Academic journal article Notre Dame Law Review

Labor in Faith: A Comparative Analysis of Hosanna-Tabor V. EEOC through the European Court of Human Rights' Religious Employer Jurisprudence

Academic journal article Notre Dame Law Review

Labor in Faith: A Comparative Analysis of Hosanna-Tabor V. EEOC through the European Court of Human Rights' Religious Employer Jurisprudence

Article excerpt

   Who so upon him selfe will take the skill    True Justice unto people to divide,    Had neede have mightie hands, for to fulfill    That, which he doth with righteous doome decide,    And for to maister wrong and puissant pride. (1) 


The United States Supreme Court and the European Court of Human Rights recently have decided cases about religious organizations' freedom to decide whom they employ, underscoring this question's vitality and complexity. Absent here are the cultural complications present in more contentious religious rulings. Some of Europe's oldest established religions have found their employment decisions scrutinized at the European Court of Human Rights (ECtHR or European Court). (2) In the United States, meanwhile, a Lutheran school was the Supreme Court's subject. (3) European Court cases have involved the Protestant and Catholic churches in Germany, known as the "big Churches," (4) and the Catholic Church in Spain, which brought Catholicism to the Americas. (5) Only the Church of Jesus Christ of Latter-day Saints, with 38,992 members in Germany currently, is relatively new to its host country. (6)

While any analysis must respect differences in the two courts' structures, scopes, purposes, cultural sensibilities, and philosophical backgrounds, (7) a comparison elucidates the strengths and potential weaknesses of American jurisprudence. (8) Both courts are constitutional in nature: the Supreme Court interprets its Constitution, and the European Court of Human Rights largely treats its role in applying the European Convention on Human Rights (9) (the European Convention or the Convention) as a constitutional one. (10) Indeed, some have argued that the European Court has developed "an Americanstyle body of constitutional law, comparable in its level of ambition." (11)

The U.S. Constitution and the European Convention historically left religious freedom to the states. (12) The European Court previously gave states, which have diverse religious affiliations, broad deference for religious issues before adopting its current, stricter jurisprudence. (13) In the United States' first 150 years under the Constitution, the states reserved power over religious liberty determinations. (14) Established religions existed in seven states at the time of the First Amendment's ratification and their vestiges remained into the 19th century. (15) Only in 1947, twelve years before the European Court started operation, did the Supreme Court incorporate the Fourteenth Amendment Due Process Clause with the First Amendment religion clauses to unify these principles nationally. (16)

This Note uses the European Court of Human Rights' framework to analyze the Supreme Court's decision in Hosanna-Tabor v. Equal Employment Opportunity Commission, which recognizes a "ministerial exception" for religious organizations as a defense to certain employment claims. (17) It argues that the unanimous Supreme Court in Hosanna-Tabor examines factors similar to those of its European counterpart, but protects religious liberties more robustly by avoiding some of the European Court's preoccupations. (18) Yet, the European Court's assessment anticipates the difficulties of applying the "ministerial exception" in future cases.

Part I of this Note compares the European Court of Human Rights and the Supreme Court, focusing on the courts' preliminary interpretive principles, to contextualize the two courts' decisions. Part II analyzes four recent European Court cases involving religious organizations that terminate or fail to renew an employee's contract for violations of religious tenets. It enumerates seven factors used by the ECtHR in determining whether a national court adequately has balanced the rights of employees and religious employers. (19) Four factors consider the religious employer: (1) the alignment of the religious employer's asserted value with the host country's laws and society, (2) the beliefs centrality in the employer's religious system, (3) the importance of the individual's position to the religious institution's affairs and image, and (4) the reasonableness of the employer's concern that the employee's actions harmed its credibility. …

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