1The regulation of the relationship between the church and the state is the responsibility of the Cantons.
2The Confederation and the Cantons may within the scope of their powers take measures to preserve public peace between the members of different religious communities.
3The construction of minarets is prohibited.
Overview
Art. 72 BV regulates the division of competences between the Confederation and the cantons in religious law. The cantons are responsible for the relationship between church and state. They may grant public recognition to religious communities and levy church taxes. However, there is no legal entitlement to recognition (Winzeler, BSK BV, Art. 72 N. 20).
The cantons organise their cantonal churches themselves. The Federal Supreme Court confirmed in BGE 129 I 68: A «partial withdrawal» only from the cantonal church is possible if cantonal law provides for this. However, the cantons must respect religious freedom (Art. 15 BV) (BGE 145 I 121).
The Confederation and cantons may take measures to preserve religious peace. This means: They may intervene when there are conflicts between different religious communities. Such measures are, for example, criminal provisions against the disruption of religious freedom (Art. 261 SCC) or police measures in cases of religious tensions.
The minaret ban of 2009 prohibits the construction of new minarets (towers on mosques) throughout Switzerland. The popular initiative was adopted on 29 November 2009 with 57.5% yes votes (BBl 2008 7603). Existing minarets in Geneva, Winterthur, Wangen bei Olten and Zurich remain permitted. The ban is absolute – there are no exceptions.
The regulations concern all religious communities, not only Christian churches. Muslim, Jewish or Buddhist communities may also be recognised by the cantons. However, most cantons have so far only granted public recognition to the traditional Christian churches.
Example: In the Canton of Zurich, the Reformed and Catholic churches are granted public recognition. They may levy church taxes and have special rights. A Muslim community that applies for public recognition has no legal entitlement to it – the canton may decide freely.
Doctrine
#1. Legislative History
N. 1 Art. 72 FC has its roots in Switzerland's historical religious conflicts, which culminated in the cultural struggle articles of the 1874 FC in the 19th century. The provision was reformulated during the total revision of 1999, whereby the confessional character was defused and state-church legal neutrality was emphasised. The Dispatch on the new Federal Constitution of 20 November 1996 stated: «The regulation of the relationship between state and religion is fundamentally a matter for the cantons» (BBl 1997 I 1, 318). The cultural struggle exception articles (Art. 51-52 former FC) were thereby abolished.
N. 2 Paragraph 2 on maintaining religious peace was newly inserted as a competence basis for the Confederation and cantons. The Dispatch emphasised that both levels of government can act «within the framework of their competence», whereby no new federal competence was created, but rather existing practice was constitutionally anchored (BBl 1997 I 319).
N. 3 The minaret ban in paragraph 3 was inserted through the popular initiative «Against the Construction of Minarets», which was accepted on 29 November 2009 with 57.5% yes votes. The Dispatch of the Federal Council of 27 August 2008 recommended rejection of the initiative, as it «violates religious freedom and the prohibition of discrimination» (BBl 2008 7603, 7638).
#2. Systematic Classification
N. 4 Art. 72 FC stands in Title 3 on «Confederation, Cantons and Communes» and primarily regulates the federalist distribution of competences in religious constitutional law. The provision must be read in the context of religious freedom (→ Art. 15 FC) and the prohibition of discrimination (→ Art. 8 para. 2 FC). As a competence norm, it does not establish subjective rights, but rather distributes regulatory competences between the Confederation and cantons.
N. 5 The relationship to Art. 15 FC is central: While Art. 15 guarantees individual and collective religious freedom, Art. 72 determines the organisational legal framework conditions. The cantonal competence under Art. 72 para. 1 finds its limits in fundamental rights, particularly in religious freedom (Winzeler, BSK BV, Art. 72 N. 11-14).
N. 6 In the constitutional structure, Art. 72 FC together with Art. 3 FC (cantonal autonomy) forms the basis for Swiss state-church law. The subsidiary federal competence under para. 2 complements the security police competences of the Confederation (→ Art. 57 FC, → Art. 173 para. 1 lit. b FC).
#3. Elements of the Offence / Normative Content
#3.1 Cantonal Competence (para. 1)
N. 7 The formulation «the cantons have competence» establishes exclusive cantonal sovereignty in state-church law. Winzeler characterises this as a «false competence reservation», since the Confederation can nonetheless enact religious law norms on specific points (BSK BV, Art. 72 N. 10). Cantonal competence encompasses the entire organisation of the relationship between state and religious communities, including public-law recognition.
