Europe tells German churches to respect employees’ private lives
In September 2010 the European Court of Human Rights handed down a landmark judgment telling German courts to no longer uncritically accept almost any assertion by the churches that an employees’s private life would damage their credibility. They must take into account many factors other than the church’s “right to self-determination”. Schüth v. Germany (ECHR no. 1620/03)
In 1997 a little girl announced in a German kindergarten that she was going to be a big sister. This was enough to get her father fired without warning from his job as organist and choirmaster at a Catholic parish church. His transgression? After he had separated from his wife he had found a new partner. The parish informed him that “he had not only committed adultery but was also guilty of bigamy”. [1] Naturally, under German labour law, (let alone the 2006 antidiscrimination rules) such an infringement of personal privacy was unthinkable. However, church employees are not covered by these.
German churches get themselves exempted from the labour laws
Although the German state subsidises both Catholic and Protestant churches in grand style, they are allowed to set their own employment rules. This comes under their “right to self-determination” which was anchored in 1949 in the West German Constitution by the so-called “church article”. [2] Three years later a corresponding exemption was incorporated in §118 (2) of the 1952 labour law: “This Act shall not apply to religious communities or to their charitable and educational institutions irrespective of their legal form.” [3] And when the European Union set Germany a 2003 deadline for enacting anti-discrimination legislation, the churches only let it through ― three years late ― after the so-called “church clause” was added to perpetuate this exemption. [4] In other words, at the insistence of the churches, the new antidiscrimination law was made to conform to existing German law, rather than vice versa.
Suddenly jobless and with no permanent work outside the Catholic Church, the organist took his case to court. The Essen Labour Court decided in his favour, but diocese appealed and the German Federal Labour Court overturned the lower-court decision, arguing that “the parish could not continue employing him without losing all credibility”. [5] Next he brought it to the Federal Constitutional Court which also ruled against him, stating that the independence of the churches must be protected and that, in practice, often meant that the church decided if an employee was jeopardising their credibility, not the court. [6]
Finally in 2003 the organist removed his case from the reach of Germany's “church clause” and “church article” by taking it before the European Court of Human Rights in Strasbourg. The ECHR ruled on 23 September 2010 that the marital status of an organist was hardly essential to the credibility of the Catholic Church and that the Church had violated article 8 of the European Convention by denying him his right to a private and family life.
European Court: religious freedom must be balanced with other rights
The Court ruled that many factors must be taken into account. It didn’t accept as absolute the right to freedom of thought, conscience and religion stated in article 9 of the European Convention. This must be balanced with many other factors which would be weighted differently according to the individual case. Considerations include: (1) voluntary assumption of obligations of loyalty to the hiring institution; (2) the range of alternative employment available to the dismissed employee; (3) the importance attached to the conduct in question by the religious community; (4) the nature of the employment and its place in carrying out the mission of the organisation; (5) the effect of continued employment on the credibility of the religious community in affirming and living by its teaching; (6) whether less drastic measures might suffice; (7) the right of a religious community to independence in its own affairs; and (8) the family and privacy rights of the discharged individual. [7]
Since this verdict will jeopardise the power of the German churches over more than a million employees, the decision may well be appealed. Meanwhile the ECHR has ordered the German Government to pay the organist compensation. He is now hoping the parish will take him back and that he can once more play the organ that he designed and helped to build. If his long legal struggle proves successful, it will free other church employees who are living in fear that their private lives will be revealed. An appeal is possible, but if the ECHR decision is upheld, it will finally help to end what he calls the German courts’ “subjection to the churches”. [8]
Further reading (in German)
The pointed questions (with background) put by the Green Party to the German Parliament on 24 February 2011 can be found as “Kleine Anfrage” at http://dipbt.bundestag.de/dip21/btd/17/049/1704928.pdf
Notes
1. ECHR press release in English: “Dismissal of church employees for adultery” 23.09.2010 (case of Bernhard Schüth) http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=59685627&skin=hudoc-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=84963&highlight=
2. Commonly known as the “church article” (Kirchenartikel), article 140 of the 1949 German Constitution imports parts of the 1919 Weimar Constitution which to a great extent make the churches a law unto themselves. This “church article” has exempted them from much of the labour law and antidiscrimination legislation. The articles which have been brought in from the Weimar Constitution are quoted at the end in the “Appendix to the Basic Law: Extracts from the German Constitution of August 11, 1919 [Weimar Constitution]”.
3. Works Constitution Act, Section 118, Application to ideological establishments and religious communities, (2). http://www.gesetze-im-internet.de/englisch_betrvg/englisch_betrvg.html#p0736
The German original can be found at http://www.gesetze-im-internet.de/betrvg/__118.html
4. Judgment of the Court (Fourth Chamber) of 23 February 2006 — Commission of the European Communities v Federal Republic of Germany (Case C-43/05) (Failure of a Member State to fulfil its obligations — Directive 2000/78/EC — Equal treatment in employment and occupation — Failure to transpose within the prescribed period) (2006/C 131/41) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2006:131:0023:0023:EN:PDF
5. “Dismissal of church employees for adultery: domestic courts required to balance rights of both parties and take account of specific nature of post concerned”, ECHR press release, 23 September 2010. http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/734116fd3ed965cfc12577a6003b5338?OpenDocument
6. This has been the effect of the landmark 1985 decision. See the first case mentioned in “How far can German churches discriminate against more than a million employees?” http://www.concordatwatch.eu/showtopic.php?org_id=858&kb_header_id=43061
7. “European Court Issues Rulings in Two German Church Employment Cases”, September 2010 - Strasbourg, Religion and Law Consortium. http://www.religlaw.org/index.php?blurb_id=1035&page_id=19
8. “Organist will zurück”, Frankfurter Rundschau, 22 September 2010.
http://www.fr-online.de/politik/organist-will-zurueck/-/1472596/4672370/-/index.html
