Last November, the Mattone Center co-hosted a regional conference of the International Consortium for Law and Religion Studies. The conference, “Education, Religious Freedom, and State Neutrality,” brought together scholars and jurists from the United States and Europe to compare approaches to these subjects in their respective countries. Participants were invited to submit short reflections. María-José Valero Estarellas (Universidad Villanueva) submitted the following reflection, which we are delighted to publish here.
A Question That Looks Small — But Isn’t
It is not uncommon that an employment dispute quickly becomes a constitutional stress test. This is exactly what happens in many European and Latin American countries when the State hires teachers to provide denominational religious instruction inside public schools. These teachers stand in a legally unusual place: they are paid by public funds and formally linked to the State through an employment contract, yet their ability to teach depends on ecclesiastical approval and, often, on a heightened “duty of loyalty” that reaches beyond the workplace. This dual status—public employee and religious representative—creates recurring conflict between church autonomy, state neutrality, and the individual rights of teachers.
In the background sits a simple question with complicated consequences: who gets to decide whether a particular person can credibly teach a faith? Religious communities argue that credibility is inseparable from doctrine and conduct. Teachers, not infrequently laypersons, point to privacy, family life, expression, and anti-discrimination guarantees. Public authorities, acting as employers, must decide whether they are merely implementing a religious decision or whether they are responsible for it in the language of fundamental rights.
The different major judicial models that are shaping the field have provided different approaches and solutions: the U.S. ministerial exception, the European Court of Human Rights’ balancing method, the Court of Justice of the European Union’s equality-driven review, and the Inter-American Court of Human Rights’ delegation logic. The through-line is the Stat’s duty of denominational neutrality: what courts say it means, what proportionality requires them to do, and why those two can collide.
The structural tension: “dual status” work in a public institution
Denominational religious education within public schools is common in many national systems. The arrangement appears straightforward: the State provides the institutional and employment framework; the religious community determines who is qualified to teach its faith; and students (or their parents) choose whether to participate. Legally, however, the model is hybrid.
Religion teachers are typically employed under public contracts, yet access to the post depends on a religious “gateway” condition. Churches or other faith communities issue certificates of suitability—such as the missio canonica—and may withdraw them when a teacher is deemed no longer to meet doctrinal or moral expectations. That withdrawal may trigger termination or non-renewal of the public contract. While this may resemble an ordinary labor decision in form, in substance it reflects an ecclesiastical judgment about morality, representation, credibility, and trust.
From a constitutional perspective, this tension is inseparable from the scope of religious freedom itself. The right to freedom of religion, as protected in international human rights law, entails the correlative right to the autonomy of religious communities. That autonomy extends beyond institutional independence to include the authority to define doctrine, articulate duties of loyalty, and determine how closely a particular function is connected to the core of the community’s religious or evangelizing mission. These are internal determinations, grounded in the community’s self-understanding as a body of belief.
This is why such cases are particularly difficult. A court cannot treat a religion teacher in a public school as it would any other civil servant, because the teacher’s function is explicitly religious: it involves transmitting a faith tradition as true, not teaching about religion from a neutral, historical, or sociological perspective. The legal question, therefore, is not merely whether the teacher was treated fairly under ordinary employment standards, but whether courts may legitimately second-guess an ecclesiastical decision about representation and credibility without turning the State into an arbiter of religious identity—precisely the role that the principle of state neutrality is meant to preclude.
The U.S. model: a clear jurisdictional boundary
In the United States, these questions are largely settled for two reasons linked to constitutional design. First, there are no public schools that provide confessional religious instruction in the way found elsewhere; public education is expected to remain secular under prevailing Establishment Clause doctrine. Second, U.S. law recognizes a robust “ministerial exception.”
