Unconstitutionality of the special church tax in interdenominational marriages: Decision of the Federal Constitutional Court
On November 18, 2024, the Federal Constitutional Court (BVerfG – Ref.: 2 BvL 6/19) ruled that the levying of the so-called special church tax in interdenominational marriages violates the Basic Law. This landmark decision has far-reaching implications for church tax practices in Germany, the structure of the relationship between church and state, and the constitutional protection of religious freedom and the principle of equal treatment.
Background: The special church tax and its area of application
The special church tax in interdenominational marriages was a particular feature of tax law that affected couples where only one spouse belonged to a tax-collecting religious community, while the other partner belonged to no church or to a different religious group. If the taxpayer was subject to church tax but had little or no personal income, the special church tax was calculated based on the jointly earned family or spousal income.
The aim was to prevent tax avoidance strategies (“church exit by the higher-earning spouse”) and yet ensure funding of church activities. Especially in cases where the sole or main earner did not belong to a tax-collecting religious community, while the other spouse had little or no income, this effectively extended the tax base to include the income of the non-church-affiliated partner.
Core of the constitutional issue
Freedom of religion and negative religious freedom
The levying of the special church tax affected the freedom of religion anchored in the Basic Law (Art. 4 para. 1 and 2 GG). The so-called negative religious freedom protects not only the right to practice a religion, but also the freedom not to belong to any religious community. In the proceedings, it was argued that the special church tax resulted in an indirect burden on the non-religious or differently religious spouse. This was deemed difficult to reconcile with the scope of negative religious freedom.
Principle of equal treatment and prohibition of arbitrariness
Another key constitutional aspect is the general principle of equal treatment (Art. 3 GG). The tax law structure led to interdenominational marriages being disadvantaged compared to marriages where both partners belonged to religious groups, or to marriages between non-religious spouses. The Federal Constitutional Court also examined whether there was an objective justification for this unequal treatment or whether it resulted in an impermissible group distinction.
Church-state relations and the funding of church activities
The decision concerns fundamental questions regarding the autonomy of religious communities, particularly about funding via the state-administered church tax system. While the state generally permits and supports the collection of church taxes for religious communities, it must, in accordance with the separation stipulated by Art. 140 GG in conjunction with Art. 137 WRV, establish boundaries to prevent violations of fundamental rights.
The ruling of the Federal Constitutional Court in detail
The Federal Constitutional Court concluded that the regulation making interdenominational couples liable for the income of the non-church-affiliated partner is incompatible with the Basic Law. The burden imposed by the special church tax is likely to subject the non-religious partner indirectly to a church levy—even though this partner is neither a member nor beneficiary of the relevant religious community.
The court did acknowledge that funding churches is a legitimate purpose and that it is appropriate to address possible tax planning arrangements. However, such measures must not result in unjustifiable unequal treatment or create an indirect obligation to belong to a religious community, which would violate the principle of negative religious freedom. Especially since the special church tax is not solely based on the church member’s ability to pay, but on the financial situation of the entire family, the regulation was declared unconstitutional.
Implications for taxpayers and church tax law
With this decision, the Federal Constitutional Court has sent a clear message: Tax liability regarding contributions to religious communities may not be extended—even indirectly—to third parties who have not themselves provided a basis for such affiliation. The churches and tax authorities must now adapt their previous practices accordingly.
Taxpayers who, in the past, had to pay a special church tax in an interdenominational marriage should review whether there are claims for reimbursement or possibilities for correcting the tax assessment. In addition, the decision may present new planning considerations for managing personal tax circumstances.
Contextual classification within general church tax case law
The jurisprudence of the Federal Constitutional Court continues its established line of strictly aligning church tax law with fundamental rights and the principles of ability to pay and individual religious affiliation. The decision strengthens the legal position of interdenominational couples and serves as a guideline for the future design of church-related levy systems.
Should you have any questions regarding the impact of this decision on your individual tax situation or concerning the EU or national context of church tax regulations, the attorneys at MTR Legal who are experienced in business and tax matters will be pleased to assist you.
