Fernández Martínez v. Spain: The Grand Chamber Putting the Brakes on the ‘Ministerial Exception’ for Europe?
Recently, the Grand Chamber of the European Court of Human Rights delivered its eagerly awaited judgment in Fernández Martínez v. Spain. The case concerned the refusal to renew the contract of a teacher of Catholic religion and ethics in a public secondary school, because he had allegedly caused a “scandal” when his situation of ‘married priest’ and his membership of the Movement for Optional Celibacy of priests became public knowledge. By a narrow 9-8 split decision, the Grand Chamber ruled that the applicant’s right to private life had not been violated.
Before the judgment came out, I was fairly confident that it would affirm what I have termed the ‘ministerial exception for Europe’ in an earlier post. Now that the judgment is out, I am forced to come to the opposite conclusion. Instead of confirming the reasoning of the Third Section, the Grand Chamber in Fernández Martínez appears to hark back to the reasoning in earlier cases, such as Obst v. Germany and Schüth v. Germany.
The applicant in Fernández Martínez v. Spain was described as a ‘married priest’ and a ‘secularised priest’ throughout the domestic proceedings. He owed these curious titles to a series of events in his past. In 1961, the applicant had become a priest. However, in 1984 he applied to the Vatican for dispensation from the obligation of celibacy. He would not receive an answer until thirteen years later. In the meantime, he got married and had five children.
From 1991 onwards, he was employed as a teacher of Catholic religion and ethics in a public secondary school under a renewable one-year contract. According to a 1979 Agreement between the Spanish State and the Holy See, the renewal of the contracts for teachers of Catholic religion in public schools was subject to the approval of the relevant diocese. Initially, the applicant’s marital status, despite him not having received the required dispensation from the Vatican, did not appear to create any problems. His contract was renewed each year, until a series of events unfolded in 1996-1997.
In November 1996, a newspaper article (in a local newspaper) reported on a meeting of the Movement for Optional Celibacy of priests. Most priests who had planned to attend the meeting were dissuaded from showing up due to the presence of the media. However, some persons, including the applicant and his family, did make an appearance at the meeting. As a result, they featured – by name and with photographs – in the newspaper article as advocates for, among others, optional celibacy and a democratic church.
Some nine months later, the Vatican granted the applicant’s request for dispensation from celibacy. The rescript in which the dispensation was granted noted that the applicant was barred from teaching Catholic religion in public institutions, unless the local bishop decided otherwise, “according to his own prudent judgment and provided that there [was] no scandal”.
One month later, the relevant Diocese informed the Spanish Ministry of Education that he would not grant his authorisation for the renewal of the applicant’s teaching contract, since “the [applicant’s] situation [had become] a matter of public and common knowledge”, thus creating a “scandal”. The Ministry subsequently refused to renew the applicant’s contract. The applicant instituted domestic proceedings against that decisision, but was unsuccessful.
Judgment and comment
The Grand Chamber judgment of the ECtHR in Fernández Martínez comes as somewhat of a surprise, to me at least, because I was expecting the Court to confirm the existence (not in those terms, of course, but in substance) of a ‘ministerial exception’ for Europe. I found the existence of such an exception to be quite clearly established by the Chamber judgment in the same case and – much more importantly, because it was not open to being overruled and/or modified – in the Grand Chamber judgment in Sindicatul “Păstorul cel Bun” v. Romania.
Upon reading the Grand Chamber judgment in Fernández Martínez, however, I am forced to revisit my assumptions. It now seems patent that – at the very least – the ‘ministerial exception’ for Europe is not nearly as clearly established as it appeared to be prior to the delivery of the current judgment.
A first element pointing away from the ‘ministerial exception’ is the lack of clear language in favour of absolute deference to religious autonomy in the Grand Chamber judgment in Fernández Martínez. In the Chamber judgment, the Third Section held that
the requirements of the principles of religious freedom and neutrality preclude it from carrying out any further examination of the necessity and proportionality of the non-renewal decision, its role being confined to verifying that neither the fundamental principles of domestic law nor the applicant’s dignity have been compromised.
