisions in civil matters
BGB	Bürgerliches Gesetzbuch	Book of the code of civil law
BGHZ	Bundesgerichtshof, Entscheidungen in Zivilsachen	Federal Court, decisions in civil matters
BverfGE	Bundesverfassungsgericht, Entscheidungen	Federal Constitutional Court, Decisions
BverfGG	Gesetz über das Bundesverfassungsgericht in der Fassung vom 3.2.1971	Law on the Federal Constitutional Court in the draft of 3 February 1971
BvR	Registerzeichen des Bundesverfassungsgerichts für Verfassungsbeschwerden	Registration symbol of the Federal Constitutional Court for constitutional appeals
Can.	Canon	Canon (i.e. in relation to the canon Law of the Church)
CIC	Codex Iuris Canonici	Codex of Canon Law
FGG	Reichsgesetz über die freiwiffige Gerichstbarkeit vom 17.5.1898	Imperial Law on voluntary jurisdiction of 17 May 1898
FS für Herschel	Festschrift für Herschel	Publication in honour of Herschel
GG	Grundgesetz für die Bundesrepublik Deutschland vom 23.5.1949	Basic Law (Constitution) of the Federal Republic of Germany of 23 May 1949
GReg	Gerichtsregister	Court Register
HA-Prot	Protokolle des Hauptsausschusses des Parlamentarischen Rates	Minutes of the Main Committee of the Parliamentary Council
HDStR	Handbuch des deutschen Staatskirchenrechts	Handbook of German State Church Law
i.V.m.	In Verbindung mit	In connection with
m.w.N.	Mit weiteren Nachweisen	With further indications
OLGZ	Entscheidungen der Oberlandesgerichte in Zivilsachen	Decisions of the High State Courts in civil matters
RGRK-Steffen	Das Bürgerliche Gesetzbuch mit besonderer Berücksichtigung der Rechtsprechung, des Reichsgerichts und des Bundesgerichtshofes, Kommentar, 12. Auflage 1974ff. Steffen = Bearbeiter	The Code of Civil Law with special reference to legal pronouncements, to the Imperial Court and to the Federal Court, Commentary, 12th edition 1974ff Steffen = name of author
WRV	Weimarer Verfassung vom 11.8.1919	Weimar Constitution of 11 August 1919

Decision of the German Federal Constitutional Court
Background and significance

111.50 In a decision handed down on 5 February 1991 the Federal Constitutional Court of Germany upheld a constitutional appeal made by the Spiritual Assembly of the Bahá’ís of Tübingen. This decision is of such far-reaching importance that the Universal House of Justice has asked that the following summary of its background and effects be sent to all National Spiritual Assemblies. This summary is freely based on an article prepared by Dr. Udo Schaefer at the request of the National Spiritual Assembly of the Bahá’ís of Germany for publication in Bahá’í Nachrichten, the newsletter of the German Bahá’í community.

I.

111.51 The Bahá’í Administrative Order has so many unique features, and is so different from the organizational structure of most other religions, that not infrequently difficulties are experienced in conveying to the authorities in some countries a clear understanding of the nature of our institutions, and thus of obtaining a status that is accorded to other similar bodies under civil law.

111.52 In Germany, for example, 95 percent of all associations are recognized as being "of public benefit." This is similar to what is known as "charitable status" in other countries, and is the basis for the granting of various tax exemptions. Over the years the Spiritual Assemblies in Germany repeatedly experienced difficulty with the Inland Revenue offices until the National Spiritual Assembly turned to the Federal Minister of Finance, who issued a decree on 6 August 1990 clarifying that the Spiritual Assemblies of the Bahá’ís "serve the promotion of religious purposes" and thus have public-benefit status. Even after this, one of the Revenue Offices continued to insist that the By-Laws of a Spiritual Assembly needed to be amended.

111.53 A second problem was that of the form under which Bahá’í Spiritual Assemblies could be incorporated. This was the problem that eventually came before the Federal Constitutional Court, namely, whether the Local Spiritual Assemblies could be incorporated under German Law using the By-Laws that are the universal Bahá’í standard. When different legal systems collide there are always problems, and this was the case here, where Bahá’í constitutional law seemed to be incompatible with German civil law. In order to make these problems intelligible and to explain the decision of the Federal Constitutional Court, it is necessary to consider the historical background.

