ECHR

Two judgments, one problem

Two judgments, one problem

By ECLJ1374044580000

IN EVERY liberal democracy, there is a hard trade-off between individual rights and the freedom of religious bodies to follow their own practices, and exercise what is sometimes called "religious autonomy".  As a huge body of jurisprudence shows, this is a dilemma which has no final answer; instead there is a never-ending attempt to find the right balance. That is what keeps Erasmus busy.

Two important test cases have laid bare the latest judicial thinking, in America and Europe respectively, about this perpetual problem. The European one, as I mentioned a few days ago, concerned an attempt by Romanian priests and church workers to set up a trade union. The European Court of Human Rights concluded that the Romanian state, acting at the church hierarchy's behest, had been justified in refusing to register the union.

The biggest recent American case concerned a teacher employed by a Lutheran church in Michigan to teach religion and other subjects at a school; she took disability leave and could not regain her old job because it had been filled in her absence. In the church's parlance, the fact that Cheryl Perich taught scripture and led students in prayer qualified her to be described as a minister. So a bitter dispute between a teacher who lost her job and her employers gradually became a test of religious bodies' freedom to hire and fire ministers as they saw fit. In a ruling last year, the Supreme Court vindicated the Hosanna-Tabor church. It accepted that given the constitution's guarantee of the "free exercise" of religion, religious bodies should be free to select their own ministers.

Both verdicts upheld what conservatives see as religious freedom—above all, the freedom of ecclesiastical bodies to organise their own affairs and set the rules for people who (presumably of their own free will) join or serve them. But Grégor Puppinck, director of the European Centre for Law and Justice, a conservative lobby group based in Strasbourg, told me the American judgment had sent a more reassuring signal. The Supreme Court's judgment had been unanimous, whereas the European judges were divided. In fact, a couple of the American judges had appended "concurring" comments in which they slightly outdid their colleagues in their support for religious bodies' autonomy. Judge Clarence Thomas (pictured) said the court shouldn't even have bothered deliberating over whether the aggrieved teacher was a "minister"; it should simply have taken the church's word on that question. . . .

You can read the entire story here.

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