Germany’s Federal Constitutional Court [Bundesverfassungsgericht] has reversed the judgment of the Federal Labour Court declaring unlawful the dismissal of a senior doctor in a Roman Catholic hospital after his remarriage without a prior annulment.
The self-determination of religious groups is protected by Article 140 of Germany’s Basic Law read in conjunction with Article 137(3) of the Weimar Constitution; and the Second Senate of the Court upheld the applicant’s dismissal, ruling that the Labour Court had taken insufficient account of the meaning and scope of the Church’s right to self-determination and that courts should not override Church decisions based on ecclesiastical self-understanding so long as those decisions did not contradict basic constitutional guarantees.
Somewhat surprisingly, however, the Court took the view that the case law of the European Court of Human Rights gave no reason to modify the interpretation of constitutional law on the matter. There are three German ECHR cases in point:
- Obst v Germany  ECHR 425/03 [French only] in which it was held that the dismissal by the Church of Jesus Christ of Latter-day Saints of its Director of Public Relations for Europe on grounds of adultery had not breached Article 8 ECHR (private and family life);
- Schüth v Germany  ECHR 1620/03 [French only] in which it was held that the dismissal of Roman Catholic parish and deanery music director who had left his wife and settled with a new partner with whom he had a child had breached his rights under Article 8 ECHR; and
- Siebenhaar v Germany  ECHR 18136/02) [French only], which upheld the dismissal without notice of a childcare assistant in a day-nursery run by a Protestant parish in Pforzheim on the grounds of her involvement in the ‘Church Universal / Brotherhood of Mankind’, whose teachings were deemed to be incompatible with those of the Evangelischen Kirche in Deutschland.
At that point, the messages from Strasbourg were very mixed indeed; subsequently however, as we noted at the time, in Fernández Martínez v Spain  ECHR 615 the Grand Chamber upheld by a majority the non-renewal of the teaching contract of a former Roman Catholic priest who had subsequently married and fathered a family.
An anonymous post on the Agenda Europe blog suggests that
“While one can question the outcome in casu, the decision does have the merit of strengthening the corporative religious freedom of churches (which, as the Court stated, applies without any reservations) as well as the freedom of contract (which is not unimportant in the context of the EU’s controversial “Anti-Discrimination Directive)”.
Possibly the Bundesverfassungsgericht takes the view that the Grand Chamber decision in Fernández Martínez has given states parties a much wider margin of appreciation than previously on matters of religion and the Equal Treatment Directive. Nevertheless, its decision sits oddly with Schüth.
It might be possible to distinguish Siebenhaar on the basis that the applicant in that case worked with (impressionable) children and it was therefore reasonable for her employer, the Evangelischen Kirche in Deutschland, to question what it regarded as her eccentric religious views. But organists play the organ and doctors treat patients; and it is difficult to see how the marital status of either group might affect the quality of their work. One for Strasbourg, maybe?