Transcript The Nature and scope of religious autonomy Protections

Hosanna-Tabor
and its
European Counterparts:
Comparative Reflections
International Center for
Law and Religion Studies
Religious Freedom Discussion Series
Professor W. Cole Durham, Jr.
BYU Law School
Hosanna-Tabor Evangelical Lutheran
Church and School v. EEOC
• Decided January 11, 2012.
• Most important religious freedom case in two
decades and possibly longer.
• Sustained “ministerial exception.”
• Held that Smith doctrine would not extend to
religious autonomy cases dealing with
ministerial personnel.
Facts of Hosanna-Tabor
• Involved a fourth grade teacher, Cheryl Perich, who had
served as a “commissioned minister” at a religious school. She
had some religious duties, but spent most of her time teaching
secular subjects.
• She developed narcolepsy and was given extended leave to
help her recover.
• A substitute teacher was installed in her place.
• She sought to return in midyear. When the school resisted, she
threatened litigation under the ADA, in violation of a religiously
based policy calling for peaceful resolution of disputes.
• She was terminated for insubordination.
Hosanna-Tabor Holding
• The Establishment and Free Exercise Clauses of the First
Amendment bar employment discrimination suits
brought by ministers against their churches.
• The Court sustained the existence of the ministerial
exception grounded in the First Amendment.
• The Court rejected the “remarkable view” that the
Religion Clauses have nothing to say about a religious
organization’s selection of its ministers.
Limitation of Smith
• The government argued that the ADA was a
“neutral and general law” within the meaning of
Smith and that it thus precluded recognition of a
ministerial exception.
• The Hosanna-Tabor Court held that Smith was
limited only to “outward physical acts” as opposed
to government interference with an internal church
decision that affects the faith and mission of the
Church itself.
ICLRS Involvement
• Brief targeted Justices who are receptive to
comparative law arguments.
• Split on Court regarding foreign authority.
• Our approach:
o Stress that other jurisdictions broadly recognize principles underlying ministerial
exception.
o Underscore the distinctive strengths of American approach.
o Allowed confirmation of American principles, without suggesting Court should
follow foreign authority.
• No cases where ministerial status was determined by
assessing portion of time spent on religion.
Broader LDS Involvement
• Many at the Center were involved.
• Interactions with foreign scholars.
• Privilege of working along with some of the leading figures
in the field: Douglas Laycock, Michael McConnell, and
many others: Names on briefs represent a “Who’s Who” of
religious liberty law.
• LDS experts: Hannah Smith (Becket Fund), Gene Schaerr
(representing several religious groups), Von Keetch,
Alexander Dushku and Shawn Gunnarson (Kirton
McConkie).
Importance of Hosanna-Tabor
• Unanimously endorsed the importance of protecting
the core domain of the autonomy of religious
communities.
• Confirmed the constitutional grounding of the
ministerial exception in both free exercise and
establishment clause doctrines.
• Confirmed that religious autonomy is an exception to
Smith.
• Protected the fundamental divide between temporal
and spiritual that is a hallmark of Western civilization.
Practical Importance: LDS Examples
• Articles of Faith:
o We believe that a man must be called of God, by
prophecy, and by the laying on of hands by those who
are in authority, to preach the Gospel and administer in
the ordinances thereof.
o We believe in the same organization that existed in the
Primitive Church, namely, apostles, prophets, pastors,
teachers, evangelists, and so forth.
• Temple Recommend standard in Church
employment.
Key Religious Freedom Protections
• The right to freedom of conscience.
• The right to worship [including the right to perform
ordinances].
• The right to meet together.
• The right to self-government (religious autonomy).
Key Religious Freedom Protections
• The right to communicate with members.
• The right to legal entity status and action.
• The right to declare religious beliefs publicly.
• The right to travel freely.
• The right to full participation in society.
• The right to freedom from retaliation.
Constant Temptations to Compromise Autonomy
• Pressures on many fronts.
• Threat to authentic religion.
• Of particular concern to LDS tradition, which
has a deep sense that religious truth and
authority can be lost if it is not built on authentic
authority free from state intervention.
Practical Examples in other Religious Traditions
• Ordination of women.
• Selection of teachers in religious schools.
• Religious workers in other settings.
• Religious worthiness standards in employment.
• Broader issues in remaining faithful to a religious
tradition, determining how the religion is
represented and personified in carrying out its
mission.