N. 8 The «relationship between church and state» includes according to prevailing doctrine: public-law recognition of religious communities, regulation of church taxes, organisation of national churches, determination of their organs and procedures, as well as delineation between state and ecclesiastical jurisdiction (BGE 129 I 91 E. 4.1).
N. 9 The historical formulation «church» is to be interpreted broadly and encompasses all religious communities. The Federal Supreme Court emphasises that the religiously neutral state «must proceed from the significance that the religious norm has for those affected» (BGE 145 I 121 E. 4.3; Winzeler, BSK BV, Art. 72 N. 14).
#3.2 Maintaining Religious Peace (para. 2)
N. 10 «Public peace between members of different religious communities» is a police protection good. Both levels of government can take preventive and repressive measures «within the framework of their competence». The norm does not establish a new federal competence, but rather clarifies existing powers.
N. 11 «Measures» can include: criminal norms against disturbance of freedom of belief (Art. 261 CC), preventive police measures, mediation in conflicts, as well as promotion of interreligious dialogue. Fundamental rights form the limit, particularly religious freedom itself (Jörg Paul Müller, cited in Winzeler, BSK BV, Art. 72 N. 53).
#3.3 Minaret Ban (para. 3)
N. 12 The construction ban for minarets represents an absolute, exceptionless prohibition. The term «minaret» is to be understood as a tower of a mosque from which the call to prayer is made. The ban only covers new constructions; the four existing minarets in Geneva, Winterthur, Wangen bei Olten and Zurich enjoy legal protection of existing use.
N. 13 Doctrine is divided on compatibility with higher-ranking law. Markus Schefer sees constellations «where the interests in building a minaret predominate» (cited in Winzeler, BSK BV, Art. 72 N. 53). The prevailing opinion qualifies the ban as a violation of religious freedom and the prohibition of discrimination (Kley/Schaer, Gewährleistet die Religionsfreiheit einen Anspruch auf Minarett und Gebetsruf?, passim).
#4. Legal Consequences
N. 14 From cantonal competence (para. 1) follows the authority for comprehensive regulation of state-church law. The cantons can recognise religious communities under public law, but need not do so (Pahud de Mortanges, Zur Anerkennung und Gleichbehandlung von Religionsgemeinschaften, p. 185 ff.). According to unanimous doctrine, there is no entitlement to public-law recognition (Winzeler, BSK BV, Art. 72 N. 20).
N. 15 The fundamental rights obligation of the cantons remains unaffected. The Federal Supreme Court has specified: Cantonal regulation of the «nexus» between confessional affiliation and church membership is «fundamentally permissible», but must preserve freedom to withdraw (BGE 129 I 68 E. 3.3). When granting state contributions, conditions may be imposed as long as freedom of belief is preserved (BGE 145 I 121 E. 5.2).
N. 16 The minaret ban (para. 3) obliges all construction authorities to reject corresponding building applications. A constitutionally compliant interpretation or individual case balancing is excluded according to prevailing opinion, since the norm is formulated as an absolute prohibition.
#5. Disputes
N. 17 The fundamental rights obligation of publicly recognised religious communities is disputed. Prevailing doctrine affirms a full fundamental rights obligation for public-law and denies it for private-law religious communities. Winzeler advocates for a middle way: «restrained application of fundamental rights towards publicly recognised and moderately applied third-party effect towards private-law religious communities» (BSK BV, Art. 72 N. 22).
N. 18 The scope of cantonal organisational autonomy is controversial. Earlier doctrine (Burckhardt) held that the canton could «decide what the organisation and what the doctrine of the church recognised by it should be» (cited in Winzeler, BSK BV, Art. 72 N. 8). This is today unanimously rejected: The self-understanding of a religious community is «authentic, meaning: to be assessed self-determined, not externally determined» (Winzeler, BSK BV, Art. 72 N. 14).
N. 19 The international law conformity of the minaret ban is assessed differently. While parts of doctrine see a clear violation of Art. 9 and 14 ECHR, others argue with the wide margin of discretion of states in the religious law area. An ECtHR judgment is pending, since the domestic legal remedies cannot be exhausted due to lack of building permit procedures.
#6. Practice Notes
N. 20 When publicly recognising religious communities, the cantons must observe the principle of legal equality. Different treatments require factual reasons (Famos, Die öffentlich-rechtliche Anerkennung von Religionsgemeinschaften im Lichte des Rechtsgleichheitsprinzips, passim). Democratic organisation can be required, but must be adapted to the nature of the religious community (Hafner, Kirche und Demokratie, p. 25 ff.).
