Labor in faith: a comparative analysis of Hosanna-Tabor v. EEOC through the European Court of Human Rights' religious employer jurisprudence.

• Author: Genova, Francesca M.

Who so upon him selfe will take the skill True Justice unto people to divide, Had neede have mightie hands, for to fulfill That, which he doth with righteous doome decide, And for to maister wrong and puissant pride. (1) INTRODUCTION

The United States Supreme Court and the European Court of Human Rights recently have decided cases about religious organizations' freedom to decide whom they employ, underscoring this question's vitality and complexity. Absent here are the cultural complications present in more contentious religious rulings. Some of Europe's oldest established religions have found their employment decisions scrutinized at the European Court of Human Rights (ECtHR or European Court). (2) In the United States, meanwhile, a Lutheran school was the Supreme Court's subject. (3) European Court cases have involved the Protestant and Catholic churches in Germany, known as the "big Churches," (4) and the Catholic Church in Spain, which brought Catholicism to the Americas. (5) Only the Church of Jesus Christ of Latter-day Saints, with 38,992 members in Germany currently, is relatively new to its host country. (6)

While any analysis must respect differences in the two courts' structures, scopes, purposes, cultural sensibilities, and philosophical backgrounds, (7) a comparison elucidates the strengths and potential weaknesses of American jurisprudence. (8) Both courts are constitutional in nature: the Supreme Court interprets its Constitution, and the European Court of Human Rights largely treats its role in applying the European Convention on Human Rights (9) (the European Convention or the Convention) as a constitutional one. (10) Indeed, some have argued that the European Court has developed "an Americanstyle body of constitutional law, comparable in its level of ambition." (11)

The U.S. Constitution and the European Convention historically left religious freedom to the states. (12) The European Court previously gave states, which have diverse religious affiliations, broad deference for religious issues before adopting its current, stricter jurisprudence. (13) In the United States' first 150 years under the Constitution, the states reserved power over religious liberty determinations. (14) Established religions existed in seven states at the time of the First Amendment's ratification and their vestiges remained into the 19th century. (15) Only in 1947, twelve years before the European Court started operation, did the Supreme Court incorporate the Fourteenth Amendment Due Process Clause with the First Amendment religion clauses to unify these principles nationally. (16)

This Note uses the European Court of Human Rights' framework to analyze the Supreme Court's decision in Hosanna-Tabor v. Equal Employment Opportunity Commission, which recognizes a "ministerial exception" for religious organizations as a defense to certain employment claims. (17) It argues that the unanimous Supreme Court in Hosanna-Tabor examines factors similar to those of its European counterpart, but protects religious liberties more robustly by avoiding some of the European Court's preoccupations. (18) Yet, the European Court's assessment anticipates the difficulties of applying the "ministerial exception" in future cases.

Part I of this Note compares the European Court of Human Rights and the Supreme Court, focusing on the courts' preliminary interpretive principles, to contextualize the two courts' decisions. Part II analyzes four recent European Court cases involving religious organizations that terminate or fail to renew an employee's contract for violations of religious tenets. It enumerates seven factors used by the ECtHR in determining whether a national court adequately has balanced the rights of employees and religious employers. (19) Four factors consider the religious employer: (1) the alignment of the religious employer's asserted value with the host country's laws and society, (2) the beliefs centrality in the employer's religious system, (3) the importance of the individual's position to the religious institution's affairs and image, and (4) the reasonableness of the employer's concern that the employee's actions harmed its credibility. (20) Three factors address the employee: (1) the employee's awareness that his or her actions would upset his or her religious employer, (2) the employee's role in exposing his or her problematic conduct to the employer, and (3) the consequences of dismissal on the employee's career. (21)

Part III analyzes how the Supreme Court's jurisprudence in Hosanna-Tabor v. EEOC converges with and diverges from that of the European Court. It argues that the United States' lack of a right to work allows the Supreme Court to defer more to religious organizations' decisions. The European Court decides cases with the background principle that an employee has a right to an occupation. (22) The Supreme Court, however, more easily protects religious freedom because it does not recognize the countervailing right to work. Part III also argues that religious organizations' autonomy has become a part of the legal heritage of the United States. So, even an analysis regarding common beliefs similar to the European Court's and in line with Employment Division v. Smith (23) favors the "ministerial exception." The United States' refusal to decide which tenets are valuable to a religion also protects religious employers more broadly than does the European Court's analysis. Part IV concludes by affirming the benefits of Hosanna-Tabor as compared to the European Court of Human Rights' jurisprudence.

1. THE EUROPEAN COURT OF HUMAN RIGHTS AND THE SUPREME COURT

   1. Religious Freedom in the European Court of Human Rights' Jurisprudence Compared to American Jurisprudence

      Article 9 of the European Convention on Human Rights defines religious freedom under the heading, "[f]reedom of thought, conscience and religion." (24) Article 9 states: "[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance." (25) As is common in international instruments, a qualifying provision stipulates that this freedom is "subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." (26) Religious rights are not absolute. The ECtHR has stated that autonomy of religious communities "is indispensable for pluralism in a democratic society, and is at the heart of the protection afforded by Article 9," but religious freedom is an individual right that only extends to groups when combined with the freedom of association under Article 11. (27)

      Freedom of religion in the United States, meanwhile, is enshrined in the First Amendment of the Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (28) Additionally, many legislative acts in the United States protect religion to a greater extent than the courts have ruled that the Constitution does, and can preempt the need to decide a constitutional question. Congress and the executive oftentimes will create a religious exception when they recognize that a law or regulation needs one to retain its constitutionality or legality, desire to avoid an issue even where it may be constitutionally allowed, or want to provide a heightened level of protection in response to court decisions holding that the Constitution does not extend so broadly. (29)

   2. The European Court of Human Rights in Relation to the Supreme Court

      The European Court of Human Rights has been called "the single most important rights-protecting tribunal in the world." (30) In the states parties to the Convention, which may be brought before the Court, "there is no aspect of national affairs which can be said to be without implications for one or other of the rights protected by the Convention, [thus] there is no matter of domestic law and policy which may not eventually reach the European Court." (31) Its judgments are binding on the states parties to the Convention, but require state implementation. (32) While the Convention contains substantive rights, the European Court "has been reluctant to explicitly pronounce" that a national law's substance violates the Convention; rather, it "confines itself to finding fault" in national courts' "application or interpretation" of it, allowing countries broad latitude in determining the appropriate remedy. (33)

      Chambers of seven judges, which may decide admissibility, render judgment on the merits. (34) In certain circumstances, a Grand Chamber of seventeen judges, a limited appellate court, reviews cases de novo. (35) The European Court only accepts cases that have exhausted the remedies processes in their states, functioning more like a court of final appeal than an international tribunal. (36) State compliance rates are high, leading to the conclusion that the European Court is "as effective as ... any domestic court." [37] The Grand Chamber on appeal decided only one of the four cases analyzed, while Chambers alone decided the other three.

      The European Court of Human Rights envisions itself as "the conscience of Europe." (38) The European Court characterizes the Convention as a "living instrument which must be interpreted in the light of present-day conditions." (39) Its interpretation allows the Convention to remain "a resolutely modern treaty that can adapt to contemporary social issues." (40) The ECtHR holds that the provisions of the Convention "cannot be interpreted solely in accordance with the intentions of their authors as expressed more than forty years ago." (41) A main concern is maintaining...