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Case:
BVerfGE 93, 1 1 BvR 1087/91 Kruzifix-decision "Crucifix Case (Classroom Crucifix Case)"
Date:
12 May 1987
Judges:
Seidl, Söllner, Haas.
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. The affixation of a cross or crucifix in the classrooms of a State compulsory school that is not a denominational school infringes Art. 4(1) Basic Law.

2. § 13(1), third sentence, of the School Regulations for Elementary Schools in Bavaria is incompatible with Art. 4(1) Basic Law and is null and void.

Order of the First Panel of 16 May 1995 – 1 BvR 1087/91 –
in the proceedings on the constitutional complaint
1) of Mr S..., 2) of Mrs S..., 3) of minor S..., 4) of minor S..., 5) of minor S..., complainants 3) - 5) being represented by complainants 1) and 2),
–__attorney: Advocate Gottfried Niemietz, Engesserstraße 3, Freiburg i.Br. -
1. directly against
a) the order of the Bavarian Higher Administrative Court of 3 June 1991-7 CE 91.1014 –;
b) the order of the Bavarian Administrative Court, Regensburg, of 1 March 1991 - RO 1 E 91.167 –;
2. indirectly against
§ 13 (1), third sentence, of the School Regulations for Elementary Schools in Bavaria (Volksschulordnung- VSO) of 21 June 1983 (GVBl. p. 597).

DECISION:

1. § 13(1), third sentence, of the School Regulations for Elementary Schools in Bavaria (Volksschulordnung - VSO) of 21 June 1983 (GVBl. p. 597) is incompatible with Article 4(1) of the Basic Law and is null and void.

2. the order of the Bavarian Higher Administrative Court of 3 June 1991-7 CE 91.1014 - and the order of the Bavarian Administrative Court, Regensburg, of 1 March 1991 - RO 1 E 91.167 - infringe the basic rights of complainants 1) and 2) under Article 4(1) taken together with Article 6(2), first sentence, and the basic rights of complainants 3) - 5) under Article 4(1) of the Basic Law. The order of the Higher Administrative Court further infringes the complainants' basic rights under Article 19(4) of the Basic Law. The decisions are set aside. The case is referred back to the Higher Administrative Court.

3. The Free State of Bavaria shall reimburse the complainants for their necessarily incurred expenses.

EXTRACT FROM GROUNDS:

A.

The constitutional complaint concerns the affixation of crosses or crucifixes in schoolrooms.

I.

1. By § 13(1), third sentence, of the School Regulations for Elementary Schools in Bavaria (Volksschulordnung - VSO) of 21 June 1983 (GVBl. p. 597), a cross is to be affixed in every classroom in the public elementary schools. The Volksschulordnung is a legal regulation issued by the Bavarian State Ministry for Education and Cultural Affairs, based on a power delegated in the Bavarian Act on Education and Public Instruction (BayEUG) and in the (since repealed) Elementary Schools Act (VoSchG). § 13(1) VSO reads:

The school shall support those having parental power in the religious upbringing of children. School prayer, school services and school worship are possibilities for such support. In every classroom a cross shall be affixed. Teachers and pupils are obliged to respect the religious feelings of all.

2. Complainants 3) - 5) are the school-age minor children of complainants 1) and 2). The latter are followers of the anthroposophical philosophy of life as taught by Rudolf Steiner, and bring up their children accordingly. Since their eldest daughter, complainant 3), went to school they have been objecting to the fact that in the schoolrooms attended by their children first of all crucifixes and later in part crosses without a body have been affixed. They assert that through this symbol, in particular through the portrayal of a "dying male body", their children are being influenced in a Christian direction; which runs counter to their educational notions, in particular their philosophy of life.

When complainant 3) entered school in late summer 1986, in her classroom there was a crucifix with a total height of 80 cm and a 60 cm high representation of the body affixed, directly in the field of view of the blackboard. Complainants 1) and 2) asked for removal of this crucifix and declined to send complainant 3) to school as long as she was exposed to that sight. The conflict was initially settled by exchanging the crucifix for a smaller cross without body, affixed over the door. The disputes between complainants 1) and 2) and the school administration however flared up again when their other children went to school and when complainant 3) changed class and finally school, because crucifixes were again affixed in the schoolrooms. By not sending their children to school, sometimes for fairly long periods, complainants 1) and 2) repeatedly secured the compromise solution again (small cross with no body, at the side above the door) for the classrooms, but not for the other schoolrooms. The school administration, moreover, gave complainants 1) and 2) no assurance that the compromise would be kept to at every change of class.

For a time the three children attended a Waldorf school; however, for lack of the necessary funds, this remained only a transitory attempt at resolving the conflict.

3. In February 1991 complainants 1) and 2) brought an action against the Free State of Bavaria before the administrative court, in their own behalf and that of their children, with the aim of having the crosses removed from all rooms frequented or yet to be frequented in public schools by their children in connection with attending school. At the same time they applied for the issuing of a temporary order pending conclusion of the action for removal of crucifixes.

a) The administrative court refused the urgent request. The affixation of crosses in schoolrooms infringed neither the parents' rights regarding upbringing nor the children's fundamental rights. § 13(1), third sentence, VSO did not provide that the cross be used as a means of education and made into an object of the overall school teaching. It served merely for constitutionally unobjectionable support to parents in the religious upbringing of their children. The constitutionally admissible bounds of religious or philosophical references in schooling were not overstepped. The principle of non-identification could not claim the same respect in schooling - by contrast with the purely secular sphere - because in the educational sphere religious and philosophical conceptions had always been of importance. The tension between positive and negative religious freedom had to be resolved having regard to the precept of tolerance in accordance with the principle of concordancy. That meant the complainants could not demand absolute primacy for their negative confessional freedom over the positive confessional freedom of those pupils who were brought up in a religious confession and wished to manifest that. Instead, tolerance and respect were to be expected of the complainants for the religious convictions of others when encountering their exercise of religion at school (for details see VG Regensburg, BayVBl 1991, p. 345).

b) The appeal against this was rejected by the Higher Administrative Court. First, there was no ground for an order. Anticipation of the object pursued in the main case was not admissible, since no unacceptable, irreparable disadvantages would arise for the complainants from waiting. The children had attended public schools since 1986. The parents had since then been objecting to the affixation of crosses, but not brought suit till February 1991. Moreover, the school authorities had to some extent shown a willingness to compromise. In these circumstances complainants 1) and 2) could reasonably be expected, in the most trusting possible cooperation with the school, to seek a transitional solution acceptable to them. The sight of a cross or crucifix was a comparatively slight burden; the children would be confronted with this depiction elsewhere too.

