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The International Journal
of Not-for-Profit Law

Volume 3, Issue 2, December 2000

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Articles

Church and State Relationships in German "Public Benefit" Law
By Dr. Christine R. Barker

Evaluating Tax Incentives for Donations to Public Benefit Organizations
By Paul Bater

Freedom of Association: Recent Developments Regarding the "Neglected Right"
By Leon E. Irish and Karla Simon

The Government of Israel's Control of NGOs: Legal Dilemmas and Structural Constraints
By Nitza Nachmias and Amiram Bogot

Reviews

Introduction to the Non-Profit Sector in the Balkans
By Jenny Hyatt
Reviewed by Douglas Rutzen

The Third Force
By Ann M. Florini
Reviewed by Karla Simon

Weak Democracy and Civil Society
By Imco Brouwer
Reviewed by Sam Charron

Case Notes

Central and Eastern Europe:
Poland

Latin America and the Caribbean:
Venezuela

Middle East and North Africa:
Egypt | Tunisia

North America:
the United States

Newly Independent States:
Moldova
| Russia

Country Reports

Asia Pacific:
Regional
| Australia | the Philippines

Central and Eastern Europe:
Hungary

Latin America and the Caribbean:
Regional | Dominican Republic | Guatemala | Peru

Middle East and North Africa:
Bahrain | Israel | Palestine | Yemen

Newly Independent States:
Kazakhstan | Ukraine

North America:
the United States

South Asia:
India | Pakistan

Sub-Saharan Africa:
Ghana | South Africa

Western Europe:
Belgium | France | Germany | Ireland

International Grantmaking

Conducting Overseas Site Visits
By Victoria B. Bjorklund and Jennifer I. Goldberg  

- - - - - - - - - -

Editorial Board

Church and State Relationships in German “Public Benefit” Law

By Dr. Christine R. Barker

The author gratefully acknowledges the financial support of the Deutscher Akademischer Austauschdienst (DAAD) and the Royal Society of Edinburgh/Caledonian Research Foundation for her research in Germany. Library and office facilities were provided by the following institutions in Berlin: the Centre for British Studies at Humboldt University, the Maecenata Institute for Third Sector Research, and the Institute for Comparative State/Church Research. The author is grateful to all her colleagues at these institutions for their support and encouragement, in particular to Dr. Rainer Sprengel for his assistance with library materials and to Dr. Günter Krusche for reading and commenting upon a draft of this article.

I. Introduction

In Germany, as in many other countries, the Church/State relationship has had a chequered and complex history. There were, of course, deep divisions at the time of the Reformation, the origins of which are attributed to Martin Luther, and these continued for many years. In the early nineteenth century there was still no unified German State and Germany’s 300 kingdoms, dukedoms and baronies remained divided religiously as well as politically for many years, with the Protestant and Catholic Churches variously dominant.

Even after 1871, when Germany became a nation State (the term “State” is used in this national sense throughout this article), a significant State/Church conflict developed, primarily between the Protestant Prussian government of the Reich under Bismark and the Catholic Church. Protestant Prussia saw the foundation of the Catholic political party Zentrum (Centre) in 1871 as a threat to its recently gained political dominance in Germany (Anheier & Seibel, 1993). The Catholic Church was subject to various restrictions. All Catholic schools in Prussia came under State control in 1872, as did the general administration of the Church in 1873, and in 1875 all State subsidies to the Catholic Church were suspended. The differences were settled during the 1880s and the State developed harmonious relations with the Churches.

The incorporation into the Weimarer Reichsverfassung (Weimar Reich constitution) of 11 August 1919 of Article 137 (1): “Es besteht keine Staatskirche” (“There is no State Church”). formally rejected the concept of an official State Church. However, it was decided that religious communities which had hitherto been public law bodies could remain so, and that other religious organisations could apply to have the same rights, if they could demonstrate their durability by means of their constitution and the number of members (Art. 137(5)). The significance of this is discussed below.

The Grundgesetz (Basic Law) of 23 May 1949 established the right to religious freedom, that is, freedom of belief, freedom of conscience, freedom of religious and philosophical creeds (Art. 4 (1)), and the right to practise one’s religion without interference (Art. 4(2)). Article 140 incorporates - unaltered - into the Grundgesetz (GG) the relevant articles (136, 137, 138, 139 and 141) from the Weimar Reich constitution of 1919 relating to the freedom to practise one’s religion - or to practise no religion - and the freedom of religious organisations to organise and administer their own affairs without State interference.

Thus, although the Grundgesetz does not recognise a State Church, the major Christian denominations, the Jewish congregations, and other religious organisations which have been recognised as public law corporations, enjoy a status which confers powers which only the State otherwise has, such as employing officials and the ability to levy (Church) tax on the basis of the civic tax lists (Art. 140 GG in conjunction with Art. 137 (6) of the Weimar constitution). Many people consider the relationship between the State and the two main Churches in Germany, the Catholic Church and the member Churches of the Council of Protestant Churches, to be too close and too powerful. As far as the German voluntary sector is concerned, the Church’s dominance in the area of social welfare provision, heavily subsidised by the State, has been criticised by some as being a “monopoly”.

This article considers the privileged legal position of the main Churches, their role in the German educational system, and in particular the increasingly controversial Kirchensteuer, or Church tax, in the context of some of the problems faced by the Church in present-day Germany.

