The Nature and scope of religious autonomy Protections

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 organizations 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 Whos 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 formulationcanon 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 churchoperated 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 Caesars, and unto God the things which be Gods. 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 communitiesnot 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 churchs 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 churchs understanding of itself. 1985 Decisions 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 churchs 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

couldnt 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 churchs 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 [ones] 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) Schth 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 shouldnt apply to Schth 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 liturgyproximity to mission of the church. Schth, 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 ofnot thebeen Church and employer have balanced with regard

to thefor applicants right to respect 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 publicity. without Review in autonomy context precludes full assessment of

whether treatment was proportionate. Additional Schth 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 applicants case was not publicized and didnt 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 applicants private life, fairly peripheral for church. Schth Holding: Inadequate Balancing

The Schth 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. Teachers Protestant Employer was willing to hire Roman Catholics, but teachers sect was not acceptable. European Court held that the issue was whether Germany had a positive obligation under Article 9 to recognize the applicants 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.

Siebenhaars interest in maintaining her position should give way to Churchs 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 didnt 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 anti-majoritarian, 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 groups interest in autonomy and self-definition is overshadowed by individual and government interests in nondiscrimination. 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.

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