German “church tax”: Court confirms the bishops’ “pay to pray” decree (2012)

Hartmut Zapp, a retired professor of church law, maintained that he was defending the position of the Pope against the German bishops. In 2006 Benedict XVI had reiterated the Catholic position that defection from the Church cannot be effected merely by a "juridical-administrative" arrangement, but requires an "internal decision" to abandon the faith. [1]

However, in Germany the Catholic Church has another role, a financially important one. It is a public corporation, and it has the state collect its membership dues, generally known as "church tax". It was this public corporation that Hartmut Zapp wanted to leave, believing that, according to Church doctrine, he could still remain a Catholic. He argued that he couldn't be excommunicated, because he had no doctrinal doubts and he was loyal to the Pope. He only had doubts about the Catholic Church as a German public corporation.

Despite defections the strength of the economy means that German church has been steadily rising. It reached €5.3 billion euros in 2013 and is expected to top this in 2014. [2] Naturally Dr. Zapp could not be allowed to threaten this and the German bishops replied that payment was compulsory for all Catholics.

To Zapp they appeared to be arguing that the Church as the Body of Christ was inseparable from the Church as a German public corporation, a position which he could not accept: “It disturbs me that a member of the Church of Christ loses his salvation as a result of a declaration before a government agency”. [3]

The bishops' pay-to pray-decree

After a five-year legal process, and with the verdict of the highest court just days away, the German bishops struck back. They issued a Vatican-approved list of membership rules. Carefully avoiding use of the "e"-word, they set forth penalties for failure to pay church tax. [2] As a prominent canon lawyer noted, the bishops' sanctions amounts to excommunication, even though they carefully avoid this term. [4] A Catholic commentator remarks.

I don't think there’s much question the German Bishops released their statement [...] just before this judicial decision came down in order to influence the decision. They went to great pains not to call this 'excommunication' precisely to side step a 2006 Vatican objection. [5]

The bishops' statement changed the rules, for how could any German court violate the country's constitution by handing down a judgement against a doctrinal position taken by a church? 

Blessed are those who pay

And so, in September 2012 the Leipzig Federal Administrative Court reversed a lower-court judgement, and ruled that there could be no partial Church membership. [5] And poor Professor Zapp who stubornly refuses to believe this, will not be allowed to take communion in the church he loves or be buried in its churchyard — unless he agrees to pay a fixed annual rate to a "corporation under public law".

Notes

1. Pope Benedict XVI, “The formal act of defection from the Catholic Church”, 13 March 2006.
http://www.vatican.va/roman_curia/pontifical_councils/intrptxt/documents/rc_pc_intrptxt_doc_20060313_actus-formalis_en.html

2.  “Germany: church income rises”, The Tablet, 11 October 2014.

3.  “Kirchensteuer: Neun Prozent für das Seelenheil”, Frankfurter Allgemeine Zeitung, 29 September 2009. (Excerpts of this article are translated

4. “Allgemeines Dekret der Deutschen Bischofskonferenz zum Kirchenaustritt” (General Edict of the German Bishops’ Conference on Church-leaving), 2012-09-20
http://www.dbk.de/fileadmin/redaktion/diverse_downloads/presse/2012-145a-Allgemeines-Dekret-Kirchenaustritt_Dekret.pdf (Ironically, this illiberal edict came on the same day that German officials presented these bishops with a new stamp commemorating 50 years since the Second Vatican Council.) 