II. Tax Privileges for “Public Benefit” Organisations

“Public Benefit” organisations in Germany qualify for various tax concessions such as relief from corporate income tax (Körperschaftssteuergesetz (KStG) s.5(1), No.9) and inheritance and gift taxes (Erbschaftssteuergesetz (ErbStG) s.13 (1), no.16). The purposes which qualify an organisation for tax privileges are set out in sections 51-68 of the German Fiscal Code, the Abgabenordnung (AO).

Public law religious bodies have a special category as far as these tax privileges are concerned, defined in AO §54 as kirchliche Zwecke (Church purposes). To fulfil the criteria the organisation’s activities must constitute the altruistic promotion of a religious community which is a public law corporation (AO §54 (1)). These purposes include in particular the establishment and maintenance of churches; the holding of religious services; the training of clergy; religious education; the burial of the dead; the administration of Church property; the payment of clergy and other personnel; the care of the old and infirm and their widows and orphans (AO §54 (2)). Any further laws which are needed to implement the provisions are made by each of the Bundesländer (the 16 individual Federal “states” which compose the Federal Republic of Germany. The German term will be retained in this article.). As far as the two main Churches in Germany are concerned, each of the Bundesländer has separate contracts with the Protestant Landeskirchen (the Protestant Churches in each Bundesland) within its jurisdiction and with each relevant Catholic Diocese or Archdiocese setting out the details of the relationship.

Other - private law - religious denominations may qualify for tax privileges under the general gemeinnützige Zwecke (public benefit purposes) as set out in AO §52. (This category is broadly comparable to the “four heads” of charity familiar to those working within the Anglo-Saxon concept of charity law.) Such purposes are broadly defined as the altruistic promotion of the material, spiritual or moral advancement of the public, and “advancement of religion” is one of the many purposes specifically mentioned. As far as the “advancement of religion” head is concerned, German law has encountered the same difficulties as other countries in reaching decisions about organisations outside the mainstream, such as youth sects (generally not regarded as being of public benefit because of their methods of recruitment and the danger of “brain washing” (Kießling and Buchna (1994)), meditative communities, and freemasons’ lodges.

The Church of Scientology, recently refused registration as a charity in England and Wales (Charity Commissioners, (1999)), has been variously granted or refused public benefit status by the German Bundesländer. As well as considering whether Scientology is of public benefit, the courts in some Bundesländer have refused to grant applications on the grounds that the Church of Scientology, which makes charges for the seminars and courses it runs, is based on commercial rather than altruistic principles, while others have concluded that the commercial activities are carried out in pursuance of the Church’s idealistic purposes. Some Bundesländer have accepted at face value the Church’s claim to be a religion, while others have refuted this claim.

Also qualifying for tax privileges in Germany are bodies which meet the requirements of AO §53, mildtätige Zwecke (benevolent purposes, i.e. the support of those in physical or economic need). Neither this category of organisations nor those qualifying under gemeinnützige Zwecke, whether classified as religions or not, enjoy the special privileges accorded to the public law corporations carrying out kirchliche Zwecke.

III. The Special Status of “Public Law” Churches

As noted above, kirchliche Zwecke relate only to public law corporations, which have a special status under the terms of the Weimar Articles incorporated into Article 140 of the Grundgesetz. The status is not confined to the two main Christian Churches and the Jewish congregations: other religious and philosophical organisations can apply. For example, the Salvation Army in Germany has been granted the status of a public law corporation, at first only in western Germany as it was banned in the former German Democratic Republic (GDR) following the building of the wall in 1961. The ban was lifted in March 1990 and the first corps was opened in Leipzig on 16 June of that year. The Salvation Army now has four geographically based administrative divisions in Germany (north, east, south and west) and runs numerous social institutions.

Jehovah’s Witnesses on the other hand, have been trying since the early 1990s to be recognised as a public law corporation and are still pursuing their case through the courts. Their long legal battle has been seen as a test case for applications from non-mainstream religions or sects. Following hearings in the lower courts, a Federal Administrative Court decision of 26 June 1997 rejected the Jehovah’s Witnesses application.

The plaintiff was from a community of Jehovah’s Witnesses from the former GDR which had been recognised as a religious community on 14 May 1990 by the last GDR government after being removed from the list of permitted religious organisations in 1950 by the communist GDR. The plaintiff’s claim that the community’s national membership of around 170,000 and its history of almost a hundred years proved its durability was not disputed. However, the court stated that the legal status of public law corporations was given in the expectation that such bodies would work together with the State. Cooperation of this kind, the court said, demands a certain loyalty, or at least mutual respect. Just as the State should not interfere with a religion, so the religion should not interfere with the State and should not question the fundamental principles of the State’s existence. Jehovah’s Witnesses do not participate in political elections and forbid their members to vote or to stand for public office, which the court felt was not condusive to the principle of democracy and State order.

The Jehovah’s Witnesses lodged an appeal against this decision on 13 August 1997 and a judgement is expected in Winter 2000/2001. The basis of the appeal is that the Jehovah’s Witnesses are simply seeking a legal form which is provided in the Grundgesetz for religious organisations and which over 30 religious organisations in Germany have been granted. The Jehovah’s Witnesses claim therefore that they are only asking for equality with other religions, as guaranteed in the Grundgesetz, and the freedom to practice their religion without interference. Against the argument from the Berlin Supreme Court that their non-participation in political elections runs counter to the principle of democracy and loyalty to the State, they point out that the reference in the Grundgesetz to the granting of public law corporation status to religious denominations does not make any reference to loyalty to the State, and they claim that their non-participation in political elections is not anti-democratic, but is simply the exercise of a basic democratic right. They further argue that if the State is demanding loyalty from religious denominations, then this is tantamount to creating State Churches, which is contrary to the Grundgesetz.

