Issues of Church and State in Germany and England

A recent post commented on the judgement of a German court which held that from the state’s point of view, (i.e. in relation to the Kirchensteuer ‘church tax’ rather than to doctrinal matters), those who left the Church voluntarily were not regarded as members of the Church.

In the following guest post, Simon Hunter, a barrister at 13 Old Square Chambers, gives some further insights on the issues raised and how this has been addressed in England.


Last week this blog carried a very interesting piece on the recent controversy surrounding the Kirchensteuer. To me, it is all the more interesting that this dispute should have arisen in Germany, home of Martin Luther. For there is a very fine line, at least in public perception, between, on the one hand, the linking of burial according to the Roman Catholic rite (or, for that matter, any rite) and financial payments and, on the other, the practice of selling indulgences that caused Luther so much concern half a millennium ago.

To the outsider, it seems that the Roman Catholic church is saying that one cannot attain everlasting life upon another shore and in a greater light unless you pay for it in this world. Whilst Catholic theologians have never had the issues with works of supererogation that many Protestant denominations have (including the Church of England, Article XIV. Of Works of Supererogation of the Thirty Nine Articles of Religion or The Doctrine of the Church of England as by Law Established), nor the same attachment to the doctrine of justification by faith alone, this is a ‘heaven for those that pay’ concept that smacks of the worst of pre-Reformation Catholic indulgence (and indulgences).

Looking back to our own shores, David Pocklington also noted that the English secular courts, like, it appears, their German counterparts, would not enter into the doctrinal issues at the core of this dispute. Here in England, this may be a hangover from what must be about the last time that the secular courts here seriously meddled in doctrinal issues: the case of Gorham v the Bishop of Exeter (1849) 2 Rob. Ecc. 3., argued in front of the Privy Council in December 1849, with judgment given the next year.

The question that the Council had to decide was whether the Bishop of Exeter, a noted High Churchman, could refuse to institute Mr Gorham to the rectory of Brampford Speke on the grounds that his views on the sacrament of baptism were, in the Bishop’s eyes, suspect. The Bishop was successful in the Court of Arches. The Privy Council, however, allowed Gorham’s appeal, against the submissions made by on Edward Badeley, a barrister and friend of John Henry Newman. His submissions were printed, and can be found on Google books, as can the Privy Council’s judgment. Both are well worth reading for anyone interested in Tractarianism or Anglican doctrine.

Amongst the effects of this judgment (beyond, of course, the effect on the minds and immortal souls of the residents of Brampford Speke) was to cause a number of the more prominent and vocal members of the Tractarian movement, including Badeley, to leave the Church of England and move over to Rome. Their position, that they could not be a part of a church whose doctrine was in thrall to the declarations of a secular court, is one that the German authorities, both religious and secular, would do well to consider.

I am grateful to Sam Cook of the City of London Corporation and Frank Cranmer for a final salient observation on the subject of church rates and taxes. The inaptly named Compulsory Church Rates Abolition Act 1868 did not, as one might think, in fact abolish the ability of churches to levy a compulsory rate on the inhabitants of the parish. It only rendered such levies unenforceable in law. These days, the power to levy a rate is found in the Parochial Church Councils (Powers) Measure 1956.

Despite some controversy in the 1990s, PCCs find themselves in a position, therefore, where they can levy at least voluntary rates on their parishioners, church-going or not. The learned authors of this blog tell me that various parishes, including Hampstead Parish Church, do levy such a rate. In the case of Hampstead it is an annual levy solely for the maintenance of the building, an important and valuable part of the fabric of that community. Let us hope that the Church of England manages to avoid the controversy surrounding such rates that the German churches are currently experiencing.

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