Emerging Practical Questions
• Lawsuit against Southern Baptist Convention and
International Mission Board brought by an individual
overseeing the construction of a building in India.
o He claims he reported violations of safety regulations and bribery
of licensing officials.
o Church claims immunity from an employment-related dispute
where the individual involved was hired as a missionary and
performed religious functions.
• What implications for HHS controversy of requiring
religious institutions to have insurance policies
covering contraception?
International Perspective
• The types of issues raised in Hosanna-Tabor
arise around the world, often in much less
friendly constitutional environments.
• In what follows, I would like to describe in
broad terms the general structure of the
broader religious autonomy questions and the
importance of finding ways to extend religious
autonomy protections.
What is Meant by Religious Autonomy?
• Autonomy has become a synonym for “liberty” or
“freedom.”
• But for present purposes, religious autonomy is to
be understood in a narrower sense:
o the right of religious communities,
o to decide upon and administer,
o their own religious affairs,
o without government interference,
o a right of self-determination for religious communities.
Substantive Scope of Religious Autonomy
• Determining Fundamental Beliefs
o Doctrine, dogma, teachings.
o Structure of religious polity and governance.
o Norm formulation—canon law.
• Core Ministry
o Matters of worship, ritual and liturgy.
o Establishing places of worship.
o Confidential counseling, confession.
o Teaching the faith to members, non-members, clergy.
o Humanitarian care for members and others.
Substantive Scope, continued
• Core Administrative Functions
o Selection, Supervision, Disciplining and Termination of personnel:
• Religious/Ministerial Employees.
• Employees/Volunteers contributing to religious mission.
• Secular employees/volunteers.
o Church membership: entrance, withdrawal, expulsion.
o Territorial arrangement of substructures .
o Finance.
o Right to administer church property.
Additional Aspects of Autonomy
• Right to entity status:
o Ease of access to entity status.
o Sufficient to carry out full range of activities.
o Automatic right to create sub-entities.
• Interaction with labor law.
• Charitable activity.
• Cultural activity.
• Education.
• State recognition of religious acts (marriage).
• Access to military, hospitals, prisons. Chaplains.
Horizontal Scope of Autonomy
• Core religious institution (church, synagogue,
mosque).
• Integrated sub-institutions.
• Affiliated institutions:
o Educational.
o Media.
o Charitable/health care.
• For-profit institutions controlled by religious
community.
Vertical Scope of Religious Autonomy
• Religious officials and clergy.
• Lay individuals carrying out teaching functions or
other “ministerial” roles.
• Individuals performing roles that are arguably
secular.
• E.g.—Amos employees: janitor, seamstress making
religious clothing, truck driver at church-operated
welfare facility.
Layers of the Autonomy Issue
• Autonomy in Religious Employment Context – Factual
gradations:
o Institutional continuum.
o Type of work continuum.
• Scope of State Deference to Religious Autonomy
• Place of Autonomy in constitutional analysis (e.g., as a
branch of religion clause analysis).
• This will depend on place of religion in public space
(jurisdiction, sovereignty, rights).
• Relationship of Autonomy to conscience and the
underlying conception of law.
Two Views of the Place of Conscientious
Activity in Legal Orders
• Legalist view: the legal system can ultimately be
reduced to legislation.
o Legislation is all the law and all law is legislation.
o Granting exceptions for conscientious objection would “pulverize” the law and
lead to anarchy.
• Integrationist view: the legal system includes legislation
as adjusted to take constitutional norms into account.
o Conscientious objection is not a tolerated exception to a general rule.
o It is an integral part of the rule structure itself.
o Conscientious conflicts do not pose a confrontation of private and public, but
resolution of two public interests.
Grounding of Religious Autonomy
• “Render therefore unto Caesar the things which
be Caesar’s, and unto God the things which be
God’s.” Luke 20:25.
• City of Man/City of God.
• Two Swords.
• Two Kingdoms.
• Respecting the ontological difference between
temporal and spiritual facets of life.
John Locke
• Liberal theory.
• “I esteem it above all things necessary to distinguish
exactly the business of civil government from that
of religion and to settle the just bounds that lie
between [them].”
• Civil government: relates to life, liberty, health, and
possession of outward things.
• Civil government does not extend to the religious
sphere.
Jurisdictional View of Religious Autonomy
• Religious Autonomy a reflection of the lack of
state jurisdiction (competence) in religious affairs.