In the meantime, the Italian Government, whose Church tax system has been compared favourably with that of Germany, signed a concordat with the Jehovah’s Witnesses on 20 March 2000 which entitles them inter alia to provide spiritual support to people in the army, hospitals, and penal institutions. They can also perform marriage ceremonies which are recognised by the State and can obtain their share of the Italian Church tax.

Some Bundesländer have also recognised as public law corporations some non-mainstream religions, inter alia Mormons, Christian Scientists, Adventists, and the New Apostolic Church. According to Article 137 (7) non-religious organisations can also qualify for public law status if they are dedicated to public welfare. Thus the German Humanist association has been recognised as a public law corporation, as have a number of regional non-denominational associations.

The rapidly growing number of Muslims in Germany (currently estimated at 2.4 million) do not appear to have reached a unified view about whether they wish to attain public law status. There is no unified Islamic identity in Germany. Only a small percentage of Muslims living in Germany are members of a Muslim association, and none of the Muslim organisations which do exist are public law corporations.

In an interview with the Morgenstern newspaper, Sheik Bashir Ahmad Dultz, who regards public law status as a gateway to providing a proper framework for educational and social welfare programmes, acknowledged that most German Muslims did not want to work together at national level but preferred to remain in their own local associations. (Morgenstern-Gespräch, October 1995, p.28.) He was trying to impress upon them the advantages of particpating in building up a common Islamic structure – without giving up their regional identity. The status of a public law corporation would, he maintained, allow Muslims to take their place alongside the Churches on all the various councils and committees. Although some Bundesländer do offer certain concessions, such as permitting Islamic education to take place in schools (see below), this is not the same as the State having a legal obligation to bestow these rights.

Others take the view that recognition as a public law corporation is not the way forward for the Muslim population. While the main Churches have built up their relationship with the State over many years, it may be neither possible nor desirable to impose a similar Church structure on the Islamic religion. Although some Muslims work closely with the State, others are sceptical and would not wish to work cooperatively with the State in the way envisaged by Article 137. Another commentator, Dr. A. A. Köhler, suggests instead following the example of Spain, where an extensive partnership agreement has been established between the principal Muslim umbrella organisation and the State. He suggests that if large Islamic umbrella organisations in Germany could be accepted by the State as cooperative partners, that would be a better way to proceed (Köhler, 1998/99)). The problem, however, remains that many Muslims do not belong to any umbrella organisation.

IV. Religious Education in Schools

An important aspect of Church/State relationships in Germany is the religious education of children in school. Although under State supervision, the content of the religious education in most State schools is the responsibility of the Churches (“Notwithstanding the State’s right of supervision, religious education will be given in accordance with the principles of the religious denominations”. Art. 7 (3) GG). As far as the two main (Protestant and Catholic) Churches are concerned, there is still a geographical division in the various Bundesländer with regard to which is the dominant religion, and a corresponding division in which religion is taught in the schools. This means that it can be difficult for children of other religious persuasions to receive instruction in their own faith in schools dominated by one or other of the two main religions. Parents are free to decide whether or not their children will participate in this religious education, and after the age of 14 children can decide for themselves (Art.7 (2) GG). Usually a class in ethics or philosophy is provided instead for the pupils who have opted out.

In an increasingly secular society, there are, of course, many who have no religious faith at all, and a controversial law in Bavaria decreeing that a crucifix should be displayed in each classrooom was successfully challenged in court by the atheist parents of a child attending one of the schools concerned. In a judgement of 21 April 1999 the Federal administrative court upheld the parents’ right (under Art. 4 (1) GG) not to believe in any religion, and concluded that the mere fact that they did not wish their daughter to be exposed to religious influences in the course of her education was a sufficient ground to oblige the headmaster to remove the crucifix.

Another on-going debate concerns the introduction of Islamic religious education into State schools, in particular whether all the Bundesländer should be obliged to allow Muslim organisations to provide religious education on a par with the major Christian religions. At a debate in Marburg on 3 May 1999 on this subject, several contributors felt that separate religious education for Muslims - or anyone else for that matter - is not the way forward and would not help to integrate Muslims into the community. (Reported in the Oberhessische Presse and the Marburger Neue Zeitung of 5 May1999.)

Many, including the author of this article, favour replacing the system of separate religious instruction for the different faiths by the approach adopted in some other countries of teaching school pupils about all the great world religions. As well as assisting to promote mutual understanding and, hopefully, tolerance of other religions, this would surely be more compatible with the right to religious freedom embodied not only in German law but also in the Convention of Human Rights. Parents with a particular religious faith could, if they so chose, arrange for this general religious education to be supplemented outside of the State education system.

However, the law which currently applies in most German schools does not facilitate this approach. As noted above, religious education must conform to the principles of the religious communities. It is, therefore, specific to the relevant religious denominations in each Bundesland.

In the face of protests from the Churches, a controversial law of 12 April 1996 in Brandenburg introduced a general course in the different world religions and philosophies as a compulsory subject in senior schools (classes 7-10). This course, entitled Lebensgestaltung – Ethik – Religionskunde (LER), continues to be hotly debated, and the law which introduced it is currently the subject of several legal actions in the Federal Administrative Court which argue inter alia that the replacement of religious education as a compulsory subject by LER contravenes Article 7, section 3 of the Grundgesetz, which states that religious education must be part of the curriculum in State schools. The unification treaty of 31 August 1990, whose implementation on 3 October 1990 extended West German law to the former GDR, contains no special rules regarding religious education in the East, and most of the new Bundesländer did introduce it as part of the school curriculum after re-unification despite the low level of religious affiliation there (see Section VI below.) The court proceedings currently being brought by the Churches argue that while the Brandenburg LER course does contain an element of general religious education, it does not provide religious education in the sense of Article 7.

