Marriage, Roman Catholic clergy and Article 8 ECHR: Fernández Martínez v Spain

The facts

Mr Fernández Martínez was ordained as a Roman Catholic priest in 1961 but in 1984 applied for a dispensation from celibacy. He then married in a civil ceremony; and from 1991 onwards he taught Roman Catholic religion and morals in a state high school, his contract being renewed annually by the Bishop of Cartagena. In 1996 a newspaper published a photograph of him attending a meeting of the Movement for Optional Celibacy [MOCEOP], along with his wife and their five children. In 1997 the Vatican dispensed him from celibacy but stated that anyone so dispensed was barred from teaching the Catholic religion in public institutions unless the local bishop decided otherwise according to his own criteria and provided that there was no scandal. In September 1997 the Diocese of Cartagena decided not to renew his contract for the new school year.

An employment tribunal ruled in 2000 that Mr Martínez had been discriminated against and ordered his reinstatement; on appeal, however, in 2001 the Tribunal Superior de Justícia de Murcia overturned that decision on the grounds that the Bishop had a prerogative right to avoid public scandal, that the restrictions imposed on Mr Martínez’s right to freedom of expression were proportionate for the purposes of Article 10 ECHR and that, in any case, he had been employed on a temporary contract that had expired and he had not, therefore, been dismissed. In 2007 the Constitutional Court dismissed his further appeal by way of recurso de amparo (appeal for infringement of fundamental rights) because it had been purely on religious grounds that his contract had not been renewed and it would be unreasonable if those selecting religious education teachers could not to take candidates’ religious beliefs into account.

Before the Third Section Mr Martínez argued unsuccessfully that all this had violated his rights under Article 8 (private and family life) and that two of the Constitutional Court judges should have recused themselves because their religious beliefs favoured the Church, contrary to Article 6 (fair hearing). The Grand Chamber agreed to hear a further appeal. 

In Fernández Martínez v Spain [2014] ECHR 615 Mr Martínez argued violation of his rights under Article 8, under Article 14 (discrimination) taken together with Article 8 and under Articles 9 (thought, conscience and religion) and 10 (expression), taken separately or together with Article 14. He pointed out that the Chamber judgment had not taken into account the fact that it was the state that paid his salary and had therefore given insufficient weight to his fundamental rights. Moreover, that fact distinguished his case from previous cases such as Obst v GermanySchüth v Germany and Siebenhaar v Germany, in which the recruitment of staff by religious communities had been carried out directly by the Churches themselves, without any intervention by a public authority in the appointment procedure and the salaries had been paid by the Churches themselves.

The Grand Chamber judgment

In the opinion of the Grand Chamber:

“The gist of his complaint is that he was not able to remain a teacher of the Catholic religion as a direct consequence of the publicity given to his family situation and of the fact that he was a member of the MOCEOP” [para 108].

The GC could see “no reason of principle why the notion of ‘private life’ should be taken to exclude professional activities” [para 110] and that in the case of Mr Martínez “the interaction between private life stricto sensu and professional life is especially striking” because there was a direct link between his conduct in private life and his professional activities [para 111]. Moreover, though Mr Martínez had never had a permanent contract, he had a reasonable presumption that his contract would be renewed so long as  he was professionally-competent and there were no circumstances that might justify its non-renewal under canon law [para 112].

Article 8 was therefore applicable; however, the GC held by nine votes to eight that there had been no violation and by fourteen votes to three that there was no need separately to examine the other complaints.

The conduct of the public authorities in enforcing the Bishop’s non-renewal decision constituted an interference with the applicant’s right to respect for his private life [paras 115-116]. The non-renewal was in accordance with domestic secular law [para 119] and

“… the interference complained of had a legal basis in the relevant provisions of the 1979 Agreement between Spain and the Holy See, supplemented by the Ministerial Order of 11 October 1982, and that these provisions satisfied the “lawfulness” requirements established in its case-law” [para 120].

