A Storm Is Brewing in the Americas

A sexual orientation discrimination case could upend religious freedom for all the countries in the Americas in the near future . . . and nobody knows about it.

The modern history of the western hemisphere―and especially of Central and South America―is deeply marked by the scourge of dictatorships and by the struggle for civil and political rights. The churches of the Americas have served, for the most part, as bulwarks of human dignity against state-sponsored murder and torture. Many acute problems have faced the region, but religious persecution, thankfully, has not been among them. Regrettably, this is perhaps about to change.

A case that could profoundly affect the autonomy of religious institutions all across the hemisphere has slowly and quietly made its way through the Inter-American Human Rights System. This system is an institutional arrangement mostly unknown to American readers. It is composed of the Inter-American Human Rights Commission based in Washington, D.C., and the Inter-American Court of Human Rights based in San José, Costa Rica.

Sandra Pavez v. Chile

The case in question is that of Sandra Pavez v. Chile. Last June, the statutory deadline for the Commission to decide whether to file suit against Chile passed, but the former has yet to decide what action to pursue. If it hands down a conviction against Chile, it will send shockwaves across the region, because it would bolster the movement to deprive all churches of their right to choose their own leaders, to choose those who hold teaching positions within their institutions, and to choose those who can act in the church’s name.

What’s the case about? Ms. Pavez taught a religion class on Catholicism in a state-run public school in the municipality of San Bernardo. In the Chilean educational system, all schools are required to offer religion classes as part of the regular curriculum. Parents are entitled to opt out of the classes for their children, and each school is required to cater to all religious traditions present within the student body.

All religion teachers are required to obtain a certificate from their religious community that confirms their fitness to teach a class on that religion. All churches are required to inform the state’s education officials of the identity of the authority who issues the certificate. In the case of the Roman Catholic Church, the authority is the diocesan bishop who has jurisdiction over the territory in which the school is located. A validly certified teacher is eligible to teach a class on the religion in question in any school. In public schools, the teacher’s salary is paid with state funds. As an employee, the teacher’s relation to the school is governed by the “Teacher’s Statute,” which applies to all teachers in public and private-but-subsidized schools.

Ms. Pavez held the post of Catholic religion teacher in the same school for almost twenty years. In 2007, the local diocese became aware that Ms. Pavez had publicly entered into a romantic same-sex relationship, causing public scandal among her peers and within the diocese and its members. After several interviews, in which the diocese indicated that if she persisted in her choice it would have to revoke her certificate, Ms. Pavez refused to yield, and thus the diocese had no choice but to withdraw her certification. As a consequence, the school could not lawfully retain her as a religion teacher, although it could keep her on as part of the school teaching staff, and it did. Not only that, the school promoted her to the post of Inspector General, a position of leadership in the school.

Aided by local LGBT organizations, Ms. Pavez filed suit against the San Bernardo Diocese, falsely claiming that she had been terminated from her employment on account of the Church’s decision. In her suit she alleged that the revocation of her certificate had infringed upon her fundamental rights to non-discrimination, to respect for her private life and to protection against arbitrary or abusive interventions against it, and to be free to work without discrimination. Both the San Miguel Court of Appeals and the Supreme Court of Chile rejected her claim on several grounds, especially that the state has no jurisdiction over the decisions of the Roman Catholic Church―or any other religion―regarding who might be apt to represent the church as a teacher of religion.

Finally, and despite the fact that she did not in fact lose her job over the incident, Ms. Pavez decided to file a complaint with the Inter-American Human Rights Commission. This time, however, she sued the state, alleging that it allowed her human rights to be violated by the Diocese. In March of this year, and after eleven years of processing the complaint, the Commission responded, finding in favor of Ms. Pavez.

In its report, the Commission concluded that, because the state had allowed the Church to enforce its own rules and doctrine with respect to a Church member seeking to act in the Church’s name, it had infringed Ms. Pavez’s rights under the American Convention on Human Rights. In particular it cited her rights to private life and autonomy; gaining access to and remaining in public positions on conditions equal to those of others; equality under the law; and the right to work. It stated that under the Convention she had a right to retain her position as a Catholic religion teacher, despite any contrary judgment of the authorities of the Catholic Church.