• “Competence of competences” should be
deferential to religious sphere.
• Secular sovereignty is not absolute: limited
government.
Significance of Hosanna-Tabor
• Has removed any doubt as to:
o The vitality of religious autonomy doctrine
after Smith and
o The grounding of religious autonomy
doctrine in both the establishment and free
exercise clauses.
U.S. Constitutional Grounding
of Religious Autonomy
• Free exercise
o Religious autonomy precedents survived Smith.
o Religious autonomy distinctive: relevant to all religious
communities—not merely protection for distinctive doctrine.s
• Non-establishment
o Separation.
o Non-entanglement value.
o Structural feature of constitutional order (Carl Esbeck).
o Civil procedure: dismissal of claims for lack of jurisdiction (not for
failure to state a claim).
• Freedom of Association
European Cases
• Significance of German cases.
• Fundamental approach to analysis – the
proportionality test used by the European Court
and most jurisdictions outside the U.S. – originated
in the German Constitutional Court.
• Most of the key cases reaching the European
Court of Human Rights thus far have come from
Germany.
1985 German Constitutional Court Decision
• Doctor at Catholic hospital publicly critical of
church’s view of abortion.
• Termination of an older bookkeeper at a Catholic
hostel who had been employed for many years
and quietly resigned his membership in the
Catholic Church.
German Basic Law
• Article 4(1) : Freedom of faith, of conscience, and
freedom of creed, religious or ideological
(weltanschaulich), shall be inviolable.
• Article 137(3) of the Weimar Constitution
(incorporated by Article 140):
• “Every religious body shall regulate and administer its
affairs independently within the limits of the law valid
for all. It shall confer its offices without the
participation of the state or the civil community.”
1985 Court Procedural Setting
• The Federal Labor Court originally found a breach of the
duty of loyalty was not sufficiently grave to justify
termination for cause.
• Reversed on Appeal to intermediate Labor Court.
• Both hospital and hostel are sufficiently religious
institutions to be protected.
• Constitutional Court: Church autonomy (selfdetermination) means “the right of the churches to
legally structure all their own affairs in accordance with .
. . the church’s understanding of itself.”
1985 Decision’s Reasoning
• Churches are bound by secular labor law, but they are free to
structure employment agreements in accordance with
general freedom of contract and in accordance with their
own religious self-understanding.
o
Result: Labor courts must take as a basis the church
standards laid down for the evaluation of contractual
duties of loyalty.
o
Thus, churches can decide:
•
What credibility of church requires.
•
Nature of church tasks and how “close” one needs to be to them for
autonomy protection.
1985 Decision Bottom Line
•
Courts must defer to church self-determination unless this would
result in a conflict with fundamental principles of the legal order,
such as:
o
General prohibition of arbitrariness.
o
Good morals.
o
Public order.
•
Constitutional court concluded that autonomy included right to fire
the two employees, though older bookkeeper got more votes
(because of long duration of employment and advanced age).
•
Labor court had attached too little weight to church’s conception
of loyalty and credibility of the church.
•
State retains some right of review.
Decided Cases
• Obst v. Germany: LDS head of religious affairs.
Appealed termination for adultery to European Court
under Article 8 ECHR (Privacy).
• Schuth v. Germany: Catholic organist appealed
termination for adultery under Article 8 ECHR (privacy).
• Siebenhaar v. Germany: School teacher appealed
termination from Protestant kindergarten for adherence
to Christian sect under Article 9 ECHR (religious
freedom).
S.P. v. Romania (31 January 2012)
•
Local clergy and other religious personnel sought to form a union
to defend their professional, economic, social and cultural rights.
•
Romanian Orthodox opposed the formation on the grounds that
it was inconsistent with autonomy of Orthodox Church, and that
such an association could not be formed without consent of
church.
•
Lower court held that duty of obedience owed the church
couldn’t override labor law legislation.
•
Court of ultimate appeal in Romania dismissed application for
legal personality on religious autonomy grounds.
S.P. v. Romania in European Court
• Held: prohibition to all forms of association within the
church without permission of the hierarchy violated
the right to freedom of association under Article 11
ECHR.
• The Court held that an employment contract could
not be “clericalised” to the point of being exempted
from all rules of civil law. Members of the clergy
could not be excluded from the scope of Article 11.
