October 2, 2017
Guest post by Paul Coleman, English solicitor, Executive Director for ADF International
We live in an age of increased government regulation, in which more and more areas of private life fall within the jurisdiction of the state. Whether we’re talking about family life, ancient civil liberties such as free speech, or the rules governing private contracts, the power of the state appears to be expanding.
In this context, the idea that religious communities can operate autonomously without government control is increasingly controversial. Yet that is exactly what the Grand Chamber of the European Court of Human Rights (ECHR) ruled last week in the major case of Nagy v. Hungary.
What began in 2005 as a seemingly insignificant case from the small parish of Gödöll? on the outskirts of Budapest, passed through seven courts over a twelve-year period to become a precedent-setting case at the Grand Chamber of the ECHR, establishing important legal principles for over 800 million people in 47 countries. We intervened at both levels of the ECHR for the reasons outlined here.
The facts of the case are straightforward. For several years, the applicant served as a minister for the Reformed Church of Hungary. He faced church disciplinary proceedings for statements made in a local newspaper, undertook a period of suspension during which time his service allowance was reduced, and he was ultimately removed from service. This decision was upheld by two ecclesiastical courts. According to the internal rules of the church, this is where the dispute should have ended.
However, Mr. Nagy then turned to the secular labour courts, arguing that his church service was analogous to employment and should be adjudicated by the state. The case was dismissed at every stage of the Hungarian court system on the basis that, as noted by the Supreme Court, “The Parties established between themselves a pastoral service relationship, governed by ecclesiastical law.” In other words, the disciplinary matter was between a church and its minister and the appropriate forum for such a dispute was the ecclesiastical courts, not the state courts.
Mr. Nagy appealed to the ECHR, arguing that the state’s rejection of his case amounted to a violation of Article 6 of the Convention (right to a fair trial). On 14 September 2017, the Grand Chamber held by ten votes to seven that there had been no violation of the Convention, confirming an earlier lower Chamber ruling that was decided by four votes to three.
While the facts of the case are hardly exhilarating, the subject matter involves the complicated and often controversial relationship between church and state, and for that reason, the case is highly significant. In the last decade, the ECHR has greatly developed its case law on church/state relations, and one principle that has become increasingly clear is that of “church autonomy” – the idea that subject to limited exceptions, churches are free to manage their internal affairs without undue state interference. Nagy builds on several other cases all broadly saying the same thing: church decisions, particularly regarding the discipline of their leaders, should not be overruled by state courts without very good reason.
The principle of church autonomy is far from new. Over 800 years ago the Magna Carta was signed and its first article (and one that remains in force today) states: “the Church of England shall be free, and shall have her whole Rights and Liberties inviolable.” In the centuries that followed, this principle was tested to the limit and often broken. Later, as pilgrims set sail aboard the Mayflower to find religious freedom in a new land, the First Amendment to the US Constitution was passed, recognizing the inalienable right to religious freedom. Hence, whether and to what extent churches can act free from state control has shaped not only the history of Europe, but much of the Western world.
Yet not everyone supports expansive church freedom. Seven judges opposed the decision, and their dissenting opinions ran longer than the judgment itself. Four judges argued that state power was being reduced because of the decision. They feared that as a result, state remedies “remain out of reach to some legal disputes.” They concluded that, “The logic of this judgment is that where a Church (related or unrelated to doctrinal dictates) decides to create ecclesiastical jurisdiction, the State gives up its own, as if the Church were the sovereign power to determine who has jurisdiction in the State.” One judge stated that, “The notion of Church autonomy cannot be used as a trump card against all other competing claims, otherwise the human dignity of those serving the Church would be at stake.” Another argued that although the church and state were separate under the Hungarian Constitution, the church minister was not the church, and the state was required to settle his conflict with the church. He paid taxes to the state; therefore, he was entitled to the remedies of the state.
Although expressed in different ways, the seven dissenting judges all sought to increase the power of the state and reduce that of the church. The idea that some disputes were “out of reach” was unconscionable to them.
No real alternatives
However, it is the recognition that some things are “out of reach” of the state – and even powerful human rights courts – that makes the Nagy decision so important. While Mr. Nagy may feel aggrieved by the church he served, and then let down by the lack of state intervention, and ultimately the lack of ECHR action to right what he believed to be a wrong, the alternative for other religious communities existing within the Court’s jurisdiction would have been far worse. Opening up a church’s internal decision-making processes to the ever-lengthening tentacles of the State and international courts would not end well for the church; it never does. For that reason, the Grand Chamber’s decision is extremely important and one to be commended.
Paul Coleman is also author of the book Censored.Author : Guest contributor