The European Court of Justice has ruled: A Catholic hospital's dismissal of a chief medical officer for remarriage may constitute "prohibited discrimination" based on religion. But the case is not over yet.
Interviewer: The requirement that a Catholic chief physician observe the "sacred and indissoluble character" of marriage does not appear to be a justified professional requirement, according to a ruling published today by the European Court of Justice. In the present case, however, the German Federal Labor Court would have to decide. A Catholic doctor who had been dismissed by a Catholic hospital in Dusseldorf because he had remarried in a civil ceremony after a divorce had filed a lawsuit.
The chief physician believes that his dismissal violates the principle of equal treatment. He says that a non-Catholic employee would not be dismissed in such a situation. How do you classify the whole?
Prof. Thomas Schuller (canon lawyer from Munster): The case has been dragging on for a long time and has caused a stir. The reason was actually that at that time the church employer in Dusseldorf terminated him after a certain period of time. It had already been known that he was in a second marriage. This was tolerated at first. But at a certain point, he was then terminated. At the same time, however, in the same position, chief physicians who were Protestant and had divorced by remarriage were allowed to remain in employment. He is taking action against this.
It is a long legal dispute, in which the various courts have certified to the church that they are indeed allowed to terminate people in the last consequence because of a violation of the lifestyle with leading employees.
Only in this case, they did not stick to their own rules by tolerating it too long, for one thing. Secondly, when it was noticed, it was then sanctioned too harshly. In addition, the case was treated unequally. Here's the background to this judicial history.
Interviewer: In 2015, the German Bishops' Conference liberalized church labor law. What exactly has been changed??
Schuller: One has, as far as this situation with Catholic employees is concerned, especially with those who are also in leading positions, but also for all others, this point has been defused.
Thus, it has been clearly said, with regard to the jurisprudence that has been carried out by the state courts, that it is necessary to weigh a wide variety of aspects in such a case. How is the breach of loyalty to be assessed? How it affects the ministry community? Is it hard to give credit to those affected? Has he or she been abandoned or was the marriage already broken up? How endangered is the external image of the whole institution? In addition, there are also aspects such as the family situation. What chances does the person still have on the labor market??
One has reacted here to the corresponding jurisdiction of the labor courts. I think that everyone who is involved in the matter can see that. If the case had arisen in 2015 under the new church labor law, this head physician in Dusseldorf would certainly not have been dismissed.
Interviewer: That is, today is also judged rather after individual cases specifically. The ecclesiastical labor law as a whole, however, is a thorn in the side of some people. Why?
Schuller: Because it is very unusual that at all things in private life play a role for the labor law. With whom I am married and how? Or live in a same-sex marriage? That's another point. There the secular public says, it can't be acceptable that with this large employer Catholic church – but just as with the Protestant church, there somewhat more liberal – things in the private life should be reason that one says, here an employee does not identify with the goals of the church and one terminates him. Let the private be private and let the official be official.
Here, there is very little acceptance of a special right of the church, the right of self-determination, to impose special loyalty obligations on its employees, to impose special behavior even in the private sphere. Nobody understands that anymore. Hardly anyone in the inner-church realm understands that either.
Interviewer: What happens now in legal terms??
Schuller: It is important to note that this ruling is not the end point of the decision, but the Federal Labor Court has had the case referred back to it by the Federal Constitutional Court with the stipulation that the churches' right to self-determination be respected.
The Federal Labor Court had already decided the case to the disadvantage of the church and was now somewhat piqued and has now asked the European Court of Justice to determine whether one must actually weight the right of self-determination of the church as strongly as the Federal Labor Court did or whether one must rather look more strongly under the perspective of the European anti-discrimination directives, which were transferred everywhere into national law, whether the equal treatment is carried out.
It is necessary to see what facts justify the introduction of unequal treatment between different groups of employees in the hiring as well as in the dismissal of employees. What the European Court of Justice decides, the Federal Labor Court will then have to evaluate and then make a decision again.
The interview was conducted by Verena Troster.