Bishops decide on changes: Church strengthens rights of queer employees

Until now, anyone who works for the Catholic Church has been subject to strict labor law. Private life could also become a reason for termination. But now the bishops have decided to make changes.

The German Christian churches employ more than a million people. This makes them the largest employers after the state – with a special position. You can go your own way in labor law. The Catholic Church also makes use of this. Now the plenary assembly of the Association of German Dioceses (VDD) has decided on changes for the 750,000 employees – and, among other things, strengthened the rights of queer employees.

“Explicitly, as never before, diversity in church institutions is recognized as an enrichment,” said the German Bishops’ Conference (DBK). “All employees, regardless of their specific tasks, their origin, their religion, their age, their disability, their gender, their sexual identity and their way of life can be representatives of God’s unconditional love and thus of a church that serves people.” The only condition is “a positive attitude and openness towards the message of the gospel”.

Historical roots in the Weimar Republic

The religious communities had already been granted a special position in the Weimar Reich Constitution of 1919. Individual provisions of the Weimar Reich Constitution on the relationship between the state and religious communities expressly continue to apply under the Basic Law (GG).

From these regulations and the freedom of religion from Article 4 GG, the Federal Constitutional Court (BVerfG) derives a constitutionally protected right of religious communities to regulate their own affairs. This so-called right of self-determination allows the churches to shape labor law according to their ideas.

What does the special position look like?

State regulations such as statutory protection against dismissal also apply to church employment contracts. However, the churches may demand of their employees, for example, that they observe the basic principles of the church’s doctrine of faith and, in the event of a violation, may warn them or even fire them.

Both the Catholic and the Protestant churches have sets of rules in which they require loyal behavior from their employees. What exactly which employees can be obliged to do is controversial: According to the Catholic faith, particularly strict rules of conduct apply to employees. These are specified in the so-called “Basic Order of Church Service”. They are then obliged to recognize and observe the principles of Catholic faith and morals. Anyone who publicly acts against “fundamental principles” of the Catholic Church or commits “serious personal moral misconduct” must expect consequences under employment law. That’s why there were always legal disputes.

Legal disputes due to strict rules of conduct

In Germany, the Federal Constitutional Court and the Federal Labor Court (BAG) have initially confirmed the special rights of the Christian churches several times in the past. In the 1980s, for example, the Federal Constitutional Court considered the dismissal of an assistant doctor to be lawful because he had publicly opposed the Catholic Church’s ban on abortion.

Referring to this case law, the BAG also approved the dismissal of a Catholic teacher who worked for a church because she had married a divorced man in a civil registry office. It also decided that the chief physician in a Catholic hospital may be dismissed if his treatment methods – in this case artificial insemination – violate the fundamental principles of applicable church law.

In recent years, however, the case law of the European Court of Justice (ECJ) has caused the previous German model to falter. The ECJ is responsible for interpreting EU law. In this respect, its judgments are binding for all courts in the EU member states.

ECJ: Religious rules only permissible for certain professions

The case of a Catholic chief physician from Düsseldorf in 2018 prompted the ECJ to take a detailed position on the church’s requirements for employees. The doctor’s employer, a hospital run by the Catholic Church, had given him notice. The reason: after his first marriage, which was also a church one, ended in divorce, the doctor married a second time.

According to Catholic law, a church marriage is indissoluble. The doctor’s second marriage is therefore invalid. For an executive of a Catholic employer, such a marriage is a breach of labor law that entitles him to dismissal.

The case went through all instances. The BAG submitted the case to the ECJ. He finally decided in favor of the doctor who had been fired: Only if the religious rules are also important for the requirements of the specific profession can the church demand that its employees comply with them under labor law. Everything else violates the Equal Treatment Directive of EU law.

The German BAG must decide whether or not this requirement applies in the specific case. However, the judges from Luxembourg expressed clear doubts as to whether the activity of the chief physician justifies that he is not allowed to remarry privately. Measured against these specifications, the BAG finally agreed with the dismissed person.

Since the dismissal of the chief physician, which was illegal according to the ECJ, the so-called basic order has been liberalized within the church. Since 2016, it has therefore been the case that church and Caritas employees should only be dismissed in exceptional cases if they get married again in a civil registry office after a divorce or register a same-sex civil partnership. And now a further liberalization has been decided.