May 24, 2012
In its recent judgment in Fernández Martínez v. Spain, the European Court of Human Rights appears to have abandoned its tried and tested formula of ad hoc balancing between the collective dimension of freedom of religion and individual human rights, established in Obst v. Germany, Schüth v. Germany and Siebenhaar v. Germany. In Fernández Martínez,the Court accepted the Spanish courts’ categorical balancing to the benefit of church autonomy instead, thereby echoing the opinion of the United States Supreme Court on the ‘ministerial exception’ in Hosanna-Tabor.
Fernández Martínez revolved around two (apparent) oxymorons: a “married priest” (prêtre marié) and a “secularised priest” (prêtre sécularisé). The applicant had been a priest in the Catholic Church since 1961. In 1984 he requested that the Vatican relieve him from his obligation of celibacy. One year later, he entered into a civil marriage. However, the Vatican only relieved him of his obligation of celibacy in September 1997. Until then, he was considered by the Church to be a “married priest”.
In the meantime, in October 1991, the applicant found employment as a teacher of religion and catholic morals in a public school (hence, presumably, his description by the Court as a “secularised priest”). In conformity with an Agreement signed between Spain and the Holy See in 1979, the bishop of the relevant parish holds the exclusive competence to annually confirm the prolongation of the contracts of teachers of Catholic religion in public schools, including the applicant’s.
In November 1996, a Spanish newspaper published an article on a seminar organised by the “Movement for optional celibacy” (Mouvement pro-célibat optionnel) for priests. The applicant was a member of the movement and appeared on a photograph that accompanied the article, along with his wife and five children. The article also gave the name of several of the participants to the seminar, including the applicant’s. The article further reflected the views of the participants, explaining that they advocated for optional celibacy for priests and for a more democratic Church. The article also revealed the participants’ disagreement with the Church on issues like abortion, divorce, sexuality and contraception.
At the end of September 1997 – eleven months after the newspaper article had appeared, but a mere two weeks after the applicant’s request to be relieved of his duty of celibacy had been granted – the bishop of Cartagena informed the Ministry of Education that he would not approve the renewal of the applicant’s contract as a teacher of religion. The bishop indicated that the contract could not be renewed, because the applicant had violated his obligation to fulfil his duties as a teacher of religion in a public school “without risking scandal”. This obligation had been imposed on the applicant two weeks earlier, when he was relieved of his duty of celibacy, but informed that beneficiaries of such dispensation could not teach catholic religion in public schools unless the bishop decided otherwise, in accordance with a number of criteria and “provided that there had not been any scandal”. According to the bishop, the applicant had caused such a scandal by making his personal situation (i.e. his status as a “married priest”) public. He could therefore not be allowed to continue to be a teacher of catholic religion.
The applicantcontested the bishop’s decision, eventually arguing a violation of his human rights in front of the Spanish Constitutional Tribunal. However, the Constitutional Tribunal held against him, ruling – in essence – that the duty of neutrality of the State in art. 16 § 3 of the Spanish Constitution impeded it from evaluating the notion of “scandal” used in canonical law and given that the reasons for the refusal to renew the applicant’s contract had been “exclusively religious”. The Constitutional Tribunal also referred to its established case law to the effect that “it would simply be unreasonable, given that the case concerns religious education in the scholarly environment, to not take the religious convictions of those who freely decide to candidate for such positions into account, in order to guarantee the right to freedom of religion in its collective and communitarian dimension. (own translation)”
The Court’s Judgment
In its judgment, the Court held that the principal question to be answered was whether the State should give prevalence to the applicant’s right to respect for his private life over the rights of the Catholic Church under art. 9 (freedom of religion) and 11 (freedom of association). The case thus involved a conflict between the applicant’s right to respect for private life and the collective dimension of the right to freedom of religion of the Catholic Church.