News reports and commentary on the edict:

“Bishops’ Edict Angers Catholics in Germany”, New York Times, 2012-09-24 http://rendezvous.blogs.nytimes.com/2012/09/24/bishops-edict-angers-catholics-in-germany/

"Court upholds German Catholic Church membership tax", BBC News, 2012-09-26. http://www.bbc.co.uk/news/world-europe-19737983

Matthias Drobinski, "Kirchensteuer - Selig sind die Zahlenden" ("Blessed are those who pay"),
Sueddeutsche Zeitung, 2012-09-27. http://www.sueddeutsche.de/politik/kirchensteuer-selig-sind-die-zahlenden-1.1479647

5. “Canon lawyer: German Church tax dispute needs more reflection”, Catholic News Agency. 2012-09-27
http://www.catholicnewsagency.com/news/canon-lawyer-german-church-tax-dispute-needs-more-reflection/

6. “German Court Confirms The Bishops Pay To Pray Decree”, 2012-09-26
http://enlightenedcatholicism-colkoch.blogspot.no/

For the view of the Catholic reform group We are Church, see

“German group slams Catholic ‘pay to pray’ decree”, AP, 2012-01-24. http://bigstory.ap.org/article/german-groups-slam-catholic-pay-pray-decree

7. “German court upholds church tax challenge”, National Catholic Reporter, 28 August 2009. http://ncronline.org/news/global/german-court-upholds-church-tax-challenge

Below are two translations:

• Article on the 2009 ruling that Zapp could indeed leave the Church as “public corporation under German law” without ceasing to be a Catholic: “Church tax: Nine percent for salvation”.  
• Statement in support of Zapp by the Initiative of Catholic laypeople and priests in the Diocese of Hamburg. This follows the reversal of the earlier court decision in favour of Zapp and quotes from the latest ruling.

Church tax: Nine percent for salvation

Excerpts translated from Melanie Amann und Lisa Nienhaus “Kirchensteuer: Neun Prozent für das Seelenheil”, Frankfurter Allgemeine Zeitung, 29 September 2009 

The incident that has shaken the church tax was for Sabine Leimenstoll pure routine. The registry official the small town of Staufen had already registered dozens of people wanting to leave the church. On this Thursday in July 2007 she opened the church leaving form for Hartmut Zapp on her computer. “If I’d suspected what an uproar it would later cause, I’d have done better to first consult a colleague”, she says today.
 

If you leave the church, you don’t pay the tax

The pleasant old gentleman had small favour to ask. Would the official be so kind as to enter in the column “Explanation” in which it states which religious group one is leaving, after “Roman Catholic” four more words: “corporation under public law”. Leimstoll filled it out, printed it out and Hartmut Zapp officially left the Church.

However, the 70-year-old emeritus professor for Church law at the University of Freiburg knew exactly what he was doing with his addition. He wanted to leave the public corporation, the legal construct of the Catholic Church, and the group of taxpayers — but certainly not the spiritual communion which he had joined through baptism.

Zapp wanted to continue praying, going to confession, receiving the Holy Communion and eventually be buried by the Church. Yet his faith, his salvation should not be linked to his petty role as taxpayer.

Actually, in Germany that isn’t possible. Whoever is in the church pays church tax, so long as he earns enough. The German state takes in eight to nine percent of the income tax every month for the churches. Whoever leaves the church is freed from this and no longer has to pay, but also no longer belongs.
 

“Painful numbers”

Zapp wanted it otherwise. He’s not the first who has tried the legal route, but he is the first to succeed. He has won the first round in court. The administrative court in Freiburg has declared his partial church leaving to be valid. According to the administrative court, to simply say when leaving that the church is a corporation, is permitted and it added drily: “The state cannot prevent any possible difficulties for the Church which that entails”. With that the pensioner had already got further than any church-tax opponent before him.

It may sound like a legal quibble, but there’s much more to it than that. Zapp is only one of many churchgoers who ask themselves: how is it that my belief is linked to a compulsory contribution, whose use I cannot designate? “It disturbs me that a member of the Church of Christ loses his salvation as a result of a declaration before a government agency”, he says,  What, if you please, have the German tax authorities to do with his religion? “The German bishops are the only ones in the whole world who hold this opinion.” And the bishops also set themselves explicitly against the will of Rome.

For other church members their beliefs are simply too expensive. In 2007 alone, 130,000 Germans turned their backs on the Protestant Church. Also [Archbishop of Freiburg] Robert Zollitsch, head of the Catholic bishops, last week reported “painful numbers”: 121,155 Catholics left in 2008.
 

