Superior Administrative Court decision of October 15, 1996

VGH Baden-Wuerttemburg 10 S 176/96

The previous hearings was:
VG Stuttgart 4 K 4019 / 93
decision of December 8, 1995

Complainant: Chick Corea
Accused: State of Baden-Wuerttemberg
For: negligence, revocation, and identification
Result: dismissed appeal not permissible

The appeal of the complainant against the decision of the Stuttgart Administrative Court of December 8, 1995 - 4 K 4019 / 93 - is dismissed.

An agency terminated a contract with Corea after his membership in Scientology became known. The concert was supposed to have taken place in a state-funded event.

Facts of the case

The complainant, an American state citizen and member of Scientology, objects to statements made by the accused's state administration to the state assembly.

The accused intended to present its own program ("Baden-Wuerttemburg Club") for the public, in assocation with the field athletics world championship in August 1993. The agency commissioned by the accused started contract negotiations with the complainant, a pianist, for a concert as part of the "Baden-Wuerttemberg Club." The agency broke off negotiations, however, when it became know that the complainant was a member of Scientology. It communicated the position of the accused's state ministry in a letter which included the following:

"The administration of Baden-Wuerttemberg respects the religious beliefs of Mr. C and those of others. Mr. C. can, of course, give concerts wherever he wants to. The administration will not engage Mr. C. for a concert. The administration is convinced that Scientology is not a religious community, but is a sect which has interests which are primarily commercial."

Among the decisions made on June 8, 1993 by the state assembly representatives was one which asked the adminstration to review,

"1. how it evaluated the general problem that appearances by artists, exhibitions, etc. by professed Scientologists in state institutions or at events which receive state subsidies was, in fact, indirectly supporting the so called Scientology Church;

2. how it would guarantee that such honoria and fees financed by state subsidies would not, in part, be forwarded on to Scientology, thereby contradicting the state opposition to this organization;

3.what process it would recommend for events in such a case."

It was said in the basis:

"In this year's international tent music festival in F., C. will appear with his band on June 22, 1993. The state subsidizes this event. Since C. regularly appears in public as a Scientologist, the state would thereby be indirectly promoting an organization against which it is otherwise taking measures to prevent its further expansion."

The Ministry for Culture and Sports, in conjunction with the Ministry for Family, Women, Education and Art, took a position to the application in a letter of July 9, 1993 (Lt.-Drs. 11/2051). It stated in part:

"The financial promotion of cultural events or artists in Baden Wuerttemberg and elsewhere is directed by the principle of liberalism taken from the freedom of art guaranteed by the Constitution. According to this principle, no influence is exerted on the content of the art. The responsibility for the content of the art lies exclusively with the artists and art dealers.

The principle of liberalism, however, crosses the bounds of the acceptable when artists promoted with state means made their appearance with the intention of advertising ideas, associations or group interests which the state administration deems worth opposing.

C.'s assciation with Scientology was previously not known to the Ministry of Family, Women, Education and Art. In the future, state promotion of events must be questioned in which active and openly professed Scientologists and members of similar groups take part."

The accused's State Ministry communicated to the complainant in a letter of June 14, 1993 that he "could give a concert any place in Baden Wuerttemberg or appear however else he liked ... but the state would not make a contract ... with him because of the known attitude of the state administration to the Scientology sect."

The complainant filed suit in Stuttgart Administrative Court on December 15, 1993, in which he applied:

"1. to obligate the accused to cease and desist from making the statement that state promotion of events would be an issue when the complainant appeared there as a known Scientologist, or statements to that effect,

2. to obligate the accused to retract the statement that state promotion of events would be an issue when the complainant appeared there as a known Scientologist, and in addition, to obligate the accused to publicly retract its statement in the presence of anyone who had received the first statement, as well as issue a press release, and to communicate that state promotion of musical events was not an issue, especially when the complainant was involved;

Supplementally, to obligate the state to publish the resulting cease and desist order;

Supplementally, in reference to numbers 1 and 2:

1. to ascertain that the expression by the accused state that state promotion of events would be an issue if the complainant appeared there as a professing Scientologist, would be illicit, and thereby not legally valid.

2. to obligate the accused state to publish the resulting judgment."

The disadvantages submitted by the complainant, namely a - potentially also based on other causes - significant decrease of offers for concert appearances in the area of the state, do not seriously and lastingly affect his freedom to form, to have, to profess or disseminate a religious or weltanschauung conviction, nor are they aligned to his collective conduct with regards to the teachings of this conviction, but they certainly have a reference to his commericial interests. In particular, there is no question, in view of the international success and renown of the complainant, that a decrease in offers for concerts in Baden-Wuerttemberg could exert any kind of pressure upon him to distance himself from his convictions.

The assessment which was communicated that indirect, state promotion of Scientology was problematic and therefore needed further review is neither arbitrary nor disproportionate.

Moreover the complainant is mistaken; a possible denial of subsidy, as was considered in the answer from the state assembly, would not be connected to faith or religious views in the sense of Art. 3 sect. 3 Basic Law, but to definite external operating procedures or methods which Scientology may practice outside the protection of Art. 4 of Basic Law.

Contrary to the complainant's presentation, the statements in dispute do not interfere with his freedom of artistic expression (Art. 5 sect. 3, s. 1 Basic Law). The state administration's answer does not take the context of art into consideration at all and does not - directly - prevent the complainant from performing his work or from performing as a musician in the field of his artistic activity.

Because he openly professes to an organization which has met the opposition of public criticism and of justified government surveillance through actions which are outside the protection of Art. 4 of Basic Law [freedom of religion], he will have to accept the state assembly's report expressing doubt about the feasibility of indirect state support. This doubt is founded on actual, competently acknowledged bases of fact. The accused has submitted specific, uncontested and uncontradicted facts which lead to the conclusion that Scientology puts the individual freedom and the human dignity of the people it recruits at risk, and that its perspectives, because they contain cynical and totalitarian tendencies, stand in opposition to the liberal and democratic values of western democracies. This assessment has also been verified by decisions from the highest court. In its decision of March 22, 1995 (see also the Nordrhein-Westfalen Superior Administrative Court decision of May 31, 196 - 5 B 993/95), the Federal Labor Court, after evaluating numerous publicly accessible sources of information, mainly publications of Scientology, determined that the religious or philosophical teachings of this group served only as a pretext for the pursuit of commercial goals, and that Scientology represented cynical perspectives and used methods which were not compatible with human dignity and the image which Basic Law has of people. Under these circumstances, no discussion is necessary of less substantiated objections which the complainant has submitted against the accused, such as against the opinion of Prof. Dr. Rolf Abel (April 1996) presented on commission of the state government of Schleswig-Holstein.

If the complainant wants to appear within the state, he is completely free to either promote his own concert or to work with an agency which is not subsidized by the state. If he, as his legal representative admitted in the appeals process, has not made use of this alternative which is customary in the market, then that is his free business decision, and that does not derive from the quality of interference from the agency statements in question.