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  • Defecting from the Church by a Formal Act—The German Discussion 1969-2009
  • Daniela Knepper (bio)

Introduction

When the 1983 Code of Canon Law was promulgated, three canons contained a phrase that previously had not been found in canon law. Canons 1086, 1117 and 1124 all described a Catholic as someone who "has been baptized in the Catholic Church or received into it and has not defected from it by a formal act."1 The last part of this expression is often called the "defection clause." There are countries in which the formal act of defection has more far reaching consequences than in the United States. Germany is one such country. Since Catholics (and Lutherans as well) have to pay church taxes along with their income tax, many people leave the Church to avoid paying these taxes. Unfortunately, over the years, the defection clause caused more pastoral issues than it solved problems. In 2006, the Pontifical Council for Legislative Texts published a circular letter on the subject, attempting [End Page 544] to clarify the matter, which sparked even more controversial discussions in Germany.

In the first part of this article, I will explain the German phenomena of Kirchensteuer and Kirchenaustritt before going into the canonical evaluation of whether the actus formalis defectionis is the same as the Kirchenaustritt. I will further review canonists' opinions regarding the administrative praxis of denying Holy Communion to Catholics who have left the Church via Kirchenaustritt and how the phenomenon is to be evaluated canonically, especially under penal law. In the second part of this article, I will discuss the 2006 circular letter by the Pontifical Council for Legislative Texts regarding the elements required for formal defection, the way the German bishops communicated the situation to the faithful, and the events and issues surrounding the discussion in Germany. I will also review canonists' opinions regarding the 2006 circular letter.

PART 1: The German Situation 1969-2006

1.1 Introduction

As is well known, the actus formalis defectionis was a new phenomenon in the 1983 Code of Canon Law. However, Catholics in Germany were leaving the Church long before the promulgation of the 1983 code. The reasons for this, broadly speaking, have to do with the privileged status the Church enjoys in Germany and the German system of the Kirchensteuer. The German phenomenon of the mandatory church tax is known to many foreign canonists. The same is true, even though perhaps to a lesser extent, of the phenomenon of the Kirchenaustritt that accompanies the church tax. Whether the formal act of defection mentioned in canons 1086, 1117 and 1124 of the 1983 code corresponds to the Kirchenaustritt is an issue that has long been discussed by German canonists. Still, the general interest in this topic lies less in its connection to the marriage law of the Catholic Church than in the numerous other consequences a Kirchenaustritt brings with it. According to German bishops, a Catholic who has left the Church via Kirchenaustritt is to be denied Holy Communion. However, some canonists have questioned the canonical basis for this denial. [End Page 545]

1.2 The German Phenomenon of the Kirchensteuer

The Kirchensteuer is not a recent phenomenon but started with the Great Secularization of 1803.2 Under German civil law, the Catholic Church enjoys the status of what is called a Körperschaft des öffentlichen Rechts (entity under public law). What does this mean? Under German law, the federal state as well as the individual states and municipalities are Körperschaften des öffentlichen Rechts. The German government also grants this status to organizations that fulfill an important function in society, such as universities or churches and religious communities.3 While Germany has a formal separation of church and state, this separation takes the form of a positive neutrality of the state toward the church. This in turn is an important prerequisite for the Catholic Church's status as a Körperschaft des öffentlichen Rechts. As an entity under public law, the Church is entitled to levy taxes.4 Art. 140 GG in reference to Art. 137 WRV states: "(6) Religious societies that are corporations under public law shall be entitled to levy taxes on the basis...

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