If you don't pay, you don't believe?

“The church tax can be an inducement to leave the church”, admits Thomas Begrich, who leads the Finance Department of the Evangelical Church in Germany (EKD). “But not the reason.” Many people, he said, had simply lost their relationship to the church and didn’t really think about their membership. “But as soon as they have to pay church tax, then they decide to leave.”

However, even more worrying to the church authorities are the real faithful like Zapp. Among them are to be found the most vehement opponents of the church tax. They complain that the churches, thanks to their concentrated financial power from taxes, subsidies and care contributions have turned into omnipresent, profit-oriented social service concerns. Their central function, matters of faith, is thereby neglected.

The rebels are particularly indignant that this system is even supported by the religious pressure tactic of excommunication. If you don’t pay, you don't believe? “Those are threatening tidings, not the glad tidings of the Gospels” protest organisations like “We are Church”.
 

When the economy hums the churches profit

“The example of Hartmut Zapp could encourage people to leave the church”, fears Hans Langendörfer, General Secretary of the German Bishops Conference. “They could now get the false impression that the institutional church and the body of the faithful are separable”. [...]

No wonder that the Catholic Church is now striking back: to cancel Zapp’s church leaving, they’re first counting on the state courts. If Zapp were also to succeed with his strategy in the last instance — that would likely be the beginning of the end of the 5 billion Euro church tax that the state collects every year for the Catholic dioceses. The Protestant church could then hardly stay out of a debate about its own 4.5 billion Euros. [...]

Hartmut Zapp considers that actually he’s already won the big quarrel about him leaving the Church: “Above all I wanted to provoke a debate inside the Church. It was dumb of the Freiburg Diocese to go to court. Otherwise it's likely that no one had become interested in my case”. 

Administrative Court on church-leaving: “no significance in Church law”

Kath.net, 7 May 2010
http://www.kath.net/detail.php?id=26636

The Initiative of Catholic laypeople and priests in the Diocese of Hamburg comments on the “modified church-leaving” of the Canon lawyer Hartmut Zapp

The decision of the Administrative Court of Baden-Württemberg (VGH) about the church tax has “no significance in Church law”. This was stated by the Initiative of Catholic laypeople and priests in the Diocese of Hamburg (IK Hamburg) in a broadcast. The VGH in Mannheim said in its press release about this decision:

It’s not for the civil courts to decide the question what consequences the churches decide on as a result of the church-leaving declaration made before the civil authorities. Whether there can be church membership without the obligation to pay church tax, as has been discussed publically in connection with this case, is solely an inner-church matter, which here in the case of the Catholic Church is to be decided according to Canon Law.

The debate concerns the “modified church-leaving” by the retired Freiburg professor of Church law, Hatmut Zapp. “Even if Zapp wasn’t judged by the VGH to be right, he can, like any other Catholic, without any problem once more declare that he is leaving the Catholic Church, whether or not the Registry Office adds a notation about a ‘modified church-leaving’”, says the IK Hamburg.

Decisive for a Catholic is instead “whether a so-called church-leaving in the Registry office automatically results in an inner-church effect in the form of excommunication”. This is not the case. For the only thing that matters here is the Church evaluation of this “church-leaving” from the highest possible authority. And this has been clear since the Vatican text from 2006 which cannot be invalidated by contradictory declarations of bishops or bishops’ conferences.”

There is no defection in the case of Zapp, says the IK Hamburg, for he has always explained that he doesn't wish to leave the Catholic Church as a church and has also put this in writing before the Archbishop of Freiburg, in line with the Vatican text.

Further reading:

“Theologian vows to bring tax dispute to Vatican”, Irish Times, 5 May 2010. http://www.irishtimes.com/newspaper/world/2010/0505/1224269732708.html

“Hartmut Zapp”, Wikipedia (in German, contains a good list of further reading also in German). http://de.wikipedia.org/wiki/Hartmut_Zapp