Matteo Corsalini is a postdoctoral researcher at the University of Siena (Italy), Department of Social, Political and Cognitive Sciences. This post is based on a presentation given at the ICLRS 32nd Annual International Law and Religion Symposium, 6 October 2025.
In its first, 1993 decision on freedom of religion or belief (FoRB), Kokkinakis v. Greece, the European Court of Human Rights (ECtHR) famously held that FoRB is “one of the most vital elements that go to make up the identity of believers and their conception of life” (para. 31). The Court further clarified that, beyond protecting traditionally religious concerns, FoRB is also “a precious asset for atheists, agnostics, skeptics and the unconcerned” and thus overall a “matter of individual conscience” (para. 31). By employing such phrasing, the ECtHR appeared to ground the rationale for FoRB protection in wider concerns of individual self-determination—including through adherence to multiple, and at times unconventional, religions, or even to none. In this sense the ECtHR may be said to have developed a “generally liberal approach”[1] to FoRB—an orientation that the Court has repeatedly exhibited since Kokkinakis. Building on this precedent, the Court has in fact underscored the primacy of individual self-expression in religious matters, clarifying that FoRB protection should also cover religiously inspired practices that are not explicitly mandated by religious authorities and official dogma (see Eweida and Others v. UK, para. 81). In other words, what matters for the protection of idiosyncratic religious practices—the Court has clarified—is assessing whether they attain a certain level of “cogency, seriousness, cohesion and importance” for the individual believer only (see Bayatyan v. Armenia, para. 110).
In recent years, alternative theories of human rights—and of FoRB in particular—have emerged outside Europe to increasingly question the individual-centered approach of Western law, including the ECtHR’s judicial practice. Notably, in 2022, under the banner of “Catholic post-liberalism,” Harvard Law School professor Adrian Vermeule articulated a theory of constitutional interpretation that Western courts should understand human rights not merely as expressions of individual preferences but rather as tools directed to the promotion of the whole good of societies.[2] While Vermeule’s formulation left unresolved how a “common good” reading of FoRB might concretely unfold, Sydney Law School professor Joel Harrison appeared to address this lacuna in his book Post-Liberal Religious Freedom: Forming Communities of Charity.[3]
For Harrison, a post-liberal reappraisal of FoRB entails a reorientation from the liberal privileging of individual autonomy toward an emphasis on the autonomy of groups and their freedom to nurture “communities of solidarity, fraternity, and charity.”[4] From this vantage point, Harrison’s conception of FoRB appears less concerned with personal rights claims than with securing the conditions for the flourishing of religion per se—as a constitutive bond uniting individuals in the pursuit of a common life, shared values, and societal ends. In Harrison’s words, this view entails acknowledging churches (Christian or otherwise) as “sites of authority”[5] that deserve, in legal terms, strengthened protection of their autonomy rights from state regulation when managing their internal, spiritual affairs.
Far from being a matter of purely academic speculation, a comparable “post-liberal” turn in FoRB has emerged since the early 2010s as a practical, judicial, and transatlantic trend that stretched from the United States to Europe and, notably, to ECtHR jurisprudence. Specifically in church employment matters, from 2010 to 2024 the ECtHR appeared to mix “liberal” and “post-liberal” approaches to employer-employee disputes, culminating in a unique and distinctive adjudication style in this domain.
The ECtHR inaugurated a first, liberal strand of case law on church employment by applying its tried-and-tested human rights “balancing approach” to the cases of Obst v. Germany (2010), Schüth v. Germany (2010), and Siebenhaar v. Germany (2011). While the Court ultimately found in favor of only one of the three employees (Mr. Schüth), the liberality of this approach lay in the guarantee that, in principle, the Court would give equal attention to the competing rights of both employer and employee. This requires balancing and, in particular, an assessment of whether the national courts considered all factual elements, to provide individual applicants with a concrete possibility to challenge competing church autonomy claims.
While the ECtHR found that the German tribunals had justifiably protected Mr. Schüth, a Catholic Church organist, in his right to respect for private and family life (ECHR Article 8), the Court reached a different outcome in Obst. Although Mr. Schüth and Mr. Obst had both been dismissed for committing adultery, the Court emphasized that the latter, unlike Mr. Schüth, was not a “mere staff member” but represented The Church of Jesus Christ of Latter-day Saints in a senior role. Consequently, the Court continued, the national tribunals were correct in finding that Mr. Obst owed a special duty of loyalty to the church’s mission. In light of Mr. Obst’s employment status and other personal background circumstances—particularly his young age, professional experience, and the relative ease with which he could secure alternative employment—the Court concluded that restricting his Article 8 rights was a proportionate measure “to preserve the credibility of the Mormon Church” (see Obst, para. 41). This same factual analysis was ultimately applied also to Ms. Siebenhaar, a teacher of secular subjects in a Protestant kindergarten, whose membership in and work for the Universal Church of Humanism was held to undermine the credibility of her faith-based employer.
