What’s the German Church-Tax Decree all about?

You may have read, as I did, this article in Cathnews yesterday: German Catholics to exclude tax dodgers. Like me, you probably wondered what it was all about.

Well, of course, I cannot claim any inside knowledge. But I can point out that the Cathnews article was a reprint of an article in the Australian which was a reprint from an article in The Times. When I see that sort of thing, I begin to get suspicious. I want to know: what is the source? Is this a case (as in so many other cases) of ecclesiastical news via journalistic Chinese whispers, with the added complication that the original journalists didn’t understand the language in which the news originated let alone the ecclesiastical details behind the source?

Well, it took a bit of tracking down, but I did find the original German decree on this page, along with a pastoral letter to be sent by parish priests to persons who make the declaration of withdrawal of membership in the Church necessary to opt out of paying the “church tax”.

There is, of course, history behind this situation. A lot of it, which would take too much to go into now (I am sure our good readers will expand upon this in the combox). I am just going to make a few comments:

1) The news stories say (variously) that this decree from the German Bishops Conference has been “approved by the Pope/Vatican” etc. but I see no statement of this in the decree itself. Perhaps I am missing something? If it has received some sort of approval from the Vatican, I would like to know which curial office or official approved it. That would tell us something.

2) it is perhaps regretable that, in Germany and similar countries, the government has become involved in collecting financial support for the Church (and indeed the Protestant Church, Synagogues and other religious groups). It seems so “Constantinian” to us. At the same time, these countries have no tradition of supporting the Church through giving in the collection plate as we do here in Australia (many German Christians who come to Australia are suprised to learn that our Government doesn’t collect “church tax”).

3) It should be noted that there are great positives, however, in having the Government collect material contributions for the Church in this way. First it is only 8 or 9% of the total income tax, not 8 or 9% of income. In other words, we are talking a pittance here. On top of that, it is, in effect, a form of tax-deductible giving to the Church: you don’t pay tax on the money that you give to your religious commuity as we do here in Australia. This is a big gift of the Government to religious communities. Finally, it means that the Church and other religious communities have a lot of cash to do their charitable work in society which we don’t have here.

4) Of course, part of the European culture was the assumption that everyone in the community belongs to one religious community or another, and that they actually want to support their community financially. The tax is designed to be fair and just to all. It really wasn’t designed for a situation in which a very large minority of the community don’t self-identify in this way.

5) No matter, there is a simple solution: if you don’t want to have to pay the tax to the religious community with whom you are registered, you simply make a statutory declaration that you don’t belong to that religious community any more. As far as the Government is concerned, this stat dec is just for their tax purposes; what your religious community makes of it is their business. A recent court case in 2009 upheld the right of any given community to still accept as members people who have made this stat dec before the government officials.

So, what then is all this business about excommunicating “tax dodgers”?

Well, it all hinges on a couple of things:

1) The Catholic Church does not recognise (as do Protestants) a distinction between the Church as the Spiritual Body of Christ and the Church as a visible society in the human realm.

2) It is an obligation upon all Catholics to support the material needs of the Church

3) Apostacy is a grave sin, and a public official declaration that one is leaving the Church – for whatever purpose – constitutes an act of apostacy.

It is notable that the decree cites three canons: 209 §1 , 222 §1 and 1263.

The first says: “209 §1. The Christian faithful, even in their own manner of acting, are always obliged to maintain communion with the Church.”

The second says: “222 §1 Christ’s faithful have the obligation to provide for the needs of the Church, so that the Church has available to it those things which are necessary for divine worship, for apostolic and charitable work and for the worthy support of its ministers.”

The third says: “1263 The diocesan Bishop, after consulting the finance committee and the council of priests, has the right to levy on public juridical persons subject to his authority a tax for the needs of the diocese. This tax must be moderate and proportionate to their income. He may impose an extraordinary and moderate tax on other physical and juridical persons only in a grave necessity and under the same conditions, but without prejudice to particular laws and customs which may give him greater rights.”

Now, it seems to me that a Catholic in Germany who decided not to pay the church tax, but instead put 10% of his income in the collection plate each Sunday would be fulfilling Canon 222 §1. The problem is, as things currently sit in Germany, the only way in which registered German Catholics can get out of the legal obligation to pay the church tax is for them to adopt a “manner of acting” (a very public and legal manner of acting”) which indicates that they are ceasing to “maintain communion with the Church.” Hence, the point at issue is a an act of apostacy.

But what does that matter? you ask. Afterall, it is only a piece of paper. Tell that to the early Christians in the Roman empire, who, if they simply offered a pinch of incense before a statue of the Emperor, would get a “piece of paper” certifying their apostacy. Such acts might save your life, but it would mean your excommunication from the Christian community, not to mention the loss of your eternal salvation.

More interesting, however, is the existence of an interpretation of Canon 209 from the Pontifical Council for Legislative Texts, unearthed by the defendant in the 2009 court case aluded to above. In 2006, the Pontifical Council wrote to Bishop William Skylstad, then president of the U.S. Conference of Catholic Bishops: “The juridical-administrative act of abandoning the church does not per se constitute a formal act of defection as understood in the [Code of Canon Law], given that there could still be the will to remain in the communion of faith.” Apparently, Pope Benedict XVI himself then ordered that this judgement be circulated to ALL bishops conferences, including, one assumes, the German Bishops Conference.