Although pupils are free to attend religious education classes provided by the Churches in addition to LER, the Churches point out that it is unlikely that they will voluntarily attend both and they claim that religious education, as an optional subject outside the normal timetable, is therefore disadvantaged. Pupils can, however, be released from having to attend the LER class if they have a good reason (Brandenburg Schulgesetz (School Law) of 12 April 1996, §141), and if the teaching of ethics and religion from a non-denominational point of view is against the religious convictions of a pupil (or his or her parents if the pupil is underage) an application can be made to the school for the pupil to attend only a denominational religious class.

A similar controversy is currently on-going in Berlin, which, in common with Bremen, has a rather different legal status from the other Länder in this regard. Berlin is not governed by the legal obligation to provide religious education as a compulsory school subject per Article 7, section 3, as legislation already in existence when the Grundgesetz was written takes precedence (Art. 141 GG, known as the “Bremer Clause”). Berlin currently has no compulsory religious education in its schools, and the debate is whether it should be introduced or whether something similar to the Brandenburg LER would be preferable. Although classes in religion, ethics or philosophy are offered in some Berlin schools, religious organisations and the Humanist Union are in agreement that too few children are being reached by the current voluntary system. Only a third of school pupils in Berlin attend the optional classes in religion given by the Protestant and Catholic Churches and the Jewish community and the Lebenskunde (science of life) given by the Humanist Union. Pupils not attending the classes - which are often allocated a slot at the end of the school day - have a free period.

The model proposed by the Churches is that there would be a compulsory group of subjects from which pupils could choose. Alongside the Protestant, Catholic and Jewish religions and a class in philosophy, currently available on a voluntary basis, there would be other religions or philosophies on offer and pupils would choose which to attend. Islam would be included in this group of subjects and indeed is already being taught in some schools. A judgement of the Federal Administrative Court of 23 February 2000 confirmed a Berlin court decision that the umbrella organisation the Berlin Islamic Federation was a religious denomination in the sense of §23 of the Berlin School Law. This paved the way for the teaching of Islam alongside other religions in Berlin and it has now been introduced into some Berlin schools, again on a voluntary basis. There are over 34,000 Muslim pupils in Berlin, some of whom attend special Koran schools.

The debate surrounding religious education has divided the political parties in Berlin, with the CDU supporting the Churches, while the SPD favours a model more closely allied to the Brandenburg LER course. The PDS and the Green Party are against a compulsory subject of either kind, arguing that the present “free” system demonstrates a commendable separation between Church and State which should be maintained. PDS spokesperson Sieglinde Schaub commented that school was “a place of learning, not religious belief” (Berliner Zeitung, 8 August 2000).

Religious instruction in schools is not the only aspect of Church/State relations in which the two main Churches in Germany have a dominant role. The right to levy Kirchensteuer (Church tax) is a unique and much debated tax privilege which in Germany is accorded only to religious (and some humanitarian) communities which are public law bodies. Not all of them choose to exercise their right to levy the tax, preferring to rely on freely offered donations, but the two main Churches not only levy the tax but also have an arrangement with the State to collect the tax on their behalf.

V. Kirchensteuer (Church Tax)

Church tax has been a part of German law in one form or another since the nineteenth century, and centuries earlier there were similar methods of financing the Church when tithing of goods and later money was practised. Industrial development in the nineteenth century meant that the Churches acquired new fields of work and their duties (then under the financial management of the State) expanded. With the increase of populations, especially in towns, new Church congregations were established, with a consequent increase in the work carried out by the Churches and the number of priests and other personnel required. The State decided at this time to transfer financial management to the Churches themselves, and in order to enable them to raise the necessary revenue, allowed them to levy a tax on their Church members.

Church tax was initially introduced on a Land by Land basis and the first Länder to bring in the relevant legislation were Lippe (1827), Oldenburg (1831), Sachsen-Altenburg (1837) and the kingdom of Saxony (1838). Local parishes were at that time responsible for administering the tax, but during the days of the Weimar Republic the tax was gradually transformed into a Diocesan tax (for the Catholic Church) or Landeskirche tax (for the established Protestant Churches) (Müller, (1996)). Church tax was incorporated into national German law in the Weimar constitution of 1919 which gave religions established as public law corporations the right to levy Church tax. It was carried over into the Grundgesetz (GG) in 1949, and in 1990 was extended through the unification treaty to the former GDR.

The tax denotes to some - notably the Churches themselves - an important piece of Church freedom, underlining the official separation of State and Church. Church members are now predominantly responsible for financing the Churches, with some 16 thousand million Marks being raised each year in Church tax, and the Churches are free to decide how the money should be spent. However, the fact that the State collects the tax on behalf of the two main Christian Churches and generally works closely with them is regarded by others as an unhealthy relationship.

The Church tax is collected by the State on behalf of the Catholic and Protestant Churches through payroll deductions and is transferred to the relevant Catholic Diocese or Protestant Landeskirche according to the religious affiliation of the employee. (There are seven Catholic Church provinces/archdioceses and 20 dioceses. The Protestant Church consists of 24 legally independent Landeskirchen.) The central Church bodies then pay the clergy and lay employees and money is distributed to the individual congregations according to their need. Some have argued that it would be more transparent if the Church tax went directly to the congregations, but the counter-argument is that such a system would be less just, as there is a great disparity in the wealth of the different congregations. The central administration and distribution of the tax according to established criteria, it is argued, guarantees that each congregation has a fair financial basis, regardless of how much tax is collected from its own members.