The ministerial exception exempts certain religious organizations’ employment decisions from civil judicial review when the employee performs important religious functions. The Supreme Court’s decisions in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012) and Our Lady of Guadalupe School v. Morrissey-Berru (2020) reaffirmed and broadened this principle, emphasizing that the relevant question is function, not formal ordination. When a teacher’s role includes transmitting faith and forming students religiously, courts generally may not override a church’s decision to hire, retain, or dismiss.
This is not a “balancing test.” It is a boundary rule. The point is not that individual rights do not matter, but that civil courts are institutionally barred from adjudicating certain disputes because doing so would require them to evaluate religious reasons. In this model, neutrality is best protected by non-interference: the State does not decide whether the church’s reasons are good enough.
Strasbourg’s path: from deference to balancing
Europe has taken a different path. The European Court of Human Rights (ECtHR) approaches church–employee disputes through a balancing of competing rights. Early case law tended to be deferential. The ECtHR accepted that States enjoyed a wide margin of appreciation in regulating relations between religious institutions and civil authorities. Within that framework, domestic courts could limit their review to procedural safeguards—checking, for example, that basic fairness was respected—without reviewing the religious motives behind the decision.
The shift came with the twin judgments Obst v. Germany and Schüth v. Germany in 2010. In those cases, the Court made clear that domestic judges should not simply defer. Instead, they must weigh, in concrete terms, the individual’s rights (often privacy and family life) against the church’s institutional autonomy. This new approach treated church autonomy as an important interest, but not an automatic trump card.
The Grand Chamber refined the method in Fernández Martínez v. Spain (2014), a case that resonates strongly with the topic of religion teachers in public schools. Fernández Martínez, a former Catholic priest, taught religion in a Spanish public school. After marrying and fathering children, and after publicly opposing Catholic doctrine, the bishop refused to renew his authorization. Because authorization was a condition of the teaching post, the State did not renew the employment contract. He claimed violations of privacy and non-discrimination. The Grand Chamber found no violation, emphasizing that Spain had appropriately balanced the competing interests and respected the Church’s autonomy.
The Court later consolidated the approach in Travaš v. Croatia (2016), involving a Catholic religion teacher whose authorization was withdrawn after he remarried following a civil divorce, contrary to Church doctrine. Again, the public contract ended. Again, the Court found no violation, holding that the domestic authorities had struck a permissible balance.
On the surface, these outcomes might reassure religious communities: the ECtHR sometimes upholds dismissals. The deeper story, however, is methodological. In making the decision depend on proportionality, Strasbourg invites national judges to look into the “reasons” behind an ecclesiastical judgment.
Neutrality and the proportionality trap
Here is where neutrality becomes the key theme. The ECtHR repeatedly says that state neutrality precludes public authorities from assessing the legitimacy of religious beliefs or the coherence of ecclesiastical doctrines. Neutrality, in this sense, draws a red line: the State may not act as theologian.
Yet proportionality review makes it difficult to honor that red line. To assess whether an interference with a teacher’s private life is proportionate, a judge must ask whether the church’s concern is serious enough, whether the teacher’s conduct truly harms the church’s credibility, and whether the employee’s role is close enough to the religious mission to justify a stricter duty of loyalty. These questions are not purely procedural. They require a court to evaluate how much weight a religious norm should carry in each given situation.
The Court attempts to manage the tension by framing its analysis as contextual rather than doctrinal. Judges are not asked whether a doctrine is “true,” but whether the application of the doctrine to the employee’s case is reasonable and proportionate. The problem is that reasonableness is itself a substantive standard. Once a court declares that a religious reason is not “relevant and sufficient,” or that it does not justify a loyalty expectation, it is necessarily making a judgment about internal religious criteria.
That is why one can describe proportionality as a neutrality trap. Neutrality begins as a promise not to judge faith. Proportionality ends by requiring courts to judge how faith-based reasons should translate into civil consequences. The line between oversight and intrusion becomes blurry. What was meant to be a shield against interference risks turning into a tool for intervention.