That in fact puts a whole different light on the current matter, and why I would like to know if indeed the German Bishops Conference’s decree has the express approval of some authority in the Roman Curia. Now, of course, the Letter from the PCLT leaves open the possibility of that the one making the statutory declaration of defection from the Church in order to simply get out of paying the Church tax “could still [have] the will to remain in the communion of faith”. This perhaps is the reason for the pastoral letter that the Conference has prepared for pastors to send to individuals who take such a step. The pastoral letter states in closing:

Maybe you do not realize the implications of your decision and want to undo it. I invite you to have a conversation with me (or another Catholic priest of your choice) for clarification. But even if you do not think about changing your decision, I am interested in speaking with you and I look forward to your feedback in this regard.
with friendly greetings,

That appears to be the pastoral end of the Bishop Conference’s stick. On the face of it, they are warning Catholics in Germany that what might seem to be simply a bit of legal mumbo jumbo is in fact very serious indeed: “per se” it may well constitute a formal act of apostacy. The concern here is not money, but the eternal soul of the believer. I do not know how such a pastoral conversation would go – it might even leave open the question about whether or not the making of the statutory declaration will be considered an act of apostacy – but I think the fact of the existence of the pastoral letter does change the way we view the original story.

To the cynical, this will seem to be just about money. But it is, in fact, about the salvation of souls.

About Schütz

I am a PhD candidate & sessional academic at Australian Catholic University in Melbourne, Australia. After almost 10 years in ministry as a Lutheran pastor, I was received into the Catholic Church in 2003. I worked for the Archdiocese of Melbourne for 18 years in Ecumenism and Interfaith Relations. I have been editor of Gesher for the Council of Christians & Jews and am guest editor of the historical journal “Footprints”. I have a passion for pilgrimage and pioneered the MacKillop Woods Way.
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19 Responses to What’s the German Church-Tax Decree all about?

  1. “What’s the German Church-Tax Decree All About’?
    Well, in spite of what you correctly write about the necessity of supporting the church, David, it comes across as close to simony. I mean, denying the sacraments to those who opt out of paying their church tax? Are these people really apostacizing? Some, perhaps, but from what I know a lot of Germans “opted out” to off-set the big hike in taxes that re-integration brought about. Anyway, it’s probably not the smartest move the German bishops could make at the moment in the German context. At the very least it suggests they have a “tin ear”, i.e. are insensitive to the way this will be perceived outside the chancery walls.

  2. Peregrinus says:

    I think the point is that the people concerned aren’t “opting out of paying their church tax”; they are leaving the church, and declaring publicly that they have done so, this being what you have to do in order to avoid the (state-imposed) obligation to pay a church tax.

    Their motive for leaving the church may be to avoid paying the church tax. Or it may not be. Or that may be a small part of a larger and more complex motive. It’s been reported that the numbers making this declaration have risen dramatically in the last couple of years, at a time when the German church has been battered by child sex abuse allegations. It might be fairer to say that their motive is is disgust, dismay and alienation. Or that disgust, dismay and alienation have proved a tipping point in what was a growing disconnect from the church. Or whatever. The point is, to present this simply as a money-saving gambit on the part of those making the declaration is probably (a) unjust to many of them, and (b) a device which serves to enable the church to avoid confronting its own problems.

    Are these people really apostatising? Good question. Reportedly, some of them do turn up later looking for church weddings or church funerals. That might suggest that they are not apostatising, or at any rate not completely apostatising. On the other hand, it might indicate nothing more than that they like a bit of ecclesiastical architecture to provide an ornamental setting in which to celebrate life’s turning points. It may be politically unwise, but I don’t think its wholly unreasonable, for the German bishops to take them at their word when they say they have left the church, and I think it would be unfair to paint this simply as an attempt by the German bishops to protect their revenue stream.

    My reading of this is a bit coloured by discussions that go on in another corner of cyberspace where I waste more time than I should. In that place there is often heated debate between believers and unbelievers, and a regular complaint from the unbelievers is that it’s “impossible to leave the Catholic church”. They want to leave the church, and they want an acknowledgment from the church that they have left, and they want this very clear and unambiguous. And Catholic (and Christian) teaching about the irreversible ontological change effected by baptism, and such, they see as sinister, imperialistic, self-serving, a device by the church to claim a larger adherence than in fact it has.

    It seems to me that what the German bishops are providing to this cohort is exactly what they want; a straightforward and definitive way of leaving the church.

    Isn’t the real beef that people who don’t want to pay the tax have with the state, not the church? The state is taking the position that, if you are a member of the Catholic church (or any other a range of churches and religious groups) you have a civic duty to support that church materially, and the state will enforce it. If you want to be in the church but not pay the tax, it’s the state that stops you doing this, not the church.

    Yes, as David points out, this is uncomfortably Constantinian. But of course there’s a context. I’ve been told – and it rings true – that when Germany was, basically, reinventing civil society in the 1945-55 period, they scrutinised this practice (along with much else) and decided that it was a Good Thing. They saw it as important that their should be communal institutions which were not the state or emanations of the state, and which had moral authority and community support and material resources, so that power and influence should not be concentrated in the hands of the state, and therefore of whose who control the institutions of state. They are keen on the distribution of power throughout society; it’s why they have a strongly entrenched federal system, and why a lot of things which are done by arms of the state in other countries are funded by the state in Germany, but actually done by voluntary and community bodies. And it’s why they have a church tax.

