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This is the second part of a two part post by Aidan O’Neill on the topic of religion and the courts.

The Ministerial exception in UK case law

Perhaps under the influence of this US case law, by the last quarter of the twentieth century the growing tendency of the courts – at least in England and Wales – was to seek to avoid becoming mired in matters of ecclesiastical sensitivity and/or theological controversy by denying that they had jurisdiction to consider (intra- or inter-) religious disputes brought before them.

Paradoxically, this new found uneasiness as to the propriety of the civil courts ruling on matters religious might be thought to reflect the growing secularisation of public life in the UK, with the judges drawn from an increasingly unChurched class who – in contrast to their church-going and religiously literate Victorian and Edwardian forbears – felt uncomfortable and unqualified to sit in judgment on religious matters.   Thus, the courts in England and Wales in this period declined to consider applications for judicial review brought by individuals exercising ministerial functions within various non-established religious denominations on the grounds that there was no “public law” element such as to make the case suitable for judicial review, apparently relying on a UK public law principle of separation of Church and State which had, in fact, no place historically with the polities making up the United Kingdom. Thus R. v. Chief Rabbi, ex parte Wachmann [1992] 1 WLR 1036, QBD the then Simon Brown J stated at 1042-3:

“[T]he court is hardly in a position to regulate what is essentially a religious function – the determination whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office. The court must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised [sic] divide between Church and State.”

At the same time – and apparently as part of the same phenomenon of the unease of the unChurched meddling in matters religious of which they knew little and cared less – a line of case law developed which denied ministers of religion access to any private law contractual remedies against the religious bodies employing their services, on the basis that any contract was made not with their specific religious institution but with the God they served, and hence not enforceable before the terrestrial courts (see Diocese of Southwark v Coker [1998] ICR 140 per Mummery LJ at 146-148 and Staughton LJ at 150, CA).  The duties of a minister of religion were said to be essentially “spiritual” and quite inconsistent with an intention to create contractual relations.    Accordingly, in President of Methodist Church Conference v Parfitt [1984] ICR 176, CA Dillon LJ (at 182-3) unequivocally rejected the very possibility of an ordained Minister seeking to bring an employment claim against his Church, noting:

“In the spiritual nature of the act of ordination by the imposition of hands and the doctrinal standards of the Methodist Church which are so fundamental to that church and to the position of every minister in it make it impossible to conclude that any contract, let alone a contract of service, came into being between the newly ordained minister and the Methodist Church when the minister was received into full connection. The nature of the stipend supports this view. In the spiritual sense, the minister sets out to serve God as his master; I do not think that it is right to say that in the legal sense he is at the point of ordination undertaking by contract to serve the church or the conference as his master throughout the years of his ministry.

…

[I]t seems to me that it follows, from a correct appreciation of the spiritual nature of the minister’s position and relationship with the church, that the arrangements between the minister and the church in relation to his stationing throughout his ministry and the spiritual discipline which the church is entitled to exercise over the minister in relation to his career remain non-contractual.

It is not in dispute that there are persons such as secretaries or caretakers who are employed by the Methodist Church or by its local circuits under contracts of service. But because of his spiritual position and functions a minister is in a very different position from such persons”.

This line of case law – which effectively sought to carve out a UK “Ministerial exception” making employment related disputes between those carrying out spiritual or ministerial functions and their churches/congregations non-justiciable  – was essentially ended by a decision of the House of Lords in a Scottish appeal, Percy v. Church of Scotland 2006 SC (HL) 1, [2006] 2 AC 28 where their Lordships held by a majority (Lord Hoffmann dissenting) that an associate Minister in the (statutorily privileged but not formally “established”) Church of Scotland was indeed engaged by virtue of a contract of employment with the “national” Church and she was therefore able to claim the normal statutory protections incidental to employment, including the right to bring a complaint of sex discrimination before an employment tribunal in relation to the circumstances surrounding her demission of office as a Minister without being obliged to go before the statutorily recognised Church courts first, and exhaust her remedies there.    Subsequently in New Testament Church of God v Stewart [2008] ICR 282, CA  the Court of Appeal of England and Wales affirmed the competency of a pastor of an independent non-established church bringing a claim before the employment tribunal for unfair dismissal against his church.   And in Moore v The President of the Methodist Conference (Appeal No. UKEAT/0219/10/DM – 15 March 2011) the Employment Appeal Tribunal considered that Percy trumped Parfitt and held that the Claimant, an ordained Minister “in full connexion in the Methodist Church”, was employed by her Church under a contract of service and was therefore able to bring a claim for unfair dismissal against the Church.