Almost 67% of the 82.1 million population of Germany belong (on paper at least) to one or other of the two main Churches. The Protestant Church has 27.6 million members and the Catholic Church 27.2 million (Petersen (2000)). However, over 60% of Church members – for example, pensioners and the unemployed – are non-taxpayers and do not pay Church tax. Family allowance is also deducted before the Church tax is calculated. The level of tax – a percentage of income tax - is set by the Churches, and the Churches pay the State 3-4% of the income raised for the cost of administering the tax. This administrative cost is calculated by the State and is deducted from the Church tax before the residue is handed over to the Churches.

As there are approximately the same numbers of people in total in the Catholic and Protestant Churches in Germany, they receive approximately the same amount of money each year, i.e. approximately 8 thousand million Marks each. The Table below shows the level of tax levied (as a percentage of income tax) for the year 2000 in each Bundesland:

Bundesland

Level of Tax

Baden-Württemberg

8.00%

Bayern (Bavaria)

8.00%

Berlin

9.00%

Brandenburg

9.00%

Bremen

8.00%

Hamburg

8.00%

Hessen

9.00%

Mecklenburg-Vorpommern

9.00%

Niedersachsen (Lower Saxony)

9.00%

Nordrhein-Westfalen (North Rhine-Westphalian)

9.00%

Rheinland-Pfalz (Rhineland-Palatinate)

9.00%

Saarland

9.00%

Sachsen (Saxony)

9.00%

Sachsen-Anhalt

9.00%

Schleswig-Holstein

9.00%

Thüringen

9.00%

The Church taxes of the so-called “free professions”, or the self-employed, such as doctors, lawyers, architects, and farmers, are deducted from their income through the relevant finance offices. The Church taxes of employees are deducted by their employers and sent on to the appropriate finance offices. From there they go to the central finance office from where the money is distributed to the Catholic Dioceses and Protestant Landeskirchen. The contribution is tax deductable on the Church member’s annual tax declaration. Most contributing taxpayers pay between 2-3% of their income in Church tax. In 1999 the Protestant Church received an average of 305 Marks per member in Church tax (Petersen (2000)). The amount paid depends on income, with the wealthier paying more. As noted above, children, pensioners and low earners generally pay no Church tax.

There have been criticisms of the Church tax system - in particular from the former GDR - and critics throughout Germany maintain that the Churches are compromised by having the State collect the tax on their behalf. Supporters of the current system deny this, however, pointing out that there is a difference between the State giving money to the Church and the State collecting money from Church members on the Church’s behalf. The Churches remain convinced that the current system is fair and efficient and that it serves both Church and State, as the State benefits from the numerous social welfare Church activities which the State would otherwise have to finance itself.

The main arguments in favour of the Church tax, and for its collection by the State, may be summarised as follows:

Arguments against:

A 1994 judgement of the Federal Administrative Court confirmed that Church tax was entitled to be deducted from the income of tax payers in the same way as contributions for pension, health insurance and unemployment insurance. The judgement was based on the fact that even after unification, when the large number of people in the East without any Church affiliation brought down the average Church membership in Germany, the majority of the population still belonged to a Church.

In the interests of transparency, and in order to help persuade their membership of the value and necessity of the Church tax, the various Catholic Dioceses and the Protestant Landeskirchen publish annual budgets at the beginning of each calendar year, setting out details of how the money will be used. In the Catholic Church this budget is decided by elected committees where the laity has a majority, and the Protestant Church is advised by its Synod – a democratically elected Church Parliament.

Everyone has the right to opt out of the Church tax system by giving up their Church membership. However, this Kirchenaustritt involves a formal declaration that one is leaving the Church and has to be proved through a legally validated certificate from a State authority. This is an official legal act and is recorded in both civil and Church registers. In recent years a significant number of people have chosen to take this step. Thus, although the Church tax still provides the major Churches with a stable income, it is an income which is declining in relation to rising Church costs. This is not only because of people opting out of Church membership but is also due to the high level of unemployment in certain parts of Germany, notably in the former GDR, where there are also considerably less Church members than in the West. In addition, an increasing proportion of Church members in Germany are pensioners, many of whom are non-taxpayers and who therefore do not pay the Church tax.

The fall in the amount of Church tax which they are receiving has led some Länder to introduce Kirchgeld (Church money) in addition to the Church tax (see below).

Kirchgeld

Kirchgeld is a kind of “local Church tax” which is used exclusively to benefit one’s own Church community. It has been introduced in several Bundesländer either as a voluntary or a compulsory contribution. It is either a fixed sum or an incremental amount based on income and ability to pay. Because of the declining income from Church tax, Kirchgeld is becoming increasingly important. The Churches say that many members have recognised this and give considerably more then they are legally required to do. The Table below shows the level of “general” Kirchgeld levied per annum and also the “special” Kirchgeld which is imposed in cases where one spouse belongs to a Church which collects Church tax and the other does not.

 

Church Tax rate as a % of income tax

Capping as a % of taxable income.