Further, a claim to an order had not been made credible either; success in the main case could not be counted on. Certainly, the protected area of freedom of religion was affected; but that came up against its limits here, arising from State law on school organization and the fundamental rights of those pupils and parents who took an opposite view. Presentation of the cross as the symbol of Christ's suffering and lordship did confront the complainants with a religious view of the world. But the cross was not the expression of confession of a denominationally cohesive faith, but an essential object of the overall Christian, Western tradition and the common property of this culture area. A non-Christian or otherwise philosophically other-minded person could reasonably be expected, on the precept of tolerance applying to them too, to put up with the cross in due respect for others' philosophy of life. The mere presence of a representation of the cross called neither for identification with the ideas or notions of faith it embodied nor for any other sort of conduct actively oriented to it. The school was neither acting as a missionary nor was its openness to other religious and philosophical values impaired. The school acted on children through teaching, not through graphic representations like the traditional cross symbol. This symbol raised no claim to absoluteness, nor promoted any particular Christian denomination; nor were the complainants being discriminated against. Nor was affixation of crosses in schoolrooms capable of encroaching on parental upbringing independent from school. In the present case there was the further fact that complainants 1) and 2) did not reject the figure of Jesus Christ as such, but only objected to an in their view too one-sided and harmful stress on the suffering Christ. That too made any encroachment on them relatively slight; that complainants 3) - 5) were suffering psychic harm from the sight of the representation of a cross in the schoolroom had not been substantiated. Nor was any inescapable compulsion exercised by the fact that the children had the representation of the cross constantly before their eyes during teaching and had to look at it (for details see BayVGH, NVwZ 1991, p.1099).

c) The main case is pending before the appellate court since the administrative court rejected the suit.

II.

The constitutional complaint is brought directly against the orders issued in the summary proceedings and indirectly against § 13(1), third sentence, VSO. The complainants object to infringement of their fundamental rights under Art. 4(1), Art. 6(2), Art. 2(1) and Art. 19(4) Basic Law.

1. The equipping of schoolrooms with crosses and crucifixes is said to infringe the State's duty of religious and philosophical neutrality. The cross was the distinguishing symbol and representational feature of the religion of Christianity; it was the age-old symbolic embodiment of specifically Christian beliefs, namely Christ's suffering and lordship. The affixation of crosses in State premises meant the State professing its association with the Christian faith. At the same time it furthered subtly influencing the pupils in the direction of the Christian faith by exposing them to the compulsion, inescapable because schooling is compulsory, to put up daily and for years, against their own religious or philosophical convictions or their parents', with a cross or crucifix. Children and young people especially were easily influenceable; their capacity to defend themselves against influences and form a critical judgement of their own was far less than with grownups. This interference was justified neither by States' rights to organize schooling pursuant to Art. 7(1) Basic Law nor by the positive religious freedom of other pupils or their parents under Art. 4(1) Basic Law. The contrary view, as expressed in the decisions challenged, was based on an unconstitutional reversal of the meaning of the fundamental right to religious freedom. This gave the individual citizen a defensive right against the State; Art. 4(1) Basic Law was aimed specifically at protecting minorities. It was incompatible with this to assert that setting up symbols of the majority religion in State schoolrooms was part of the positive religious freedom of a majority among the population. The decisions challenged, by deducing from Art. 4 Basic Law a claim of the majority against the minority whereby the minority had to tolerate and respect pro-majority official acts and religious tokens in State premises as positive exercise of religion by the majority, converted the protection of Art. 4 Basic Law into its opposite.

To the extent that anything different followed from the Federal Constitutional Court's school prayer judgment, it could not be adhered to. Moreover, according to more recent decisions of the specialized courts[= Fachgerichte; a term for any court below the constitutional courts, here referring to the administrative courts], the school's duty of religious neutrality was already infringed if one individual teacher wore garments during teaching time that allowed an unambiguous inference as to his religious conviction (prohibition on wearing "Bhagwan"-type clothing, see BVerwG, NVwZ 1988, p. 937; BayVBl 1985, p. 721; OVG Hamburg, NVwZ 1986, p. 406). The hanging up of crucifixes or crosses by the school authorities in all schoolrooms at elementary and intermediate schools led to an incomparably stronger and more massive promotional effect and to particularly strong religious influencing. For this had to do not with an act of individual exercise of religion, through which an individual person indicated mere membership in a particular religious communion, but with religious promotion and influence based on State authority.

2. The parents' fundamental rights under Art. 6(2) Basic Law and Art. 4(1) Basic Law were infringed since they had to expose their children to a religious or philosophical influence in contradiction with their educational conceptions.

3. Art. 2(1) Basic Law was infringed because they were, by State compulsion, burdened with a disadvantage not grounded in the constitutional order.

4. The Higher Administrative Court's order was said further to infringe their fundamental right guaranteed by Art. 19(4) Basic Law to the assurance of effective legal protection, to the extent that it denied the existence of grounds for an order and therefore the need for urgency. The present position constituted a daily, burdensome infringement of fundamental rights because through the cross symbol a deep, lasting effect was being exercised on the mental development of easily influenceable school-age children. If the consequences that had so far arisen for the children's development were already hard to correct, the remittal to the main case meant in effect a total denial of legal protection of rights. At any rate, it could not be held against them that they had not filed suit till 1991. Not least in the children's interest, the parents had repeatedly sought outside the courts to reach an amicable settlement with the school authorities, who had however drawn it out over the years. These efforts could not now be turned against them in the sense that there was a lack of urgency because they had waited too long.

Further, the affixation of crosses in public schools also infringed the religious freedom guaranteed in Art. 9(1) of the European Convention on Human Rights and Fundamental Freedoms (ECHR), and Art. 2, second sentence, of the additional protocol of 20 March 1952 to the Convention. In this connection the complainants cited a judgment of the Swiss Federal Court of 6 September 1990 (EuGRZ 1991, p. 89), in which that court affirmed infringement of the Convention's norms and the Swiss Federal Constitution's provisions with the same content.

III.

1. The Bavarian Minister-President, expressing the view of the Bavarian State Government, regards the constitutional complaint as unjustified. § 13(1), third sentence, VSO was an emanation of the precept contained in Art. 135, second sentence, of the Bavarian Constitution (BV), found constitutional by the Federal Constitutional Court (BVerfGE 41, 65), that pupils in Bavarian elementary schools were to be taught and brought up in accordance with the principles of the Christian confessions. That meant the values and standards which, decisively marked by Christianity, had also largely become the common property of the Western cultural area. By affixing school crosses the Bavarian elementary school was giving an upbringing in accordance with those very principles, without thereby becoming involved in theological questions in a way that conflicted with the State's religious and philosophical neutrality. The fact that other pupils might feel themselves addressed in their positive religious freedom did not affect the rights of the complainants. Missionary propaganda through the cross did not occur in general teaching. Nor were rights of the complainants affected when, in the context of religious instruction or school prayer, the cross in the schoolroom abandoned its general symbolic character and was turned into a specific symbol of faith. The complainants need not take part in religious instruction, and could acceptably avoid school prayer. The right to apply their own philosophy of life met its limit in the positive religious freedom of third parties and the concomitant precept of tolerance. In Bavaria the requisite harmonization between the two separate rights regarding upbringing, on the one hand the State's under Art. 7(1) Basic Law, on the other the parents' under Art. 6(2) Basic Law, had come about in particularly significant fashion through the majority referendum vote by the people for the nondenominational school of Christian character outlined in Art. 135 BV. The protection of the religious views of a minority called for by the complainants could not therefore be assessed without giving consideration to the form of school given constitutional status by that vote. The preamble to the Basic Law spoke of responsibility before God. According to the prevailing overall picture, it was a Christian, Western concept of God the constitutional legislators had had in mind. The school cross did not go beyond that statement, but on the other hand gave concrete form to just this responsibility that the constitutional legislators had at the time themselves felt.