This risk is particularly acute for religion teachers in public schools because the State is the employer. A judge may feel compelled to scrutinize the church’s decision more closely, reasoning that public employment should not hinge on unreviewable religious determinations. But that instinct places secular courts in the uncomfortable position of evaluating ecclesiastical rationales to decide whether the State should enforce them.
Luxembourg’s contribution: equality law and effective judicial review
A parallel development appears in the jurisprudence of the Court of Justice of the European Union (CJEU). Although the CJEU’s cases often involve religious organizations as employers rather than the State as employer, the underlying move is similar: religious reasons are subjected to intensive judicial review under anti-discrimination law and Council Directive 2000/78/EC of 27 November establishing a general framework for equal treatment in employment and occupation.
In Vera Egenberger (2018), a non-confessional applicant was excluded from a post advertised by a Protestant welfare organization because she was not Protestant. The CJEU held that national judges must verify whether the religious requirement is objectively justified by the nature or context of the work and is directly related to the organization’s ethos. In IR v. JQ (2018), involving a Catholic hospital director dismissed after remarrying civilly, the CJEU stressed that differences of treatment must be assessed under the Directive’s framework and that courts must be able to review whether the requirement is essential, legitimate, and justified.
These rulings interpret Article 4(2) of Directive 2000/78, which permits differences of treatment in religious employment when religion constitutes an “essential, legitimate and justified occupational requirement” consistent with the organization’s ethos. The CJEU reads this exception narrowly. It insists on “effective judicial review,” meaning that courts must not simply accept the employer’s characterization of its ethos and requirements. They must test it.
Again, the rhetoric is equality, not theology. But the operational effect is similar: secular judges must decide how closely a particular job is linked to a mission and whether a loyalty expectation is genuinely required. The interpretive authority shifts from the religious body to the court. Neutrality is reframed from non-interference into oversight in the name of non-discrimination.
The Inter-American twist: delegation and state responsibility
The Inter-American Court of Human Rights (IACtHR) adds a further layer by foregrounding the State’s responsibility when ecclesiastical decisions affect public employment. In Pávez Pávez v. Chile (2022), the IACtHR held that when a State allows church authorities to issue and withdraw certificates of suitability for religion teachers in public schools, the State effectively delegates a public function. Consequently, the State must ensure adequate safeguards against discriminatory decisions.
The IACtHR’s reasoning introduces a differentiated approach between religion teachers in public institutions and those working in private ones. The public setting changes the analysis because the State is involved, directly or indirectly, in implementing the religious decision. The result is a stronger push toward procedural and substantive safeguards, and thus toward increased judicial review.
So what should “neutrality” mean in a pluralist democracy?
At this point, the debate becomes less about one teacher and more about constitutional architecture. Is it compatible with pluralist democracy for courts to review the coherence of religious doctrines or moral expectations under the guise of equality law? Can judges realistically assess whether a religious motive is “reasonable” without substituting secular reasoning for the community’s own understanding of faith and mission?
The European model tends to answer these questions with the tools it knows best: proportionality, balancing, and context. Those tools have virtues. They take individual rights seriously. They avoid categorical immunities. They offer a way to explain outcomes with reasons rather than with jurisdictional bars.
But the same tools carry predictable costs. Once courts are required to evaluate the centrality of a belief, the seriousness of a moral rule, or the proximity of a job to a mission, neutrality stops being a barrier and becomes an invitation. The State, through its judges, becomes a manager of the boundary between the spiritual and the civil, and that management inevitably reflects secular assumptions about what religion should be allowed to demand of its representatives.
Why religion teachers are the fault line
Religion teachers in public schools are the place where these tensions are hardest to avoid. The teacher is not merely an employee; the teacher is a transmitter of doctrine. The church is not merely an employer; it is a community of belief that claims authority to define who can represent it. The State is not merely a bystander; it is the contracting party and the institution responsible for education.