 

General Kirchgeld

(in Marks)

Special Kirchgeld for couples of different religions (in Marks)

Minimum contribution (in Marks/Pfennigs)

 

Baden-Württemberg

8

3.5¹

 

various

216-4.500 ³

7,20

 

Bayern

(Bavaria)

8

--

 

3-30

--

--

 

Berlin

9

3

 

various

216-3.996

--

 

Brandenburg

9

3

 

12-60

216- 3.996

--

 

Bremen

8

3

 

--

--

--

 

Bremerhaven*

8

3

 

--

--

--

 

Hamburg

8

3

 

--

216-4.500

7,20

 

Hessen

9

 

6-30 and 6-60

216-4.500

3,60

 

Mecklenburg-Vorpommern

9

3.5²

 

5-60

216-4.500

--

 

Niedersachsen

(Lower Saxony)

9

3.5

 

6-120

--

7,20

 

Nordrhein-Westfalen (North Rhine-Westphalian)

9

 

various

--

--

 

Rheinland-Pfalz (Rhineland-Palatinate)

9

 

various

216- 4.500

--

 

Saarland

9

 

various

--

--

 

Sachsen

(Saxony)

9

3.5

 

12-60, higher contributions dependent on income

216 - 4.500

7,20³

 

Sachsen-Anhalt

9

3.5

 

various

216 - 4.500

7,20³

 

Schleswig-Holstein

9

3.5

 

12-60

216 - 4.500

7,20

 

Thüringen

9

35

 

various

216 - 4.500

7,20³

 

 

 

 

 

 

 

 

 

¹ on application

² only the Pommeranian Church, on application

³ only the Protestant Church

* Bremerhaven is carategorised separately (although not a Federal State) because it belongs to the (reformed) Landeskirche of Bremen, although politically affiliated to Lower Saxony.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Source: Peterson (2000), para. 6.3

It will be seen that the “general” Kirchgeld contributions range widely, for example, from 6 to 120 Marks per annum in Lower Saxony, and are not necessarily uniform throughout a particular Bundesland. Kirchgeld is not income tax-related and those required to pay it can therefore include pensioners, non-earning spouses, and those drawing social security benefit.

In some Länder a minimum contribution is levied, consisting of 7 Marks 20 Pfennigs except in Hessen, where it is half that sum. The above Table also shows the level of capping for those on higher incomes: most Bundesländer impose an upper limit on the amount of Church tax payable, usually available upon application by the taxpayer.

Several Länder also impose a “special” Kirchgeld on married couples where one spouse belongs to a tax-collecting Church and the other does not. This is to compensate for the Church tax which is lost if the Church member in the marriage - often the wife - is not a tax-payer or is a low wage-earner. It is claimed by some commentators that most of the people leaving the Church are male and are the principal breadwinners in the family (see, for example, religious sociologist Michael Ebertz in Das Weisse Pferd, 10/99, who claims that 75% of people leaving the Church are men, aged under 40, and high salary earners with above-average education.) The amount of “special” Kirchgeld levied (in place of Church tax) depends upon the couple’s joint taxable income (see the Table below). As might be expected, this has come under criticism on the grounds that non-Church members are helping to finance the Churches.

Level

Joint disposable income

(in German Marks)

Special Kirchgeld payable

(in German Marks)

Special Kirchgeld payable in Berlin & Brandenburg

1

54001-64999

216

216

2

65000-79999

360

300

3

80000-99999

480

396

4

100000-149999

660

552

5

150000-199999

1200

996

6

200000-249999

1800

1512

7

250000-299999

2400

2100

8

300000-349999

2820

2760

9

350000-399999

3240

3492

10

400000 and over

4500

3996

VI. The Church in East Germany

Under the Communist regime in the GDR, Church membership was tolerated but not welcomed, and it fell dramatically. This was despite the fact that the Churches in the GDR became the focal point for the opposition movement to the Communist State, an opposition which finally brought down the Berlin Wall in 1989. (The complexities of Church/State relationships in the GDR are the subject of on-going research by this author and others, notably the Berlin-based Institute for Comparative State/Church Research.)

It might, perhaps, have been expected that there would be an increase in Church membership after re-unification, not only because of the part played by the Protestant Church in particular in the unification process, but also because of the increased religious education in schools, the greater freedom of movement, and the potential for greater social influence on the part of the Churches. There was, however, no such increase in Church membership. On the contrary; in 1990 there was a further loss of membership in the East, with the Protestant Church losing some 5% of its members and the Catholic Church 4% (Priller (1997), pp.42-44). The rate of loss has since declined, but ten years after the reunification of Germany the majority of the population in the East still have no Church affiliation. Whereas in the West 76% of the population are members of either the Protestant or the Catholic Churches - 40% belong to the Catholic Church and 36% to the Protestant -, in the East the figure is just 27% - 22% Protestant, 5% Catholic - (Petersen (2000)).

Following the 1990 unification treaty, Church tax was extended to East Germany, but the low Church membership there combined with a high level of unemployment means that the income from Church tax is much lower than in the West (Petersen (2000) and Evangelische Kirche in Deutschland (EKD) (1999)). While the Protestant Churches in the West received 328 Marks per member in 1999, in the East the figure was just 132 Marks per member (EKD, (1999)). The picture in the Catholic Church (which has far fewer members in the East) is similar. While Church tax is the principal source of income for the Western Dioceses, accounting for some 75-80% of their total income, according to the various Diocesan budgets, in the East it can be as low as 24-25%. In Dresden-Meißen, for example, where the percentage is 25%, all major Church building work has been suspended until 2008.

The Catholic Churches in eastern Germany rely particularly heavily on their subsidies from the West. The Catholic Diocese of Görlitz cites as its chief source of income for 2000 the injections of money (Geldspritzen) it receives from the Western Dioceses, which will account for 42% of its expenditure, whereas just 24% of its income is expected to come from Church tax. In Erfurt, just 19.7 million Marks of the 78.6 million Mark budget comes from Church tax, with the principal source of income again being a subsidy from the West. Although the level of financial support from the Protestant Churches in the West is far less substantial, it is questionable whether the Protestant churches in the former GDR could continue to exist without the assistance which they continue to receive from the wealthier Churches in the West. Even with this financial support, the number of clergy and other staff employed in the East German Churches has experienced a decline.