In the Court’s view, it was not unreasonable for the Church to expect particular loyalty of religious education teachers, since they could be regarded as its representatives. Any divergence between the ideas to be taught and the personal beliefs of a teacher could raise a problem of credibility when that teacher actively challenged those ideas.

The decision turned on the balance struck between the right to respect for private and family life and the autonomy of faith groups [paras 126 & 127].

“As regards the autonomy of faith groups, the Court notes that religious communities traditionally and universally exist in the form of organised structures. Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in that perspective, the right of believers to freedom of religion encompasses the expectation that they will be allowed to associate freely, without arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords [para 127].

However,

“Article 9 … does not enshrine a right of dissent within a religious community; in the event of any doctrinal or organisational disagreement between a religious community and one of its members, the individual’s freedom of religion is exercised by the option of freely leaving the community … Moreover … the Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society, particularly between opposing groups …. Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is therefore not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them” [para 128: emphasis added].

Religious communities could demand a certain degree of loyalty from those working for them or representing them; and the nature of the post occupied was an important element to be taken into account when assessing the proportionality of a restrictive measure taken by the state or the religious organisation concerned [para 131].  That said, however, a mere allegation by a religious community that there was an actual or potential threat to its autonomy was not conclusive [para 132].

The Spanish courts had taken sufficient account of all the relevant factors and had weighed the competing interests in a detailed and comprehensive manner, within the limits imposed by the respect that was due to the autonomy of the Roman Catholic Church [para 151]. The principle of Church autonomy did not seem to have been invoked improperly; and the Bishop’s decision did not appear to have been insufficiently-reasoned, arbitrary or incompatible with the exercise of the Church’s autonomy as protected under the Convention [para 151]. Moreover, Mr Martínez had received unemployment benefit after the termination of his contract [para 145]. The interference with his right to respect for his private life had been within the margin of appreciation accorded to states parties and had not been disproportionate [para 152]. There had been no violation of Article 8 and there was no need to examine the other complaints separately.

The dissent

The minority had “… points of disagreement on almost every aspect of the case” [para 1]. In brief:

  • The Spanish state had freely delegated part of its powers over the appointment of teachers in state schools to a body that was not a public authority; and though many member states of the Council of Europe had chosen the same option, it by no means reflected a consensus in Europe [para 8];
  • the non-renewal was the Ministry of Education’s decision, not the Bishop’s; and the alleged violation was “… fully attributable to Spain, notwithstanding the fact that the Spanish Ministry was bound by the Bishop’s decision not to propose the applicant for reappointment” [para 8];
  • the applicability of Article 8 was triggered not by the effects of the decision not to renew the contract but by the reasons that led to that decision [para 9];
  • the non-renewal was as a direct consequence of the publicity given to Mr Martínez’s situation as a married priest and his membership of MOCEOP; and the situation formed part of his private and family life – which had been interfered with [para 10];
  • it was only in the Vatican rescript of 20 August 2007, after the newspaper article about his situation, that the absence of a scandal was explicitly mentioned as a condition of Mr Martínez continuing to teach Roman Catholic religion [para 15];
  • the Ministry’s decision pursued a legitimate aim [para 17];
  • the autonomy of religious communities was not absolute [para 21]; and
  • dismissal had to be subjected to a proper, proportionate balancing of the religious community’s right to respect for its autonomy against the right of the individual: “These principles are all the more relevant when the dismissal is decided by a State authority on the basis of a binding proposal or opinion of an ecclesiastical authority” [para 22: emphasis in original].

