The Grand Chamber of the European Court of Human Rights has decided to review the judgment in Sindicatul Păstoral Cel Bun v. Romania, a significant church autonomy case. In the case, a group of Romanian Orthodox priests sought to register as a trade union. The Romanian Orthodox Church objected, arguing that registration would violate the Church’s autonomy, and a Romanian court agreed. In January, however, a lower chamber of the ECtHR ruled that the European Human Rights Convention granted the priests a right to unionize even over their church’s objections (for details, see our discussion of the lower chamber’s reasoning). Romania referred the lower chamber’s decision to the Grand Chamber, which has accepted the case. This is not the only important church autonomy case at the ECtHR these days. In May, a different chamber ruled, in Fernandez Martinez v. Spain, that the church autonomy principle allowed a Catholic bishop to fire a priest who had been teaching religion in Spanish schools. Here’s a press release about the Romanian case from the Becket Fund, which represents Romania and the Romanian Orthodox Church.
Ambrose and the Emperor
CLR Forum readers in New York City this summer should check out “Bellini, Titian, and Lotto,” currently on display at the Metropolitan Museum of Art. The whole exhibition is worthwhile, but church-and-state types will particularly enjoy an 15th century altarpiece, “Saint Ambrose and Emperor Theodosius I,” by Bergognone (left). The painting depicts one of the most important church-state confrontations in history.
In 390 A.D., the Emperor Theodosius — the same Emperor Theodosius who had made Christianity the state religion of Rome — ordered a massacre in the city of Thessalonica, some of whose citizens had revolted. Seven thousand people died, many of whom had played no part in the uprising. When Theodosius subsequently appeared in Milan and attempted to attend Mass, Ambrose, the city’s bishop, physically stopped him from entering the church. According to a roughly contemporaneous account by a church source:
When Ambrose heard of this deplorable catastrophe, he went out to meet the Emperor, who—on his return to Milan—desired as usual to enter the holy church, but Ambrose prohibited his entrance, saying “You do not reflect, it seems, O Emperor, on the guilt you have incurred by that great massacre; but now that your fury is appeased, do you not perceive the enormity of your crime? You must not be dazzled by the splendor of the purple you wear, and be led to forget the weakness of the body which it clothes. Your subjects, O Emperor, are of the same nature as yourself, and not only so, but are likewise your fellow servants; for there is one Lord and Ruler of all, and He is the maker of all creatures, whether princes or people. How would you look upon the temple of the one Lord of all? How could you lift up in prayer hands steeped in the blood of so unjust a massacre? Depart then, and do not by a second crime add to the guilt of the first.
Theodosius, the account continues, “who knew well the distinction between the ecclesiastical and the temporal power,” submitted to the rebuke and repented. At Ambrose’s insistence, he decreed that a death sentence would not again be executed until 30 days had passed, so that the authorities could justly determine the facts. Ambrose then readmitted the Emperor to the church, but ordered him to remain with the laity outside the altar rail: “A purple robe makes Emperors, but not priests.”
Struggles between the Church and the Empire did not end in the fourth century, of course; indeed, they were just beginning. And this account does sound a bit tendentious. I imagine the Emperor (who, like Ambrose, is a saint, at least in the Orthodox tradition) had his own version of the story. But church-autonomy supporters have long argued that this episode shows that a distinction between church and state as institutions goes back to the very beginnings of Christian civilization in the West. And there it is, hanging in the Met. You see? Church and state issues really are everywhere.
Florida Appellate Court: Church Autonomy Doctrine Does Not Require Dismissal of Tort Claims
Readers may remember that in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court explicitly put to the side the question of the ministerial exception’s application to tort actions.
Here’s an interesting Florida appellate court case decided yesterday which describes some of the contours of the church autonomy doctrine in the context of relatively simple defamation and breach of fiduciary duty claims. The plaintiff joined the First Pentecostal Church of South Brevard, Inc. and he befriended the pastor at the time. The two developed a personal and professional friendship, and the pastor even sponsored the plaintiff to obtain a minister’s license in the greater Pentecostal church. At some point, however, the relationship soured when the pastor accused the plaintiff of being gay and published those accusations to the congregation, including to the plaintiff’s fiancée’s father.
Plaintiff filed a complaint for defamation and other causes of action and the defendant pastor moved to dismiss for lack of subject matter jurisdiction on the basis of the church autonomy doctrine. The lower court dismissed.
The Florida appellate court reversed. After finding that the church autonomy doctrine acts as a jurisdictional bar (rather than an affirmative defense…note that Hosanna-Tabor took a different view of the ministerial exception, and see also Howard Wasserman’s very good piece), the court held that the church autonomy doctrine did not shield an action by a minister of a church where there was no evidence that “the conduct in question had been undertaken ‘in furtherance of a sincerely held religious belief,’ and no claim that the church had failed to exercise control over its clergyman because of sincerely held religious beliefs and practices.” The First Amendment, the court concluded, “does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members . . . . This claim can be properly adjudicated without implicating the First Amendment.”
