Tag Archives: Europe

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.

Says Who?

Just in time for my post on symbols, the New York Times picks up the topic as well. So this is page A1 news! Of course, the underlying issue—the treatment of religious symbols in the public sphere—is hardly new. But it continues to be contested and rich and fascinating to study in comparative perspective.

Let me focus in this post on the question of attribution and the role of individual religious expression as opposed to expression of a religious viewpoint or identity by the state. The Times story opens with a Roman Catholic archbishop reminiscing about visiting Brussels and encountering there “the insistently secular bureaucracy of the European Union.” The story continues with the statement “’They let me in wearing my cross,’ the archbishop recalls.” Should he have been surprised? The story then continues with “the rude surprise” that ensued after the Commission objected to crosses on commemorative Euro coins. But should that be surprising?

None of this should be surprising to anyone accustomed to the U.S. concept of a free exercise and establishment distinction. Attribution is a central threshold question in the United States. We are very familiar with the attribution issue, because deciding whether the message is one attributable to the state or the individual determines whether the message is fully protected as a matter of free speech and free exercise or whether it is subject to Establishment Clause limits (which, by the way, does not automatically indicate a violation on the merits). When I talk about religious messages in the U.S. context, I must therefore distinguish between messages of the government and messages of individuals. (I’ve written about the intricacies of that question in the U.S. context in more detail here.)

This (from the U.S. perspective) familiar question of attribution is also gaining importance in the European context, and what makes it particularly interesting there is that we do not have this split into free exercise and nonestablishment in most systems. Take, for instance, the European Convention on Human Rights. The Convention itself contains no Establishment Clause-type provision. But in the case law of the European Court of Human Rights (ECtHR) an interesting development is occurring. Article 9 contains the Convention’s religious freedom provision. In Article 9(2) we find the limitations clause (also a typical feature of continental constitutions). It states: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

As I’ve discussed here, recent case law seems to be slowly developing the meaning of the limitations clause beyond the limit on individual free exercise that it originally was by focusing on the type of democratic society envisioned by the Convention. An indicator of that development is the ECtHR’s emphasis on pluralism in the sense of allowing citizens of all faiths as well as nonreligious citizens to flourish in a democratic society. And that leads to a limit to religious identification imposed on the state itself, as opposed to limit on the individual’s free exercise. In short, the clause might become a limit on the state’s identification with religion. This is where we ask the attribution question. And in a system without a distinction between free exercise and nonestablishment, the interesting point to me is that we’re now starting to ask this question in the first place.

So if we ask about attribution—a question that has not traditionally been asked in the European context precisely because those systems tend not to have an establishment clause-like provision—we ask about the state’s actions, or religious expressions, as distinct from the individual’s actions or messages. And if we set the problem up this way, we are creating a dichotomy that many European national systems do not recognize. And so I find myself wondering whether national concepts of the public sphere may be on a collision course with what the European Court of Human Rights appears to be tending toward.

McCrea on The Veil Ban and European Law

Ronan McCrea (University College London) has posted The Ban on the Veil and European Law. The abstract follows. NB: The full text is behind a paywall.

This article argues that the fate of veil bans under European law is uncertain. It shows that European commitments to free speech and freedom of religion cannot accommodate an absolute ban justified solely on grounds of the offensiveness of the veil. However, a ban that applies to public face-covering in general (rather than a ban that only targets the veil), that relates to the specific (though admittedly broad) context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve.

Cumper & Lewis (eds.), “Religion, Rights and Secular Society”

This December, Edward Elgar Publishing will publish Religion, Rights and Secular Society: European Perspectives edited by Peter Cumper (University of Leicester, UK) and Tom Lewis (Nottingham Trent University, UK).   The publisher’s description follows.

This topical collection of chapters examines secular society and the legal protection of religion and belief across Europe, both in general and more nation-specific terms.

The expectations of many that religion in modern Europe would be swept away by the powerful current of secularization have not been realised, and today few topics generate more controversy than the complex relationship between religious and secular values. The ‘religious/secular’ relationship is examined in this book, which brings together scholars from different parts of Europe and beyond to provide insights into the methods by which religion and equivalent beliefs have been, and continue to be, protected in the legal systems and constitutions of European nations. The contributors’ chapters reveal that the oft-tumultuous legacy of Europe’s relationship with religion still resonates across a continent where legal, political and social contours have been powerfully shaped by faith and religious difference.

