If Catholic bishops in Germany were to be declared in schism amid a row over same-sex blessings and other doctrinal issues, the German government would recognize them to have lost the right to both oversee their dioceses and to administer the billions collected annually in the country's Church tax, an expert in Church-state relations told The Pillar.
The reason? Well, here's where it gets kind of weird — the reason is because of the Reichskonkordat, a 1933 treaty signed between the Holy See and Germany's Nazi government, which remains in force today.
German law “recognizes the juridical status of the Catholic Church in Germany, and the Holy See’s role of supervision and nomination of bishops,” explained Fr. Goran Jovicic, a professor of both theology and canon law at St. Patrick’s Seminary in Menlo Park, California.
Jovicic is an expert in Church-state relations and the diplomatic relationships of the Holy See.
“It would be contrary to the agreement between the two sovereign entities for the German government to go against, or fail to respect, the judgment of the Holy See,” he said.
The agreement Jovicic referenced is the 1933 Reichskonkordat, which was controversially negotiated between the government of Germany, then under Nazi control, and the Holy See, represented in negotiations by Secretary of State Eugenio Pacelli, who later became Pope Pius XII.
The 1933 treaty is not the only concordat between the Church and German government. The Holy See has signed several shorter treaties with individual states in Germany, which pertain mostly to the administration of Catholic faculties in public universities. But the Reichskonkordat still forms the basis for much of the legal relationship between Germany and the Holy See.
The concordat aimed to secure the rights of the Church in Germany amid growing persecution and official anti-Catholic hostility. But it was criticized at the time it was signed because it was thought to muzzle the Church’s ability to criticize Germany’s Nazi leadership, and because the German government was widely perceived to be negotiating in bad faith.
The treaty was violated repeatedly after it was signed, leading some to wonder what purpose it served.
Within four years, Pope Pius XI, pope when the treaty was signed, wrote the encyclical Mit brennender Sorge and had it smuggled into Germany; the encyclical unequivocally condemned the Nazi party and its leadership.
But among the concordat’s provisions was the assurance that the pope’s prerogative to exercise governance over the Church in Germany — meaning the appointment, removal, or suspension of German diocesan bishops — would be respected in German civil law. And that provision, which remains in force today, is the factor relevant to contemporary questions.
In recent weeks, tension surrounding the Church in Germany has been escalating, as Catholic priests and other Church workers plan to conduct liturgical blessings for same-sex couples on May 10, in protest of a recent instruction from the Congregation for the Doctrine of the Faith which said such blessings are not theologically possible. Some German bishops have spoken out in support of such liturgical blessings, or said they would not prohibit priests from participating.
At the same time, proposals from some German bishops to permit Protestants to receive the Eucharist, especially Protestants married to Catholics, have also heightened disagreements with Rome.
While Bishop Georg Bätzing, president of the German bishops’ conference, has insisted the country’s bishops are not intending to separate themselves from Rome, the possibility that German bishops might be declared in schism if things escalate has been discussed recently among theologians and Vatican officials.
Schism, defined in canon law as “the refusal of submission to the Supreme Pontiff or of communion with the members of the Church subject to him,” is a canonical crime, the penalty for which includes excommunication, and the possibility of permanent removal from office.
Excommunication would prohibit a diocesan bishop from exercising his office. If the situation continued, the bishop could be removed formally from his position by Pope Francis.
If a diocesan bishop in Germany were to be declared in schism, Jovicic said, the concordat between Germany and the Holy See would require the German government to recognize legally that the bishop was no longer able to act as an administrator of diocesan assets. That would seem to prevent a bishop in schism from spending or distributing Church money after Rome declared a penalty against him.
In the United States, the situation would be different. Because American law does not recognize directly the canonical identity of Catholic entities, parishes and dioceses are organized into civil structures, usually non-profit corporations or corporations sole. If the pope removed a bishop as the canonical head of his diocese, the move would not automatically trigger his resignation as head of the correspondent civil corporation. Depending on the corporation’s governing documents, a bishop unwilling to step down might lead to a complicated, and costly, legal battle.
Raising the stakes in Germany is the Church’s wealth, which comes from kirchensteuer - a tax on religiously affiliated Germans, collected by the German government at the same time as income taxes, and distributed to religious groups eligible to receive it.
Among kirchensteuer recipients are the country’s 27 Catholic dioceses. The kirchensteuer, which accounts for 70% of the Church’s funding in Germany, distributes billions annually to Catholic dioceses, even while Mass attendance in the country has declined precipitously.
Jovicic said German law expects that the diocesan bishop or legitimate administrator of each German diocese, according to the determination of the Vatican, is the one eligible to receive and administer the massive wealth distributed through the tax. But he said it’s difficult to predict what would happen if some German bishops were no longer the legitimate administrators of their dioceses, but resisted Roman overtures to suspend or replace them.
“If the bishops [in such a situation] did not want to leave office — it could be very difficult” to persuade them to do so, Jovicic said, even with civic recognition of the Vatican’s authority over the matter.
“That could actually then start a schismatic church,” the priest added.
“We should not have come to this point. Prevention was needed much earlier, in my humble opinion, because things have gotten so far,” the priest said.
In recent years, Pope Francis has made several moves to correct the German bishops’ conference, and individual German bishops, as the country has undertaken a “Synodal Path” — a multi-year series of meeting in which lay and episcopal German Catholics have begun proposing changes to Catholic doctrine and Church structures, in the name of updating the Church.
The process, which would purport to promulgate doctrinal changes, has been frequently criticized and corrected by Vatican officials. But the process has continued, building momentum along the way for popular movements like the expected May 10 liturgical blessings.
If tensions continue between Rome and Germany, Jovicic said schism could be possible.
“I think we are close, but we have not yet a schism. If they will issue the documents of the synodal path, which would allow [Protestant] intercommunion and make other changes, that would be one step closer to both schism and heresy, both. Then the Church must somehow act. Somehow.”