The case is Bilbrey v. Myers, 2012 WL 2465242 (Fla. App. Dist. June 29, 2012).
Liveblogging the Religion and Civil Society Conference: Afternoon Panel [UPDATE]
This afternoon’s first panel was “Religious Freedom in the Contemporary Juridical Context,” chaired by Francisca Pérez Madrid of the University of 
Barcelona. (UPDATE: That’s a picture of the panel, left, with conference organizer Mary Ann Glendon). I opened the panel with a comparative paper on recent cases in the American Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Although both courts emphasize the need for state “neutrality,” they define neutrality differently, and I argue that the differences reflect underlying institutional and cultural factors. Hans-Martien ten Napel (Leiden University) followed with a paper on theoretical justifications for religious freedom, including church autonomy. He argued that Christian social pluralist thought, both Catholic and Protestant, can provide an institution-sensitive account of religious freedom that avoids some of the pitfalls of conventional individualistic accounts. Iain Benson (Miller Thompson LLP, Canada) spoke next. In a satiric paper, he explored rhetorical devices used by opponents of church autonomy, for example, referring to “public” as distinct from “religious” and treating “secular” as a neutral, ahistorical concept. Pasquale Annicchino (European University Institute) followed with a paper on the need for a religious freedom office within the new European External Action Service, an EU diplomatic corps established by the Treaty of Lisbon. This new service, he argued, which would advocate for religious freedom outside Europe, could be modeled on the US Commission on International Religious Freedom. Pérez Madrid closed the panel with a paper on a recent General Comment by the UN’s Committee on Economic, Social and Cultural Rights on article 15 of the International Covenant on Economic, Social and Cultural Rights, which requires states to promote citizens’ participation in cultural life. Issued in 2009, the General Comment notes that “culture” encompasses, among other things, religion and belief systems; although it must be reinforced in some ways, Pérez Madrid maintained, the General Comment’s approach to religion as a matter of culture was basically sound.
ECtHR Decides Church Autonomy Case
2012 is turning out to be a big year for church autonomy rulings across the world. The rulings don’t all cut the same way. In January, the US Supreme Court handed down a pro-autonomy decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, unanimously endorsing a constitutional “ministerial exception” to the federal employment anti-discrimination laws. In February, a section of the European Court of Human Rights handed down an anti-autonomy decision, Sindacatul “Pastoral cel Bun” v. Romania, holding that Orthodox priests could form a union over their church’s objections. Now, a section of the ECtHR has handed down a pro-autonomy decision in a case involving the employment of a laicized Catholic priest.
In Spain, public schools offer classes in Catholicism, taught by instructors approved by the local bishop. In the most recent case, a local bishop had withdrawn approval of one such instructor, a laicized priest who had taken a public stand against mandatory priestly celibacy. When the school dismissed the instructor, he brought suit under the European Convention, arguing that the dismissal violated his rights to privacy, family life, and expression. Somewhat surprisingly, perhaps, a section of the ECtHR ruled against him. In withdrawing approval, the section stated, the bishop had acted “in accordance with the principle of religious autonomy;” the instructor had been dismissed for purely religious reasons, and it would be inappropriate for a secular court to intrude.
It will be interesting to see whether the Grand Chamber reviews this judgment, or the judgment in the Romanian case, which Romania has already referred. The case is Fernandez Martinez v. Spain, available on the ECtHR’s website here (in French). For an interesting analysis of how this case relates to Hosanna-Tabor, check out Stijn Smet’s post on Strasbourg Observers.
The New Footnote 4?
For all the attention given to the Supreme Court’s decision in Hosanna-Tabor v. EEOC, there’s been very little attention given to footnote 4 of the decision, which states the following:
A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear [the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.
Now for many, this footnote is just a civil procedure issue, which says little about the core law & religion debates addressed in Hosanna-Tabor. Indeed, Howard Wasserman has a thoughtful piece exploring how this footnote fits within a larger trend of Supreme Court decisions addressing the distinction between jurisdictional bars and merits-based defenses.
But Wasserman’s arguments notwithstanding, I can’t shake the feeling that this footnote says something very important about the relationship between church and state.
For some time, a number of authors have contended that constitutional doctrines such as the ministerial exception functioned as jurisdictional bars; that Read more
Litigating Religion Redux
I’ve been editing the latest draft of my forthcoming article “Litigating Religion” in anticipation of presenting the piece at this year’s Stanford/Yale/Harvard Junior Faculty Forum (I’ve also been pleased to have the piece discussed previously on the CLR Forum here and here). The primary thesis of the article is that the Establishment Clause should not be interpreted to prohibit courts from adjudicating religious questions; instead, it should be interpreted to prohibit courts from adjudicating claims properly within the province of religious institutions. Put differently, courts should resolve religious disputes where no other religious institution is capable of doing so.