  3. Stephen K says:

    Here are my thoughts. The pastoral letter to which you have referred certainly shows an aspect of the matter that makes the matter less jarring than the bare media report might suggest. But I worry, David, whenever someone attempts to reassure one that it is all about “saving souls”. How much is the response an example of pontifical pique or ultimately about the focus on the numbers in the visible Church statistics?

    It is a curious thing that the vast numbers of people who have never embraced Christianity, let alone Roman Catholicism, are apparently safe from attempts to “save” them but those with the happy (or unhappy) accident of having been baptised Christian as an infant and brought up as a Catholic and who decide in various ways to sever participation or links with the visible Church of their childhood are doomed or placed on the critical list. I think there is a lot of inconsistency and self-delusion at work here. It is in situations like this that the insistence on and priority of visible membership over free will and autonomous religiousness reveals itself.

    And I think this talk of apostasy is misplaced. There are probably no sophisticated theological objections at play here, simply perhaps, an unwillingness to pay money towards an institution they no longer see as deserving it or of which they no longer see the benefit. [Some histories suggest that the reason for the sporadic and limited extent of persecutions in the Roman empire was because local authorities by and large did not see it as a problem because large numbers of Christians, perhaps even a majority, did not choose martyrdom but in fact went through the formalities, some fully appreciating that burning the incense to Caesar was not an oblation to an “alternative” God, and thus saving themselves for another day.]

    Of course it is perfectly logical that a person wishing to disassociate himself or herself from the Church should be allowed to do so, and should not complain if the institution points out the illogicality of them continuing to want its services or present for communion. I don’t even think anyone should be surprised if the Church should disbar them in a formal way, and I don’t think they sensibly can complain where they really mean to disassociate.

    But the Church itself cannot have it both ways either: it cannot disbar them and yet refuse to strike them off the theological membership rolls. This makes a mockery of free will and moral autonomy. Either they are freely and deliberately rejecting Church membership – and their baptism – in which case their baptism is, contrary to notions of permanence, rendered nugatory; or if baptism is a permanent condition, then so is their membership despite any acts, by themselves or officials, to the contrary.

    Yes, I know paragraph 1272 of the CCC says baptism is an indelible mark of one’s belonging to Christ. If it is, then the Church authorities are portraying themselves as both illogical in denying access and service to those who will always belong to Christ, and audacious in presuming that their act of disassociation is of a nature – in each and every case – that excludes them from even a burial. (If there is force to my characterisation of the theological issue, then they ought to reconsider the scope of their binding and loosing authority and consider judiciously editing the CCC.)

  4. Peregrinus says:

    “But the Church itself cannot have it both ways either: it cannot disbar them and yet refuse to strike them off the theological membership rolls. This makes a mockery of free will and moral autonomy. Either they are freely and deliberately rejecting Church membership – and their baptism – in which case their baptism is, contrary to notions of permanence, rendered nugatory; or if baptism is a permanent condition, then so is their membership despite any acts, by themselves or officials, to the contrary.”

    No offence, but I think this oversimplifies the situation slightly. No-one is a Catholic purely by virtue of having been baptised; a Catholic is a baptised Christian who is in eucharistic communion with other Catholics. The point about public defection is not that it negates baptism; it’s that it negates communion. Or, at least, that it’s reasonable to treat it as presumptively negating communion.

    It’s completely understandable that someone would believe what Catholics believe, and cherish the sacraments, traditions and practices of Catholics, and yet be appalled by the systemic failures of the structures and institutions – and leaders – of the Catholic church. And it’s not a huge stretch for such a person to say that “I want to keep my Catholic faith; I just want to repudiate any connection with the flawed institution”.

    But I think that presumes a defective ecclesiology; the idea that the church is something like a club that you join, or a business that you patronise. It’s what I think of as a consumerist understanding of “church”. An analogy more in line with Catholic thinking, I suggest, is that the church is something like a family or a nation. For the most part, you don’t choose it; it happens to you. And it may anger you and infuriate you, but it’s ingrained in you and you can’t cut yourself off from it without at some deep level changing who you are. Which you can do, of course, but it’s not easy, and not something to be done lightly.

    The communion that makes a Christian a Catholic isn’t something simple or formal; it’s a real and deep relationship which – like other relationships – may be in good shape or in poor shape, and which usually has more than one dimension. As all facebook users know, it’s not always easy to sum up the state of a relationship; sometimes it’s complicated. To continue the “family” analogy, you can fall out with your family in a big way, and not speak to any of your relatives for years, but they are still your family. It’s not impossible to completely sever your relationship with your family, but it’s difficult.

    Mostly, the church hesitates to pronounce on the state of anyone’s communion with the Catholic community. In 999 cases out of 1,000, when people leave the church it’s because they’ve decided to leave, not because the church pronounces that they have left.

    But there’s one area where, canonically, the church has very unwisely painted itself into an awkward corner over the last 400 years or so. Since Trent it’s been settled that, where a Catholic marries in a non-Catholic ceremony, without obtaining a dispensation, the marriage is invalid (whereas the same ceremony between two non-Catholics results in a perfectly valid marriage). So where the validity of a non-Catholic marriage has to be determined, the church has to pronounce on whether the parties were or were not Catholic. And if one of them was once a Catholic, then that requires a view to be formed on whether they have left or not; whether their relationship of communion has entirely broken down.