That triadic structure makes the disputes unavoidably high-stakes. If courts grant broad deference to churches, teachers may find their public employment contingent on religious judgments with limited civil protection. If courts intensify review, churches may see their internal standards filtered through secular reasonableness tests. Either way, a choice is being made about what neutrality demands.
What judges end up weighing (even when they say they won’t)
In the Strasbourg line of cases, domestic courts are encouraged to look at a familiar set of factors. They ask whether the employee knew, when accepting the job, that loyalty expectations applied; whether the employee’s duties were “close” to the church’s mission; whether the conduct that triggered the conflict was public and likely to affect the church’s credibility; how severe the consequences were for the employee; and whether alternative employment was realistic. These are practical considerations—and they are precisely the kind of things proportionality is designed to capture.
But notice what sits underneath each factor. If a court asks how “close” a teaching post is to a religious mission, it must first describe what the mission is. If it asks whether conduct damages a church’s credibility, it must assess the public meaning of that doctrine. Even when framed as social context, the court’s reasoning necessarily interacts with religious content.
This is why the procedural/substantive distinction matters. Procedural review can check notice, process, and consistent application of civil rules. Substantive review asks whether the religious reason is strong enough. The moment courts take that second step, neutrality is no longer simple abstention; it becomes a contested practice.
Public versus private: should the State’s role change the level of scrutiny?
A recurring argument—especially after Pávez Pávez—is that public employment should trigger heightened protection. If the State pays the salary and controls the post, then it seems troubling if a public contract can be ended by an ecclesiastical decision that the State cannot meaningfully review.
Yet the counterargument is that if the State chooses to offer denominational instruction in public schools, it must accept that the faith community can define who can credibly teach that religion. Otherwise, denominational instruction becomes a hollow label: a confessional course without confessional control. The State cannot have it both ways.
Why this debate matters beyond religion classes
Religion teacher cases may look niche, but the logic reaches further. Democracies often partner with faith-based actors in schools, hospitals, and charities. In many of these settings, a job involves representing a religious ethos while also serving the public. When disputes arise, courts face the same choice: defer to religious self-definition, or apply reasonableness tests that interpret the ethos from the outside.
What is clear is that “neutrality” cannot be a slogan. It must do real work—protecting rights without turning judges into supervisors of religious meaning.
Looking ahead: design choices that reduce conflict
For U.S. readers, these disputes underscore how much institutional design shapes constitutional outcomes. Where public schools do not offer confessional instruction, and where the ministerial exception draws a firm jurisdictional line, courts are largely spared the task of weighing religious reasons against civil standards. In systems that combine public employment with denominational teaching, that line is harder to draw—and neutrality becomes harder to sustain.
The recent trajectory of the European Court of Human Rights is therefore worth watching. Strasbourg has not abandoned balancing, but it has increasingly tried to objectify it. Rather than inviting courts to assess the substance or social plausibility of religious norms, the Court has placed growing emphasis on whether religious communities act in a non-arbitrary, coherent, and intelligible way when enforcing loyalty expectations—especially where those expectations affect access to public employment.
This shift does not amount to a European version of the ministerial exception, nor does it eliminate judicial review. What it does is narrow the field of inquiry. Courts are asked less to evaluate what religious communities believe, and more to verify how their decisions are made and applied. In doing so, some of the pressure placed on the principle of neutrality is relieved: judges can exercise oversight without becoming de facto theologians.
That approach is no panacea. Hard cases remain, particularly when the State itself enforces the consequences of ecclesiastical decisions. Still, it points toward a pragmatic middle ground—one that seeks to contain, rather than resolve, the tension between church autonomy and individual rights. For systems that cannot rely on categorical boundaries, this more disciplined form of review may offer a way to protect both without turning secular courts into arbiters of religious identity.
The balance is fragile, and unfinished. But the direction matters: away from theological second-guessing, and toward judicial restraint grounded in institutional competence rather than abstract neutrality alone.
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