Staatlicher Rechtsschutz in Religionssachen

This paper critically reviews the dominant legal doctrines that restrict state judicial review of internal religious decisions. It demonstrates that these doctrines are rooted in an ahistorical assumption of large Christian churches possessing internal judicial mechanisms. In a pluralistic religious landscape, this notion can no longer be convincing. Instead of retreating to an ordre public check under state law that necessarily starts from a preexisting judicial decision of the religious community, individual members' religious freedom asks for a state judiciary applying the law of the religious community if no own religious judiciary is at hand. The reason for this lies in the right to become a part of a religious community. Once a member, this right is transformed into a right of being treated according to the self-understanding of the very community entered. Conceptualising religious communities as communities of law certainly is even more viable for state-incorporated communities (K.d.ö.R.). The paper closes with an outlook on recent developments that show that the matter further gains significance under the rule of Art. 91 GDPR.