German court says Mass shutdowns ‘encroach on’ but don’t ‘violate’ religious freedom
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BERLIN, Germany, April 9, 2020 (LifeSiteNews) — The Bavarian Administrative Court has rejected an urgent motion trying to stop the ban on public Masses. The court argued today that the archdiocese of Munich, which is headed by Cardinal Reinhard Marx, had already canceled all public Masses anyway.
Regardless of the measures put in place by the local government, “the church services which the applicants want to be able to attend by means of the temporary injunction will not take place due to requirements of canon law,” the court wrote in its decision.
The decision also mentioned a decree of the Congregation for Divine Worship and the Discipline of the Sacraments. In it, the Vatican admitted that “bishops and priests may celebrate the rites of Holy Week without the presence of the people and in a suitable place.”
The two people who filed the urgent motion told LifeSiteNews they “would like to remain anonymous, we see ourselves as deputy plaintiffs for all Catholics in Munich.”
They also pointed out that another urgent motion with the same wording was also rejected by the court with the same reasoning.
“We are saddened that the court did not have to deal with the factual arguments to reject the urgent motion because it had the possibility to reject it because of the actual impossibility to attend Holy Mass,” the German Catholics said.
They expressed their disappointment in the Archdiocese of Munich and Freising, which “does not even try to enforce similar options as in supermarkets. Isn’t Holy Mass vital? Is everything really about this world?”
While “the protection of life is very important,” the two Catholics “would like the Church to be just as committed to this subject, for example in the field of abortion, also by deeds, not only with words.”
The Bavarian Administrative Court, which is the highest court in Bavaria, weighed “restrictions of freedom on the one hand” against “death, or the endangering of life, on the other.”
The court recommended following Mass “on television, radio, or online,” referring to canon law, which states, “If participation in the eucharistic celebration becomes impossible because of the absence of a sacred minister or for another grave cause, it is strongly recommended that the faithful take part in a liturgy of the word if such a liturgy is celebrated in a parish church or other sacred place according to the prescripts of the diocesan bishop or that they devote themselves to prayer for a suitable time alone, as a family, or, as the occasion permits, in groups of families.”
Finally, the court argued that the prohibition of public Masses is not “disproportionate.”
“The measure is indisputably suitable for permanently reducing the risk of infection, as well as the associated risks. Equally suitable measures that would be less drastic are not evident in the current crisis situation.”
In the German capital of Berlin, a small group of traditional Catholic priests is also trying to use the court system to be able to celebrate public Masses during the COVID-19 shutdown. While the first attempt was unsuccessful, an appeal was sent in on April 8.
Following the prohibition of “gatherings in churches, mosques, and synagogues,” on March 16, no more public Masses were allowed to be said in Germany. Most dioceses had already canceled public Masses before the government issued its new directives in mid-March.
On March 27, the community of the Institute of St. Philip Neri, which is based in Berlin, first announced that it would take legal action to make sure Masses could still be said in public.
“In our view, the prohibition of all public worship services without exception is disproportionate, because the health of the faithful in our church — above all by marking seats at the right distance — can be guaranteed much more effectively than in many supermarkets, which remain open,” the community wrote.
“In view of this fact, we do not consider the serious restriction of the fundamental right to freedom of religion to be acceptable. It should also be borne in mind that — to put it in secular terms — the psychological damage to believers is very serious,” the statement continued.
“Thus, the proportionality of the possible physical consequences of the coronavirus and the psychological burdens caused by the withdrawal from worship (especially on the days of Easter!) also seems more than questionable.”
The Berlin Administrative Court declared on Wednesday, April 7, that a prohibition of worship services is lawful. “Holding and attending church services in public is not a permitted activity and does not justify leaving home,” the court maintained.
While the current situation is seen as “an encroachment on the freedom of religion,” it does not violate that right, the court continued. In order to protect life and health, “the temporary ban is also proportionate. The core area of freedom of religion is not affected.”
Within hours of the decision, the Institute of St. Philip Neri filed an appeal with the Berlin Higher Administrative Court. The superior, Fr. Gerald Goesche, said the community is now exercising the right to appeal and “exhausting the legal process.”
“What we find particularly incomprehensible is the statement of the first court that the state may determine the nature and extent of religious practice by allowing silent meditation in churches, but prohibiting worship services. We want to clarify this, because it is not for the state to determine the forms of religious practice,” Goesche explained.
He pointed out that the right to free exercise of religion is guaranteed by the German constitution. At the same time, Goesche argued, the Administrative Court “permits visits to churches only for quiet contemplation.”
This means, he added, that the state “de facto determines the manner in which religion is practiced. However, it is not entitled to do so.”
“Church services are more than silent prayer, especially at Easter, the highest feast of Christianity. The general prohibition of public worship services is an excessive interference that is not proportionate. Church services online are no substitute for church services.”
While Catholic bishops all agree with the government measures, not even attempting to cautiously protest the necessity of having to forbid all public Masses, some constitutional scholars have indicated how problematic the current situation is.
A total prohibition of religious services, which “hits the freedom of worship at its core, can actually hardly be in conformity with the constitution and last any longer,” Christian Hillgruber told Catholic newspaper Die Tagespost. Hillgruber teaches constitutional law at the University of Bonn.
In March, Josef Isensee, who preceded Hillgruber in Bonn, said the Church would have reacted differently in former times.