Ministerial Exception Put to the Test in Latin America

COMMENTARY: A decision in the Sandra Pavez case in Chile will have broad implications for the protection of religious liberty globally.

Cathedral of San Bernardo, Chile.
Cathedral of San Bernardo, Chile. (photo: Wikimedia Commons)

Reconciling respect for Catholic teaching on sexuality with the demands of the LGBT movement is aided by a robust protection of religious freedom — not just in the United States, but all over the world. Take, for example, the case of a gay religion teacher in Chile. 

For many years the Diocese of San Bernardo certified Sandra Pavez to teach religion in the local public schools. Under Chilean law, local dioceses grant certification for religion teachers at government-run schools in this predominantly Catholic country. 

In 2007, Pavez told the diocesan vicar of education that she was in a same-sex relationship. Pointing to the Church’s teaching regarding human sexuality and to canon law, the diocese revoked Pavez’s certification. Interestingly, the school retained Pavez as a teacher for other material and promoted her to the post of inspector general — a prestigious administrative role. 

Pavez, however, was not pleased. She unsuccessfully sued the diocese in Chilean court. Pavez was adamant that the diocese be sanctioned. She filed a complaint against Chile with the Inter-American Commission on Human Rights, a body of the Organization of American States (OAS) whose mission is to “promote and protect human rights in the American hemisphere.” Pavez claims that Chile violated her right to “no arbitrary interference in private life” as guaranteed by the grandly named American Convention on Human Rights. 

In case you are not up to speed on international treaties, the American Convention on Human Rights is an international treaty adopted in 1969 that outlines the rights and liberties that must be respected by its signatories. It has been ratified by an impressive list of countries, only two of which (in the West Indies) are English-speaking: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and Uruguay.

No Cuba, you'll notice, and no Venezuela. During the presidency of socialist Hugo Chávez, Venezuela denounced the convention to the secretary general of the OAS. 

In addition to the convention’s amorphous “interference in private rights” cited by Pavez, it protects the right to “profess and disseminate one’s religion … together with others, in public or private.” 

In December 2018, the commission ruled in favor of Pavez. Chile appealed the case to the Inter-American Court of Human Rights (IACHR), “an autonomous legal institution whose objective is to interpret and apply the American Convention.” The IACHR held a public hearing in San José, Costa Rica, last week.

Becket law, the Washington, D.C.-based religious liberty law firm, filed a friend of the court brief with the IACHR before the hearing. In addition to its successful advocacy in the Supreme Court on behalf of the Little Sisters of the Poor, Becket has protected employment decisions made by religious organizations from government scrutiny. In 2012 and again last summer, the group was victorious in the Supreme Court in its defense of the “ministerial exception.” This doctrine shields religious institutions from employment-related lawsuits brought by “ministerial” employees. Such employees, broadly defined by the actual functions of the job and not merely its title, play a crucial role in passing on the faith. The Supreme Court ruled that the religion teachers in both cases were covered by the exception. As a result, courts were barred entirely from hearing the lawsuits. 

Becket’s amicus brief to the IACHR offers a comparative look at the robust protection for autonomy of religious institutions to choose their leaders, ministers and teachers found in international law, the laws of many Latin American and European countries and, of course, the United States. It explains how recognition of the ministerial exception in the United States serves “two important constitutional interests.” First, it allows religious entities to control “internal matters of governance.” Second, it prevents the government from “entangling itself in religiously significant decisions such as who should teach the faith.” 

There is an overwhelming consensus in favor of similar autonomy for the employment decisions of religious institutions among developed democracies, according to Becket’s review. Additionally, and this is an important point that should not be lost, governments that respect the autonomy of religious institutions tend to offer robust protection for other human rights — particularly the rights of LGBTQ individuals to be free from state-sanctioned violence and discrimination. 

By contrast, China, “one of the foremost violators of human rights,” exercises a unique and absolute control over “the selection, teaching and lives of religious leaders.” Becket also notes that “as China’s restrictions on religion have grown more stringent over the last several decades, support for LGBTQ rights have also declined.” 

Other repressive states it identifies include Eritrea, Russia, Saudi Arabia and Iran. These countries “stand in stark contrast to OAS States and European States who have recognized and protected religious autonomy, instead of aligning with autocratic regimes that control religious leadership and violate other human rights as well.”  

A decision in the Pavez case will have broad implications for the protection of religious liberty globally. A decision that favors Chile and the San Bernardo Diocese will safeguard the independence of the Catholic Church from the growing creep of secularism in the Americas. In addition, such a victory will also spare these governments from having to second-guess internal decisions regarding who will teach and represent the beliefs of religious communities within their countries and therefore assuming the dangerous role of “religious arbiter.” And, finally, a decision in support of the autonomy of religious institutions will promote greater respect for religious minorities in countries where they are subject to state-sanctioned persecution or denied their rights. 

It's tempting to regard the Pavez case as pitting religious freedom and LGBTQ rights against each other. Doing so, however, has the unintended effect of damaging both interests. Experience shows that governments and international jurisdictions are finding ways to successfully balance these interests. And the more hands-off the government is with regard to the internal affairs of a church, the more likely it is that both religious pluralism and gay rights will be respected.


Andrea Picciotti-Bayer is the director of the Conscience Project.

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