No such language can be found in the Grand Chamber judgment. The Grand Chamber refuses to conclude that the right to religious autonomy automatically ‘trumps’ the applicant’s Convention rights and/or precludes the Court from engaging in a thorough balancing exercise. Rather to the contrary, the Court insists on a careful ad hoc balancing exercise in cases such as the current one:
a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render any interference with its members’ rights to respect for their private or family life compatible with Article 8 of the Convention … The national courts must [conduct] an in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests at stake.
However, it is important to note that the Grand Chamber judgment does contain some very strong obiter language in favour of religious autonomy; language that may be highly relevant for future cases on other issues, namely on internal religious dissent. The Grand Chamber particularly asserts that “Article 9 of the Convention does not enshrine a right of dissent within a religious community”. Instead, the Grand Chamber goes on,
in the event of any doctrinal or organisational disagreement between a religious community and one of its members, the individual’s freedom of religion is exercised by the option of freely leaving the community … Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is therefore not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them.
The Grand Chamber thus enforces a highly contested notion – the ‘right of exit’ as the ultimate guarantee of one’s religious freedom – that clearly acts against the rights of ‘minorities within minorities (or majorities)’. This is somewhat ironic, given that the Court has recently received much deserved praise for having finally abandoned its ‘freedom to resign’ doctrine in Eweida and Others v. the United Kingdom. It is unfortunate – to say the least – that the Court would so soon afterwards embroil itself anew in a hotly debated issue of law and religion, especially since the quoted passage is not relevant to the resolution of the case at hand.
A second element of the Grand Chamber’s Fernández Martínez judgment that points away from the ‘ministerial exception’ can be found in the ‘rapprochement’ of the Grand Chamber’s reasoning in Fernández Martínez to the reasoning in the earlier cases of Obst v. Germany, Schüth v. Germany and Siebenhaar v. Germany. Whereas the Third Section in Fernández Martínez distinguished the present case from the earlier cases, noting that “the impugned measures in those [earlier] cases had been taken by church authorities against laymen, whereas the applicant in the present case is a secularised priest”, the Grand Chamber refuses to make such a strong distinction on the basis of Mr. Fernández Martínez’s status. Instead, in conducting an ad hoc balancing exercise between the applicant’s rights and the Church’s religious autonomy, the Grand Chamber applies criteria that are remarkably similar to those applied in the Obst, Shüth and Siebenhaar judgments. These criteria are:
- The status of the applicant. This status is in casu described by the majority as being “unclear”, because the applicant was both a priest – in the eyes of the Church – and a married former priest – in the eyes of everyone else.
- The publicity given by the applicant to his situation as married priest. Although it was a newspaper that published the applicant’s situation, the majority rules that “in choosing to accept a publication about his family circumstances and his association with what the Bishop considered to be a protest-oriented meeting, [the applicant] severed the special bond of trust that was necessary for the fulfilment of the tasks entrusted to him.”
- The publicity given by the applicant to his membership of the Movement for Optional Celibacy. Here, the majority specifically finds that “the applicant was voluntarily part of the circle of individuals who were bound, for reasons of credibility, by a duty of loyalty towards the Catholic Church, thus limiting his right to respect for his private life to a certain degree. In the Court’s view, the fact of being seen as campaigning publicly in movements opposed to Catholic doctrine clearly runs counter to that duty.”
- The State’s responsibility as employer. Here, the Grand Chamber does distinguish the current case from Obst, Schüth and Siebenhaar, noting that “unlike the situation in the three German cases … where the applicants were employed by their respective churches, the applicant in the present case, like all religious education teachers in Spain, was employed and remunerated by the State.” However, according to the majority “that aspect … is not such as to affect the extent of the duty of loyalty imposed on the applicant vis-à-vis the Catholic Church or the measures that the latter is entitled to adopt if that duty is breached.”
- The severity of the sanction. Although the majority accepts that the non-renewal decision “constituted a sanction entailing serious consequences for [the applicant's] private and family life”, it notes that these consequences were somewhat mitigated, because the applicant had for instance had access to unemployment benefits for some time. More importantly, the majority concludes that these consequences were not excessive “having regard in particular to the fact that the applicant had knowingly placed himself in a situation that was completely in opposition to the Church’s precepts.”