Importantly, the Commission went so far as to affirm, in dicta for future cases, that its conclusions in favor of Ms. Pavez would apply even in cases of private employment, because under the case law of the Inter-American Court of Human Rights, the principle of non-discrimination applies horizontally to disputes among private parties as well. In other words, under this precedent, states should forbid private Catholic, Jewish, Muslim, or Evangelical schools from enforcing their own doctrines by their choice of who teaches them.

The Commission issued three major recommendations to Chile. First, that it should reinstate Ms. Pavez to her former post as a religion teacher, regardless of her lack of aptness in the eyes of the Church. Second, that it should reform the existing legislation that had allowed the Church to revoke her certificate, so that it would no longer be applied in a “discriminatory” manner. And third, that the State had to “train” those persons in charge of assessing the aptness of the teachers―in this case, the bishops of the Catholic Church―in the scope and content of the principle of equality and non-discrimination, especially its protection of sexual orientation. Put another way, the Commission is calling on the state to “re-educate” the bishops on sexuality and discrimination, in order to make them fall in line with its agenda.

Those familiar with these issues will note that the Commission’s findings are fundamentally at odds with the conclusions reached by other courts regarding the same rights and interests. Most notably, it contradicts both the European Court of Human Rights (ECHR) and the US Supreme Court.

The landmark European case is that of Fernandez Martinez v. Spain, involving a former priest who had been given a dispensation to get married. He later became a Catholic religion teacher in a public school, under a legal scheme similar to that of Chile, with the crucial distinction that, in Spain, schools are required to hire particular teachers that the diocese instructs them to hire (unlike in Chile, where the schools are free to hire from a pool of eligible candidates). Mr. Fernandez was a public and outspoken critic of Church doctrine on many issues, which prompted the Diocese to withdraw his approval for teaching and, consequently, to require that he be fired from the school. The Grand Chamber of the ECHR held that, while the state’s decision to fire Fernandez in response to the Church’s withdrawal of approval did affect his right to private life and other rights, such interventions were both legitimate and proportionate. Most notably, the majority acknowledged that, because of their autonomy, religious communities could demand a certain degree of loyalty from those working for them or representing them. Thus, it is not unreasonable for a church or religious community to expect the loyalty of religious education teachers in particular, as they may be regarded as representatives of the church. Church autonomy carried the day.

US Supreme Court observers are familiar with the Hosanna-Tabor case decided in 2012. There the Court unanimously ruled that the First Amendment entails a “ministerial exception” that benefits churches in terms of their freedom to select their ministers. While the fact pattern of the case is different, the Hosanna-Tabor precedent establishes a principle that would apply nonetheless to the Pavez case. Both the separation of church and state and the free exercise of religion preserve the autonomy of churches in deciding who may act in their name, with the state having no jurisdiction to question such decisions made on religious grounds. As the US Supreme Court explained, “[R]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Such interference, the Court concluded, violates both the Free Exercise Clause of the First Amendment and the Establishment Clause.

Now, the vast majority of Americans reading this may be wondering why they should care for what’s happening to a country on the other end of the continent.

Well, it is true that the United States is not a full member of the Inter-American System on Human Rights—it has never ratified the American Convention on Human Rights and is therefore not subject to the Inter-American Court’s jurisdiction. And while it is also the case that the Inter-American Commission has not been a major player in shaping US policy in the past, the US is subject to the Commission’s jurisdiction, recommendations, and various forms of political pressure. And these bodies will most certainly try to expand their reach to influence US law and politics.

It is equally important to consider that even though an adverse ruling against Chile by the Court would be felt geographically only in those states that are under the Inter-American Court’s jurisdiction, it would nonetheless have a profound impact on the work of many missionary churches in which hundreds of thousands of Americans of all faith traditions take part in Latin America and the Caribbean. Local activists will surely use such precedent as a bludgeon to pressure governments and legislatures into compliance, affecting church autonomy.

The Commission is currently in the process of making the decision whether to actually sue Chile at the Inter-American Court. If it does indeed make the decision to send this case to the Court, it will be up to the seven judges who make up the tribunal to ultimately decide the matter. But seeing that this has been the most progressive and pro-LGBTI rights Court in the Inter-American System’s history, the prospect of the matter is not looking good. The question whether or not religious institutions will continue to enjoy their freedom from state intervention and control hangs dangerously in the balance.

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