oops! The homepage of the Bavarian State Chancellery had just worked perfectly, but after the click on a very special link, the site suddenly went on strike: “404” is there, content not found. And underneath: “Heaven again! What’s broken here?” A very good question that the web designers of the State Chancellery wrote in their error message. Actually, you only wanted to refresh your memory scroll through the cabinet report of April 24, 2018 – the day on which Bavaria’s new Prime Minister Markus Söder (CSU) launched the now infamous “Kreuzerlass”. And gave birth to an even more notorious photo.
But this photo of all things, in which Söder mounts a bronze cross on the wall of his state chancellery in an unfavorable light, is no longer displayed online. The link is broken, error. Which would already say a lot about the latest development around Söder’s cross obligation. Because if things go badly for him, it could soon be gone. Heaven again!
This error message appears on the State Chancellery’s website when you want to call up the photo of Markus Söder in which he is mounting a cross on the wall.
(Photo: Thomas Balbierer)
On Wednesday, the Bavarian Administrative Court (VGH) in Munich heard two lawsuits. They want to overturn the decision to place a cross in the entrance area of all Bavarian state authorities and have all crosses that have already been hung removed. The League for Freedom of Thought (BfG) Bavaria, which is critical of religion, and its Munich branch had already gone to court in October 2018 with 25 private individuals, including the musician Konstantin Wecker.
They suspect that the public display of the cross in government buildings “is a violation of freedom of religion and belief.” The representatives of the Free State see things differently and argue that the cross should be understood as an “expression of the historical and cultural character of Bavaria” – not as a purely religious symbol. At least a daring line of argument, after all, as early as 1995, the Federal Constitutional Court described the cross as the Christian “symbol of faith par excellence”. And what the judges in Karlsruhe decide is law for other courts in Germany.
The Free State sees the cross as a symbol of cultural and historical character
After a nearly three-hour hearing, the VGH did not make a decision on the admissibility of the “cross decree” on Wednesday. The decision will be communicated in writing within the next two weeks. At the meeting, Court President Andrea Breit allowed both sides to speak in detail, but there was no rapprochement on the matter.
Hubert Heinhold, the plaintiff’s lawyer, accused the government of discriminating against other ideological communities by emphasizing the Christian cross and thus violating the state’s principle of neutrality. The interpretation of the cross as a symbol of Bavarian culture and history is “crude” and a “helpless attempt to reinterpret a clear symbol”. High prosecutor Marcus Niese, as the defender of the Free State, was unimpressed and stoically stuck to the official line of argument. Unlike in France, for example, the German constitution does not prescribe a sharp separation of church and state. “It is crucial that the state does not associate the cross with an appellative, proselytizing effect,” said Niese, referring to the Federal Constitutional Court. Bavaria does not have to hide its Christian character. The cross can stay.
Cardinal Marx criticized that one cannot point the cross “like a weapon against others”.
Formally, the so-called Kreuzerlass consists of only one sentence, which was issued on June 1, 2018 was included as paragraph 28 in the general rules of procedure for Bavaria’s authorities. It reads: “In the entrance area of every office building, a clearly visible cross must be attached as an expression of the historical and cultural character of Bavaria.” A simple sentence, but one with explosive power. Because not only church critics, legal experts and representatives of other religions still see this as an inadmissible mixing of church and state. Even the then chairman of the German Bishops’ Conference, Munich Cardinal Reinhard Marx, sharply castigated the decision: The Christian cross cannot be “decreed from above” or directed “like a weapon against others”, according to Marx. Even the otherwise well-behaved civil servants objected.
The cross bid was one of Markus Söder’s first official acts after he became Prime Minister in March 2018. It became a symbol of a staunchly conservative, partly populist strategy that Söder was pursuing at the time with a view to the state elections in autumn. Fearing that he would lose too many votes in the right-wing camp to Free Voters and the AfD, the head of government programmatically used the competition at the time – and even copied right-wing combat terms such as “asylum tourism”, which he used in the dispute with Chancellor Angela Merkel (CDU) over the Admission of refugees used several times and defended against criticism. Until, under great pressure, he apologized for it.
The law course in 2018 did not bring him an electoral success. The CSU lost sole rule and Söder had to share power in Bavaria with Hubert Aiwanger from the Free Voters. After the 2018 state elections, in which the Greens had risen to become the second-strongest party in the country, the prime minister suddenly discovered his love for bees, trees and environmental politics. And later admitted mistakes in the election campaign: “I would do some things differently today, especially in terms of form.” By which he also meant the decree of the cross.
The lawsuit, on the other hand, was passed on in May 2020 by the administrative court in Munich to the Bavarian Administrative Court, the highest instance of administrative jurisdiction in the Free State. The text of the decision from that time contains passages that could be read as an indication of the outcome of the proceedings. “The attachment of clearly visible religious symbols in the entrance area of an authority represents an encroachment on religious freedom,” it says, for example. Or: The administrative cross could convey an “unavoidable compulsion” in parts of society to “operate an administrative procedure ‘under the cross’ contrary to their own religious or ideological convictions”. The court did not make a statement about the legality at the time.
Assunta Tammelleo, chairwoman of the Munich Association for Freedom of Thought and initiator of the lawsuit, still rated the decision as a success. She expressed confidence that the cross paragraph would be cashed in by the VGH. “Otherwise we will continue the lawsuit against the Kreuzverlass up to the Federal Constitutional Court.”