2. On the position of the Catholic Church, the Secretariat of the German Bishops' Conference presented an opinion of the Institute for Law on Church-State Relations of the Dioceses of Germany. It stated that religious references like those objected to here were admissible in public nondenominational schools. The affixation of a wall cross in a schoolroom in no way identified the State with the Christian religion. The cross was not a means of instruction, nor did § 13(1), third sentence, VSO call for associating the content of all teaching with the cross. The provision was instead connected with the constitutionally unobjectionable intent that the school should support parents in the religious upbringing of children, and promote this; all that followed from the State's duty of neutrality was that the school ought not to be a missionary school nor claim any binding validity for the content of Christian beliefs. The complainant's view was by contrast advocacy of a secular or religion-free school from which all religious references were to be excluded. This was a failure to recognize that Art. 4 Basic Law protected both negative and positive forms of expression of religious freedom equally against encroachments by the State. For attendance at compulsory school, religious and philosophical views had always been relevant. It was however impossible in practice to take account of all religious and philosophical conceptions and desires as to upbringing at school. The school need not confine itself to teaching in a completely neutral fashion; its education also extended to conveying non-material values. These could be conveyed in appellant form and by recourse to historically available and current symbols and forms of expression. The complainants' negative religious freedom was limited here by the positive religious freedom of those parents who desired a Christian upbringing for their children, and by State law on school organization. The secular State of the Basic Law, while subjecting itself to the precept of non-identification, on the other hand strove for a positive, open neutrality. This was closely connected with the precept of tolerance as a further objective definition of the content of Art. 4 Basic Law. The conflicting fundamental rights were to be reconciled in a spirit of practical concordancy. This meant that while the complainants could call for other religions and philosophies of life not to be excluded from the life of the school even at a school run in accordance with Art. 135, 2nd sentence, BV, and for tolerance to be shown to their philosophy of life, in the sense of respect and acknowledgment, they could not however claim that their negative religious freedom should be allotted absolute primacy, to the detriment of pupils brought up in a religious confession and wishing to profess it, since no room would then be left over for the exercise of positive religious freedom. While the presentation of the cross as a symbol of Christian faith spanning the confessions did confront the complainants with a religious view of the world in which the decisive force of Christian conceptions of faith was affirmed, they were not thereby brought into a constitutionally unacceptable religious or philosophical conflict. They were not forced daily to disclose their position of rejection; instead, they were left the possibility of purely passive non-observance.

3. The Evangelical Lutheran Church in Bavaria's State-Church Council referred to an expert opinion by the Ecclesiastical Law Institute of the Evangelical Church in Germany. In summary, it stated that the State, pursuant to Art. 7(1) Basic Law, had a separate, equal educational mandate alongside the parents. The Christian nondenominational school in accordance with Art. 135 BV was constitutionally unobjectionable as long as it was not a missionary school and did not claim any binding validity for the content of Christian beliefs. The cross in the classroom was a symbol for the common principles of the Christian confessions in accordance with which pupils in elementary schools were taught and brought up. The cross emblem was not the expression of a particular denominational confession, and certainly not the expression of a Christian State. Negative freedom of religion had no primacy over the positive side of this fundamental right. The State's neutrality in the context of its educational mandate in schools was expressed in the fact that, in a spirit of tolerance and consideration for others, the positive and negative religious freedom of pupils and parents was allowed sway. Since given a reasonably acceptable setting a jointly spoken school prayer did not encroach on the negative religious freedom of dissenters, this was certainly true a fortiori for equipping a schoolroom with a cross. By contrast with school prayers, the cross emblem did not challenge the individual pupil to a decision to take part or not.

4. Additionally, the Humanist Union, the Augsburg League for Spiritual Freedom and the Free Religious Community of the State of Hesse made statements on the case in hand, inter alia presenting expert opinions by various authors supporting the complainants' view.

B.

The constitutional complaint is admissible.

The complainants have exhausted the legal remedies (§ 90(2), first sentence, BVerfGG). With the order of the Higher Administrative Court, a decision of last instance terminating the procedure for temporary protection of rights is present. Certainly, the principle of subsidiarity may in such cases oppose admissibility of the constitutional complaint where constitutional infringements are complained of that do not specifically relate to the urgent procedure but raise questions that present themselves equally in the main proceedings, so that the latter are capable of redressing the alleged constitutional grievance (see BVerfGE 77, 381 [401]; 80, 40 [45]). On the other hand, the complainant may not be remitted to the main proceedings when the infringement of fundamental rights is brought about through the urgent decision itself or where the decision does not depend on any further clarification as to facts or other than constitutional law and the preconditions are present whereby pursuant to § 90(2), second sentence, BVerfGG the requirement for exhaustion of legal remedies may be disregarded (see BVerfGE 79, 275 [279]).

These prerequisites are present here. Insofar as the complainants assert infringement of Art. 19(4) Basic Law through the refusal of provisional legal protection, they are making a fundamental-rights complaint affecting the urgent proceedings specifically. As regards the other (substantive) fundamental-rights complaint, no further clarification as to facts or other than constitutional law is required. In particular, the specialized courts have dealt comprehensively with the relevant legal questions in the decisions challenged. No further return is to be expected from the main proceedings. Nor can the complainants reasonably be expected, in view of the advance of time and the continuation of schooling, to be remitted to the conclusion of the main proceedings.

For the admissibility of the constitutional complaint it is irrelevant whether the child complainants are still attending elementary school (see BVerfGE 41, 29 [43]).

C.

The constitutional complaint is justified. Insofar as the Higher Administrative Court denied a ground for an order, its decision infringes Art. 19(4) Basic Law (I.). The denial of a claim to an order is incompatible with Art. 4(1) and Art. 6(2), first sentence, Basic Law (II.).

I.

1. Art. 19(4) Basic Law opens up recourse to the law against any alleged infringement of subjective rights by an action of the public power. Not just the formal right to invoke the courts but also the effectiveness of the legal protection are guaranteed (cf. BVerfGE 35, 263 [274]); 35, 382 [401 f.], with further references). Effective legal protection means also legal protection within an appropriate time. It follows that judicial legal protection, particularly in urgent proceedings, must as far as possible avert the creation of accomplished facts that can no longer be reversed if a measure proves unlawful on (final) judicial review (cf. BVerfGE 37, 150 [153]; 65, 1 [70]). There follow requirements on the courts as to the interpretation and application of the various statutory provisions on urgent legal protection (cf. BVerfGE 49, 220 [226]; 77, 275 [284]). Thus the specialized courts are bound when, say, interpreting and applying § 123 VwGO to grant provisional legal protection where the petitioner would otherwise be threatened with considerable infringement of rights, going beyond marginal areas, that could no longer be removed by the decision in the main case, unless, exceptionally, preponderant, particularly weighty grounds oppose this (cf. BVerfGE 79, 69 [74 f.]).

2. These requirements are not met by the Higher Administrative Court's order. It denies the requisite ground of order for issuing the temporary order desired, and therefore the urgency of the matter, because the complainants had for years hesitated to invoke the courts and during that period put up with at least the affixing of crosses instead of the originally present crucifixes. It had been their aim to continue searching with the school administration for a transitional solution in this sense acceptable to them.

With this justification the Higher Administrative Court does justice neither to the actual course of events nor to the importance of the complainants' concern. In fact the complainants had since their eldest child went to school brought their demand before all levels of the school administration - from local up to ministerial. The fact that they originally hoped for an extra-judicial agreement and that time thereby elapsed ought not to count to their disadvantage; such conduct directed initially at avoiding conflict is rather that of a reasonable party. Further, the complainants had agreed to a compromise which however was called in question by the school administration repeatedly when the children changed classroom or school. A definitive concession in this sense has not been made by the school administration.

