Johan D. Van Der Vyver, State Interference in the Internal Affairs of Religious Institutions

• Jurisdiction: European Union
• Citation: Vol. 26 No. 1
• Publication year: 2010
• topic: Constitutional Law,Labor Law

STATE INTERFERENCE IN THE INTERNAL AFFAIRS OF RELIGIOUS INSTITUTIONS

Johan D. van der Vyver*

On September 8, 2011, a labor court in Germany decided that the dismissal of the medical superintendant at a Catholic hospital was unlawful.1 The Catholic Church discharged the doctor following his civil divorce and his remarriage.2 Because the Church does not recognize the validity of a divorce from marriage, it did not recognize the legality of the doctor’s second marriage and therefore condemned him for being engaged in an extramarital (adulterous) relationship with his second wife.3 The doctor contested the legality of his dismissal under the labor laws of Germany and brought suit against the Church before the labor court.4

The Church maintained that the doctor’s employment contract required him to accept and uphold the basic principles embodied in the religious and moral doctrines of the Church.5 The labor court recognized the “obligation of loyalty” of the applicant toward basic doctrines and practices of his employer

and decided that the doctor’s dismissal would be justified only if, upon balancing the conflicting interests of both parties to the dispute, violation of the loyalty commitment that went with his office and was implicated by the Catholic verdict pronouncing his second marriage to be null and void were found to carry sufficient weight (“[hat] ein hinreichend schweres Gewicht”).6 The labor court decided that the doctor’s dismissal was unjustified and upheld the applicant’s complaint.7

The decision of the labor court clearly contradicted the internal sphere sovereignty of churches, which for many years constituted a basic principle of German constitutional law. However, the decision of the labor court was

* I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law;

Extraordinary Professor in the Department of Private Law, University of Pretoria, South Africa.

1. Bundesarbeitsgericht [BAG] [Federal Labor Court] Sept. 8, 2011, 2 AZR 543/10 (Ger.).

2. Id.

3. Id.

4. Id.

5. Id.

6. Id.

obviously informed by three recent judgments of the European Court of Human Rights (“ECHR”) relating to the dismissal of church employees for conduct considered by the respective churches to be violations of those churches’ fundamental tenets.8

This Article highlights the traditional, constitutional principle of sphere sovereignty (mostly referred to in German jurisprudence as a matter of “self- determination” or, alternatively, of “autonomy”) of religious institutions.9 It then considers the judgments of the ECHR and their impact on the internal sphere sovereignty of churches in Germany10 and concludes with critical comments on the judgment of the labor court in the case of the medical superintendant of a Catholic hospital.11

1. SELF-DETERMINATION/AUTONOMY/SPHERE SOVEREIGNTY OF CHURCHES IN GERMANY

   
   

   The status of churches and other religious institutions in Germany is governed by the Church Clauses (die Kirchenartikel) in the Weimar Constitution of August 11, 1919,12 which were incorporated into the German Constitution by Article 140 of the Grundgesetz für die Bundesrepublik Deutschland of 1949.13 Article 137(3) of the Weimar Constitution provides: “Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the participation of the state or the civil community.”14

   
   

   Its details were specified in a judgment of the Bundesverfassungsgericht of 198515 in an appeal against two decisions of the German Federal Labor Court relating to (a) the dismissal of a medical doctor in a Catholic hospital in

   
   

   1. See infra Part II.

   2. See infra Part I.

   3. See infra Part II.

   4. See infra Part III.

   5. WEIMAR CONST., arts. 137–41.

   6. GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May

      23, 1949, BGBl. I, art. 140 (incorporating the provisions of Articles 136–39 and 140 into the Grundgesetz).

   7. GERHARD ROBBERS, RELIGION AND LAW IN GERMANY 77 (2010). Article 137(3) of the Weimar

      Constitution reads, “Jede Religionsgesellschaft ordnet und verwaltet ihre Angelegenheiten selbständig innerhalb der Schranken des für alle geltenden Gesetzes. Sie verleiht ihre Ämter ohne Mittwirkung des Staates oder der bürgerlichen Gemeinde.” WEIMAR CONST., art. 137(3).

   8. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] June 4, 1985, ENTSCHEIDUNGEN

      DES BUNDESVERFASSUNGSGERICHTS [BVERFGE] 70 (138) (Ger.).

      Essen,16 and (b) the dismissal of an accountant at a Catholic youth hostel in Munich.17 The doctor was dismissed because he publicly testified to his personal view on abortions (which was in conflict with official Church policy on the matter),18 and the accountant was dismissed because he defected from the Catholic Church.19

      
      

      The Bundesverfassungsgericht decided that the provisions of Article 137(3) of the Weimar Constitution apply not only to churches and their independent components but also to other institutions, irrespective of their legal construction, which, in view of their purpose and...