No ministerial exemption in the European Court of Human Rights

Recent jurisprudence from the European Court of Human Rights seems to be similarly free of the concerns expressed by US judges that secular courts should not meddle into ecclesiastical business.

Thus in Bernhard Schüth v. Germany [2010] ECtHR 1620/03 (Fifth Section, 23 September 2010) the Strasbourg Court considered the lawfulness of the dismissal of a Church employee who was the organist and choirmaster in the Catholic parish.   He had been dismissed from his position on grounds of conduct falling within the sphere of his private and family life, namely the fact that he had separated from his wife in 1994 and in 1995 moved in with a new partner who was then expecting his child.   In  finding his dismissal from his position by the Church authorities to be incompatible with respect for his Convention rights, the Strasbourg Court found that the by the German labour courts had failed properly to take into account and balance the applicant right to respect for his private and family life against the interests of his Church employer.    While the Court accepted that in signing the employment contract, the applicant had entered into a duty of loyalty towards the Catholic Church which limited his right to respect for his private life to a certain degree, his signature on the contract could not be interpreted as an unequivocal undertaking to live a life of sexual continence in the event of separation or divorce.

By contrast in Michael Obst v. Germany [2010] ECtHR 425/03 (Fifth Section, 23 September 2010 ) the Strasbourg Court accepted the Convention compatibility of the German labour courts’ upholding of the lawfulness of dismissal and excommunication of a Mormon individual who had been employed as by the Mormon Church as director for Europe of their public relations department after he had confessed to the church authorities of an adulterous affair.

And in Siebenhaar v. Germany [2011] ECHR 18136/02 (Fifth Section, 3 February 2011 ) the European Court of Human Rights held that the dismissal of a Catholic kindergarten teacher by Protestant Church for her active commitment to a third religious community –  which styled itself the Universal Church/Brotherhood of Humanity – was justified.

Respect for human rights as the new (secular) orthodoxy ?

These recent European (both Strasbourg and UK cases) differ from the US decision outlined above in their willingness to allow secular courts to go into the merits of the dismissals in each case and determine whether or not, in the secular court’s views, the actions of the Church authorities were or were not justified.   It is difficult convincingly to identify one single factor responsible for the divergent paths currently being taken between the courts in Europe and those of the United State on the issue of proper relationship between secular courts and religious bodies.   Certainly the US case law – with its avowed wish to avoid “excessive entanglement” in internal religious affairs – seems to allow for the possibility of (religious) institutional interests being favoured over the individual’s right of access to the court.   Whereas for some among the religiously inclined and affiliated, the newer European (and UK) approach may seem to betoken a certain lack of respect for religious tradition.

In contrast to the position in the US, the secular courts in Europe appear increasingly unwilling – particularly in challenges based on considerations of fundamental rights – to recognise the autonomy of, and afford a margin of appreciation, to religious bodies in matters of their own internal governance and/or in their interpretation and application of their religious doctrine.    Thus as Lord Clarke of Stone-cum-Ebony observed in the UK Supreme Court in R. (on the application of E) v JFS Governing Body [2010] 2 WLR 153, UKSC at 204-5 paragraphs 149-50 a case concerning the admission requirements to a Jewish faith school:

“149 …. [I]f the criteria involved discrimination based on ethnic grounds, the decision was taken on a ground that was inherently racial and there was direct discrimination within section 1(1)(a) of the 1976 Act.  If that is so, as I see it, the fact that the discrimination was also on religious grounds is irrelevant, as are both the fact that the religious grounds have been adopted for thousands of years and the fact that the Chief Rabbi and the Office of the Chief Rabbi (and therefore JFS) concentrated wholly on the religious questions.

150.   In the Court of Appeal [2009] PTSR 1442, paragraph 30 Sedley LJ, with whom Smith and Rimer LJJ agreed, expressed the view that if that were not so, a person who honestly believed, as the Dutch Reformed Church of South Africa until recently believed, that God had made black people inferior and had destined them to live separately from whites, would be able to discriminate openly against them without breaking the law.  I agree.  It is to my mind no answer to say that the discrimination invited by the belief, on the grounds of colour, was overtly racist.  It is true that such discrimination would be overtly on racial grounds but that is because the criteria were inherently based on racial grounds and not because of the subjective state of mind of the members of the Dutch Reformed Church or because of some principle of public policy.  However, the 1976 Act banning direct discrimination is an application of public policy, rather like the decision of the United States Supreme Court in Bob Jones University v United States (1983) 461 US 574 .”

Respect for human rights generally – and equality law in particular – seems increasingly to being elevated by the courts in Europe to the high realm of unchallengeable public policy, before which religiously based counter-claims must quail, and often fail.   Europe’s religious (perhaps understood as a “pre-human rights”) past now seems now to be another country – they did things differently there.