For this reason, the Higher Administrative Court's view that the complainants ought to have continued to strive for compromise also fails to do justice to the obligation to guarantee effective legal protection. It would rather have been a matter for the court to sound out whether the school administration was prepared to make a temporary order superfluous by giving an assurance along the lines of the compromise solution.

In answering the question whether grounds for an order were present, the Higher Administrative Court further failed to take adequate account of the fact that the matter was one of a provisional arrangement in the context of current school attendance, that is, of a life situation where the mere advance of time towards conclusion of school (complainant 3 is now sixteen years old) makes judicial legal protection particularly urgent. Legal disputes in school matters particularly are often decided only at the level of provisional legal protection, because the claim can often no longer, because of elapsed time, be asserted in the main proceedings. The specialized courts ought not to duck the need for effective legal protection by overstraining the requirements as to the existence of grounds for an order.

II.

The decisions challenged further infringe the fundamental rights of complainants 1) and 2) under Art. 4(1) taken together with Art. 6(2), first sentence, Basic Law, and the fundamental rights of complainants 3) - 5) under Art. 4(1) Basic Law. They are based on § 13(1), third sentence, VSO, which is itself incompatible with the Basic Law and is null and void.

1. Art. 4(1) Basic Law protects freedom of religion. The decision for or against a faith is according to it a matter for the individual, not the State. The State may neither prescribe nor forbid a faith or religion. Freedom of religion does not however mean just the freedom to have a faith, but also the freedom to live and act in accordance with one's own religious convictions (cf. BVerfGE 32, 98 [106]). In particular, freedom of religion guarantees participation in acts of worship a faith prescribes or is expressed in. This implies, conversely, the freedom to stay away from acts of worship of a faith not shared. This freedom relates similarly to the symbols in which a faith or religion presents itself. Art. 4(1) Basic Law leaves it to the individual to decide what religious symbols to acknowledge and venerate and what to reject. Certainly, in a society that allows room for differing religious convictions, the individual has no right to be spared from others manifestations of faith, acts of worship or religious symbols. This is however to be distinguished from a situation created by the State where the individual is exposed without possibility of escape to the influence of a particular faith, to the acts through which it is manifested and to the symbols in which it is presented. Accordingly, Art. 4(1) Basic Law develops its effect of guaranteeing freedom in the very areas of life that are not left to society's spontaneous organization but taken in hand by the State (cf. BVerfGE 41, 29 [49]). Art. 140 Basic Law taken together with Art. 136(4) of the Weimar Constitution (WRV) takes account of this by explicitly prohibiting compelling anyone to take part in religious practices.

Art. 4(1) Basic Law does not however confine itself to barring the State from intervening in the religious convictions, actions and presentations of individuals or of religious communities. Instead, it further imposes the duty on it to guarantee room for them to operate in which the personality can develop in the philosophical and religious area (cf. BVerfGE 41, 29 [49]), and to protect them against attacks or obstruction by adherents of other religious tendencies or competing religious groups. Art. 4(1) Basic Law, however, does not confer on the individual or on religious communities any entitlement in principle to give expression to their religious conviction with State support. On the contrary, the freedom of religion of Art. 4(1) Basic Law implies the principle of State neutrality towards the various religions and confessions. The State, in which adherents of different or even opposing religious and philosophical convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in questions of belief. It may thus not itself endanger religious peace in a society. This precept finds its basis not only in Art. 4(1) Basic Law, but also in Art. 3(3), Art. 33(1) and Art. 140 Basic Law, taken together with Art. 136(1) and (4) and Art. 137(1) WRV. These bar the introduction of legal forms of establishment of religion and forbid the privileging of particular confessions or the exclusion of those of other beliefs (cf. BVerfGE 19, 206 [216]; 24, 236 [246]; 33, 23 [28]; consistent case law). Numerical strength or social importance does not come into it (cf. BVerfGE 32, 98 [106]). The State must instead ensure treatment of the various religious and philosophical communities on an equal footing (cf. BVerfGE 19, 1 [8]; 19, 206 [216]; 24, 236 [246]). Even where it cooperates with them or promotes them, this may not lead to identification with particular religious communities (cf. BVerfGE 30, 415 [422]).

Taken together with Art. 6(2) first sentence Basic Law, which guarantees parents the care and upbringing of their children as a natural right, Art. 4(1) Basic Law also covers the right to bring up children in religious and philosophical respects. It is a matter for the parents to convey to their children those convictions in matters of belief and philosophy of life that they find right (cf. BVerfGE 41, 29 [44, 47 f.]). This implies the right to keep the children away from religious convictions that seem to the parents wrong or harmful.

2. This fundamental right is infringed by § 13(1) third sentence VSO, and by the decisions challenged, which are based on this provision.

a) § 13(1) third sentence VSO prescribes the affixing of crosses in all classrooms of the Bavarian elementary schools. The term cross, according to the interpretation by the courts in the initial case, covers crosses with and without a body. In reviewing the norm, accordingly, both meanings are to be included. It is true that in their application for provisional legal protection the complainants have according to the wording asked only for the removal of crucifixes. The Higher Administrative Court has however explicitly assumed that this may also mean crosses without a body, and rejected the application in this farther-reaching meaning too.

Taken together with universal compulsory schooling, crosses in schoolrooms mean that pupils are, during teaching, under State auspices and with no possibility of escape, confronted with this symbol and compelled to learn "under the cross". This distinguishes the affixing of crosses in classrooms from the frequent confrontation with religious symbols of the most varied religious tendencies arising in everyday life. Firstly, the latter does not proceed from the State but is a consequence of the spread of various religious convictions or religious communities in society. Secondly, it does not have the same degree of inescapability. Certainly, the individual cannot control encounters in the street, in public transport or when entering buildings with religious symbols or manifestations. As a rule, however, these are fleeting encounters, but even in the case of longer confrontation this is not based on a compulsion enforceable where necessary through sanctions.

In duration and intensity, the effect of crosses in classrooms is still greater than that of crosses in courtrooms. Yet the Federal Constitutional Court saw the compulsion to engage in legal proceedings under the cross, against one's own religious or philosophical convictions, as infringement of the religious freedom of a Jewish party to proceedings who saw that as identification of the State with the Christian faith (cf. BVerfGE 35, 366 [375]).

Nor is the inescapability of the encounter with the cross in schoolrooms removed by the setting up of private schools allowed by Art. 7(4) Basic Law. First, the setting up of private elementary schools is tied in Art. 7(5) Basic Law to particularly strict conditions. Secondly, since these schools are as a rule financed by fees paid by parents, a large part of the population lacks the possibility of recourse to them. Such is also the complainants' case.

b) The cross is a symbol of a particular religious conviction and not merely an expression of the Western culture marked partly by Christianity.

Undoubtedly, through the centuries numerous Christian traditions have been incorporated in the general cultural foundations of society, and even opponents of Christianity and critics of its historical heritage cannot elude them. These must however be distinguished from the specific content of beliefs of the Christian religion, and still more from a particular confession including its ritual presentation and symbolic portrayal. The State's professing of these contents of belief, to which third parties too are exposed in contacts with the State, affects religious freedom. The Federal Constitutional Court took that as a basis in the decision on the constitutionality of the nondenominational schools of Christian character traditional in Baden, when it found that the admissible affirmation of Christianity related primarily to acknowledgment of the major cultural and educational factor it constituted in Western history, but not to the Christian religion s truths of faith. Only with such a limitation can this affirmation be legitimated, in relation to non-Christians too, through the continued operation of historical facts (cf. BVerfGE 41, 29 [52]).

