An “Important Strengthening” of Religious Freedom: Temple Recommends in the European Court of Human Rights

Freedom of contract, religious autonomy and the Mormon temple recommend prevailed recently in The European Court of Human Rights (ECHR)[1] as the Court rendered its judgment in the case of Obst v. Germany (application no. 425/03). More specifically, the ECHR found that Germany had not violated Article 8 of the European Convention on Human Rights (right to respect for private and family life) when Germany’s highest court, the Federal Constitutional Court, had ultimately upheld Michael Obst’s 1993 dismissal without notice by The Church of Jesus Christ of Latter-day Saints from his employment as Public Affairs Director for the Europe Area after he had confessed to committing adultery.

Interestingly, at the same time, the ECHR found in a parallel case (Schüth v. Germany, application no. 1620/03) that there had been a violation of Article 8 where Germany’s Federal Constitutional Court had similarly ultimately upheld the Catholic Church’s dismissal of Bernhard Schüth from employment as an organist and choirmaster in a local parish for adultery and bigamy.

In the press release issued by the ECHR on September 23, 2010 relating to the Obst and Schüth judgments, the Registrar of the ECHR summarized the ECHR’s holdings in each case.

As to Obst v. Germany, in which the ECHR found in favor of the Mormon Church, the Registrar summarized the holding as follows:

The fact that, after a thorough balancing exercise, the German courts had given more weight to the interests of the Mormon Church than to those of Mr Obst, did not itself raise an issue under the Convention. The conclusion that Mr Obst had not been subject to unacceptable obligations was reasonable, given that, having grown up in the Mormon Church, he had been or should have been aware when signing the employment contract of the importance of marital fidelity for his employer and of the incompatibility of his extra-marital relationship with the increased duties of loyalty he had contracted towards the Church as director for Europe of the public relations department.

This was a victory in every sense for the Church, as discussed further below, and signals robust protection of religious autonomy/freedom in the European Court of Human Rights and, by extension, in the 47 nations that are signatories to the Convention.

By contrast, in Schüth v. Germany, the ECHR found that the German courts had not adequately balanced the the privacy interests of Schüth against the interests of the Catholic Church as his employer. The German courts had therefore improperly dismissed Schüth’s employment case against the Catholic Church in finding in favor of the Catholic Church and upholding its dismissal of Schüth, meaning that Germany had violated Schüth’s rights under Article 8 of the Convention. As the Registrar summarized:

The labour courts had moreover made no mention of Mr Schüth’s de facto family life or of the legal protection afforded to it. The interests of the Church employer had thus not been balanced against Mr Schüth’s right to respect for his private and family life, but only against his interest in keeping his post. A more detailed examination would have been required when weighing the competing rights and interests at stake.

While the Court accepted that in signing the employment contract, Mr Schüth 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 abstinence in the event of separation or divorce. . . .

The Court found that the German labour courts had failed to weigh Mr Schüth’s rights against those of the Church employer in a manner compatible with the Convention.

The Mormon Church, therefore, prevailed[2] in the European Court of Human Rights where the Catholic Church lost.

In these cases, the ECHR needed to weigh an individual’s privacy rights/interests under Article 8 against a church’s rights under Article 9 (freedom of religion) and Article 11 (freedom of assembly and association) — and consider whether German courts had adequately weighed these interests.[3]

In Obst v. Germany, the Church was a Third Party Intervenor and filed a brief, authored by Prof. Dr. Gerhard Robbers, a Professor of Public Law at the University of Trier, in support of its position in dismissing Obst for adultery. The Application for Third-Party Intervention (dated June 13, 2008) is very interesting reading. It functions simultaneously as the Church’s Brief drafted for the purpose of persuading the ECHR that the Church’s dismissal of Obst should be upheld in the ECHR (that is, the German labor courts’ upholding of the Church’s dismissal of Obst should be upheld in the ECHR).

