Constitutional Law, Employment Discrimination, European Court of Justice, Federal Constitutional Court, Federal Labor Court, Freedom of Religion

Can Religious Institutions Hire and Fire based on Religious Doctrine?

One of the longest-running controversies in German employment law started right here in my home city of Düsseldorf. A doctor working for a Catholic charitable hospital was fired in 2009 for re-marrying after a divorce, which violates Catholic doctrine.

The doctor appealed, beginning an odyssey (g) through German and international courts which is still going on. The doctor first file suit against his dismissal to the District Labor Court, which ruled it unlawful. The Church then appealed to the Regional Labor Court, which also ruled in favor of the doctor, in 2010. The Church also lost before the Federal Labor Court in 2011. The Church then appealed to the Federal Constitutional Court (FCC), arguing that the autonomy enjoyed by official religious institutions under Article 4 of the German Basic Law gave it the right to dismiss employees who violate Church doctrine in their private lives.

To the surprise of many observers, the Federal Constitutional Court agreed (g) in 2014. It held that the Church’s right to autonomously control its institutions (the “institutional” guarantee of religious freedom) gave it the right to require Catholic employees to uphold Catholic teachings even in their private lives. The question of whether re-marriage affected the doctor’s professional responsibilities or undermined the “Catholic ethos” of the hospital was primarily for the Church to decide. The State should intervene only in cases where the Church’s actions constituted a severe and unforeseeable infringement of rights, and that was not the case here..

The Federal Constitutional Court did not choose to certify the question to a European court to ask that Court for its opinion whether German law was consistent with the European Convention on Human Rights or the Council directive on non-discrimination (Council Directive 2000/78/EC of 27 November 2000). Instead, the FCC decided the issue itself, holding that European law gave Germany a wide margin of appreciation to regulate the status of churches under German law, and that permitting the Catholic Church to impose “loyalty” requirements like the one in the present case was consistent with European court precedents and with the freedom guaranteed to religious institutions under Art. 11 of the European Convention on Human Rights (Freedom of Assembly and Association). The Federal Constitutional Court then sent the case back to the Federal Labor Court for a final decision.

This is where things get (more) interesting. In a highly controversial move, the Federal Labor Court decided to refer the question to the European Court of Justice for a preliminary ruling, even though the Federal Constitutional Court had declined to do so. This is legally permissible, but very unusual. The FCC is not the “Supreme” Court of Germany, it has no authority to order Germany’s other high courts to do something, except when questions under the Basic Law are involved. Generally, though, German non-constitutional courts of last resort will apply the FCC’s rulings.

Instead of this happening, the case now took a detour to the European Court of Justice, which ruled for the doctor:

It follows … that a church or other public or private organisation the ethos of which is based on religion or belief can treat its employees in managerial positions differently, as regards the requirement to act in good faith and with loyalty to that ethos, depending on their affiliation to a particular religion or adherence to the belief of that church or other organisation only if, bearing in mind the nature of the occupational activities concerned or the context in which they are carried out, the religion or belief is a genuine, legitimate and justified occupational requirement in the light of that ethos….

In the present case, the requirement at issue in the main proceedings concerns the respect to be given to a particular aspect of the ethos of the Catholic Church, namely the sacred and indissoluble nature of religious marriage.

Adherence to that notion of marriage does not appear to be necessary for the promotion of IR’s ethos, bearing in mind the occupational activities carried out by JQ, namely the provision of medical advice and care in a hospital setting and the management of the internal medicine department which he headed. Therefore, it does not appear to be a genuine requirement of that occupational activity within the meaning of the first subparagraph of Article 4(2) of Directive 2000/78, which is, nevertheless, a matter for the referring court to verify.

After the case was returned to the Federal Labor Court, that Court again decided (g) in favor of the doctor, on 20 February 2019. According to the press release: “The duty of loyalty in the form of an obligation not to enter into a marriage which violates the religious convictions and laws of the Catholic Church was, in light of the professional duties of the Plaintiff and the circumstances under which they were performed, not a compelling, lawful, and justifiable professional qualification.”

The decision of the Federal Labor Court to “bypass” the ruling of the Federal Constitutional Court provoked strong reactions. A retiring Vice-President of the FCC, Ferdinand Kirchhof, complained (g) that the European Court of Justice was reaching “one-sided decisions which do not take into account established national legal institutions.” He proposed that referrals to European courts from German courts be subject to the prior approval of the FCC. Luisa Jacobs of Die Zeit, on the other hand, welcomed (g) the decision on the merits, complaining that allowing the Catholic Church to fire divorced employees seemed like something out of the “nineteenth century”, and argues that the Church should be required to generally follow all German employment-discrimination rules.

The Catholic Church seems to be very serious about this case, so I wouldn’t be surprised if they try to appeal to the Federal Constitutional Court again. I don’t know whether that’s possible (the Federal Labor Court’s decision hasn’t been published yet), but if it is, the FCC might be in the mood to hand down another landmark judgment on the scope of national courts’ autonomy within the framework of the EU.

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