The cross continues to be one of the specific faith symbols of Christianity. It is, indeed, its symbol of faith as such. It symbolizes the salvation of man from original sin brought about through Christ's sacrificial death, but at the same time also Christ's victory over Satan and death and his lordship over the world: suffering and triumph simultaneously (see the entry "Kreuz" in: Höfer/Rahner [eds.], Lexikon für Theologie und Kirche, 2nd ed. 1961, vol. 6, col. 605 ff.; Fahlbusch et al. [eds.], Evangelisches Kirchenlexikon, 3rd ed. 1989, vol. 2 col. 1462 ff.). For the believing Christian it is accordingly in many ways an object of reverence and of piety. The equipping of a building or a room with a cross is still today understood as an enhanced profession of the Christian faith by the owner. For the non-Christian or the atheist, just because of the importance that Christianity attaches to it and that it has had in history, the cross becomes a symbolic expression of particular religious convictions and a symbol of their missionary dissemination. It would be a profanation of the cross running counter to the self-perception of Christianity and the Christian churches to regard it, as the decisions challenged do, as a mere expression of Western tradition or cult token without a specific reference to faith. Theat the cross has a religious reference is also clear from the context of § 13(1) VSO.

c) Nor can the cross be denied effect on pupils, as the decisions challenged do.

It is certainly true that the affixation of the cross in classrooms is not associated with compulsion to identification or with particular manifestations of reverence or modes of behaviour. It equally does not follow from it that specialized teaching in the profane subjects is marked by the cross or oriented to the Christian faith and the requirements as to conduct symbolized by it. But this does not exhaust the possibilities of the effect of the cross. School education is not just for learning basic cultural techniques and developing cognitive capacities. It is also intended to bring the pupils emotional and affective dispositions to development. Schooling is oriented towards encouraging their personality development comprehensively, and particularly also to influencing their social conduct. It is in this context that the cross in the classroom takes on its importance. It has appellant character and identifies the contents of belief it symbolizes as exemplary and worthy of being followed. This takes place, moreover, in relation to persons who because of their youth are not yet fixed in their views, still have to learn critical capacity and the formation of viewpoints of one's own, and are on that account particularly easily susceptible to mental influencing (cf. BVerfGE 52, 223 [249]).

The decisions challenged too do not completely disavow the appellant character of the cross. They do deny its specifically Christian significance in relation to other-minded pupils. For the Christian pupils, however, they see in it an essential expression of their religious convictions. Similarly, the Bavarian Minister-President opines that in general teaching the cross has only non-specific symbolic value, whereas at school prayers and in religious instruction it turns into a specific symbol of faith.

3. The basic right to religious freedom is guaranteed without reservation. This does not however mean that it might not be subject to some sort of restrictions. These would, however, have to follow from the constitution itself. The setting up of limits not already laid out in the constitution is not something the legislature can do. Constitutional grounds that might have justified intervention are not however present here.

a) No such justification follows from Art. 7(1) Basic Law.

Art. 7(1) Basic Law certainly gives the State an educational mandate (cf. BVerfGE 34, 165 [181]). It has not only to organize schooling and itself set up schools, but may also establish the goals of education and the course of training. In that, it is independent of parents (cf. BVerfGE 34, 165 [182]; 47, 46 [71 f.]). Accordingly, not only can schooling and family upbringing come into conflict. It is, rather, even inevitable that at school the differing religious and philosophical convictions of pupils and their parents confront each other particularly intensively.

This conflict among various bearers of a fundamental right guaranteed without reservation, and between that fundamental right and other constitutionally protected objects, is to be resolved on the principle of practical concordancy, which requires that no one of the conflicting legal positions be preferred and maximally asserted, but all given as protective as possible an arrangement (cf. BVerfGE 28, 243 [260 f.]; 41, 29 [50]; 52, 223 [247, 251]).

This sort of arrangement does not require the State totally to abandon religious or philosophical references in carrying out the educational mandate bestowed by Art. 7(1) Basic Law. Even a State that comprehensively guarantees religious freedom and thereby commits itself to religious and philosophical neutrality cannot divest itself of the culturally conveyed, historically rooted values, convictions and attitudes on which the cohesion of society is based and the carrying out of its own tasks also depends. The Christian faith and the Christian churches have in this connection, however one may today wish to assess their heritage, been of overwhelmingly decisive force. The traditions of thought, mental experiences and patterns of conduct deriving from them cannot be a matter of indifference for the State. This is particularly true for schools, where the cultural foundations of society are principally handed down and renewed. Moreover, a State that obliges parents to send their children to State schools may give consideration to the religious freedom of those parents who desire a religiously cast upbringing. The Basic Law has recognized this by allowing in Art. 7(5) for State denominational or philosophically based schools, providing for religious instruction as an ordinary subject of teaching (Art. 7(3) Basic Law) and over and above that allowing room for the active exercise of religious conviction (cf. BVerfGE 41, 29 [49]; 52, 223 [240 f.]).

To be sure, it is impossible in a pluralistic society to take full account of all educational conceptions in designing the public elementary schools. In particular, the negative and positive sides of religious freedom cannot be realized without problems in one and the same State institution. It follows that the individual cannot in the school context appeal unrestrictedly to Art. 4(1) Basic Law.

Resolving the unavoidable tension between negative and positive religious freedom while taking account of the precept of tolerance is a matter for the Land legislature, which must through the public decision-making process seek a compromise acceptable to all. In its arrangements it may take as a guide the fact that on the one hand Art. 7 Basic Law allows religious and philosophical influences in the area of schooling, and on the other Art. 4 Basic Law commands the exclusion as far as at all possible of religious and philosophical compulsions when opting for a particular form of school. Both provisions have to be seen together and reconciled with each other through interpretation, since it is only concordance of the objects of legal protection under both articles that can do justice to the decision contained in the Basic Law (cf. BVerfGE 41, 29 [50 f.]).

The Federal Constitutional Court has drawn the conclusion that the Land legislature is not utterly barred from introducing Christian references in designing the public elementary schools, even if those with parental power who cannot avoid these schools in their children's education may not desire any religious upbringing. There is a requirement, however, that this be associated with only the indispensable minimum of elements of compulsion. That means in particular that the school cannot treat its task in the religious and philosophical area in missionary fashion, nor claim any binding validity for contents of Christian beliefs. The affirmation of Christianity accordingly relates to acknowledgement of a decisive cultural and educational factor, not to particular truths of faith. But Christianity as a cultural factor includes the idea of tolerance for the other-minded. Their confrontation with a Christianity-marked image of the world will not involve discriminatory denigration of non-Christian philosophies of life, at least as long as the object is not the conveying of beliefs but the endeavour to realise autonomous personality in the religious and philosophical sphere, in accordance with the basic decisions of Art. 4 Basic Law (cf. BVerfGE 41, 29 [51 f.]; 41, 65 [85 f.]). The Federal Constitutional Court has accordingly pronounced the provision for Christian nondenominational schools in Art. 135, second sentence, of the Bavarian Constitution compatible with the Basic Law only when given an interpretation conforming with the constitution (cf. BVerfGE 41, 65 [66 and 79 ff.]), and has stressed in relation to the nondenominational school of Christian character in the traditional sense in Baden that this is not a bi-denominational school (cf. BVerfGE 41, 29 [62]).