    And the intersection between this issue, and the German tax issue, has been a running sore for a number of years. If the German tax declarations are not seen as marking an end to someone’s communion with the church, then an awful lot of people who want to leave the church and think they have left the church are, canonically, still regarded as members of the church – with the result that the (civil, or non-Christian, or non-Catholic) marriages that they have entered into are all invalid. And of course anything which multiplies invalid marriages is a Bad Thing.

    As I understand it, there’s been pressure for some time for definitive, authoritative clarification of the canonical consequences of these tax declaration, and most of the pressure has come from those who argue that you should take people at their word; if they say they want to leave the Catholic church you should treat them like mature and responsible adults and accept that that is, indeed, what they want to do, and what their declaration acheives. The canonical consequence of that is that their subsequent non-Catholic marriages will be entirely valid.

    But there are other canonical consequences too, the principal one being that as a non-Catholic you can’t – except in usual circumstances – participate in (Catholic celebrations of) most of the sacraments.

    It doesn’t mean, though, that you lose your salvation. The Catholic position on this is that the only people who the church can say are lost are those who, “knowing the Catholic church was founded as necessary by God through Christ, would refuse to remain in it”. I don’t think there’s any basis for assuming that people who leave the church in protest at its failings fall into this category.

    • Stephen K says:

      Dear Peregrinus, thank you, and yes, I do agree with you that the family analogy is in some ways an apt one, and that a relationship of that nature is multi-dimensional and not easily if at all dismissable. The reasoning here is that the church, the nation, the family etc is more than just an institution, and not simply an environment, but an embedding process that like a tattoo gets under your skin and affects your whole mode of thinking and feeling. Is it possible to apostasize from one’s “Australianness”? We might manage to relinquish Australian citizenship but by the time we reach a majority, can we ever relinquish some of the cultural mentality and personality? [I’ll put aside the question whether the latter are easily definable!] So we might speak of Catholic-ness in the same way.

      But with equal respect, Peregrinus, I am not sure you have managed to entirely refute my perhaps inelegant characterisation of the problem. On the one hand you say that Catholic membership does not operate by virtue of baptism but by relationship – hence acts of defection are defections from communion – but on the other hand we are left with the reality of the special approach the Church adopts with “Catholics” where things like marriages and priesthoods (e.g. ex-Catholic Anglicans) wherein they remain juridically, and in a way theologically, bound and covered. If this juridical persistence were to be grounded on relationship/communion then it would, as you yourself intimate, logically cease upon an act of dis-communion, but the fact that it does not seems to me that the crucial event or factor that sets them up in this inescapable relationship is their entry on the baptismal register and nothing subsequent. In common parlance, people say “I was baptised a Catholic” (they’re technically wrong of course) and at the practical level, at least in the past, people have tended to put down “R.C.” or “C of E” if they were baptised in those churches. The language of the clergy (in both denominations) has tended on the whole, I would say, to have reinforced this perspective. I think this understanding leads to complicated situations and greater angst over religion for many people at all levels. You have alluded to this in a way, I think, yourself.

      And as to this concept of the certain loss of someone who, knowing the Church was necessary refused to remain in it, is there such a beast? What person who imagined the Church was “necessary” could “refuse to remain in it”? People who do not wish to abide by the Church’s law or remain affiliated with it ultimately do not agree that it is right or necessary, surely? A sincere apostate from Catholicism is precisely that; someone who no longer sees it as necessary; everyone else is just your run-of-the-mill sinner.

      There are, as our exchange demonstrates, various themes that this issue of tax-payment brings to mind, questions of what constitutes membership, communion, and the different ways things like baptism are thought of. I appreciate that the question of communion (i.e. intentional union) is itself a multi-layered one and one that generally is not pressed by the official Church except in the cases of acts like unauthorised marriages, ordinations and religious participation. This normal reluctance to pronounce on communion seems to be a prudent one because many people may indeed not fully realise or intend what they think they do. Which is why what appears to be a leap to close the drawbridge over a decision to not pay a tax – which appears to require a statement of dis-affiliation as a formality – seems rather drastic. I also think it is unfortunate because it appears inextricably linked – even if, as the pastoral letter shows, it is not based on this – to a question of money.

      I recall an earlier discussion that concerned the refusal of baptism to infants of people not known by the priest to regularly attend Mass. This is not dissimilar at first glance and there are arguments on both sides of the issue. I myself think that if you don’t see any good in the church, and don’t want to contribute to it, then you probably ought not to worry if you cannot get married or buried in the church. If you disagree with some of it, and feel disinclined to contribute to it but retain an element of agreement with or accommodation of it, the precise boundaries may be more difficult to identify. But boy! it’s an elusive and complex concept for most of us!

    • Schütz says:

      The issue about what this means for canon law with regard to marriage is very interesting and worth exploring, Perry. Thanks for raising it.