Covering recent controversies such as the Islamic headscarf, and the presence of the crucifix in school class-rooms, this book will appeal to academics and students in law, human rights and the social sciences, as well as law and policy makers and NGOs in the field of human rights.

Ferrari on a European Perspective of Law and Religion in a Secular Society

Silvio Ferrari (U. of Milan) has posted Law and Religion in a Secular World: A European Perspective. The abstract follows.

This article examines two interpretations of the process of secularisation that can be traced back through European legal and political thought, and a more recent trend that challenges both of them. It does this through the prism of the public sphere, because in today’s Europe one of the most debated issues is the place and role of religion in this sphere, understood as the space where decisions concerning questions of general interest are discussed. The article concludes, first, that the paradigm through which relations between the secular and the religious have been interpreted is shifting and, second, that this change is going to have an impact on the notion of religious freedom and, consequently, on the recognised position of religions in the public sphere.

Lapidus, “Islamic Societies to the Nineteenth Century”

Next month, Cambridge University Press will publish Islamic Societies to the Nineteenth Century: A Global History by Ira M. Lapidus (University of California, Berkeley). The publisher’s description follows.

Ira Lapidus’ global history of Islamic societies, first published in 1988, has become a classic in the field. For over two decades, it has enlightened students, scholars, and others with a thirst for knowledge about one of the world’s great civilizations. This book is based on parts one and two of Lapidus’ monumental A History of Islamic Societies, revised and updated, describes the transformations of Islamic societies from their beginning in the seventh century, through their diffusion across the globe, into the challenges of the nineteenth century. The story focuses on the organization of families and tribes, religious groups and states, depicts them in their varied and changing contexts, and shows how they were transformed by their interactions with other religious and political communities into a varied, global and interconnected family of societies. The book concludes with the European commercial and imperial interventions that initiated a new set of transformations in the Islamic world, and the onset of the modern era. Organized in narrative sections for the history of each major region, with innovative, analytic summary introductions and conclusions, this book is a unique endeavor. Its breadth, clarity, style, and thoughtful exposition will ensure its place in the classroom and beyond as a guide for the educated reader.

Zucca, “Law, State and Religion in the New Europe: Debates and Dilemmas”

Last month, Cambridge University Press published Law, State and Religion in the New Europe: Debates and Dilemmas (Cambridge March 2012) by Lorenzo Zucca  (King’s College London). The publisher’s description follows.

As the new Europe takes shape, debates which had been confined to its constitutional structure are spilling over into more general areas, not least the field of law and religion. In this edited collection a team of experts seek to establish whether religion and the ‘new’ Europe are in conflict. The collection looks at the question from two perspectives. Initially it considers the question from the perspective of the most influential schools of political thought. The second approach is to look at the theory and operation of the European human rights, with concluding remarks by Joseph Weiler. This title will be of interest to scholars of European constitutional and human rights law, as well as legal theorists. It will appeal to scholars in the field of law and religion.

Shah on Muslim Law in the Western Context

Prakash Shah (Queen Mary, University of London School of Law) has posted In Pursuit of the Pagans: Muslim Law in the English Context. The abstract follows.

In this Working Paper, I make the case that a reconfiguration of law is taking place in the contact between Western and Muslim law. Muslim law is itself a complex, pluralistic amalgam of different legal ‘bricks’, and in the context of the struggle for Islam to be acknowledged as a legitimate source of value pluralism in the Western context, the religious aspects of Muslim law, with their doctrinal justifications, are being foregrounded. With the English case as the main focus, I further argue that customs among Muslims are suppressed in this process of ‘shariatisation’. Beyond that, even Muslim doctrines are being placed under the spotlight in various ways. These changes are taking place as a result of Muslims living as non-dominant communities in Europe, where they are under the gaze of the dominant culture and are judged to be potential or actual violators of human rights and the rule of law. Relying on Balagangadhara’s (2005) explanation of the ‘dynamic of religion’, I present these processes as an outcome of the collision of two religious cultures, the Islamic and the Western.