Jugendweihe

During the GDR days the tradition of Jugendweihe (a youth initiation ceremony) developed as a secular alternative to a Church confirmation service, and it continues to be extremely popular in the eastern part of Germany. Jugendweihe or Jugendfeier (celebration of youth) ceremonies denote a point of transition in the lives of young people on the way to adulthood and are marked by the presentation of gifts such as books and flowers. Large numbers of young people - an estimated 60% of the total youth population in the eastern part of Germany - still participate in these ceremonies, which are often held around Easter, also the traditional time for Church confirmation services (in which very few East Germans participate).

The Churches are currently debating whether they should offer an alternative “religious” Jugendfeier of their own, thereby leaving the door open for a possible future interest in the Christian Church. The objection to this is that the Communist regime in the former GDR promoted Jugendweihe as a deliberate alternative to the Christian confirmation service, thereby implying that by participating in such a ceremony the youngsters are turning their backs on the Church. However, some priests have held non-denominational services in their churches for pupils leaving school at the end of a school year, or a religious Jugendfeier in some other venue, such as a theatre, and feel that these could be ways of bridging the gap between the secular and religious ceremonies, in particular for young people who choose neither a Jugendweihe nor a Church confirmation service.

An additional factor in the State/Church relationship has been the willingness of some politicians to actively participate in Jugendweihe ceremonies. Leading Church figures, notably Bishop Wolfgang Huber of Berlin-Brandenburg, have accused such politicians of compromising State neutrality in religious matters (as guaranteed by the Grundgesetz) by playing a principal role in “atheist” ceremonies of this kind. In their defence politicians have argued that the Jugendfeier ceremonies currently taking place are not comparable with the Jugendweihe ceremonies of the former GDR (see, for example, Evangelisches Gemeindeblatt für Württemberg, Nr. 37, 1998). The barely perceptible difference in terminology - the terms Jugendfeier and Jugendweihe are often used interchangeably - does not denote any great distance from the GDR ceremony, nor does the nature of the event. However, it is understandable that politicians as well as clergy should wish to support and encourage the young people of Germany as they move towards adulthood.

VII. Church Monopoly of Social Welfare Provision?

A basic principal of the German State is that of subsidiarity (see Anheier (1992)), which means that the State leaves as many social welfare duties as possible to independent, self-governing agents. For example, 46% of hospitals are run by the Third Sector. The self-governing agencies are, however, still dependent on public subsidies to a great extent. The non-profit sector in general is far more heavily subsidised by the State in Germany than in other countries, as the following figures show:

Funding of the Third Sector     International Average    Germany

Public funding                             42%                                  64%

Sales of services                        47%                                  32%

Philanthropic giving                    11%                                  3%

Source: Bertelsmann & Maecenata (1999), p.2

In practice much of the social welfare in Germany is provided by the two major Churches, which means that they receive substantial amounts of public funding to do so. This has led to accusations of a monopoly by the Churches. There are some 100,000 Church-based charitable foundations involved in social welfare provision of one kind or another, and the two Churches are the second biggest employers (after the public sector) in Germany.

The Church has a long tradition of helping those in need, but while in many other countries the State, in conjunction with the wider non-profit sector, has taken over the provision of social welfare functions, in Germany the Churches continue to be the main providers of social services from pre-school education to health care for the elderly. A substantial part of this is paid for out of the Church tax, with the State paying the rest from general taxes. In this respect the Church is no different from other agencies, such as the German Red Cross, which similarly receives State subsidies for the social services it carries out. Critics argue, however, that by having the Churches carry out so many public welfare services the State is breaching its duty of neutrality under Article 4 of the Grundgesetz, and they consider it to be inappropriate for the Churches to be subsidised by State taxes. Critics maintain that the vast majority of the Church social welfare programme is financed by the State.

The Churches dispute this. Firstly, they do not regard it as inappropriate for the Churches to provide social welfare care. On the contrary, they regard it as a natural part of their mission, a practical enactment of the spiritual life of the Church. As far as finances are concerned, they point out that almost a fifth of the income from Church tax (i.e. over 3 thousand million Marks of their total income of 16 thousand million) is spent on social services. In Mainz, for example, the Kindergärten provided by the Church in 1999 were used by 15,440 children of all faiths and nationalities. These were provided as a cost of 28.2 million Marks (19.4% of the Church tax received) without any subsidy.

The Churches dispute therefore that their social service provision is principally paid for by the State. Although the State does pay a great part of the remaining costs, it does not have the burden of organising it, which, the Churches argue, would cost the State much more. They point out that the use of the Church buildings alone saves substantial rental costs, and argue that the State would have to put up taxes to do all that the Churches do, pointing out that the Churches provide their social welfare services on a non-profit basis.

VIII. The Future

In addition to the loss of income through people leaving the Church and the small amount of income from Church tax in the eastern Bundesländer, where few have the tradition of Church-going and where there is high unemployment, the recently announced tax reforms in Germany will further reduce the amount of Church tax. The tax reforms place greater emphasis on indirect taxes and reduce direct taxes. As Church tax is based on direct taxation, the amount they receive will be reduced. Estimates as to what the financial loss will be vary, but a reduction of 20% over the next five years has been estimated by tax experts from both major Churches. Concerns have been expressed that this will affect both the pastoral staffing and the social and charitable work of the Churches.