      You rightly point out the difference between the permanent validity of baptism and the eccleisal question of communion with the Church. Leaving the communion of the Catholic Church does not nullify baptism, as you point out. It is true also that, for canon law purposes, you are deemed to be subject to the law of the Church if you were baptised into the Catholic Church, or, subsequent to Baptism, entered into communion with the Catholic Church. You point out the anomoly that this produces: Marriages contracted outside the church by persons who were baptised Catholic (even though they may never have been subsequently involved in the life of the Church) are deemed invalid, whereas marriages between baptised non-Catholics are deemed valid.

      It seems that even if one breaks communion with the Church, one is still deemed to be under the canon law of the Church, if one was baptised into the Church. (I expect that a subsequent entry via profession of faith into communion with the Church would have the same permanent validity – if I were now to revert to Lutheranism, I would still remain subject to the Canon Law of the Church as far as the Catholic Church was concerned).

      So, under that logic, although a German Catholic might, by statutory declaration, declare herself to be out of communion with the Church , she would remain a Catholic for the purpose of Canon Law. She has broken communion, but remains subject to Canon Law. Any marriage contracted in such a state would be deemed invalid by Canon Law, even though the individual is not in communion with the Catholic Church.

      There are any number of ways of breaking communion (the simplest and most common is committing mortal sin). Every act of breaking communion is able to be rectified by the Sacrament of Reconciliation. But the Sacrament of Reconciliation is itself based upon the Sacrament of Baptism, and therefore Baptism must remain valid.

      1) if you break communion with the Catholic Church (either by an inner act of faithlessness or an external act of renunciation) you are barred from all sacraments (except the Sacrament of Reconciliation); but
      2) your baptismal (and hence canonical) membership in the Catholic Church remains as a foundational reality. You will not, for instance, be rebaptised upon your repentance and return to the Church.

      Does this help us understand things a little more clearly?

      • Stephen K says:

        Your summary, David, confirms what I already understood to be the case, that the Church regards baptism by one of its ministers (priest or lay) to be the foundational and pivotal event. In which case people have to realise that they can never escape the juridical reach of the Church once they have been so baptised, even if from the day after their baptism as an infant they were brought up without any Catholic influence or knowledge. By extension, no other Christian, no other non-Christian, is within the Church’s juridical reach. The implication of this, since the Church jurisdiction is grounded on its theology, must surely be that its theological reach is similarly confined. That this is not an unreasonable conclusion and not merely a sophistry, is illustrated by the fact that what might be necessarily sinful for a Catholic is not necessarily sinful for a non-Catholic. I don’t think, however, that this proposition would ever be countenanced by the official Church which at the same time asserts its unique and universal authority in time and space.

        No doubt all this can be further qualified. But you yourself characterise one aspect – that of non-Catholic marriage – as an “anomaly”. There is another: if you have never been baptised, you can never be “reconciled”, in a strict sense. Ignorance or non-membership is not a sin – therefore, all things being equal, formal membership of the Church is not necessary, and salvation is not merely possible, but arguably less problematic. But if you attempt to renounce it, you’re doomed. My point is, if a theology/ecclesiology throws up such “anomalies”, there’s something not quite right about the theology/ecclesiology, surely.

        I think this issue highlights the problem with infant baptism, the established notions of the Church ‘catholic’ etc. etc. I think an insititution, a body, formed by men and women, can devise and self-impose any rules they like, indeed any conception of themselves they think right, and people who desire to retain any link with the institution or community ought to understand this and confine themselves to the resulting limits. But for people who wish to leave completely, imposing a standard of sinfulness not expected of anyone else reminds one of the oppressive practices more commonly associated with cults.

        I don’t imagine for a minute that my perspective will be adopted, of course. This is simply an exchange of understanding and response. Think of me as thinking it helpful to hold up a mirror.

  5. Matthias says:

    Interesting that in Germany both Lutheran and Catholic churches are still supported by taxes,as is the case in most of Scandanavia with the Lutheran churches ,which means that ministers of the latter churches are subject to prosecution and dismissal if they follow Scripture when considering same sex marriages.
    Personally I am with Tertullian who said -” what has the Emperor to do with the Church”
    Some people may break their communion because they disagree with Government funded churches and the strings that may come attached -perhaps the Radical reformation has left an imprint within some German Catholics,who would rather give freely in accordance with the Scriptures

  6. Peregrinus says:

    I think what causes the problem here (and perhaps not just here) is the tension between, on the one hand, the sacramental mystery that is eucharistic communion and, on the other, the rather blunt instrument that is canon law.

    On the one hand, communion isn’t always a simple binary. It’s not always easy to say whether someone is or is not in communion, and it’s usually closer to the reality to talk about the state or health of someone’s communion with the body of Christ.

    On the other hand, sometimes – as in the case of marriage validity decisions – canon law backs the church into a position where it simply has to decide that someone is or is not in communion. And canon law will provide an answer that, if oversimplified, is at least simple.

    Canon law works to a large extent off presumptions – sometimes explicit, sometimes implicit. If you were baptised by a Catholic minister, there’s an implicit presumption that you will have been raised in the communion of the Catholic church (and in most cases, of course, this more or less corresponds to the reality), and therefore you are taken to be in communion, and a Catholic, unless some further fact shows that this is not the case. Conversely, if you were baptised by a non-Catholic minister, the reverse presumption applies.

    There’s also a strong presumption of continued communion. If you are or are taken to be in communion, then you are taken to remain in communion unless something pretty obviously inconsistent with that happens. So if you haven’t been to mass for the Lord knows how long, the working assumption is that this is because you are lazy bugger, not because you have left the church.