As can be expected, in its Application, the Church argued vigorously in defense of its dismissal of Obst. It noted that the case had major implications, going so far as to argue that “the present case can turn out to be of decisive importance for the very existence of religious communities in Europe and beyond” (para. 11). And it stated that “A positive decision would result in an important strengthening of the Church’s freedom of religion, whereas a contrary outcome would completely compromise its ability to act as an employer in accordance with teachings of the Church and thus to perform its mission in the world” (para. 2, emphasis added). A theme to which the Church returns through its Brief is the idea that “rulings by a secular court on those sensitive policies [worthiness compliance by Church employees] would constitute a profound intervention in its internal affairs” (para. 2).[4]

The Brief goes on to argue to allow the Church to intervene and substantively on the issue of Obst’s dismissal. The Church’s arguments are founded largely on the following statement: “Marital fidelity thus is one of the core principles of the teachings of the Church. It is not just one rule among others, but one of the highest order commandments that lies at the core of its ethical and religious principles” (para. 15). The Brief cites Doctrine and Covenants 42:22-28 in support of this argument.

The Church also emphasizes the standard language apparently contained in Church employment contracts, including notably that “Conduct on or off the job contrary to Church standards (e.g. failure to maintain eligibility for a temple recommend)” would be grounds for immediate dismissal and that “Any employee that is excommunicated or disfellowshipped from the Church will be immediately terminated from Church employment” (para. 30).

The Church went on to argue that

A Church member such as Obst would clearly have understood the reference to maintaining eligibility for a temple recommend. A “temple recommend” is a certificate that confirms that a member is eligible to participate in services in the Church’s temples. At the time of Obst’s dismissal, there were fewer than 100 temples worldwide. These are not facilities for regular weekly worship, but rather places where particularly significant and sacred rituals are performed. The temples are open only to worthy members of the Church. At the time of Obst’s termination, temple recommends had to be renewed annually. In order to obtain or renew a temple recommend, a member must have a private interview with the hierarchically appropriate priesthood leaders confirming among other things that the member lived the law of chastity, paid a full tithing, abstained from coffee, tea, tobacco, alchohol and hard drugs, engaged in regular church attendance, was honest in his or her dealings with others, and in general was true to gospel teachings and standards. It would have been absolutely clear that adultery was grounds for loss of a temple recommend, and this would have been brought home to any church member seeking a recommend during the then-annual (now biannual) interview. (para. 31)

Based on these and further arguments,[5] the German labor courts, the German Federal Constitutional Court and ultimately the ECHR[6] found that Obst’s dismissal was proper under his employment contract under which he owed “increased duties of loyalty” to the Church,[7] which duties were founded in the temple recommend as backed up by scriptural doctrine, in the case of marital fidelity.[8]

In effect, the temple recommend might actually have played a determining factor in the different outcomes in the Obst case and the Schüth case. The ECHR notes that, in the context of (1) the explicit provisions of Obst’s employment contract he had signed and (2) his awareness of Church standards from having grown up in the Church (as evidenced by being a temple recommend holder, as pointed out in the Church’s Brief), Obst’s voluntary confession of adultery while knowing the provisions of his contract and Church standards as a lifelong member meant that the Church’s summary dismissal was properly affirmed by German courts. (The ECHR also noted the rational balancing analysis performed by the German courts in considering the Church’s interests in its public reputation against Obst’s privacy interests as a result of Obst’s position as the public affairs director for Europe[9] as well as Obst’s relatively young age as relevant factors.)

This judgment upholding the Church’s dismissal of Obst, as requested by the Church in its Application, has resulted in, to quote the Church’s Application, “an important strengthening of the Church’s freedom of religion” (para. 2). In fact, the ECHR notes the Church’s strong emphasis on this and a related argument the Church made about the indispensability of religious pluralism in a democratic society[10] in its findings (see paras. 37-38 of the ECHR judgment).

————————-
[1] The European Court of Human Rights is the court of last resort for citizens of the 47 countries that are signatories to the European Convention on Human Rights under the auspices of the Council of Europe, who allege a state violation of their human rights as codified in the Articles of the Convention and as implemented in the national laws of the state signatories.

[2] In a certain manner of speaking. The ECHR was actually evaluating the appropriateness of the German labor courts’ treatment of these cases. In Obst, the ECHR found that the German labor courts properly upheld the Mormon Church’s termination of Obst in the face of Obst’s complaint that the termination violated his privacy rights. So the ECHR was upholding the Church’s victory in the German courts.

