“Some say that Markus Söder is concerned … with the headlines, the matter is more of a minor matter for him. Measured by this standard, the new prime minister has undoubtedly made a brilliant start – even if the headlines were mostly bad.”
Lawyer Tobias Freudenberg wrote this in 2018 in the “Journal for Legal Policy”. “His masterpiece in terms of media coverage,” says the editor-in-chief of the journal, “was the cross decree.” This also occupies the courts.
According to Section 28 of the General Rules of Procedure for the authorities of the Free State of Bavaria (AGO), “a cross must be affixed in the entrance area of every office building … as a clearly visible expression of the historical and cultural character of Bavaria”. On the other hand, some citizens want to defend themselves in court. But even the question of how to do that is difficult to answer.
The Bavarian Constitutional Court had already dealt with it. He can declare the country’s legal provisions that restrict fundamental rights unconstitutionally null and void. Anyone can assert this with a so-called popular lawsuit – but only if a regulation directly affects the rights of citizens. In the opinion of the constitutional judges, § 28 AGO is purely an administrative regulation that only binds authorities. The popular action was therefore dismissed as inadmissible.
The Bund für Geistfreiheit and 25 private individuals had also applied to the Munich Administrative Court to repeal § 28 AGO and to oblige the Free State to remove the crosses. The court referred the request for repeal of the provision to the Bavarian Administrative Court as a norm control procedure. Otherwise, it dismissed the lawsuits.
However, the Administrative Court then expressed concerns about the admissibility of the norm control procedure during the oral hearing. This procedure is also about checking a regulation. And although different standards apply here than in the case of popular action: The subject matter here can only be a regulation that directly affects the rights of the citizens and does not have a purely administrative effect.
In terms of content, the dispute is primarily about the requirement of religious and ideological neutrality and negative religious freedom. The former prohibits the state from identifying itself with a religion. The latter prohibits him from imposing certain beliefs on his citizens. However, this does not justify a right to be spared from any form of expression of faith. And what all this means fills libraries in the truest sense of the word. The assessment in this case is correspondingly difficult.
However, the Free State’s point of view, according to which the cross is only a cultural symbol, does not seem very convincing. As the Federal Constitutional Court already explained in the so-called crucifix decision in 1995, it is “a symbol of a specific religious conviction and not just an expression of Western culture, which was influenced by Christianity”.
The fact that it cannot be arranged in classrooms was essentially justified at the time by the fact that “pupils are confronted with this symbol during class without any possibility of avoiding it”. This is different with a cross that is only placed in the entrance area of an authority.
In any case, the plaintiffs at the Administrative Court were not successful, as the court announced on Thursday. Why is still open. The reasons for the decision will only be made available in the coming weeks.
Against the background of the many problems as a legal scholar, one is of course curious about this, especially since the dispute is now continuing before the Federal Administrative Court. But despite all the enthusiasm for law, it would be better if a prime minister solved problems instead of creating them by chasing headlines.
Arnd Diringer is a professor at the Ludwigsburg University of Applied Sciences. He is the author of numerous publications on constitutional, civil and labor law.