N. 21 Church withdrawal declarations must be treated differentially. A «partial withdrawal» only from the national church while remaining in the confession is possible if cantonal law provides for this (BGE 129 I 68). The declaration must be unambiguous; ambiguities work against the intention to withdraw.
N. 22 Regarding religious peace (para. 2), restraint is required. Preventive measures may not have discriminatory effect. The Geneva Laicity Act shows the limits: A general ban on religious manifestations in public space violates religious freedom (BGE 148 I 160).
N. 23 For the practice of the minaret ban, a restrictive interpretation of the term «minaret» is recommended. Prayer rooms without towers, domes or other architectural elements of Islamic sacred buildings are not covered. The four existing minarets may be renovated and maintained in their substance.
Case Law
#Cantonal Jurisdiction and Organisation of State Churches
BGE 129 I 91 of 29 November 2002
Prohibition of ecclesiastical jurisdiction and autonomy of state churches in property law disputes.
The decision defines the boundaries between state and state church jurisdiction and specifies cantonal organisational power over state churches.
«It is incumbent upon the state authorities to determine which areas are covered by the state church's mandate for legal protection under § 114 KV/AG. The Administrative Court's view that the adjudication of property law disputes arising from church employment law should take place through the church-internal appeal process and not through state court proceedings withstands the prohibition of ecclesiastical jurisdiction and violates neither state church autonomy nor the prohibition of arbitrariness.»
BGE 145 I 121 of 18 January 2018
Freedom of belief of state churches and state subsidisation.
The judgment addresses the limits of freedom of belief of state churches in the context of state contributions and the significance of Art. 72 para. 1 Cst. for cantonal church organisation.
«According to the Swiss constitutional understanding, the cantons can regulate the organisation and membership in the churches they recognise based on Art. 72 para. 1 Cst. The granting of contributions was linked to the condition that the amount may not be used specifically for counselling on abortion methods. This fulfils the appellant's concern and does not violate their freedom of belief.»
#Church Withdrawal and Membership
BGE 129 I 68 of 18 December 2002
Legal effects of a partial church withdrawal from a state church while remaining in the religious community.
The decision clarifies the admissibility of a so-called partial church withdrawal and the significance of cantonal regulatory competence.
«The Church Constitution/LU links, for persons resident in the Canton of Lucerne, the confession to the Roman Catholic religious community or denomination with membership in the Roman Catholic state church and the corresponding parish (so-called nexus). Such a link is not constitutionally required; the canton can also regulate the relationship between church corporations under public law and religious communities dualistically. However, the nexus is fundamentally permissible.»
#Prohibition of Discrimination and Religious Symbols
BGE 134 I 49 of 27 February 2008
Discriminatory denial of naturalisation due to wearing a headscarf.
The judgment shows the limits of state interventions regarding religious symbols in the context of naturalisation.
«Basing a negative naturalisation decision on wearing a headscarf as a religious symbol is likely to impermissibly disadvantage the applicant. There is no qualified justification for this: the mere wearing of a headscarf does not in itself express an attitude that violates rule-of-law and democratic values.»
BGE 148 I 160 of 23 December 2021
Geneva Secularism Act and religious manifestations in public spaces.
The decision specifies the limits of cantonal secularism and the protection of freedom of belief in religious events.
«As worded, art. 6 para. 1 and 2 LLE/GE, which provides that religious worship manifestations on public property can only be authorised exceptionally, amounts to providing for a prohibition in principle of this type of manifestation, which is incompatible with art. 15 Cst.»
#Religious Arbitration
BGE 149 III 338 of 12 May 2023
Admissibility of religious arbitration tribunals and prohibition of ecclesiastical jurisdiction.
The judgment addresses the demarcation between the prohibition of ecclesiastical jurisdiction and permissible religious arbitration proceedings.
«The ecclesiastical jurisdiction abolished by Art. 58 former Cst. 1874 and also prohibited by the current Federal Constitution does not encompass a voluntarily agreed church arbitration tribunal, provided it decides in an arbitrable area, i.e., in an area subject to the free disposition of the parties.»
#Public Peace Between Religious Communities
The case law on Art. 72 para. 2 Cst. is still sparse, as the minaret construction ban under Art. 72 para. 3 Cst. has been in force since 2009 and so far no direct judicial disputes regarding measures to maintain public peace between different religious communities have been documented. The provision has not yet been addressed in BGE-worthy proceedings, which suggests that corresponding conflicts have been resolved or avoided at the administrative level.