Ironically, although the discussion in the post above focuses on how this outcome for the Church signals a strengthening of religious freedom, one reason why the outcome was favorable for the Mormon Church’s dismissal of Obst but not for the Catholic Church’s dismissal of Schüth might admittedly be a result of German labor courts giving tougher scrutiny to the actions and position of the Mormon Church as a distrusted minority religion. As a result of this a rigorous balancing exercise and analysis was performed in the German labor courts that provided a record sufficient to convince the ECHR that the German labor courts had not found in favor of the Mormon Church without adequately considering Obst’s rights under German labor law, German constitutional law and Article 8 of the Convention. By contrast, in Schüth’s case, as the Registrar noted, the German labor courts “appeared to have simply reproduced the opinion of the Church employer” about the harm Schüth’s actions would cause the Catholic Church’s credibility. Reading between the lines on this little detail, one could infer that such a major player as the Catholic Church in southern Germany (one of the few officially recognized state religions, in fact) had perhaps been given undue deference by the German state — meaning that a record as sufficient as that in Obst was not available for the ECHR to examine in its efforts to determine whether the German courts had adequately balanced Schüth’s privacy interests against the Catholic Church’s interests. But this also could imply a privileged or preferenced position for religion (at least that religion) in the public square of this European country.

[3] The Frankfurt Labor Court had, in the first instance, dismissed the Church’s termination of Obst as void. On the Church’s appeal to the German Federal Labor Court, as the Registrar of the ECHR summarized in the press release, the Federal Labor Court quashed the dismissal of the termination, “observing that by his conduct Mr Obst had not honoured the obligations arising from provisions in his work contract.” The Federal Labor Court went on to refer to

a leading judgment by the Federal Constitutional Court of 4 June 1985 concerning the lawfulness of the dismissal of Church employees after a violation of their loyalty obligations. Following this judgment, Church employers had the right to govern their affairs in an autonomous manner, while at the same time labour courts were bound by the principles of the Church employers’ religious and moral precepts only to the extent that they did not conflict with the fundamental principles of the legal order of the State. According to the Federal Labour Court, the requirements of the Mormon Church regarding marital fidelity did not conflict with the fundamental principles of the legal order, because marriage was also of pre-eminent importance under the German Basic Law. The dismissal had been necessary for the Church to keep its credibility, which was under threat in view of Mr Obst’s responsibilities as director of public relations for Europe. The Church had moreover not been obliged to give an advance warning, as given his long career with the Church, Mr Obst must have been aware of the severity of his misconduct. Following the remittal, the labour court of appeal overturned the first-instance judgment in January 1998. (emphasis added)

Obst then appealed to the German Federal Labor Court once more without success and then to the Federal Constitutional Court, also without success, at which time he sought redress in the European Court of Human rights, claiming that Germany had violated Article 8 of the Convention by finding in favor of the Mormon Church in the case.

[4] Later in the Brief the Church went into great detail on this point, noting, for example, that “The exact contents of the requirements of loyalty and personal worthiness of church employees cannot be determined by State law. They must be left — within the limits drawn from the Convention — to the free discretion of the churches themselves. Any State definition of these obligations would involve a violation of the obligation of the State to remain neutral in matters of religion, and to refrain from evaluating religious doctrines and practices” (para. 80, emphasis added).

[5] Prof. Dr. Robbers gave an exhaustive overview of German public law on principles of self-determination of religious communities and religious freedom in relation to the rights of individuals and the German state and argued very persuasively from a legal perspective that the Church’s dismissal had been appropriate under principles of contract law, public church-state law and religious autonomy. The Church was very fortunate to have him on its side for this purpose as he is a recognized expert in this field.

As part of this larger exposition, the Church also made an interesting, discrete argument that “Mere emotional ties among adults do not constitute family life” (citing the ECHR case of Herz v. Germany, judgement of 17 April 2003, application no. 52853/99) in the context of Obst’s reliance on Article 8 of the Convention as the basis for his claim that Germany had violated his rights (para. 45). As the Church noted, Obst “did not live together with the other woman and did not form a family relation with her”.