II.

111.54 Firstly, it is necessary to understand that the Bahá’í Community is not only a religious community but also a community of law. The believers are linked together not only by the tie of belief and love, but also by the legal norms with which the Founder of our Faith has endowed His community, legal norms which govern the structure of the community, its administrative organs and its functions. The main sources of these legal norms, which are to be found throughout the Writings of Bahá’u’lláh and ‘Abdu’l-Bahá, are the Kitáb-i-Aqdas, the Kitáb-i-‘Ahd and ‘Abdu’l-Bahá's Will and Testament, as well as the works of Shoghi Effendi who, as the Authorized Interpreter, expounded and elaborated these norms in his letters (especially in those published in Bahá’í Administration and The World Order of Bahá’u’lláh).

111.55 The revelation of the laws of the Faith, and their application in practice, has been a very gradual process. Bahá’u’lláh had appointed four Hands of the Cause of God during His own lifetime, and ‘Abdu’l-Bahá had brought into being embryonic Local Spiritual Assemblies, but the raising up of the institutions of the Administrative Order really started with the ministry of Shoghi Effendi.

111.56 In the establishment of the Administrative Order the American Bahá’í Community played a leading role. In the twenties, under the unerring guidance of the Guardian, the National Spiritual Assembly of the Bahá’ís of the United States and Canada formulated a constitution for itself, consisting of a Declaration of Trust and By-Laws, and one for Local Spiritual Assemblies, comprising a set of By-Laws, all based on the laws and principles of the Faith, and in a form through which these institutions could incorporate (obtain legal capacity) under American law. In doing this the difficulty was to mould the noncodified Bahá’í laws and principles into forms made available by civil law for the attainment of legal capacity. With the expert help of American jurists, constitutions were worked out for the National Assembly and the Local Assemblies which were endorsed by Shoghi Effendi and prescribed by him as the pattern for the establishment of the Bahá’í Administration in other parts of the world.

III.

111.57 When, after the Second World War, the Spiritual Assemblies that had been dissolved under the Nazi regime were reestablished in Germany, the National Spiritual Assembly adopted the Declaration of Trust and By-Laws which formed the national Bahá’í constitution, and the By-Laws of a Local Spiritual Assembly which were the standard local Bahá’í constitution, simply translating them from English into German. Wherever the Local Assemblies attained legal capacity, they were incorporated with these By-Laws.

111.58 As the establishment of the judicial system of the German Federal Republic progressed, the scrutiny of articles of incorporation became increasingly strict, and Local Spiritual Assemblies which wished to incorporate met with more and more difficulties. The standard By-Laws corresponded to American legal concepts and were expressed in American legal language. These were radically at variance with the concepts of German law and thus, in many instances barely comprehensible to German lawyers.

111.59 Under the pressure of this experience the German Bahá’í institutions acquired the understanding that, while the fundamental structures and principles of our law as "Divine Law" are unalterable, they have to be expressed in different terminology according to the legal systems of particular countries. This experience was shared by other Bahá’í communities around the world.

111.60 Thus, in the seventies, with the agreement of the Universal House of Justice, new By-Laws, which are faithful to the Bahá’í standard constitution and are also in accordance with German Law, were drafted and introduced as a pattern for all Local Spiritual Assemblies in Germany. All Spiritual Assemblies in the Federal Republic are today incorporated according to these sample By-Laws. The National Spiritual Assembly also prepared a new constitution for itself, but this has not yet been registered, because the Court of Registration concerned was awaiting the decision of the Federal Constitutional Court.

111.61 Although this development placed the German Spiritual Assemblies in an incomparably better position in relation to the Courts of Registration, it soon became clear that the legal construction of the By-Laws was still not easily conveyed to the courts concerned. It is not the community (with the Assembly as its managing body) which is the association, but the Assembly itself, which is elected by the members of the community; this is an unusual construction in Germany. Normally, membership in an association is attained by joining it, but membership in a Spiritual Assembly is through election by a "third party," the community. Normally in Germany, an Association has a minimum size (7 members) and has no upper limit. As against that the membership of the Assembly is limited in number: it has nine members, no fewer and no more. In spite of these difficulties it was usually possible to overcome the Registrar's objections and obtain legal incorporation. Sometimes this required proceedings in the law courts.