As to the conduct of the domestic authorities and their duty to respect the principle of proportionality:

  • the decision not to renew the applicant’s contract was not per se  incompatible with the Convention and was based on relevant reasons [para 24];
  • the fact that the Ministry gave effect to the Bishop’s decision did not absolve the domestic authorities from the obligation to respect the principle of proportionality in their relationship vis-à-vis the applicant [para 25];
  • there was no evidence that the Ministry took into account the applicant’s Article 8 rights or the effects of its own decision on that right [para 26];
  •  it remained to be seen whether the domestic courts had struck a fair balance between the competing rights and interests [para 28];
  • Mr Martínez had a double status as an employee of the public education authority and at the same time with a specific loyalty to the Church [para 30];
  • the Bishop’s decision not to renew the appointment was taken without any prior warning and without any opportunity for Mr Martínez to be heard by the Church hierarchy [para 31];
  • the decision not to renew his appointment was based on Mr Martínez’s situation as a married priest and member of MOCEOP, both of which were important elements of his private and family life [para 32];
  • the Church authorities had known about his situation for many years but had not previously regarded him as unsuitable to teach Catholic religion and ethics [para 33];
  • it was a journalist, not Mr Martínez, who had published the offending article [para 33];
  • there was no evidence that the publicity after the newspaper article had given rise to any protest on the part of parents: both they and the other teachers had in fact given their express support [para 34]; and
  • the Ministry made no assessment as to whether Mr Martínez could be redeployed in another post not involving teaching Catholic religion and ethics; nor did it consider any alternative to barring him from working within the State education system.

In short, “the state’s reaction was a drastic one: the applicant was not reappointed and no other measure was taken, with the result that he was in fact dismissed” [para 36] and there had been a violation of Article 8.

Perhaps the most extreme view was that of Dedov J, who wrote a separate dissenting judgment in which he stated that:

“Even the … Catholic Church cannot protect itself behind the autonomy concept, as the celibacy rule contradicts the idea of fundamental human rights and freedoms. This … should be used as a principal reason for finding a violation of Article 8 of the Convention”.

To which the obvious riposte is to ask whether His Honour is suggesting that there is a human right to become a Roman Catholic priest: a weird and hitherto-unsuspected facet of Article 9, maybe?

Discussion

Thus far, reaction to the judgment seems to have come from the religious freedom end of the blogosphere. The Becket Fund reported the decision under the strapline European Court of Human Rights upholds church autonomy, suggesting, in what looks like something of an oversimplification, that the ECtHR had held that “the autonomy rights of religious institutions—here, the Catholic Church—trump the rights of religion teachers to mount a public attack on church teachings”. Gregory Choi, of the Pace International Law Review Blog, reported the decision as The “Ministerial Exception”.

For my part I am not so sure: my own view is that the case turns very much on the facts. And while one vote is obviously enough for a majority decision, a 9/8 split illustrates the difficulty of making judgments of this kind and the uncertainty of the law in this area. The Becket Fund points to the fact that in Sindicatul Păstorul cel Bun v Romania [2013] ECHR 646, the last major Grand Chamber case on religious institutions and the state, the GC “protected the right of the Romanian Orthodox Church to autonomy in how it governed relationships between bishops and priests”. But that, too, was a split decision  11/6  and I am not convinced that the majority judgment went as far as the Becket Fund suggests.

In short, perhaps we are seeing yet more evidence in matters of religion as in other fields that at least some of the judges on the ECtHR are inclined to give a greater margin of appreciation to states parties than they might have been in the past. But a decision by such a narrow margin does not suggest that we are about to see a brave new world of non-intervention by Strasbourg. And if it did swing further towards non-intervention, is that what we would want?

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For an equally cautious view see Neil Addison’s post: Fernandez Martinez v Spain – Priestly Celibacy and the European Convention.

Cite this article as: Frank Cranmer, "Marriage, Roman Catholic clergy and Article 8 ECHR: Fernández Martínez v Spain" in Law & Religion UK, 16 June 2014, https://lawandreligionuk.com/2014/06/16/marriage-roman-catholic-clergy-and-article-8-echr-fernandez-martinez-v-spain/

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  1. Pingback: German Constitutional Court upholds dismissal of divorced & remarried Roman Catholic doctor | Law & Religion UK

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