This has been a busy law-and-religion news week in the United States, but there was a major story at the European Court of Human Rights as well. On Wednesday, the Grand Chamber heard argument in Fernández Martínez v. Spain, a case that could have major implications for church autonomy in Europe.
Under the 1979 Concordat between Spain and the Holy See, public schools in Spain must offer optional classes in Catholicism. The instructors are public employees, but must be approved by local bishops. In Fernández Martínez, a public school refused to renew the contract of one such teacher, a married, laicized priest named José Fernández Martínez, after the local bishop voiced his objections. The bishop argued that Fernández Martínez had “given scandal,” an offense under canon law, by allowing himself to be photographed by a newspaper, along with his family, at a meeting of a group calling for optional priestly celibacy. Fernández Martínez claimed that the dismissal violated his rights to privacy, family life, and expression, but the Spanish Constitutional Court and, last May, a chamber of the ECtHR, disagreed. He then sought review in the Grand Chamber.
Wednesday’s hearing was interesting and, at times, fiery. The government presented the case as a straightforward matter of religious autonomy and state neutrality. The bishop had objected to Fernández Martínez on religious grounds, it explained; given the terms of the Concordat, the government had no choice but to defer. The government surely could not second-guess the bishop’s conclusion that someone charged with teaching Catholicism had violated religious law. The government emphasized that the Church did not have complete autonomy in such matters; the government would not defer, for example, if dismissal violated a teacher’s fundamental rights. But that was not the case here. Given the “margin of appreciation” afforded member states, the government argued, its decision should stand.
Counsel for Fernández Martínez provided most of the fireworks. They argued that the Constitutional Court–a tribunal “dominated by bishops”–had mischaracterized the facts and ignored the record. The bishop had not sought dismissal over a religious dispute, they argued, but simply because Fernández Martínez had appeared in a newspaper photograph. Dismissal was an arbitrary and “disproportionate” response; one ought not “inflate the autonomy” of the Church and give it power to hire and fire people as it pleased. Counsel complained about unequal litigating resources. The applicant had to face not only Spain, they complained, but also three pro-Catholic NGOs the Grand Chamber had allowed to intervene : it was not a fair fight. Finally, counsel accused the Church of forgetting its own rule: “Do not bear false witness.”
Notwithstanding the fireworks, there were weaknesses in counsel’s argument. Their attempt to distinguish a “religious” problem from merely appearing at a rally seems to miss the point. For the Church, Fernández Martínez’s appearance at the rally was a religious problem, as it “gave scandal” under canon law. And it doesn’t seem disproportionate or unjust to say that the Church may decline to authorize persons to teach Catholicism if the Church concludes they have violated religious law.
To me, the most interesting aspect of the argument was the government’s concession that the Church’s autonomy over teachers of Catholicism could not be absolute. Indeed, on questioning, the government’s attorney referred to a case in which the Spanish government had not deferred to the Church’s request to dismiss a teacher–but didn’t give any details. This is, potentially, a major qualification. In the US, we’re very deferential when it comes to the ministerial exception; it’s hard to imagine an American court ever allowing government to question a church’s decision to fire someone who teaches religion in its behalf, especially after Hosanna-Tabor. Of course, the Spanish situation is complicated by the fact that the teacher is also a public employee; the Concordat creates a situation in which state and church share responsibilities over who teaches Catholicism in state schools. Still, even given that complication, the basic principle seems the same: the civil authorities should not be able to overrule a church’s decision on what conduct warrants discipline under church law.
The Grand Chamber should issue its decision in the next several months. The hearing is available on the ECtHR’s website, here.