    This attitude was until recently reflected in a canon law provision to the effect that, to leave the church, there needed to be a “formal act of defection”. Mere neglect or long absence was not enough; a formal act was needed, and it had to be an act which unambiguously signified defection from the church. And in 2006 the Vatican authorities issued a particularly restrictive interpretation of this canon, which said that for a “formal act” there had to be three elements:

    – An internal personal decision to leave the church

    – An external manifestation of that decision (e.g. a public declaration)

    – The reception of that decision by the bishop (i.e until the bishop learns about your decision and accepts that it puts you outside the church, canonically you’re still a Catholic.)

    Crucially, the Vatican ruling said this:

    “The substance of the act of the will must be the rupture of those bonds of communion – faith, sacraments, and pastoral governance – that permit the Faithful to receive the life of grace within the Church. This means that the formal act of defection must have more than a juridical-administrative character (the removal of one’s name from a Church membership registry maintained by the government in order to produce certain civil consequences), but be configured as a true separation from the constitutive elements of the life of the Church: it supposes, therefore, an act of apostasy, heresy or schism.”

    This ruling was addressed to the head of the US Bishops conference, which means it came in response to queries from the US, but it was circulated to all national Episcopal conferences, which means it applies everywhere, not just in the US. But possibly its implications were not fully thought out before it was issued.

    It gave rise to the Zapp case that David mentions. When he saw this ruling Professor Zapp, a retired teacher of canon law, went round to the tax office and filled out his declaration, but added a line at the bottom saying that his intention was to separate himself from the church as a juridical corporation recognised by German law, but not from the church as a community of faith. To make doubly sure he then went round to the diocesan office – Freiburg – and told them what he had done, reaffirmed his intention to participate in the church as a community of faith, and he pointed them to the recent Vatican ruling. He announced his intention to pay a voluntary contribution to the church authorities, and pointed to previous statements of Pope Benedict (when he was just plain Archbishop Ratzinger) urging that the German church tax system should be reformed and aligned with the Italian system, where the tax is voluntary. (Zapp also intended to contribute at the Italian church tax rate, which is significantly lower than the German church tax rate.)

    This threw the Archdiocese of Freiburg into a spin. Eventually they took the view that there was no distinction between the church as a juridical corporation and the church as a community of faith – they were the same thing – and that the tax office should have refused to accept or process Zapp’s form purporting to leave the one but not the other, and that they should still be collecting the tax from him and remitting it to the diocese. The church sued the civil authorities – not Zapp – to try and enforce this. Their position, in short, was that Zapp was still a Catholic, and the state should tax him as such.

    They lost that case in July 2009, but they appealed and on appeal they won in 2010. That would normally be and end to the matter, but in 2011 a higher court rules that the cause raised an issue of significant public importance, and a further appeal was possible, so a further appeal was duly launched, and we are still awaiting the outcome.

    The issue before the court is one of German civil law, but it must be embarrassing to the church that the case they are making – that the church as juridical corporation and the church as community of faith cannot be separated – is not the position which canon law takes in the 2006 ruling. Zapp in the meantime is reported to be taking his own canonical proceedings in Rome to have the Freiburg diocese compelled to accept his position.

    Freiburg is worried. If Zapp can leave the juridical corporation but remain part of the believing and worshipping community, and contribute at a rate decided by him and not by the German parliament, then so can everyone else. And of course this has implications not just for Freiburg but for every Catholic diocese, every Lutheran church, the Jewish communities, and every other religious body that participates in the church tax system.

    The other criticisms of the 2006 ruling have already been referred to; its implications for church marriage laws. I’ve already pointed to these. And in fact probably because of these objections the 2006 interpretation, and indeed the canonical provisions which it interpreted, were deleted in 2009.

    So the current position is that there is no longer a concrete canonical test for defection; there is no “formal act of defection”. Canon law recognises that people can defect from the church, but lays down no procedure they must follow to do it, and offers little guidance about how to judge whether someone has defected or not. That creates the space for the German bishops to issue the declaration that they have done; they could not have done so when the 2006 interpretation was in force. This might suggest that they fear (or expect) that they will lose the final appeal in the Zapp case. If they can’t persuade the state courts that the juridical corporation and the believing community are inseparable, they intend at least to embody that position in internal church law.

    Couple of quibbles with David:

    1. Non-Catholics are not subject to canon law. How could they be? But an awful lot of people who are in reality ex-Catholics are, canonically, regarded as Catholics, and so are at least formally subject to canon law. But if, canonically, you are accepted has having defected from the church – this is difficult to achieve but it can be done, and it appears that it has just become easier to do in Germany – then you’re not subject to canon law, so your marriage without canonical form and without a dispensation will be valid. I think the logic of the German bishops’ position is that those who fill out the tax declaration will, canonically, cease to be Catholic, and their non-Catholic marriages will be valid.

    2. Even leaving canonical presumptions aside, it’s difficult to sever communion completely. Mortal sin certainly does not do it. A Catholic who commits a murder does not thereby become an ex-Catholic. He may be excluded from the sacraments, but that’s not the same thing as being excluded from the church. Even if a Catholic does something which incurs the penalty of excommunication, that’s not the same thing as being excluded from the church, and he is still a Catholic.