• Cf. NLRB v. Catholic Bishop in the U.S.
Types of Deference
• Adjudicative Abstention
• Substantive Interpretive Abstention
o defer to religious understanding of doctrine
• Jurisdictional Interpretive Abstention
o defer to religious judgment of which religious body has jurisdiction
• Procedural Interpretive Abstention
o defer to religious understanding of procedures to be used in decisions
See Perry Dane, “Varieties of Religious Autonomy,” in Gerhard Robbers, ed., Church
Autonomy: A Comparative Survey (2001).
Scope of State Deference
• Serbian Eastern Orthodox Church (US 1976):
o State defers to church autonomy even if procedures for religious decision
seems arbitrary.
o State lacks competence to assess religious decision.
o Reaffirmed by Hosanna-Tabor.
• 1985 German Constitutional Court Decision:
o Doctor at Catholic hospital publicly critical of church’s view of abortion
o Termination of bookkeeper at a Catholic hostel.
o Labor Court originally breach of duty of loyalty not sufficiently grave to
justify termination for cause.
o But ultimately deference to church authorities required.
European Convention on Human Rights
Article 9
“While religious freedom is primarily a matter of individual
conscience, it also implies, inter alia, freedom to
‘manifest [one’s] religion’ alone and in private or in
community with others, in public and within the circle of
those whose faith one shares . . . The autonomous
existence of religious communities is indispensable for
pluralism in a democratic society and is, thus, an issue at
the very heart of the protection which Article 9 affords.”
— Religionsgemeinschaft der Zeugen Jehovahs v. Austria (ECtHR, 2008).
European Convention on Human Rights
Article 11
“Where the organisation of the religious community
is at issue, Article 9 must be interpreted in the light
of Article 11 of the Convention which safeguards
associative life against unjustified State
interference.”
— Hasan and Chaush v. Bulgaria (ECtHR, 2000)
Schüth v. Germany
• Organist dismissed for violating his duty of loyalty under rules
for service in Catholic Church which were incorporated in his
contract.
• Church rules provided for increased duty of loyalty for some
employees. Labor court held that higher standards shouldn’t
apply to Schüth because he did not work in pastoral
catechesis, he lacked missio canonica, and he was not a
leading collaborator in church work.
• Adultery was a serious personal moral failure was a legitimate
basis for termination.
• Playing the organ was actually part of liturgy—proximity to
mission of the church.
Schüth, continued
• Catholic and Protestant churches employ more than
1 million people (including their charities, which
makes them the largest employer after the state of
Germany.
• Conception of employment: Christian community of
service. They reject collective bargaining.
• Both churches have specific regulatory structures
governing employment.
The Failure to Balance
•
Ultimately, the European Court held that the German courts failed
to balance all relevant interests raised by the privacy claim.
•
Labor courts made no mention of the family life of the applicant
(living with new partner).
•
The interests of the Church and employer have not been balanced
with regard to the applicant’s right to respect for his private and
family life.
•
Only his interest in maintaining employment was weighed.
•
Events concerning civil status (divorce, birth of a child) are disclosed
through the payroll system. Such issues come to attention of
employer even without publicity.
•
Review in autonomy context precludes full assessment of whether
treatment was proportionate.
Additional Schüth factors
•
Applicant, by signing his employment contract, has accepted a duty
of loyalty to the Catholic Church and this limited his right to privacy to
some degree.
•
The applicant’s case was not publicized and didn’t fight positions of
the Catholic Church. Merely failed to observe moral requirements.
•
Served for fourteen years.
•
Would have difficulty getting new employment, especially given the
prominence of employer in work sector
•
Conduct is at heart of applicant’s private life, fairly peripheral for
church.
Schüth Holding: Inadequate Balancing
• The Schüth court concluded that German courts have not
adequately explained why the interests of the parish far
outweighed those of the applicant, and they have not
adequately balanced the rights of the applicant and those
of the church employer as required by the Convention.
• Accordingly, Germany did not provide the necessary
protection under Article 8.
• NOTE: If a German court did balance all relevant issues and
still decided against employee, its decision might well stand.
But intervention itself contrasts with Hosanna-Tabor.
Siebenhaar Considerations
• Involved a teacher who was actively holding herself
out as a representative of a small religious
community.
• Teacher’s Protestant Employer was willing to hire
Roman Catholics, but teacher’s sect was not
acceptable.
