Monday, 16 June 2014

Fernandez Martinez v Spain - Priestly Celibacy and the European Convention

The Grand Chamber of the European Court of Human Rights has given its judgment in the case of Fernandez Martinez v Spain12 June 2014 which involved a former Catholic Priest who was sacked from his post as Catholic Teacher of Religion.  The case was an Appeal from the earlier decision Fernandez Martinez v Spain 15 May 2012 which I blogged about at the time

Martinez was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. The following year without waiting for an answer he was married in a civil ceremony. He has had five children with his wife, to whom he is still married. (NB a point not discussed in the judgment is the fact that this marriage would have been doubly invalid from the Catholic perspective being both in breach of his vow of celibacy and being solely a Civil and not a Religious marriage ceremony)

From October 1991 onwards, Martinez was employed as a teacher of Catholic religion and ethics in a State-run secondary school of the region of Murcia under a renewable one-year contract. In accordance with the provisions of an Agreement of 1979 between Spain and the Holy See, which laid down that “religious education shall be taught by the persons who, every school year, are appointed by the administrative authority from among those proposed by the Ordinary [ie the Bishop] of the diocese”

In November 1996 the Murcian newspaper La Verdad contained an article about the “Movement for Optional Celibacy” of priests (MOCEOP) where Martinez was named and where various aspects of Church teaching were attacked including teachings on Abortion and Birth Control as well as Clerical Celibacy.

On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education in a written memorandum that Martinex was no longer to be regarded as a teacher of religion "proposed by the Ordinary of the diocese" and in consequence his employment was terminated by the Ministry of Education. Therefore his employment was terminated by a secular Governmental authority but on the basis of a decision made by a religious authority

Martinez appealed through the Spanish Court system and ultimately to the ECtHR alleging breaches of Articles, 8 (right to private life), 9 (freedom of religion), 10 (freedom of expression), whilst Spain in reply relied upon Articles 9 (freedom of religion), and 11 (freedom of association) with both sides relying on the exemptions laid down in those various articles. 

Whilst the Grand Chamber agreed that Articles 8, 9, 10 and 11, were all relevant in the case the gist of the case was the fact that Martinez was not able to remain a teacher of the Catholic religion as a direct consequence of the publicity given to his family situation and therefore the case should be considered only under Article 8

In looking at the case the Grand Chamber accepted that it involved a balancing exercise between the rights of Martinez as an individual and the rights of the Catholic Church as a religious community.  In a very tight decision, 9 votes to 8, the Chamber accepted that the rights of the Church to its autonomy took precedence over the individual rights of Martinez who had the right to protest about Church policies but did not have the right to insist that he remain employed as a teacher of Catholic beliefs whilst at the same time protesting and defying those beliefs

[123] In the present case, this balancing exercise concerns the applicant’s right to his private and family life, on the one hand, and the right of religious organisations to autonomy, on the other..... 

[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. It has a direct interest, not only for the actual organisation of those communities but also for the effective enjoyment by all their active members of the right to freedom of religion. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable

[128]  Concerning more specifically the internal autonomy of religious groups, Article 9 of the Convention 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 ...... 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.

So far so good however the Grand Chamber clearly did not want to leave religious communities with absolute freedom in this matter

[132]   a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render any interference with its members’ rights to respect for their private or family life compatible with Article 8 of the Convention. ... the religious community in question must also show, in the light of the circumstances of the individual case, that the risk alleged is probable and substantial and that the impugned interference with the right to respect for private life does not go beyond what is necessary to eliminate that risk and does not serve any other purpose unrelated to the exercise of the religious community’s autonomy.

Tie this judgment in with the recent UK Supreme Court decision in the Shergil v Khaira case and it seems clear that there is going to be more questioning by Secular Courts of the autonomy of Religious Organisations

What is most startling in the judgment is the dissenting judgment of the Russian Judge Dmitry Dedov who states that the requirement of Celibacy is itself a breach of Article 8 and therefore the Catholic (and incidentally Russian Orthodox) Church should not be allowed to require celibacy as a condition for of the priesthood (Episcopacy). Though his judgment is a minority one the fact that the Grand Chamber was so split on this decision 9 votes to 8 does not bode well for the continuing freedom of religious organisations to make their own disciplinary or doctrinal rules


Richard said...

My younger son is at "Diversity Day" at his Catholic School today. When the older one suffered this he was required to watch a speech by Obama "explaining why Same Sex Marriage is right and fair"

Whether the school are doing this to guarantee their "Outstanding" Inspection Report next time, or for some other reason I do not know. However, I have no doubt that this is approved by the Catholic Education Service.

It is not the State and the European Court that we need to fear. It is the Catholic Education Service and its supporters amongst the Bishops and Priests.

Uba Babs said...
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