Two important test cases lay bare the latest judicial thinking in America and Europe about religious freedoms
By B.C.
IN EVERY liberal democracy, there is a hard trade-off between individual rights and the freedom of religious bodies to follow their own practices, and exercise what is sometimes called "religious autonomy". As a huge body of jurisprudence shows, this is a dilemma which has no final answer; instead there is a never-ending attempt to find the right balance. That is what keeps Erasmus busy.
Two important test cases have laid bare the latest judicial thinking, in America and Europe respectively, about this perpetual problem. The European one, as I mentioned a few days ago, concerned an attempt by Romanian priests and church workers to set up a trade union. The European Court of Human Rights concluded that the Romanian state, acting at the church hierarchy's behest, had been justified in refusing to register the union.
The biggest American case in the recentish past concerned a teacher employed by a Lutheran church in Michigan to teach religion and other subjects at a school; she took disability leave and could not regain her old job because it had been filled in her absence. In the church's parlance, the fact that Cheryl Perich taught scripture and led students in prayer qualified her to be described as a minister. So a bitter dispute between a teacher who lost her job and her employers gradually became a test of religious bodies' freedom to hire and fire ministers as they saw fit. In a ruling last year, the Supreme Court vindicated the Hosanna-Tabor church. It accepted that given the constitution's guarantee of the "free exercise" of religion, religious bodies should be free to select their own ministers.
Both verdicts upheld what conservatives see as religious freedom—above all, the freedom of ecclesiastical bodies to organise their own affairs and set the rules for people who (presumably of their own free will) join or serve them. But Grégor Puppinck, director of the European Centre for Law and Justice, a conservative lobby group based in Strasbourg, told me the American judgment had sent a more reassuring signal. The Supreme Court's judgment had been unanimous, whereas the European judges were divided. In fact, a couple of the American judges had appended "concurring" comments in which they slightly outdid their colleagues in their support for religious bodies' autonomy. Judge Clarence Thomas (pictured) said the court shouldn't even have bothered deliberating over whether the aggrieved teacher was a "minister"; it should simply have taken the church's word on that question.
The European judges' position was generally more nuanced; in an assertion which Mr Puppinck regretted, they accepted that clergy worked "in the context of an employment relationship" which might entitle them to claim certain rights.
Marco Ventura, an Italian law-and-religion professor and columnist, offers a different perspective. As he put it to me, arguments based on respecting "religious autonomy" are easier to make in an American context, where religious bodies genuinely are independent of the state, than in a European one where national churches and state structures tend to be deeply intertwined. The religious playing-field in Europe is never level; it is almost always skewed in favour of certain churches and certain ranks within those churches. European conservatives who frame their arguments in terms of "religious autonomy" might soon find they were making a case for something they have hitherto resisted—a complete separation of church and state.
Ultimately, as Mr Ventura wrote in Corriere della Sera, the Romanian case laid bare an intra-Christian dispute, between bishops and priests, over the balance of power between the various levels of the church hierarchy. That was a problem that church members, not the state or secular courts, would eventually have to solve—as Pope Francis seemed to accept a few days ago when he called for a "renewal of outdated structures" in the church.
For traditionalists, respecting "religious autonomy" often seems to mean respecting the status quo; for others, it can mean leaving open the possibility of a change in the status quo. That is why two intelligent and well-informed people can agree on the principle of religious bodies doing (within reason) their own thing, and disagree completely on what that implies.