IV.

111.62 The legal administrator of the District Court of Tübingen was especially obstinate. He objected to no less than eight points in the By-Laws and finally, on 8 December 1983, refused incorporation. The legal measures taken against this decision were unsuccessful. The State Court of Tübingen rejected the further appeal of 5 May 1985. The High State Court in Stuttgart, to which the case was subsequently appealed, rejected it on 27 January 1986.

111.63 With that the legal measures were exhausted, and this would have meant that the Spiritual Assembly of Tübingen would never be able to incorporate with the By-Laws of the standard local Bahá’í constitution. Beyond this, when the decision of the High State Court in Stuttgart was published in the legal literature, a number of other courts, alerted by this decision, demanded that incorporated Local Assemblies amend their By-Laws or else face cancellation of their existing incorporation.

111.64 The decision of the High State Court in Stuttgart was founded on the principle of corporate autonomy which applies to associations under German civil incorporation law. According to this, an association is an autonomous body free from third-party influence and is subject only to the law of the land. The fact that Local Spiritual Assemblies are linked in a hierarchy and that their superior institutions, the National Assembly and the Universal House of Justice, have a series of rights of intervention according to the By-Laws, is seen to violate this principle of corporate autonomy.

111.65 Thus a critical situation had arisen for the German Community. There was a great danger that all incorporated Spiritual Assemblies, including the National Spiritual Assembly, would be deprived of their legal capacity.

111.66 The German Constitution provides a possibility for recognized religious communities to incorporate, in certain circumstances, under "public law" rather than as associations under civil law. But this presupposes a minimum number of members which the German Bahá’í community is still far from having reached.

111.67 The Spiritual Assemblies of the Bahá’ís must therefore have recourse to the corporate law of the German Code of Civil Law to achieve legal capacity. But, to obtain such registration the Spiritual Assemblies would have had to change the basic structures of their By-Laws. Such changes the Bahá’ís cannot and will not accept, because the essential structures of the constitutional law of our community are the Law of God and are therefore not open to compromise. These essential structures include the vertical form of institutional organization.

111.68 With all other legal means exhausted, the Federal Constitutional Court presented the last resort for the German Bahá’í community, but this presupposed that the decisions previously passed by the courts had violated the constitutional rights of the Spiritual Assembly of Tübingen. The National Spiritual Assembly was convinced that this was unmistakably the case. Article 4 of the German Constitution guarantees not just freedom of religious practice, which includes freedom of belief and worship, but also freedom of organization. The decisions passed by the courts, and the interpretation of civil law underlying them, had led to the result that hierarchical integration within the framework of the Bahá’í Administration was made impossible for the Bahá’ís. Were these decisions to be enforced, each local Bahá’í community would be isolated from the rest of the Administrative Order. The community as a whole would no longer exist, it would be only an amorphous collection of autonomous bodies with no links to one another. The Bahá’í Community as the "People of God" embodied in a legal structure, would no longer exist. In this the National Assembly saw a violation of Article 4 of the Federal Constitution and concluded that the submission of a Constitutional Appeal was advisable.

111.69 Although, from the outset, this constitutional question had been referred to in writing, the courts concerned with the successive appeals on the case had not considered them at all.

111.70 After receiving the Constitutional Appeal, which was submitted in March 1986, the Federal Constitutional Court considered this extremely unusual matter very intensively. It even requested original literature from the German Bahá’í Publishing Trust, asked for and examined numerous By-Laws of other associations, Christian and Islamic, and solicited views from the Federal Minister of Justice and from the Ministry of Justice of Baden-Württemberg, the Evangelical Church in Germany and the Institute for State Church Law of the Dioceses of Germany (on the question of corporate autonomy in the case of church associations). The two Ministries of Justice expressed an opinion very unfavorable to the Bahá’ís, concluding that the contested decisions had been passed correctly and so the Constitutional Appeal was unfounded.

