Doe notes that existence of a ‘church tax’ has ‘a profound effect on the classical understanding that there are three models of religion-state relations in Europe’, (N Doe, Law and Religion in Europe, (2011, OUP) at 164 and 177). The tax is a feature of several jurisdictions: Germany, Austria, Denmark, Iceland, Finland, Poland and some of the cantons of Switzerland. It was also levied in Sweden prior to the disestablishment of the national Church – but it was then converted into a church fee which the tax authorities now collect from the Church’s members on its behalf.
In Germany, the tax – Kirchensteuer – is payable by those members of the various Churches who pay income tax. However, more citizens are simply opting out of the Churches by the formal legal process of renunciation of membership – Kirchenaustritt – and an ageing population and high levels of unemployment have reduced the number of income-tax payers. The result is that in 2004 only about 35 per cent of the population was paying the tax (see CR Barker ‘Church and State: Lessons from Germany’ (2004) Political Quarterly 168–176) and the percentage in 2012 is probably even lower.
For Roman Catholics in Germany the tax has also created tensions between canon and civil law following the decree of the bishops that those who opt out of paying it should not be given the sacraments or church burials. Some have questioned how such an opt-out is likely to endanger one’s immortal soul. Others have questioned whether Benedict XVI’s statement on ‘Entweltlichung der Kirche’ (the Church’s detachment from the world), made on his four-day State visit to Germany in 2011, was “to encourage German bishops to renounce all earthly aspects of the Church, starting with the Kirchensteuer”.
Today the Federal Administrative Court in Leipzig considered the case of retired canon law professor Hartmut Zapp, who had filed case against the German Church based upon doctrinal issues that it was a person’s belief that determined membership of the Catholic Church rather than any financial relationship. The lower courts had issued contradictory rulings, but reports suggest that the Federal Court ruled that from the state’s point of view, (i.e. in relation to the tax rather than to doctrinal matters), those who left the Church voluntarily were not regarded as members of the Church.
The English civil courts avoid consideration of doctrinal matters, and from the reports currently available, it appears that the Leipzig court has adopted a similar approach. Whilst the verdict will be welcomed by the Church with regard to the potential loss in revenue, this victory might be short-lived if Catholics, who are disenchanted with the performance of the Church with regard to child abuse and other issues, disregard the bishops’ threatened sanctions and opt out of paying the Kirchensteuer.
At their autumn plenary meeting in Fulda, which coincided with the court hearing, the bishops defended the exclusion of those who stopped paying tax. A report in the Catholic Herald indicates that the bishops’ decree states:
‘departing Catholics could no longer receive the sacraments of penance, Holy Communion, Confirmation or anointing of the sick, other than when facing death, or exercise any Church function, including belonging to parish councils or acting as godparents.
Marriages would be granted only by a bishop’s consent and unrepentant Catholics would not be given Church funerals, the decree said’.
The decree is said to have been approved in August by the Vatican’s Congregation for Bishops, and parish priests would be asked to write to departing Catholics, inviting them to meet and explain their decision and have the consequences explained. This suggests that the sanctions are ferendae sententiae (“sentence to be passed”) rather than latae sententiae (automatic), but their basis within the Church’s 1983 Code of Canon Law is as yet unreported.
Further updates and analysis will be posted as additional information becomes available.