[6] The ECHR held that

50. Aux yeux de la Cour, les conclusions des juridictions du travail, selon lesquelles le requérant n’avait pas été soumis à des obligations inacceptables, ne paraissent pas déraisonnables. La Cour estime en effet que l’intéressé, pour avoir grandi au sein de l’Eglise mormone, était ou devait être conscient, lors de la signature du contrat de travail et notamment du paragraphe 10 de celui-ci (portant sur l’observation « des principes moraux élevés ») de l’importance que revêtait la fidélité maritale pour son employeur (voir, mutatis mutandis, Ahtinen c. Finlande, no 48907/99, § 41, 23 septembre 2008) et de l’incompatibilité de la relation extraconjugale qu’il avait choisi d’établir avec les obligations de loyauté accrues qu’il avait contractées envers l’Eglise mormone en tant que directeur pour l’Europe au département des relations publiques.

51. La Cour considère que le fait que le licenciement a été fondé sur un comportement relevant de la sphère privée du requérant, et ce en l’absence de médiatisation de l’affaire ou de répercussions publiques importantes du comportement en question, ne saurait être décisif en l’espèce. Elle note que la nature particulière des exigences professionnelles imposées au requérant résulte du fait qu’elles ont été établies par un employeur dont l’éthique est fondée sur la religion ou les convictions (voir, au paragraphe 27 ci-dessus, l’article 4 de la directive 78/2000/CE ; voir aussi Lombardi Vallauri c. Italie, no 39128/05, § 41, CEDH 2009-… (extraits)). A cet égard, elle estime que les juridictions du travail ont suffisamment démontré que les obligations de loyauté imposées au requérant étaient acceptables en ce qu’elles avaient pour but de préserver la crédibilité de l’Eglise mormone. Elle relève par ailleurs que la cour d’appel du travail a clairement indiqué que ses conclusions ne devaient pas être comprises comme impliquant que tout adultère constituait en soi un motif justifiant le licenciement [sans préavis] d’un employé d’une Eglise, mais qu’elle y était parvenue en raison de la gravité de l’adultère aux yeux de l’Eglise mormone et de la position importante que le requérant y occupait et qui le soumettait à des obligations de loyauté accrues.

52. En conclusion, eu égard à la marge d’appréciation de l’Etat en l’espèce (paragraphe 42 ci-dessus) et notamment au fait que les juridictions du travail devaient ménager un équilibre entre plusieurs intérêts privés, ces éléments suffisent à la Cour pour estimer qu’en l’espèce l’article 8 de la Convention n’imposait pas à l’Etat allemand d’offrir au requérant une protection supérieure.

In this holding, the ECHR specifically referred to paragraph 10 of Obst’s employment contract with the key provision that required him to observe “high moral principles” (quoted by the ECHR in para. 50 of its holding, quoted above), which the Church argued “clearly precluded marital infidelity” (para. 85 of the Church’s Application). The Church supported this argument by noting that

When defining the term “high moral principles” as stated in the labour contract of the applicant the labour contract has to be seen together with the teachings of the Church. This is mentioned in the labour contract itself, at the very beginning of the same subsection of the paragraph that obligated the applicant to comply with the high moral standards by saying that the “employee acknowledges the fundamental principles of the Church” and that they are known to him. The conduct expected by the applicant was laid out in detail in the holy scriptures of the Church and in the standards of temple recommend worthiness referred to in the contract. (para. 92, emphasis added)

The Brief notes further at this point that Obst would have been aware of these standards having grown up in the Church (para. 94).

[7] The Church argued that “By entering into contractual obligations vis-à-vis his employer the applicant accepted a duty of loyalty and maintenance of high standards of conduct towards the Church which limited his freedoms guaranteed in Article 8 of the Convention to a certain extent. Similar obligations may also be agreed with employers other than the Church or its institutions. The Convention permits contractual obligations of this kind if they are freely entered into by the person concerned. A violation of such obligations normally entails the legal consequences stipulated in the contract, including dismissal. Their enforcement with the assistance of the competent State authorities [in this case the German labor courts] does not as such constitute an ‘interference by public authority’ with the rights guaranteed by Article 8 of the Convention [citing ECHR cases]” (para. 54, emphasis added). The ECHR ultimately sided with this argument in a holding that arguably strengthens both freedom of contract and freedom of religion in Europe.