111.71 The Federal Constitutional Court took a long time to reach its decision. It had to consider the far-reaching consequences which a decision in our favor could have. Would it not open wide the floodgates for organizations unjustifiably calling themselves "religions" to make use of this decision in future?

V.

111.72 The decision which the Federal Constitution Court reached, wholly in our favor, on 5 February 1991, is a relatively rare decision in the field of State Church Law in Germany, and for this alone it constitutes a highly significant precedent in the formulation and development of German Law.

111.73 For the German Bahá’í Community this decision, as shown by the above explanations, is of far-reaching significance and cannot be overestimated: It ensures the legal status of the community and brings to an end all attempts by the courts to require the amendment of the basic structures of our By-Laws. It confirms once and for all the right of the Bahá’ís to organize as a hierarchically structured legal community according to the revealed Law of God.

111.74 The decision first of all sets a limit to its application, in a statement that is of the greatest importance as a testimony to the widespread recognition of the Bahá’í Faith as an independent religious community. It explains that the mere assertion of a community that it is a religious community is not sufficient for it to submit such a constitutional appeal. The authorities and courts have to examine in each specific case whether it is really a religion and a religious community, according to spiritual content and external appearances. Here the Court states: "In the present case it is not necessary to go more deeply into this, as the character of the Bahá’í Faith as a religion and the Bahá’í Community as a religious community is evident, in actual everyday life, cultural tradition, and in the understanding of the general public as well as of the science of comparative religion."

111.75 In its decision, the Federal Constitutional Court reviewed in detail the constitutional right of freedom of religious organization and came to the conclusion that the lower courts, in arriving at their decisions, had not done justice to this constitutional right; that it is possible, within the framework of the German civil law governing incorporations, to give special consideration to the religious requirements governing the internal organization of the Local Spiritual Assembly as a religious association and as part of a religious community; and, moreover, that Constitutional Law demands that such special consideration be given.

111.76 The Court pointed out that, because associations which are part of religious communities wish to be integrated into the hierarchy of their religious community, the granting of the right of intervention to superior institutions cannot be considered as submission to an external influence which would threaten the essential independence of the association or its right to administer itself. The Federal Constitutional Court concluded that the courts acting in this case had misunderstood the constitutional right of freedom of religious organization in the interpretation and application of the principle of corporate autonomy, in that they had considered the National Spiritual Assembly "to be an extraneous organization, characterized by different aims and interests, exercising a dominating influence, without considering the unity and mutuality linked to religious law." The same was true, the Court explained, for the election of the members of the Local Spiritual Assembly by the believers in the local community, who are not "third-parties."

111.77 From the reasons given for the decision it can be inferred that a positive decision was possible only because the Bahá’í Law, which underlies our constitutions as revealed Law, is an indispensable part of our Faith.

VI.

111.78 The magnitude of the achievement this judgment represents in the efforts to preserve and ensure the legal status of the Spiritual Assemblies in Germany can be judged from the fact that only 1.5 percent of all Constitutional Appeals meet with success.

111.79 The National Spiritual Assembly had the wisdom to shrink from no effort or cost in order to ensure the best presentation of the case. It engaged a renowned Stuttgart firm of attorneys for its legal protection. The presentation of the case was in the hands of an expert in the fields of Constitutional Law, Administrative Law and State Church Law. Beyond that the National Spiritual Assembly solicited an opinion from a highly regarded expert in State Church Law at the University of Heidelberg (Professor Friedrich Müller). This profound opinion, comprising 115 pages, which clearly and convincingly sets forth the legal position of the Bahá’ís, was a great support for this Appeal and surely had an effect in helping to bring it to a successful conclusion. A gratifying side-effect of the work and funds devoted to this Appeal is to be found in the number of highly placed ministerial officials, professors and scientific collaborators, who had to concern themselves intensively with the Faith, not to mention the judges of Germany's highest Court. The decision will be included in the collection of official records and will be published in all the legal journals.

111.80 Undoubtedly further fruits will be gathered in the years ahead when this landmark decision assists judicial authorities in other lands to appreciate the stature of the Bahá’í Faith and the fundamental importance of the laws and principles embedded in its Sacred Scriptures.

22 May 1991