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Federal Constitutional Court – Press Office
Press Release no. 14/2009, 18 February 2009
Decision of 28 October 2009 – BvR 462/06
A professor of theology who has renounced his faith has been unsuccessful in his appeal against
being excluded from theological instruction.
Since 1983 the plaintiff has been a professor at the theological faculty of a university in Lower
Saxony, and was initially hired for the teaching, research and advanced teaching of 'The New
Testament'. After he publicly renounced his faith he was required instead to teach 'The History
and Literature of Early Christianity'. This subject was assigned to the university's Institute of
Special Research, and the plaintiff's classes were listed as 'outside the curriculum concerned with
the instruction of theologians'. The plaintiff's appeals against this decision have remained
unsuccessful in all courts.
The First Senate of the Federal Constitional Court rejected the plaintiff's constitutional appeal,
concluding that by assigning him an alternative subject, the exclusion of a dissenting professor of
theology from the confessionally controlled education of theologians is compatible with
academic freedom. The ecclesiastical right of self-determination and the faculty's right to
maintain its identity as a theological faculty and to fulfill its duty in the instruction of theologians
may in this present case be rated higher than the scientific freedom of the plaintiff.
The decision is based essentially on the following considerations:
For academic teachers the basis of academic freedom, as granted by Art 5 Section 3.1 GG
(German Constitution) is the right to represent their subject in teaching and research. This
freedom is also inevitably affected by the nature of the task assigned them. A change in subject
therefore necessarily touches on their freedom to teach. When the plaintiff was reassigned the
subject 'The History and Literature of Early Christianity' in place of the subject 'The New
Testament', and was thus excluded from the confessionally controlled instruction of theologians,
his academic freedom was affected. This freedom was additionally interfered with by his
reassignment from a core subject to an educationally non-relevant fringe subject, hence allotting
him a significantly less important position in the university's program of research and education.
This represents the state's reaction to the specific assertions made and positions adopted. It is a
situation such as this that gives rise to the danger which Art.5 section 3.1 (GG) is intended to

prevent.
The interference with academic scientific freedom, however, is justified in relation to both the
churches' right of self-governance (Art.140 GG w/ Art. 137 section 3 WRV) (Weimar
Constitution of 1919) and the faculty's rights as protected by Art.5 section 3 GG. The right of
self-governance of religious communities limits the academic freedom of professors of theology.
The German Constitution allows the teaching of theology as a science at state-run universities.
Where there are state theological faculties, the right of self-governance of each religious
community has to be respected when its theology is the object of its confessionally controlled
instruction. The office of a professor with a theological faculty may therefore be bound by its
confession. It is not and may not be the duty of a state, which is from a religious standpoint
neutral, to judge the confessional conformity of theological instruction. This is rather the right of
the confessional community itself.
The plaintiff's academic scientific freedom is also qualified by the faculty's right, protected by
Art.5 section 3 GG, to preserve its identity as a theological faculty and to fulfill its duties with
regard to the education of theologians. For a theological faculty, the task of research and
education is essentially defined by the confessional conformity of the education it imparts. The
existence of a theological faculty would be under threat if the church could no longer view the
faculty's curriculum, especially in a core subject such as 'The New Testament', as being in
accordance with the teaching of the church, and in consequence stopped accepting the faculty's
graduates as pastors or priests, and did not allow teachers of religion taught by this faculty to give
confessional instruction. Moreover, protestant faculties are mostly expected by the church –
unlike the Catholic Church with its fixed teaching – to maintain the confessional conformity of
instruction themselves.
The university's position and the courts's decisions have resulted in an accurate assessment of the
plaintiff's academic scientific freedom and the opposing constitutional considerations, and have
thereby upheld the principle of a balance between the two.
The plaintiff's reassignment from the confessionally bound subject 'The New Testament' to the
confessionally neutral free subject 'The History and Literature of Early Christianity' and his
removal from the instruction of theological students takes into account the churches' right of self-
governance and maintains the proper functioning of the theological faculty. The reassignment to a
new subject is reasonable because the plaintiff retains his position as an academic teacher, and he
has been assigned a subject that which is largely similar. He continues to be allowed to offer
lectures, to research and publish in a field of his own choosing, and to convey the results of his

research to students. Neither do the consequences for the plaintiff's position of his change of
subject make the measure unreasonable. The fact, however, that the plaintiff's new subject is not
considered to be within the university's program of curricula and examinations substantially
affects his freedom to teach. Academic teachers have the right to participate in the official study
program and the advancement of students. The courts have deemed, however, that it would be
constitutionally acceptable to make an appropriate inclusion of the plaintiff's new subject in the
curriculum and examination program, and that the realization of this wish is not the subject of
this present case but of future negotiations.