Home > Workplace > Spain > 2007-02-15 - Constitutional Court, n. 38/2007

2007-02-15 - Constitutional Court, n. 38/2007

Workplace · Spain · Dismissal · Faith-Based Organisation

Dismissal of teachers of religion

Key facts of the case - Appeal for unconstitutionality of section D.A 2ª of the Spanish Education Act of 1990 (Ley Orgánica de ordenación general del sistema educativo) in relation to Articles III, VI and VII of the 1979 Agreement between Spain and the Holy See on education and cultural matters (Acuerdo sobre enseñanza y asuntos culturales de 1979 entre España y la Santa Sede), for a possible breach of Articles 9.3, 14, 16.3, 24.1 y 103.3 of the Spanish Constitution.
The plaintiff, who had been a teacher of religion for 10 years, was notified that her contract would not be renewed due to the fact that she had a personal relationship with a man other than her husband, from whom she was separated. The plaintiff also alleges violation of her right to privacy.
The matter is limited to two legal alternatives: either the parties are bound by a private labour contract or the employer is a public authority.
Both alternatives seem hardly compatible with the specific legal regulation in force for teachers of religion, with the Bishops’ decisions regarding the employment and renewal of contracts of teachers of religion and with the fact that access to and permanency in public posts is subject to confessional and religious criteria.

Main reasoning of the court - The claim is dismissed. The civil effects of an ecclesiastical decision are not immune to the survey of courts. Courts must endeavour to find practicable criteria to combine the right of freedom of religion and the principle of neutrality of the State with the protection of the fundamental and labour rights of the teachers.
Once it has been established that the decision is based solely on religious reasons, the court must balance the conflicting fundamental rights, if any, in order to establish to what degree the right of religious freedom manifested in the teaching of religion in educational centres may impair the fundamental rights of employees in relation to their jobs.
Furthermore, the power acknowledged to religions authorities to establish who is suitable to teach their Church’s creed is a guarantee of the freedom of Churches to disseminate their doctrine without interference from the State, provided fundamental rights, public liberties and constitutional values and principles are respected.

Comment - The civil effects of an ecclesiastical decision are not immune to judicial scrutiny. Such decisions must in any case respect constitutional rights, liberties and principles.