European Court Rules Clergy Cannot Unionize Over Church’s Objection

In a much-anticipated decision, the Grand Chamber of the European Court of Human Rights ruled today, 11-6, that Romania did not violate the European Human Rights Convention when it refused to register a trade union that Romanian Orthodox priests had formed against the wishes of the Romanian Orthodox Church. The decision, with important implications for church autonomy, overrules a contrary judgment by a chamber of the court last year.

Article 11 of the European Convention grants citizens–including, the Grand Chamber ruled today, clergy–the right to form trade unions, subject to restrictions that are necessary to advance legitimate governmental interests, including the “protection of the rights and freedoms of others.” Here, the Grand Chamber reasoned, Romania had restricted the priests’ right to form a union in order to protect the autonomy of Romanian Orthodox Church. Among other things, the proposed union was meant to promote members’ ability to obtain representation in the Holy Synod, the Church’s highest authority, and to strike in order to advance members’ interests within the Church. By registering a union with goals like these, the Grand Chamber reasoned, the state would hamper the ability of the Church to organize and govern itself according to its own rules:

Respect for the autonomy of religious communities … implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is … not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them.

In other words, because the union posed a real risk to the organizational integrity of the Romanian Orthodox Church, Romania was justified in refusing to register the union–particularly given the wide “margin of appreciation” the Convention grants states with respect to church/state relations.

The Grand Chamber’s decision contains language suggesting a sweeping view of church autonomy, but one could also see it as somewhat narrow. The Grand Chamber noted that nothing would stop clergy from forming a union “that pursues aims compatible with the Church’s Statute and does not call into question the Church’s traditional hierarchical structure and decision-making procedures.” And it emphasized the the fact-specific nature of the inquiry, stating at one point that “national courts must … conduct[] an in-depth examination of the circumstances of [a] case and a thorough balancing exercise between the competing interests at stake.” The resistance to a categorical rule is reminiscent of the US Supreme Court’s analysis in Hosanna-Tabor, the “ministerial exception” case. A third-party submission by the Becket Fund and the International Center for Law and Religion Studies discussed Hosanna-Tabor, but the Grand Chamber did not expressly rely on the American decision in its own reasoning.

The case is Sindicatul Pastoral cel Bun v. Romania (July 9, 2013), available at the ECtHR’s website, here. The Becket Fund’s press release about the decision is here.

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