Here’s an interesting approach to church autonomy. This week, a chamber of the European Court of Human Rights ruled that clergy (and lay employees) of the Romanian Orthodox Church have a right to unionize, notwithstanding the Church’s objections. In 2008, clergy in a Church diocese formed a union to defend their “professional, economic, social and cultural interests” in their dealings with the Church. When the Romanian government registered the new union, the Church sued, pointing out that Church canons do not allow for unions and arguing that registration violated the principle of church autonomy. A Romanian court agreed with the Church, and the union challenged the court’s judgment in the ECtHR. The union argued that the decision not to register it violated Article 11 of the European Convention, which grants a right to freedom of association.
In this week’s decision, the chamber reasoned that, under Article 11, a state may limit freedom of association only if it shows “a pressing social need,” defined in terms of a “threat to a democratic society.” Romania had shown no such need here. The chamber faulted the Romanian court for considering only church traditions and ignoring other important factors, such as domestic and international laws that granted workers the right to unionize. It noted that the Church had allowed clergy to unionize in the past – though these unions predated the Church canons presently in effect.
From an American perspective, the chamber’s judgment, which Romania may appeal to the Grand Chamber, is shocking. Just last month, in Hosanna-Tabor, a unanimous Supreme Court held, on church autonomy grounds, that employment discrimination laws do not apply to churches’ decisions to hire and fire “ministers.” It’s unthinkable that an American court would hold that churches must allow clergy to unionize. This week’s decision is another example of how concepts like “church autonomy” may bear very different meanings in different legal systems. The judgment is Sindicatul “Păstoral cel Bun” v. Romania (in French); an English press release may be found on the ECtHR’s homepage.