The affixing of crosses in classrooms goes beyond the boundary thereby drawn to the religious and philosophical orientation of schools. As already established, the cross cannot be divested of its specific reference to the beliefs of Christianity and reduced to a general token of the Western cultural tradition. It symbolizes the essential core of the conviction of the Christian faith, which has undoubtedly shaped the Western world in particular in many ways, but is certainly not shared by all members of society, and is indeed rejected by many in the exercise of their fundamental right under Art. 4(1) Basic Law. Its affixation in State elementary schools is accordingly incompatible with Art. 4(1) Basic Law insofar as these are not Christian nondenominational schools.

b) The affixation of the cross cannot be justified from the positive religious freedom of parents and pupils of the Christian faith either. Positive religious freedom is due to all parents and pupils equally, not just the Christian ones. The conflict arising cannot be resolved according to the majority principle, for the fundamental right to religious freedom specifically is aimed in a special degree at protecting minorities. Moreover, Art. 4(1) Basic Law does not confer on the bearers of the fundamental right an unrestricted entitlement to activate their religious convictions in the context of State institutions. Insofar as the school, in harmony with the constitution, allows room for this, as with religious instruction, school prayers and other religious manifestations, these must be marked by the principle of being voluntary and allow the other-minded acceptable, non-discriminatory possibilities of avoiding them. With affixation of crosses in classrooms, the presence and demands of which the other-minded cannot escape, this is not the case. Finally, it would not be compatible with the principle of practical concordancy for the feelings of the other-minded to be completely suppressed in order that pupils of the Christian faith might be able, over and above religious instruction and voluntary devotions, to learn the profane subjects too under the symbol of their faith.D.

Accordingly, the provision of § 13(1), third sentence, VSO that underlies the dispute is incompatible with the fundamental rights mentioned and is to be pronounced null and void. The decisions in the proceedings for provisional protection of rights challenged are to be set aside. Since the proceedings in the main case are now pending before the Bavarian Higher Administrative Court, the case is referred back to it (§ 95(2) BVerfGG). The order for the reimbursement of costs is on the basis of § 34a(2) BVerfGG.

Judges: Henschel, Seidl, Grimm, Söllner, Kühling, Seibert, Jaeger, Haas.

Dissenting opinion of Judges Seidl, Söllner and Haas from the order of the First Panel of 16 May 1995 – 1BvR 1087/91 –

The Panel majority view that § 13(1), third sentence, of the School Regulations for Elementary Schools in Bavaria, according to which a cross is to be affixed in every classroom, infringes the Basic Law is not shared by us. The court decisions challenged in the constitutional complaint do not infringe the complainant s fundamental rights under Art. 4(1) and Art. 4(1) taken together with Art. 6(2), first sentence, Basic Law.I.

1. According to Art. 7(1) Basic Law, the whole school system is under the supervision of the State. The setting up and operation of elementary schools is, as follows from Art. 7(5) Basic Law which associates the licensing of private elementary schools with particularly stringent requirements, in principle a matter for the State itself. To this extent, the State has an educational mandate of its own and therefore also the authority to lay down educational objectives (cf. BVerfGE 52, 223 [236]).

The Basic Law, however, allots educational law exclusively to the sovereign sphere of the Länder. Education law does not appear in the catalogue of competences in Art. 73 ff. Basic Law. The Federal Government accordingly has - by contrast with the constitutional order of the Weimar Republic, which in the area of schooling assigned to the Reich the right of legislation in principle, by Art. 10(2) WRV - no legislative authority (Art. 70 ff. Basic Law) or administrative sovereignty (Art. 30 Basic Law) for this area. The genesis of Art. 7 of the Basic Law shows that far-reaching autonomy for the Länder as regards the philosophical and religious character of State schools was intended. Here the federalist principle prevailed. Proposals aimed at farther-reaching parental rights ("confessional parental right") and a secured position for confessional schools in the Basic Law were already rejected in the preliminary discussions on Art. 7 Basic Law. It was repeatedly stressed that the Länder were not to be restricted in their power to regulate educational policy questions (cf. in detail BVerfGE 6, 309 [356] with further references; also BVerfGE 41, 29 [45]).

2. Constitutional assessment of the questions raised in the constitutional complaint must accordingly start from the circumstances existing in the Free State of Bavaria, and may not take conditions that may apply in other Länder of the Federal Republic as the starting point.

The Constitution of the Free State of Bavaria of 2 December 1946 (BV) contains, in its section on education and schools, the following provision on the educational objectives to be pursued in all schools: Article 131

(1)...

(2) The foremost objectives of education are reverence for God, respect for religious conviction and for the dignity of man, self-control, sense of responsibility and willingness to accept responsibility, helpfulness, openness to everything true, good and beautiful, and an awareness of responsibility for nature and the environment.

(3-4)...

While the educational objective "awareness of responsibility for nature and the environment" was added only with the Fifth Act amending the Constitution of the Free State of Bavaria of 20 June 1984 (GVBl p. 223), the other educational objectives have remained unaltered since the Bavarian State Constitution came into force.

For elementary schools, Art. 135 BV originally provided for denominational or nondenominational schools, with a preference for the denominational school. With developments in school policy (on which see BVerfGE 41, 65 [79 ff.]), this constitutional provision was amended by referendum, through the Act amending Art. 135 of the Constitution of the Free State of Bavaria of 22 July 1968 (GVBl p. 238). It has since read as follows:

Article 135
The public elementary schools shall be joint schools for all children of elementary-school age. In them pupils shall be taught and brought up in accordance with the principles of the Christian confessions. Details shall be specified by the Elementary Schools Act.

In Art. 135, second sentence, of the Bavarian Constitution in its current version Christianity is not to be understood in a confessional sense. The principles of the Christian confessions within the meaning of this provision instead comprise the values common to the Christian confessions and the ethical norms derived from them (cf. BVerfGE 41, 65 [84]). These are values and norms which, decisively marked by Christianity, have largely become the common property of the Western cultural area. Applying these principles, pupils are to be guided towards the educational objectives described in Art. 131(2) BV. An educational objective marked by specifically Christian beliefs is not, by contrast, embodied in the Bavarian constitution (cf. BVerfG, loc. cit. p. 84 f.). The affirmation of Christianity relates not to the content of belief but to recognition of the decisive cultural and educational factor, and is therefore justified in relation to non-Christians too, by the history of the Western cultural area (cf. BVerfGE 41, 29 [64]).

In accordance with these considerations, there are no constitutional objections to the school type of the Christian nondenominational school based on Art. 135, second sentence, BV (cf. BVerfGE 41, 65 [79 ff.]).

