On the european test bench

German state church law comes under European scrutiny this year. No fewer than six complaints against the federal government are awaiting a ruling at the Strasbourg Human Rights Court. Germany has to justify the freedom that churches enjoy through the so-called right of self-determination. In service law, it allows church employers their own rules on protection against dismissal. They can also dismiss employees for their behavior out of office. A violation of the European Convention on Human Rights? At least that is the opinion of Bernhard Schuth, a dismissed church musician from the diocese of Essen. He is one of six complainants before the European Court of Human Rights. Strasbourg had collected the individual cases for years and got the proceedings rolling together. After statements from the plaintiffs, answers from the federal government and further statements from the complainants, the judges could now hear the case conclusively at any time. Schuth complained in 2003 about violation of his right to privacy. He worked for twelve years as a deanery church musician in Essen, until the parish gave him notice in 1997. Word had spread that the musician, who had been living separately from his wife since1994 , was expecting a child with a new partner. The municipality saw the extra-marital paternity as a violation of so-called "loyalty obligations". The Catholic Church expects from its employees the "personal testimony of life" – and "serious personal moral misconduct" are grounds for dismissal according to the "Basic Regulations of Church Service" of 1994. Schuth's lawyer Ulrike Muhr, who is also his life partner, sees a line crossed in her client's case. "This is the first case in which a church employer has used extramarital sex as grounds for termination," she says. A de-long due to "this off-duty behavior incisively violates private life". In Germany, Schuth has already gone through the judicial instances up to the Federal Constitutional Court – unsuccessfully. All courts saw the termination as legal, referred to the churches' right to self-determination. This was already granted in the Paulskirchenverfang 160 years ago, is enshrined in the Basic Law and therefore enjoys a high level of protection. A 1985 ruling by the Federal Constitutional Court left it up to churches to judge for themselves what loyalties they require of their employees. On this principle decision Karlsruhe referred then 2002 also in the case Schuth and rejected its Verfangsbeschwerde because of "lack of prospect of success". Schuth then filed a complaint with the European Court of Human Rights. The position of the German government, which now has to answer in Strasbourg, is clear, as a glance at its statement shows. The Federal Ministry of Justice argues that Schuth signed the employment contract voluntarily, knew about the ecclesiastical requirements of the duties of loyalty and thus also agreed to it. The German courts had sufficiently weighed the human right with the church's right to self-determination in the assessment of the dismissal. Now Strasbourg must decide. Even if the Federal Republic sits there on the dock and no church employer, the churches follow the happening with large interest. The fact that, in addition to the Schuth case, there are also the cases of three evangelical Christians, a Mormon and a couple dismissed by the Salvation Army, brings the churches together across denominational lines. In the summer they exchanged views in the Federal Ministry of Justice. "In legal matters, ecumenism works great. We're all in the same boat," says Wolfgang Rufner, director of the Institute for State-Church Law of Germany's dioceses. In each individual case, the Strasbourg court must decide whether the guaranteed special freedom of the German churches violates the European Convention on Human Rights. A novelty in the Court's ten-year legal history, says Viennese canon lawyer Christoph Grabenwarter. It represents the diocese of Essen as a third party in the Schuth case. A victory for the plaintiff side, according to Grabenwarter, would perhaps have far-reaching consequences beyond possible compensation payments on the part of the Federal Republic: "It would interfere with a regulatory system that has been functioning for more than 20 years regarding the churches' obligations of loyalty."

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