    (Of course if the mortal sin is heresy or apostasy or schism, that’s a different matter.)

    Couple of quibble with Stephen:

    The sacramental character of baptism by a Catholic (clerical or lay) is exactly the same as the sacramental character of baptism by a non-Catholic; there is no distinction at all. The significance of baptism by a Catholic minister lies not in the character of the baptism but in the presumption it creates that a relationship of communion has been instituted, and will continue. That’s a strong presumption, but it’s not an irrebuttable one, and the church’s juridical reach is indeed escaped if the presumption is successfully rebutted. And, as I read what the German bishops are saying, they will accept that a renunciation of the church in the form provided by the tax authorities will bring to an end any presumed or actual relationship of communion.

    Do you thereby imperil your salvation? The church makes no such claim. The German bishops’ declaration points to the evil consequences which flow from leaving the church – can’t stand or vote in parish council elections, for instance – but makes no mention of eternal damnation. This would be an odd omission if in fact the bishops believed that leaving the church would have this consequence.

    • Stephen K says:

      Thank you, Peregrinus. Yes, you have shed a lot of useful light on the issues, as always. If I may just probe one aspect a little further. I full agree that there is no such thing as “Catholic” baptism, sacramentally speaking. Baptism is Christian baptism is Christian baptism, so to speak. But this means that David’s statement that the sacrament of Reconciliation is based on the sacrament of Baptism needs explanation. Surely it also means that a non-Catholic should be able to receive the sacrament of Reconciliation at the hands of a Catholic Priest and arguably get married before a Catholic priest, receive Extreme Unction and Confirmation. None of these sacraments imply formal commitment to the Catholic church per se, unlike the sacrament of Eucharist and Holy Orders. Or so it seems to me. I realise that someone formed differently would not be likely be inclined to seek the Catholic form of these sacraments, let alone accept they were sacraments at all, but you can imagine that someone formed with a “catholic” sense of them – Anglo-Catholics, Orthodox and so on – could relatively easily so seek them. It is only canon law that might prohibit such reception, not the essential sacramental understanding of them. What is your view of this?

      This self-conception as corporation over and above a community of faith directly feeds into this canonical approach that, as you say in one context, creates awkward or often intolerable consequences. I can’t help feeling the whole issue highlights the limitations and serious problems of trying to preserve every aspect of the traditional view of the visible church.

      • Peregrinus says:

        Hi Stephen

        Baptism, eucharist and confirmation are all bracketed as the sacraments of initiation, and they are intimately connected with the eucharistic communion which constitutes the church. I’m not completely enamoured of the church’s discipline with regard to eucharistic hospitality – my wife is an Anglican – but I can see the point. I can see the same point with regard to confirmation.

        Reconciliation and extreme unction are sacraments of healing. I don’t think there are any fundamental objections to a non-Catholic receiving them at the hands of a Catholic minister, and of course this does happen in cases of necessity. But in general it’s seen as a little awkward; you should, after all, be participating in these sacraments within your own community. If you are regularly drawn to receiving them in the Catholic community well, maybe the Spirit is telling you something about which community you really identify with and want to participate in.

        Marriage, of course, the spouses minister to one another. There’s no fundamental objection to a catholic priest canonically witnessing a marriage between two non-Catholics, but nor is there any reason why he should do so or why they would want him to; it adds nothing to the sacramental quality of their marriage. Again, the issue would be why they don’t wish to marry in the presence of their own community.

        I agree that there’s a real tension between competing ecclesiologies here – is the church a membership-based, rule-constituted organisation, or is it an organic community rooted in a sacramental mystery? From the way I frame the tension, you can probably see where my sympathies lie. But one thing I will say in defence of current disciplines is that they really focus attention on the need for, and importance of, a real and deep relationship with the community. I think it’s authentically Catholic to say that this matters; you can’t be a Christian on your own, and you can’t be a Christian on the basis of a relationship with the community which is basically that of a customer. One of the principal concerns about “sacrament-shopping” is not just that the shopper isn’t a member of the Catholic community, but that the shopper is or ought to be a member of some other community, and they should be worshipping and celebrating with that community.

        That;s a long way from the case of Professor Zapp, of course. The way I see it, if people make a formal and public declaration that they are leaving the church then, as an opening position, it’s probably both fair and realistic to proceed on the basis that that is what they are doing, barring some unusual or special circumstance. Even if we suspect that their motive for doing so is to save money (and I think that is probably an oversimplification in most cases) I don’t think that matters.

        But it’s appropriate to dig a bit deeper, and that (I hope) is the purpose of the letter which the bishops intend should be sent to those who leave. Somebody like Professor Zapp clearly isn’t intending to leave – he’s registering a protest at the Constantinian entanglement of church and state in Germany – and many other apparent leavers may be registering protests at that or at other perceived failings or abuses within the church. I think if the bishop finds that to be the case then he would not be justified in treating them as having left the church.

        The sociology of the church tax is very interesting. Mass attendance in Germany is, more or less, at Australian levels – about 15% – and, as here, those who do go are heavily skewed towards the older age groups. Yet huge numbers of people who rarely or never darken the door of church maintain their church registration, and pay the quite significant tax associated with that. The notion that they are paying this year on year in order to have a church wedding when the time comes, and a church funeral, is not really credible to me; I think this suggests that they do attach considerable importance to their connection with the church.