One suggestion which was made by some politicians, notably Kurt Beck (SPD) and Roland Koch (CDU), in order to minimise the reduced amounts received by the Churches was to base the Church tax on gross income. This proposal was rejected, however. It has been pointed out - by the Churches themselves among others - that this might cause more people to leave the Church. A reduction in Church tax income in 1996 was partly attributed to a tax change in that year, which is thought to have led to many people leaving the Church for purely financial reasons, although the high level of unemployment at that time doubtlessly also played its part (Nichtweiß (1996), p.12).

Those opposed to Church tax and to the major role played by the two main Churches in social welfare provision have, however, suggested getting rid of Church tax altogether as part of the tax reform process, replacing it with freewill contributions from members (which would be collected by the Churches themselves). The desire for a clearer separation between Church and State is repeatedly raised in arguments for abolishing the Church tax. There is some resentment that a State law forces a linkage between Church membership and paying taxes, particularly when the Church tax is collected by the State. Some feel that this results in too close a dependence on the State which means that the Churches are therefore unable to criticise State policies as freely as might be desirable.

Arguments against Church tax have also come from within the two main Churches and from other Churches in Germany, including some which are also public law bodies and which are therefore entitled to levy Church tax. The Catholic Reformed Church and the Association of Protestant Free Churches, for example, would like to see Church tax abolished and replaced with voluntary contributions. The General Secretary of the Association of Protestant Free Church Congregations in Germany, Eckhard Schaefer, said that while as a public law body the Association is legally entitled to levy taxes from its 87,000 members, it does not do so, relying instead on freewill offerings and donations (reported in the Reformierte Presse, 28 April 1999). The Free Churches run old people’s homes, Kindergärten and hospitals without Church tax, but where these are for the benefit of the public at large the State pays a substantial part of the costs.

A middle road is proposed by those who favour the Italian system, whereby the State finance offices deduct 8% of income tax from all tax payers, regardless of religious adherence, and tax payers can choose whether this contribution is paid to a Church of their choice or to the State to be used for social, humanitarian or cultural purposes. Critics argue, however, that such a system would make it more difficult to support the wider world Church through international Church-based charities such as Caritas, Misereor, Adveniat, Renovabis, and Bread for the World.

Whether or not the Church tax system will survive this further challenge of reformation of German taxation remains to be seen. Current indications are that it will, at least in the immediate future. Whatever the eventual outcome, it is surely no bad thing for the Churches to be forced both to examine the justification for the tax and to ensure that the public have the necessary information about how the money is spent.

On the wider issue of whether certain religious organisations should have a privileged status, particularly given the changing demographic structure in Germany, several commentators express the view that tax privileges granted to particular religious bodies may no longer be appropriate. The government predicts a further immigration of around 12 million people in the next 30 years, which will doubtless have an effect on the religious structure and practices of the German population. Adams and Maßmann (1999) argue that unequal treatment of the different religious denominations by the State can lead to conflict. They feel that the tax-based promotion of certain systems of religion disadvantages religious freedom, especially in the new Bundesländer in the East. Religion and its definition are, they argue, private matters and should be removed from the tax privileged status enjoyed by public benefit bodies.

The differential legal status granted to certain religious organisations over and above the tax privileges granted to religious bodies qualifying for tax reliefs under the general “public benefit” heading is not unique to Germany. In the UK, for example, distinctions are made between some religious organisations - again, the main Churches and related bodies - and other charities, both religious and non-religious. The position of the principal Churches and other religious organisations within the tax-privileged public benefit sector is, therefore, a matter of concern not only in Germany but also in other countries which have similar regimes in place. This is increasingly so against the background of a growing emphasis on human rights, in particular the right to freedom of religion and conscience and the prohibition of discrimination inter alia on religious or political grounds. The human rights dimension of this issue has been discussed in depth by several commentators, including Bromley (2000), whose article considers the situation in Canada, and Quint and Spring (1999), looking at the position in England and Wales.

I have argued elsewhere (Barker (1999)) for the removal of religious organisations from the general framework of charity/public benefit law. In addition to the fact that the privileged status of certain Church bodies is, in part at least, historically rather than logically based, their activities also differ in many respects from those of other public benefit organisations. Many international classifications of the sector specifically exclude Churches - or at least their sacramental activities - suggesting that they are not encompassed within the modern understanding of the sector. I do not, however, suggest that Churches should relinquish all tax privileges, simply that these might be assessed outwith the public benefit sector.

Part of the focus of this article has been on the German “Church tax” system. The Church tax model certainly has its merits as a means of providing a reasonably stable source of income, which can be quite independent of tax concessions provided to “public benefit” organisations. There would remain, however, questions such as which organisations should be allowed to benefit and for what purposes, and how and by whom the tax should be collected and its expenditure assessed.

The on-going debate in Germany regarding the Church/State relationship, in particular the stark contrast in East and West Germany, is one which will inform the whole of the public benefit sector in its assessment not only of the role of religious organisations within the sector but also of the changing nature of “charity” in the modern age. Proposals for change to the current law governing Stiftungen (foundations) and the broader Gemeinnützigkeitsrecht (public benefit law) are currently under consideration by the German Parliament, and the tax regime in Germany is also undergoing reform. The outcome of these significant discussions and developments will assist the world-wide public benefit sector as it looks for a way forward in the 21st Century.

Dr Christine R. Barker, Freelance Researcher December 2000
(Formerly Director of the Charity Law Research Unit, University of Dundee, Scotland)


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