3. It is, pursuant to Art. 7(1) and (5) Basic Law, incumbent on the federal Länder as the bodies responsible for the elementary school system to enact the requisite provisions on the organization of elementary schools. The various Länder legislators have broad discretion here. The provision of § 13(1), third sentence, of the School Regulations for Elementary Schools in Bavaria, according to which a cross is to be affixed in every classroom, does not exceed the limits of this discretion. Since the State legislature may in constitutionally unobjectionable fashion introduce the school type of the Christian nondenominational school, it cannot be barred from symbolizing the value conceptions characterizing those schools by the cross in classrooms.

a) The provision of § 13(1), third sentence, of the School Regulations is a part of the organizational design of the Christian nondenominational school. The cross in the classroom brings the supra-denominational Christian, Western values and ethical standards to be conveyed by this form of school symbolically before the eyes of teachers and pupils. In enacting this provision the State legislature was entitled to take account of the fact that the majority of the citizens living on its territory belong to a Christian church (cf. BVerfGE 41, 29 [50 f., 60]). It could further take it that the affixation of a cross in the classroom would, because of its symbolic nature for the supra-confessional Christian, Western values and ethical standards, also be welcomed or at least respected by a large proportion of the persons not in a church. This notion is supported not least by the fact that the provisions of the Bavarian Constitution on the Christian nondenominational school received the assent of the majority of the population (cf. BVerfGE 41, 65 [67]).

b) The State, which through compulsory schooling is deeply involved in the upbringing of children by the parental household, is largely dependent on acceptance by parents of the school system it organizes. It is therefore not barred from upholding as far as possible the concurrence of school and parental household in views as to values (cf. BVerfGE 41, 29 [60]; 41, 65 [87]). Affixing crosses in classrooms may also contribute to this; it is moreover in line with a long tradition in Bavaria that met with resistance only in the period of National Socialism.

4. Affixing crosses in classrooms does not infringe the State's duty of philosophical and religious neutrality. Within the validity of the Basic Law, the precept of philosophical and religious neutrality ought not to be understood as an obligation on the State to indifference or secularism. The reference to the church articles of the Weimar Constitution in Art. 140 Basic Law has given the neutrality precept the sense of co-operation by the State with churches and religious communities, also including their promotion by the State.

In the decisions on the constitutional admissibility of Christian nondenominational schools, the Federal Constitutional Court stated in connection with the precept of neutrality that the school, insofar as it may influence children's decisions as to belief and conscience, may contain only the minimum of elements of compulsion. It may, further, not be a missionary school nor claim any binding valildity for Christian beliefs; it must also be open to other philosophical and religious contents and values (cf. BVerfGE 41, 29 [51]; 41, 65 [78]).

The provision of § 13(1), third sentence, of the Bavarian School Regulations for Elementary Schools, found unconstitutional by the Panel majority, meets all these requirements. The mere presence of a cross in the classroom does not compel the pupils to particular modes of conduct nor make the school into a missionary organization. Nor does the cross change the nature of the Christian nondenominational school; instead it is, as a symbol common to the Christian confessions, particularly suitable for acting as a symbol for the constitutionally admissible educational content of that form of school. The affixation of a cross in a classroom does not exclude consideration for other philosophical and religious contents and values in education. The form of teaching is, additionally, subject to the precept of Art. 136(1) BV, according to which, at all schools, the religious feelings of others are to be respected.

II.

By contrast with the Panel majority view, the complainants' religious freedom (Art. 4(1) Basic Law and Art. 4(1) taken together with Art. 6(2), first sentence, Basic Law) is not infringed by the presence of crosses in classrooms.

1. Through compulsory schooling and the taking of responsibility itself for elementary schooling, the State has taken an area of life decisive for the upbringing of young people fully under its care. This has the consequence that there must be room here for the exercise of liberties. These may certainly be restricted in the light of the legitimate purpose of the institution - here the school - but not suspended. The public school, which the State has brought under its organizational and largely also substantive design, is an area of life in which State action and civil freedom intersect. In such an area the State may also, by making available visible value symbols in line with widespread practice in the Federal State concerned, create an organizational framework in which at the same time the religious convictions present among a large part of the pupils and their parents can develop (cf. Higher Administrative Court for the State of North Rhine Westphalia, NVwZ 1994, p. 597). By contrast, the equipping of courtrooms with crosses, which may infringe the fundamental right under Art. 4(1) Basic Law of a party to proceedings (cf. BVerfGE 35, 366), falls within the area of original sovereign functions of the State and is therefore subject to different constitutional constraints from the affixation of crosses in the classrooms of State schools (cf. in detail Böckenförde, Zeitschrift für evangelisches Kirchenrecht 20. Band [1975], p. 119 [127 f., 134]).

The religious freedom of Art. 4(1) Basic Law is, something not at all brought into view by the Panel majority, still further enhanced and emphasized by the guarantee of undisturbed exercise of religion in Art. 4(2) Basic Law (cf. BVerfGE 24, 236 [245 f]). Art. 4(1) and (2) Basic Law jointly guarantee the individual room for active practice of religious conviction. If, accordingly, a voluntary, supra-denominational school prayer is in principle constitutionally unobjectionable (cf. BVerfGE 52, 223), this is equally true of the cross in the classroom. The State is thereby giving positive religious freedom room in an area which it has taken entirely under its protection and in which religious and philosophical positions were always relevant (cf. BVerfGE 41, 29 [49]; 52, 223 [241]).

2. The religious freedom of the complainants is not infringed thereby.

a) The complainants do not appeal to the freedom of exercise of religion under Art. 4(2) Basic Law. Nor do they assert any infringement of their positive religious freedom that follows from Art. 4(1) Basic Law, but object only to infringement of their negative religious freedom, similarly protected by Art. 4(1) Basic Law. For they do not ask for affixation in the classroom of a symbol of their own philosophy of life alongside or in place of the cross, but only for the removal of crucifixes, which they regard as symbols they do not wish to tolerate of a religious conviction they do not share. In the order of 5 November 1991 (BVerfGE 85, 94) in which the complainants' application for issue of a temporary order was rejected, the Panel put the constitutional question as follows, more accurately than now in deciding the main case: "whether and in what circumstances the use of religious symbols in a school affects negative religious freedom and how far it is to be put up with by the minority because they have to take account of the majority's positive religious freedom" (BVerfG, loc. cit. p. 96).

Admittedly, this is not a problem of the relation between majority and minority, but one of how in the area of State compulsory schools the postive and negative religious freedom of pupils and their parents can in general be brought into harmony. Resolving this tension, unavoidable in the area of schooling, between negative and positive religious freedom is a matter for the democratic State legislature, which must in the public decision-making process seek a compromise acceptable to all, taking account of the various views (cf. BVerfGE 41, 29 [50]; 52, 223 [247]). Here negative religious freedom is not some superior fundamental right that displaces the positive expressions of religious freedom where they come together. The right of religious freedom is not a right to prevent religion. The necessary adjustment between the two manifestations of religious freedom must be brought about through tolerance (cf. Schlaich, in Kirche und Staat in der neueren Entwicklung, 1980, p. 427 [439]; Starck, in: v. Mangoldt/Klein, Das Bonner Grundgesetz, Art. 4(1), 2 Rdnr. 17, with further references).

b) These principles have been done justice to by the Bavarian State legislature in enacting § 13(1), third sentence, of the Elementary School Regulations. The requisite balancing of interests with those of non-believers and people with different beliefs shows no breach of the constitution.

aa) In assessing and evaluating these interests, one cannot as the Panel majority does take as a general basis the Christian theological view of the importance and meaning of the cross symbol. The decisive thing is rather what effect the sight of the cross develops with individual pupils, in particular what feelings the sight of the cross may induce in the other-minded (on this cf. also BVerfGE 35, 366 [375 f.]). It may be that in a pupil of Christian faith the sight of the cross in the classroom may in part awaken those notions described by the Panel majority as the meaning of the cross (grounds, C II 2 b). For the non-believing pupil, by contrast, this cannot be assumed. From his viewpoint the cross in the classroom cannot have the meaning of a symbol for Christian beliefs, but only that of a symbol for the objectives set for the Christian nondenominational school, namely the conveying of the values of Christianity-marked Western culture, and alongside that, a symbol of a religious conviction he does not share, rejects and perhaps combats.

bb) In view of this meaning that the cross in the classroom has for non-Christian pupils, they and their parents have to put up with the presence of crosses. They are so obliged by the precept of tolerance. Unacceptable burdens on them do not arise thereby.