[8] Alluding to the arguments made in the German labor courts, and the material that presumably found its way into the record there, the Church noted that “The German courts rightly referred to the Church’s scriptures as giving further substance to the loyalty obligations of the applicant towards his church as stated in the labour contract” (para. 100).

[9] The Church had argued in its Brief that “because of the visibility of Mr. Obst’s position, it would have been particularly awkward and inappropriate for him to stay on in his position. From the Church’s standpoint, this would have sent a highly inappropriate signal to all the other employees and Church volunteers whom he supervised and to others with whom he worked at the European headquarters of the Church” (para. 104).

[10] This is another very interesting aspect of the Church’s Brief and would merit its own separate analysis. In short, the Church argued that church autonomy to direct its own affairs, as guaranteed in international law and in the self-determination principle of German law, is essential in a democratic society. This principle of autonomy is so important that “The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it” (para. 113); “Indeed, 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 [freedom of religion] of the Convention affords” (para. 115).

This leads to the point that, “If religious autonomy were not preserved State supremacy would be the outcome. State neutrality would be compromised, as would the undisturbed authenticity of religious life and practice. Separation of State and religious communities would become impossible” (para. 116, emphasis added). In other words, the reason that religious pluralism is indispensable is because without it (as based on the autonomy of religious communities), the separation of church and state would be impossible. In making this argument, the Church underscores the desirability of the separation of church and state and equates it with the religious pluralism that is literally “indissociable from a democratic society”.

This separation of church and state is desirable because it allows religious communities to conduct their internal affairs according to their own interpretations of their own doctrines. “The first requirement for pluralism is to respect the different identities of religious communities. Without respect for the differences of religious communities from general secular behavior, pluralism would be an empty word, and would lack institutional grounding” (para. 118). Thus, the teachings of the Church, including teachings relating to the seriousness of adultery as an excommunicable sin, “must be respected by secular authorities as a part of the very identity of the Church. This respect must be rendered even if secular law and secular convictions do not agree with such a belief, or hold that more lax standards should apply to society at large” (para. 121). The point of this argument is that “A religious community should not be forced to guess when it is free to require its employees to follow Church teachings, and when (or with respect to what class of employees) it may be required to compromise those standards” (para. 123). Thus, ultimately, “Secular courts are not free to substitute their judgment for the religious judgment of the community” (para. 124), meaning that religious organizations should not have “the burden of predicting which of their activities a secular court might consider religious” (para. 145, citing Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327).

The end result is a “more complete separation” of church and state, an outcome that is implied to be desirable, rather than any impermissible entanglement of the two. The lengthy argument about this point in the Church’s Brief, explaining the significance and necessity of church autonomy in a democratic society, constitutes a very strong endorsement of a robust separation of church and state in the interest of church autonomy.

Comments

  1. Aaron Brooks says:

    Very interesting article. It’s especially interesting how the two cases seemed similar, but were ruled on differently.

  2. I love it when Fowles pulls out the ECHR geekery.

  3. Thanks for the write-up John. I think your notes about the Church’s position regarding religious pluralism are very interesting. For those interested in history of the temple recommend, which was apparently key to this decision, check out Ed Kimball’s article in JMH.

  4. Always good to be reminded that the church is international. This is a big deal, and should give members in Europe a lot of hope–their governments are willing to protect their rights, even if they are a very small minority religion (less than 1 out of every 2,000 people in Germany are members).

    Any idea of why the church hired Professor Robbers from Trier to write the brief?

  5. StillConfused says:

    I find this very interesting. I live in Utah which is an at-will employment state. Basically, you can be fired for any or no reason. But apparently firing people over there is a huge deal. If the Church had lost, does that mean he still works there… or just that they have to continue to pay him? I am surprised this guy made such a big deal because now his adultery is known internationally.

    Also, I think it is clearer what the penalties for certain actions are in the LDS Church versus the Catholic Church.