The Court first emphasised that Spanish law guarantees religious communities a degree of autonomy, while its Constitution recognises the principle of religious neutrality of the State. The Court subsequently referred to the case law of the Spanish Constitutional Tribunal, which clarifies that the principle of neutrality does not imply that the State can never evaluate a decision of a Church body. On the contrary, the relevant judgment of the Spanish Constitutional Tribunal states that, when decisions of the Church have an impact on individual fundamental rights, it is open to the national courts to balance the fundamental rights in conflict, even if the reasons underlying the Church’s decision were exclusively religious. Yet, the Spanish Constitutional Tribunal did not really engage in any such balancing in Fernández Martínez, instead deferring to the autonomy of the Church in its hiring and firing policies. Rather than insisting on ad hoc balancing, the European Court held that it was precluded from engaging in any real balancing exercise:
“[à] l’instar des arguments du Tribunal constitutionnel (…) la Cour considère que les circonstances qui ont motivé le non-renouvellement du contrat du requérant en l’espèce sont de nature strictement religieuse. Elle est d’avis que les exigences des principes de liberté religieuse et de neutralité l’empêchent d’aller plus loin dans l’examen relatif à la nécessité et à la proportionnalité de la décision de non-renouvellement, son rôle devant se limiter à vérifier que les principes fondamentaux de l’ordre juridique interne ou la dignité du requérant n’ont pas été remis en cause.” (translation in footnote)
The Court moreover explicitly referred to the religious autonomy of the Church, agreeing with the Spanish courts that “in not renewing the applicant’s contract, the ecclesiastic authorities confined themselves to fulfilling the obligations that rested upon them in application of the principle of religious autonomy. (own translation)”. The Court furthermore held that the link of confidence between teachers of religion and the Church in Spain necessarily implies “certain specificities”, without indicating which those are, that differentiate those teachers from other teachers. As a result, it was not unreasonable to demand increased loyalty of the applicant.
In the remainder of its judgment, the Court highlighted a number of elements of the case to confirm that – in its opinion – the decision of the Spanish courts had not been unreasonable. The Court for instance noted that the applicant had not hidden from the press, but had instead been among those members that had chosen to remain at the seminar of the “Movement for optional celibacy” and had openly expressed their disagreement with the opinion of the Church in several domains. It also indicated that the applicant had been able to find new employment. However, in my reading of the case these elements are in essence redundant, given that the Court had already accepted the Spanish Constitutional Tribunal’s categorical balancing in favour of the Church’s autonomy. This reading is confirmed by the dissent of Judge Saiz Arnaiz (ad hoc Judge for Spain), who refers to the absence of any real balancing by the Court throughout his dissent.
Fernández Martínez v. Schüth?
The most interesting case from the Court’s own case law to compare Fernández Martínez to is Schüth v. Germany, a case concerning dismissal of an organ player by the Catholic Church for having engaged in an extra-marital relationship. In Schüth, the Court found a violation of art. 8, primarily because the German courts had not engaged in a real balancing exercise between the Convention rights of the Church and those of the applicant. The Court considered that, as a matter of principle, a more thorough examination imposed itself during the balancing exercise between the individual right of the applicant and the collective right of the Church. The Court insisted that a dismissal by a religious employer, based on a failure to adhere to a (religious) obligation, cannot be the object, in the name of the right to autonomy of the employer, of restricted judicial supervision, without effectively balancing the interests at play. The Court also indicated a number of factors that should be taken into account during such a balancing exercise, including the proximity of the activity of the applicant to the mission of the Church, the nature of the post and the possibility for the applicant to find new employment.
The judgment of the Spanish Constitutional Tribunal in Fernández Martínez was clearly out of line with the principles established by the Court in Schüth. However, instead of insisting on a need for ad hoc balancing, the Court accepted the Constitutional Tribunal’s categorical balancing, deferring to the autonomy of the Church in the matter at hand.
Does this mean that Schüth and Fernández Martínez are incompatible? Not necessarily. The Court included several paragraphs in Fernández Martínez that are aimed at distinguishing it from Schüth. Most of these elements, in fact all but one, are irrelevant or unconvincing. The Court for instance held that the applicant in Fernández Martínez had not hidden from the press and had thus contributed to the publicity given to his private and family life, while the applicant in Schüth had not taken such actions. However, I fail to see how this is relevant. On the contrary, it confirms that the applicant in Fernández Martínez is being admonished – also by the Court – for not having been able to keep his private life behind closed doors, rather than for having married per se. More than a decade after Lustig-Prean and Beckett v. the United Kingdom (on the exclusion of openly gay men from the British military and in which the Court condemned the UK for forcing the applicant to keep his sexual identity private), that is a very sad position for the Court to take. The Court also emphasised that the applicant in Fernández Martínez had been able to rely on unemployment benefits and had found a job at a museum after his dismissal, while one of the features of the Schüth case had been that the applicant had faced major difficulties in finding new employment. However, given that “the demands of the principles of religious liberty and neutrality impede [the Court] from going further in the examination of the necessity and proportionality of the decision of non-renewal”, this element appears to be superfluous in Mr. Fernández Martínez’ case. Categorical balancing had already decided the case in favour of the Church.