The psychic impairment and mental burden that non-Christian pupils have to endure from the enforced perception of the cross in class is of only relatively slight weight. The minimum of elements of compulsion which in this respect is to be accepted by pupils and their parents (cf. BVerfGE 41, 29 [51]) is not exceeded. The pupils are not obliged to particular modes of conduct or religious exercises before the cross. They are accordingly - by contrast with school prayer (cf. BVerfGE 52, 223 [245 ff.]) - not forced to display their differing philosophical or religious conviction by non-participation. The danger of their being discriminated against accordingly does not exist from the outset.

Nor are the pupils constitutionally inadmissibly influenced in missionary fashion by the cross in the classroom (cf. BVerfGE 41, 29 [51]). Direct influence on the content of teaching or educational objectives in the sense of propaganda for Christian beliefs does not proceed from the cross in the classroom. Moreover, the particular conditions in Bavaria must be taken as a starting point. Pupils are there confronted, even outside the narrower church sphere, with the sight of crosses in many other areas of life. As examples mention will be made only of the roadside crosses frequently to be met with in Bavaria, the many crosses in secular buildings (such as hospitals and old-age homes, but also hotels and restaurants), and finally also the crosses present in private dwellings. In such circumstances the cross in the classroom too remains within the framework of the ordinary; no missionary character attaches to it.

III.

Accordingly, the Bavarian State legislature has with the affixation of crosses in the classrooms of elementary schools admissibly made use of the discretion due it in the organization of elementary schooling, without exceeding the limits to its margin of discretion. The administrative court decisions challenged do not in this respect meet with any constitutional objections.

Judges: Seidl, Söllner, Haas.

Dissenting opinion by Judge Haas on the order of the First Panel of 16 May 1995 - 1 BvR 1087/91 -
I further share neither the Panel majority's justification for the admissibility of the constitutional complaint nor its arguments on the ground for the order.

1. Insofar as doubt may exist as to the admissibility of the constitutional complaint because perhaps in the interim the complainant s cause of complaint has lapsed, say because of a change of school by complainants 3) - 5) or removal of the remaining crucifixes in the schoolrooms - which was all the complainants' petition referred to in the urgent proceedings for the protection of rights - that need not be gone into. The admissibility of the constitutional complaint cannot however here be affirmed on the same grounds as for lapse of the cause of complaint in the main proceedings (cf. BVerfGE 41, 29 [43]). For the assumption of a continued interest in a finding does not take adequate account of the special features of the procedure of the temporary protection of rights, the importance of which is not exhausted in the settlement of a merely temporary situation. However, this question need not, in the light of the legal view presented here that the constitutional complaint is unjustified, be further gone into.

2. The decision of the Bavarian Higher Administrative Court challenged is constitutionally unobjectionable also insofar as the existence of grounds for an order is denied; in particular, Art. 19(4) Basic Law is not infringed. The Administrative Courts grant provisional protection of rights inter alia in accordance with § 123 VwGO. Art. 19(4) Basic Law calls for the granting of temporary protection of rights in proceedings concerning the carrying out of an act too, at any rate where otherwise severe, unacceptable and not otherwise avoidable detriment would arise which the decision in the main case would not longer be capable of subsequently removing (cf. BVerfGE 46, 166 [179]; 51, 268 [284]).

That was also the starting point for the Bavarian Higher Administrative Court. In testing the presence of the requirements for grounds for an order the Court rightly, taking account of the constitutional precept for the granting of effective legal protection, starts from whether unacceptable and irreparable detriment would arise for the complainants were a temporary order not issued.

In the context of testing this detriment it - constitutionally unobjectionably - tested the urgency and importance of the claim. It accordingly seems more than doubtful whether the Court's considerations on the advance of time, summarized in a single sentence, can be taken in isolation and assessed to the effect that the Court denied the urgency of the complainants' concern. Instead, the arguments as to the duration of the situation complained of must be seen and understood in their overall context. As part of the assessment of detriment by the Court, however, the duration of the situation has specifically also the significance of indicating the severity of the detriment. The Court's consideration that tolerating a particular situation for a period of some five years may have an influence on the assessment of a detriment as acceptable is constitutionally unobjectionable. It is at any rate not unreasonable to assess the question of the acceptability of the detriment to those concerned by how the position took shape for them in the past and how they handled it. That the detriment arising for the complainants from the sight of a crucifix had become unacceptable only with the course of time cannot be derived from the statements of the Higher Administrative Court, which were not challenged by the complainants. Nor have the complainants brought forward anything to show that any such presentation was left out of account by the Higher Administrative Court. Moreover, the Court evaluated still other aspects legally in the context of assessing detriment. It considered that complainants 1) and 2) would if the desired provisional order were not made still have enough freedom for upbringing in accordance with parental responsibility, and that the sight of a crucifix in the schoolrooms would be only a comparatively slight burden on complainants 3) -5), since they were exposed to the sight elsewhere too. Where the Bavarian Higher Administrative Court accordingly arrived at the conviction that unacceptable, irreparable detriment does not arise for the complainants if a temporary arrangement is not made, there can be no constitutional objection to this. This assessment by the Bavarian Higher Administrative Court was, moreover, manifestly shared by the adjudicating Panel, in itself declining to issue the temporary order applied for by the complainants, because it could not be established in weighing the consequences that the detriment arising to the complainants was predominant (cf. BVerfGE 85, 94 [96 f]). The adjudicating Panel had to take account in this connection of the fact that the situation complained of by the constitutional complainants would have to be put up with by them for several more years, in view of the number of years that constitutional complaint proceedings take.

In view of its assessment of the detriment as of minor gravity, the Higher Administrative Court did not need either to test further whether the issuing of a temporary order might have been necessary because the complainants could not otherwise have been protected against the unacceptable, irreparable detriment arising for them (cf. BVerfGE 46, 166 [179 f]). The Court's assumption that against the background of the administration s willingness to compromise, extra-judicial compromise solutions like the existing ones would be reachable in the future too is constitutionally unobjectionable.

Nor did the principle of guaranteeing effective protection of rights require the Court to "sound out" possibilities of an interim solution by amicable settlement, in order to make a temporary order "superfluous". It is already doubtful whether the essence of the principle of guaranteeing effective protection of rights is met by a line of conduct aimed at making a decision made by the Court superfluous. However, in ordinary law alone there is no need to carry out mediation negotiations in proceedings for temporary protection of rights, because it is within the Court's discretion what arrangement to make in detail in the context of the legal protection applied for (frequent case law and literature; see references in Kopp, VwGO, 1994, § 123, no. 17), where the requirements for issuing a temporary order are met. If however, as here, the requirements for issuing a temporary order are in the court's view not present, so that the matter is ripe for decision and the application is to be rejected, then it cannot, at any rate from the viewpoint of guaranteeing effective protection of rights, be required through traditional mediation negotiations to seek agreement by the parties, with an outcome that would not have been attainable through the remedy sought.

Judge: Haas

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