- Review by the domestic courts. Having noted that the domestic courts, the Constitutional Court in particular, had examined the proportionality of the interference with the applicant’s Convention rights, the majority rules that the “conclusions thus reached do not appear unreasonable to the Court, particularly in the light of the fact that the applicant, as he had been a priest and the director of a seminary, was or must have been aware, in accepting the task of teaching Catholic religion, of the potential consequences of the heightened duty of loyalty vis-à-vis the Catholic Church by which he thus became bound, for the purpose, in particular, of preserving the credibility of his teaching.”
A final aspect of the Grand Chamber judgment worth emphasising is, of course, the narrow margin by which it was reached. In fact, it was the narrowest of all possible margins: a 9-8 split decision.
The dissenters vehemently disagree with virtually all aspects of the majority ruling. The dissenting opinion is very rich in substance, but I will restrict myself to highlighting what I consider to be the core of the dissenters’ case. Firstly, the dissenters distinguish the religious decision of the Diocese – i.e. to refuse to grant permission for the renewal of the applicant’s contract – from the secular consequences attached to that decision by the national authorities. The minority particularly notes that the domestic authorities were not absolved of “the obligation to respect the principle of proportionality in their relationship vis-à-vis the applicant”. The dissenters thus draw on the distinction between the applicant’s religious position (a “suspended cleric”) and his secular position (a teacher in a public school). Secondly, the dissenters lament the fact that the non-renewal decision “was taken without any prior warning and without any opportunity for the applicant to be heard”. Thirdly, and here arguably lies the crux of their argumentation, the dissenters note that the reasons for the applicant’s ‘dismissal’ – i.e. the fact that he had created a “scandal” – had (i) only been indicated in a rescript that was drawn up after the publication of the newspaper article; (ii) had already been publicly known to the Church, the school and the parents of the pupils long before the publication of the article; and (iii) were outside of the applicant’s control, as it had not been he himself who had published his marital status and membership of the Movement for Optional Celibacy, but a journalist. Finally, the dissenters criticise the Ministry for not having considered less restrictive alternatives: “There is no indication in the present case that the Ministry took – or even attempted to take – an alternative measure, in order to adapt its decision to the applicant’s situation and the seriousness of the interference with his private and family life.”
Epilogue: (Some) room for a ‘ministerial exception’ for Europe after all?
Although the Grand Chamber judgment in Fernández Martínez appears to limit the space for a ‘ministerial exception’ for Europe, instead harking back to the ad hoc balancing reasoning of Obst, Schüth and Siebenhaar, it must be noted that the case concerned a person whose status was, ultimately, debated. Whereas the Third Section clearly took the view that the applicant was a priest (even if ‘secularised’ and ‘married’), the Grand Chamber leaves the question of his status more or less open. As a result, the Grand Chamber judgment appears to leave some room for a ‘ministerial exception’ for ‘real’ priests (as, for instance, the applicants in Sindicatul “Păstorul cel Bun”; although that case admittedly forms a weaker basis for the establishment of a ‘ministerial exception’ for Europe than the now redundant Third Section judgment in Fernández Martínez did).
If, and this is a big “if”, the Court will in the future decide to go down this route – absolute deference to religious autonomy in the case of priests, ad hoc balancing in all other cases – it will without a shadow of a doubt face the daunting problem that it has already wrenched nearly all power from the Church’s hands to autonomously determine the status of its employees. The Court will thus arguably have to come up with – and defend – its own definition of a ‘priest/minister’. And, of course, face the challenge that it is not at all sure that secular courts should be in the business of defining those notions. One of the main arguments against having secular courts defining these notions, and a prima facie powerful argument at that, is precisely that courts claiming this prerogative for themselves ipso facto violate religious autonomy…
 The ‘ministerial exception’ is a doctrine in US constitutional law, grounded in the First Amendment and confirmed by the US Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al., that “precludes application of [legislation on discrimination in employment relations] to claims concerning the employment relationship between a religious institution and its ministers” in order to protect religious autonomy.