The primary argument used by the Court to distinguish Fernández Martínez from Schüth (and Obst and Siebenhaar, in which the Court also emphasised the need for ad hoc balancing; see Saïla’s post on Siebenhaar here) concerns the nature of the applicant’s function. The Court insisted that all its previous judgments in similar cases had concerned measures taken by church authorities vis-à-vis lay persons, while the applicant in Fernández Martínez was a “secularised priest”. The Court also considered that, unlike the applicant in Schüth, he had been under an increased obligation of loyalty, which he had violated – in the eyes of the Church – when he became publicly known as a “married priest”, thereby causing a “scandal”. However, the applicant in Obst had also been under an increased obligation of loyalty according to the Court. Therefore, it is arguably the nature of the applicant’s position – clergy or lay – and that nature alone that sets Fernández Martínez apart from the previous cases, leading the Court to accept the Spanish courts’ categorical balancing, instead of insisting on a more thorough ad hoc balancing.
Fernández Martínez and Hosanna-Tabor
It is because the applicant in Fernández Martínez was still considered to be a member of the clergy (albeit a “secularised” one) that the Court accepted the deference to the autonomy of the Church and refused to engage in a real balancing exercise. In that respect, the Court’s judgment in Fernández Martínez echoes the decision of the United States Supreme Court in Hosanna-Tabor (see Lourdes’ post here), in which the Supreme Court confirmed “the existence of a “ministerial exception,” grounded in the First Amendment, that precludes application of [legislation on discrimination in employment relations] to claims concerning the employment relationship between a religious institution and its ministers.” The US Supreme Court further held that:
“[t]he members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”
The Supreme Court concluded that “[w]hen a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”
Similar considerations, but then phrased in terms of the collective dimension of freedom of religion and the principle of the neutrality of the State, clearly lay at the heart of the judgments of the Spanish Constitutional Tribunal and the European Court of Human Rights in Fernández Martínez. It therefore appears as though the European Court has taken Europe on its first step down the road towards its very own kind of ‘ministerial exception’. The Court now faces the same questions that need to be tackled by the US Supreme Court in the future, not in the least the question as to who determines when someone is a “minister” (the Church, autonomously, or the courts?). This comes with the added complexity that the Court characterised the applicants in its three earlier judgments as lay persons, thereby already starting to carve out a meaning of the concept “minister” for itself. In that respect, it is also worth noting that it is unclear from the judgment in Fernández Martínez where the term “secularised priest” comes from. By not offering further explanation on the origin of the term, the Court obscured whether it accepted – along with the Spanish courts – the Church’s determination of the nature of the applicant’s function or whether it considers such determination to be its own prerogative.
With its judgment in Fernández Martínez, the European Court of Human Rights appears to have gone down the path that the United States Supreme Court has thread earlier in 2012 in Hosanna-Tabor, introducing Europe’s very own kind of ‘ministerial exception’ to the protection of individual human rights. If the Court continues to go down this road, it risks excluding a range of persons from protection against discrimination under employment law in Europe. Whether that is a sacrifice worth making to ensure respect for the collective dimension of freedom of religion, in the form of deference to the autonomy of religious bodies, is a difficult dilemma to answer.
In any event, Fernández Martínez has raised more questions than it has answered. Some relate to the concept of ‘minister’. Whose prerogative will it be to define the concept? And if the Court will retain such power of definition for itself, how broadly will it interpret the concept? Other questions relate to the breadth of the exception. How far will the Court go in deferring to the autonomy of religious bodies in its hiring and firing policies vis-à-vis ‘ministers’? And, in that context, might the Court’s reference to “the dignity of the applicant” signal that there are limits to such deference (e.g. in the context of discrimination on the basis of sexual preferences, gender and/or race)?
One thing is certain in all of this: Fernández Martínez will not simplify the maze that is the Court’s freedom of religion case law. Unless, of course, the Chamber judgment will be overturned by a potential Grand Chamber ruling.
 Own translation: “[i]n agreement with the arguments of the Constitutional Tribunal (…) the Court considers that the circumstances that motivated the non-renewal of the applicant’s contract in the case at hand were of a strictly religious nature. She [the Court] is of the opinion that the requirements of the principles of religious liberty and neutrality impede it from going further in the examination of the necessity and proportionality of the decision of non-renewal, its role necessarily limited to verifying that the fundamental principles of the internal legal order or the dignity of the applicant have not been compromised.”