„Tożsamość kościoła” jako kryterium uznania sprawy za sprawę „wewnętrzną” kościołów i związków wyznaniowych w wyrokach niemieckiego Federalnego Trybunału Konstytucyjnego. Kilka uwag krytycznych
“Church identity” as a criterion for considering a case as an “internal” matter of churches and religious associations in the judgments of the German Federal Constitutional Court. Some remarks on interpretation

Summary/Abstract: The author analyzes the reasoning of the German Federal Constitutional Court regarding the interpretation of the phrase “its own affairs” (own affairs) of Article 137 (3) of the Weimar Constitution in conjunction with Article 140 of the Basic Law. In its judgments of 16 October 1968 (BVerGE 24,236) of 21 September 1976 (BVerfGE 42, 312) the Court refers to the extra-constitutional concept of church identity as a criterion for considering a particular matter as belonging to the internal affairs of the church by “nature of things”. Disputes concerning these matters are excluded from the state’s jurisdictional authority in the public law of the Federal Republic of Germany. However, an analysis of the Court’s reasoning reveals numerous shortcomings. According to the author, the concept of church identity does not make the formula of the nature of things adequate to the post-war political conditions. However much the Court examines the impacts of church activity in the “external” sphere, it does so based on biased historical sources and administrative agreements. The interpretation of the concept of “one’s own affairs” is also burdened by the abandonment of the reference to the scope of Article 4 of the German Constitution and Article 137 paragraph 3 of the Weimar Constitution incorporated into this normative act.

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