  6. Jonathan Green says:

    Thanks, John. This is fascinating, even (especially) the note footnotes.

  7. john willis says:

    FYI— The U.S. Supreme Court reached the same result in a similar case in 1987. Corporation of Presiding Bishop V. Amos 483 U.S. 327 (1987).

    The plaintiff Amos was a maintanence engineer at the old Deseret Gymnaisium (the Conference Center now stand on the site. ) While he wasn’t excommunicated, he for whatever reason did not have a Temple Recomend and was fired.

    It is reassuring to know that courts in different legal traditions can reach the “right” result. Great legal minds think alike I guess.

  8. Nate Oman says:

    Great summary. Thanks!

  9. Thanks for the summary. I very much appreciate the international perspective. I’m sure we’ll hear more of this from JRCLS, and having read your post will make me seem cutting edge.

  10. S.P. Bailey says:

    Nice work, John. Interesting stuff.

  11. Kevin Barney says:

    Excellent.

  12. Europe consumes over 25 percent of global church legal resources for only 100k members, according to a friend who did legal work for the church in Europe. Very hard to function here.

  13. Thanks all.

    Tim, I am sure that Prof. Dr. Robbers was involved because of his close ties with Prof. Cole Durham and the work the two of them do in tracking religious freedom issues and related issues of constitutional law worldwide.

    One question that occurred to me while reviewing this material and especially the Church’s Brief was whether this strengthening of religious freedom is a trend that can be observed more broadly in the developed world or just an isolated incident.

    Also, as J. pointed out in # 3, one of the most fascinating aspects for me of the Church’s arguments in its Brief was its position on religious pluralism and its presentation of the separation of church and state as indispensable. I tend to agree on both counts but often get very strong vibes from a lot of Mormons that neither is particularly welcome.

  14. This really is an excellent write up and your notes about religious pluralism are very enlightening. My superficial knowledge in this area suggests that there has been a major shift in the Church’s rhetoric since the 1890’s; and I wonder how much the influence of Cole Durham et al. have had on the acceleration of that change over the last few years.

  15. Last Lemming says:

    So does the Catholic Church get a second bite at the apple in the labor courts? Would they have to initiate some enforceable behavioral standard for all members in order to prevail? (Going to confession before taking communion doesn’t count. That isn’t really enforceable.)

  16. re # 15, I think it was more a matter of bad facts for the Schüth case. Not only was there no temple recommend evidencing what the stanards are and referred to in the employment contract but also the man was in a de facto family situation since he lived with the other woman (whereas Obst was not). Also, Schüth’s age and ability to get another job in Protestant churches was taken into account and weighed in his favor. The bottom line, though, is that the ECHR did not find a sufficient balancing of these factors relevant to Schüth’s Article 8 interests in the German labor courts’ treatment of his case. Even on the same facts it is possible that the Catholic Church could have prevailed if there had been such a rigorous balancing analysis in the record. See the second paragraph of my footnote # 2 for my thoughts on the possible irony of this.

  17. Well put together John F.

    It seems that the Amos case has been repeated in Europe.

  18. John F.

    I suspect that there are no real specific conduct standards for employees of the catholic church. We are pretty unique with our TR’s.

  19. John F,

    While the Court accepted that in signing the employment contract, Mr Schüth 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 abstinence in the event of separation or divorce. . . .

    Could it have been in the Schüth case that he was separated but the marriage was not annulled? Since the Catholic Church does not allow divorce and annulment is difficult to obtain, a person in Schüth’s position, if he ever wanted to have a new physical relationship with a woman, might have been forced to violate the Church’s teachings. This might explain the finding of the court in Schüth’s case.

    This reminds me of …. prop 8. (Everything reminds me of prop 8)

  20. MikeInWeHo says:

    re: 18
    You’re right about the TR being unique, bbell. It’s so interesting. They should rename it The Certified Faithful Mormon card, or something like that. Better yet, maybe there could be three levels like in a frequent flier program (Silver, Gold, Platinum). That would work in a lot of ways. : )

  21. I was thinking maybe Marriott could create a program like that :)

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