        • Schütz says:

          “The tension between ecclesiologies” as you call it, Perry, is to be expected given our incarnational theology. If Christ were indeed both divine and human – with the full Chalcedonian formular about no separation, no confusion, etc. – then a true ecclesiology of the Body of Christ would have to reflect this. The tension is there, but it is not a tension that I would like to see relaxed in any way, for that would lead to both sides of the tension being false.

      • Schütz says:

        Strictly speaking, Stephen, when I first received the sacrament of reconciliation, I WAS a non-Catholic! Baptised non-Catholics are received into the faith half-way through the initiation process: they have received baptism, but must yet receive confirmation and first eucharist. Preceeding Confirmation, they make their first confession as a way of returning to their baptismal grace. In actual fact, because I was waiting for the final confirmation of the dissolution of my wife’s marriage, I went to confession a number of times before my reception and confirmation.

        People often ask me why non-Catholics are not invited to receive communion at Catholic Eucharists. I tell them that indeed we invite everyone to come to the altar and to receive the body and blood of Christ – but please come through the front door rather than the back. If you want to receive Catholic communion, come into communion with us. Pretty simple, and not an unreasonable request, one would think. You wouldn’t let any stranger walk in the back door and share a meal at your family table – but you may indeed invite them in through the front door.

  7. Peregrinus says:

    Breaking news: I’m seeing reports that the German courts handed down their final judgment in the Zapp case yesterday. The church won; the courts have held that if you want to avoid the tax you have to say you are leaving the church, period. You can’t say that you are leaving the church in one capacity but staying in it for another (or, if you do say that, it won’t get you out of the church tax).

    The close timing of the bishops statement and the final judgment are unlikely to be coincidental. I suspect the bishops fear that, with all the publicity surrounding the Zapp case, a lot more people will now file declarations with the state authorities to avoid the tax and, in light of the judgment, those will be unqualified declarationss. The bishops are pointing to the downside of saying that you are leaving the church, in the hope (no doubt) that doing so will deter some people who would otherwise file the tax declaration.

    • Stephen K says:

      Yes, Peregrinus, which brings us back to the sticking point:- will the bishops follow through and agree that those signing the unqualified declarations will no longer be part of the Church and no longer subject to its canons and prescriptions? (And lower the numbers of members on census reports accordingly?) If they don’t we will have the curious situation where the state says that you can’t get out of paying the tax unless you leave the church while the church says even if you get out of paying the tax (because you have left th church) you have not left the church – which would undermine the state law from which it draws financial benefit. Talk about having it both ways. No wonder this seems like a PR disaster! But it will also be a kind of spiriual disaster too, because this is growing less and less like the sort of community many people believe Jesus was concerned about.

      • Peregrinus says:

        German church membership figures – the ones the bishops report to Rome – already omit those who have filed a statement of defection with the tax authorities.

        Somewhat surprisingly, the German state doesn’t conduct periodic censuses like Australia and many other countries. If they did, and if there was a religion question, then presumably the state census religion figures would reflect what people wrote on the census form, rather than what they told the tax office. Either way, the bishops wouldn’t get to to influence the numbers.

        Given that they don’t have censuses, any official figures about church membership that come from the German state are based on the tax records, and it’s always been the case that anyone who files a statement saying that they have left their church is regarded by the state as not being a church member.

      • Peregrinus says:

        Addendum: I don’t know whether it’s already the case that those who file the declarations are treated for canonical purposes as not being church members. Presumably between 2006 and 2009 they were not so treated, but before than and after that they may well have been.

      • Peregrinus says:

        Another addendum:

        “No wonder this seems like a PR disaster! But it will also be a kind of spiritual disaster too, because this is growing less and less like the sort of community many people believe Jesus was concerned about.”

        In fairness, to my mind the problem here is caused by the state. It’s the state not the church, which insists that paying the church tax is a civic duty for church members. It’s the state which says that the only way you can avoid the tax is by leaving your church.

        What the church is saying, it seems to me, is that if you leave the church, you leave the church, and we’ll accept your decision because, you know, you’re a big boy/girl now, and responsible for your own decisions. The fact that you were motivated to leave the church by a desire to avoid financial obligations imposed upon you by the state (if indeed that was the motivation) doesn’t really change matters.

        The obvious way out of this problem is for the church to demand that the link between church membership and the church tax be eliminated. There are a couple of models for this. There’s the one we’re familiar with, whereby churches are funded by voluntary donations directly from members. There’s the Italian model, whereby you pay an element of additional income tax which you can direct to a church, a non-religious ethical body, or artistic/cultural projects of the state, and your choice may or may not reflect your church affiliation (if any). There’s the model in which the state simply funds churches in proportion to their membership out of general state revenue, without imposing a specific tax to finance this. And no doubt other models could be devised.

        It is Catholic teaching and discipline that the faithful have an obligation to support the church materially, but not that they must do so in ways, or in amounts, imposed upon them by the state. And if the state is imposing an obligation which effectively financially penalises church members, isn’t that basically anti-church (even if it leads to church institutions being lavishly funded)?

    • Schütz says:

      I think you have nailed it, Perry. They must have known that this ruling was coming. Whether they knew what the ruling was, I don’t know. Their decree would be applicable in either case. But this does shed a lot of light on the case.

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