• European Court held that the issue was whether
Germany had a positive obligation under Article 9 to
recognize the applicant’s right to freedom of religion
against termination.
Siebenhaar Factors, continued
• Given the declarations signed by Siebenhaar, she no
longer offered the guarantee that she met the ideals
of her employer.
• Protestant Church could reasonably fear the
commitment of the applicant would have an impact
on her work.
• Siebenhaar’s interest in maintaining her position
should give way to Church’s autonomy interests.
• Siebenhaar had been employed only a short time.
Siebenhaar, continued
•
European Court concluded that German courts “engaged in a
thorough review of the circumstances of the case and they reached
a detailed balancing of the competing interests”
•
The fact that they gave more weight to the interests of the Church
does not in itself raise an issue under the Convention.
•
Significantly, under German law, the labor judge is not subject to an
unlimited obligation to defer to church positions, but must assure that
church determinations do not contradict the basic principles of the
legal order and that they do not impose a duty of loyalty that is
unacceptable.
•
Siebenhaar actually didn’t challenge the basic German rules, just the
balance that had been struck.
Siebenhaar, continued
• Siebenhaar should have been aware in
signing her employment contract, which
included a reference to church regulations
that called for loyalty to the Protestant
Church, that her membership and support of
the Universal Church was inconsistent with her
obligations.
• Insisting on a level of loyalty to preserve the
credibility of the Protestant Church was
reasonable.
Contrast of U.S. and European Systems
• European system lacks an establishment clause;
indeed, religious establishments and certainly strong
cooperation of religion and state are allowed.
• State insistent on retaining jurisdiction over religious
organizations, but with substantial deference to
doctrine and autonomy.
• Other rights must be “balanced.”
• Emerging questions about when other rights will
override religious freedom.
Philosophical Grounding of
Religious Autonomy
• Social Contract Theory
• Madison, “Memorial and Remonstrance”
o “Religion . . . must be left to the conviction and conscience of
every man; and it is the right of every man to exercise it as these
may dictate. . . . This duty is precedent both in order of time and in
degree of obligation, to the claims of Civil Society.”
o Reservation clause theory of religious freedom.
• Rawls, Religious Freedom as a Choice in the
Original Position
Institutional Rights Theory
• The importance of “mediating institutions” between the
individual and the state
o Protecting isolated individuals from the power of the state.
o Providing contexts for meaning and expression.
o Seedbeds of pluralism.
• “First Amendment Institutionalism”
o Constitutional/human rights theory should provide particular protection for
the institutions that make assertion of expressive
(speech/religion/association) rights possible.
o Schauer (1998), Garnett (2008), Horwitz (2009).
Sphere Sovereignty
• Developed by Neo-Calvinist Dutch theologian Abraham
Kuyper.
• Human life is “differentiated into distinct spheres” with each
featuring “institutions with authority structures specific to those
spheres.”
• The separate institutions serve as a counterweight to the state.
• Each is limited to the proper scope of its authority.
• State plays key role of mediating between various spheres.
Group Rights Analysis
• Paradox of Groups: They both enhance and subvert
individual autonomy by challenging the sovereign
power of the liberal state.
• “If the government can act to eliminate groups that
it believes threaten majoritarian social policies and
values merely because such groups are antimajoritarian, then the power of the government over
groups and individuals is unlimited” and the social
basis of pluralism is subverted. — Gedicks (1989)
Group Rights and Discrimination Claims
•
Liberal perspective: Religious group’s interest in autonomy and
self-definition is overshadowed by individual and government
interests in non-discrimination.
•
Group rights perspective: Group autonomy is necessary to
preserve pluralism and the individualism at the heart of
liberalism.
•
Government intervention threatens authenticity (and authentic
existence) of groups, as well as the number and diversity of
groups.
•
This is particularly problematic with respect to religious groups.
Value of Religious Groups
• Buffering value: Protection of individuals from the
state.
• Identity forming value: Religious groups provide a
context for the development of individual
personality important for those significantly
committed to religious groups.
• Envisioning value: In the context of a neutral state,
religious groups are part of a larger collection of
necessary social institutions that create, advocate
and maintain values.
Conclusion
• Hosanna-Tabor was a major victory, defending
the institutional core of religious freedom.
• European human rights analysis protects broadly
similar principles, but will be easier to compromise.
• Much lies ahead in defending the full scope of
religious autonomy.