One section of the article is dedicated to discussing court cases that raise religious questions, but where there is no religious institution that has an interest and the authority to resolve the dispute. Given that I’m always looking for more examples, I was particularly pleased to see a post from Eugene Volokh about a 2007 case (only recently posted on Westlaw) that fits the bill where a court refused to enforce an arbitration provision that called for the appointment of “Three Orthodox Rabbis” as arbitrators. The court refused to enforce the provision on the grounds that “[t]he Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice.” Thus determining whether an arbitrator is Orthodox – so as to satisfy the arbitration agreement – would run afoul of the First Amendment. Instead, the court severed this provision from the arbitration agreement and authorized each party to select an arbitrator and have those two arbitrators select a third. As the court noted, “[a]lthough the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.”
But is this the preferred outcome?
Putting the Legal in Religious Legal Theory
I just finished reading Samuel Levine’s essay RLT: A Preliminary Examination of Religious Legal Theory as a Movement, which considers the challenges facing the creation of a Religious Legal Theory (RLT) movement akin to Critical Legal Studies, Law & Economics and Empirical Legal Studies. As Levine notes, the growing – and, to mind, successful – Religious Legal Theory conferences (the three annual RLT conferences thus far have been held at Seton Hall, St. John’s and Pepperdine) indicates that there is a conglomeration of research and scholarship revolving around some central concept captured by the label “religious legal theory.”
Among the challenges to the RLT movement detailed by Levine, I was most drawn to the tension between the pluralism embedded within RLT – it brings together different methodologies, disciplines and faith perspectives – and the need for a movement to advance a “foundation of meaningful concepts” in order to retain coherence, integrity and longevity.
As I’ve thought about this challenge, I’ve wondered whether RLT can do more to capitalize on the legal within religious legal theory. By that I mean, further focus its efforts on the ways in which religion and religious life incorporates legal structures and norms. This inquiry might itself be described as two-fold: to what extent does religious life mimic that of a legal system – and how might those similarities impact the nation-state’s treatment of religion. As example, RLT might further explore the methods of authority, interpretation, and norm-creation within religious communities and compare those methods to compare to other legal structures. Moreover, to the extent religion and law share important similarities, questions of accommodation, deference and enforcement might require considering religion alongside, for example, international law and foreign law where the nation-state has contemplated navigating the competing claims of conflicting legal norms. Such an approach would incorporate insights of legal pluralism, international legal theory, political philosophy, and indigenous law into the RLT movement.
This is not to say that this isn’t already happening; to the contrary, there is growing amount of writing on this very issue – and probably more to come in light of the Supreme Court’s recent pronouncements in Hosanna-Tabor v. EEOC. Some examples that come to mind – just to name a few – include Paul Horwitz’s work on First Amendment Institutions (here and here), Joel Nichols recent book Marriage and Divorce in a Multicultural Context, Ayelet Shacher’s book Multicultural Jurisdictions, Perry Dane’s work on church autonomy and legal pluralism (see, e.g., here and here), Rick Garnett’s work on religious institutions, (see, e.g., here and here), Chaim Saiman’s Jesus Legal Theory, and Mark Movsesian’s Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence.
Consider this a pitch for more of the same and for moving this focus into the center of the RLT movement.
Religious Arbitration and the Church of Scientology
CLR Forum friend (and soon to be CLR Forum Guest) Mike Helfand has a very interesting post on PrawfsBlawg about a Florida court decision this month upholding an arbitration agreement between the Church of Scientology and two of its former members. The former members, whom the church expelled last year, alleged that the church had wrongfully retained more than $27,000 the members had given it. The church argued that this dispute fell within an arbitration agreement the former members had signed when they joined the church — there’s an interesting rite of initiation — and the court agreed. The former members would have to submit to arbitration, notwithstanding the fact that all the arbitrators, according to the agreement, must be Scientologists in good standing.
Mike’s post addresses the interesting First Amendment issues that lurk here, particularly the intersection with the church autonomy doctrine. Under the Federal Arbitration Act, he notes, a court can vacate an arbitration award that is tainted by fraud, misconduct and collusion. Under the church autonomy doctrine, however, it’s not so clear. Mike reads Supreme Court cases like Serbian E. Orthodox Diocese v. Milivojevich as insulating religious arbitration from judicial review for fraud and collusion. Milivojevich concerned the disciplining of a bishop, though, and I wonder if the Court would extend its language beyond the ministerial context – a question I’m sure Mike will address in subsequent posts.
European Human Rights Court Rules Clergy Have a Right to Unionize
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 Read more