The ECtHR eventually departed from its conventional “balancing approach”—as evidenced particularly by the Court’s Grand Chamber decisions in Sindicatul Păstorul cel Bun v. Romania (2013) and Fernández Martínez v. Spain (2014). In brief, both disputes involved employment law–related matters of church governance, with Păstorul cel Bun centering on a Romanian Orthodox Archbishop’s refusal to register a faith-based trade union within his jurisdiction, and Fernández Martínez on the non-renewal of a public secondary school’s contract with a “secularized” priest who taught religious subjects.
Both cases were also characterized by a notable disengagement with the Court’s customary proportionality analysis,[6] as the ECtHR asserted that “in the event of any doctrinal or organizational disagreement between a religious community and one of its members, the individual’s freedom of religion is exercised by the option of freely leaving the community” (Fernández Martínez, para. 128). Interestingly, this departure from proportionality appeared to coincide with the legal activism of two U.S. Christian advocacy groups that—as third-party interveners in Păstorul cel Bun—urged the ECtHR to embrace a robust, “post-liberal” conception of church autonomy modelled on U.S. jurisprudence (see Păstorul cel Bun, para. 124–28).
More specifically, the NGOs Becket Fund and the American Center for Law and Justice (European branch) invoked the so-called “ministerial exemption” doctrine that the U.S. Supreme Court affirmed in its high-profile decision Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012). While this doctrine conceptualizes church autonomy in terms of sovereign—and thus inviolable—ecclesiastical self-governance,[7] in both Păstorul cel Bun and Fernández Martínez the ECtHR appeared to advance a comparably robust form of church autonomy framed in the language of human rights, rather than in purely jurisdictional terms. The ECtHR stressed that both church-employers had interfered with their employees’ Convention rights, while simultaneously concluding that such interference could not amount to a violation due to the substantial deference accorded internal ecclesiastical rules (see Păstorul cel Bun, paras. 140–73; Fernández Martínez, paras. 114–51).
Fusing liberal and “post-liberal” readings of FoRB, the Court thus appeared to articulate a novel adjudication style in church employment—one that formally adheres to a conventional balancing exercise while substantially recognizing strong, U.S.–like church autonomy rights. In its most recent decisions on church employment—Travaš v. Croatia (2017) and Ţîmpău v. Romania (2023)—the Court appeared to entrench this approach further, upholding the dismissal of two lay religion teachers in state schools,[8] thereby reinforcing church autonomy in a manner that now draws no distinction between ministerial and lay employees.
Conclusion
What is unique about the Fernández Martínez case discussed above is the hybrid status of the applicant-employee—a “secularized” priest who had requested a dispensation from the obligation of celibacy and who, by virtue of this legal act, would “cease to be considered a priest”[9] and become a lay Catholic. As the Holy See took 13 years to grant recognition of this petition, during the interim period, a Spanish Catholic diocese continued to regard Mr. Fernández Martínez as a clergyman subject to its jurisdiction and dismissed him for marrying before his request had been formally approved. In upholding the dismissal, the ECtHR thereby affirmed extensive church autonomy rights, grounding its reasoning on the employer’s own perception of Mr. Fernández Martínez’s status within the diocese. Although the applicant’s termination was also justified in light of his public exposure in the media as a married priest—potentially resulting in reputational harm to the diocese—the Court was “unclear” as to how to draw any objectively legal distinction between clergymen and lay employees (see Fernández Martínez, para. 134). More fundamentally, the Court also remained silent as to whether any such distinctions should exist.
Implicitly treating such differentiation as irrelevant in both Travaš (2017) and Ţîmpău (2023), the ECtHR ultimately confirmed that a church-employer’s right to self-determination may stretch as far as to justify even the dismissal of secular employees performing nonreligious functions on church premises. In these latter decisions, building on Fernández Martínez, the Court appeared to be increasingly inclined to adopt a “post-liberal” approach that precludes a substantial balancing of rights when church-employers perceive an infringement of internal ecclesiastical rules.
At this stage, however, it is difficult to predict whether this “post-liberal” turn will crystallize into a consistent trend, given the limited number of relevant cases on the matter. What is clear is how the Court’s current approach is progressively removing from its conventional proportionality test any case-by-case consideration of whether churches have adequately considered their employees’ personal backgrounds and individualistic (read: liberal) perceptions of faith. While this development appears to run counter to the Court’s “generally liberal approach” to FoRB since 1993, it remains to be seen whether subsequent case law will confirm this trajectory.
References:
[1] See CAROLYN EVANS, Freedom of Religion Under the European Convention of Human Rights 53 (Oxford University Press 2001).
[2] See ADRIAN VERMEULE, Common Good Constitutionalism 17–18 (Polity 2022).
[3] JOEL HARRISON, Post-Liberal Religious Freedom: Forming Communities of Charity (Cambridge University Press 2020).
[4] Id. at 142.
[5] Id. at 22.
[6] The ECtHR typically employs a proportionality analysis to determine if a law/policy that limits a right is justified under the European Convention on Human Rights (ECHR). The law/policy must (1) pursue a legitimate aim under the ECHR, (2) be rationally connected to that aim, (3) be necessary to achieve the aim, and (4) impose on the right-holder a burden proportionate (not disproportionate) to the aim.
[7] This is discussed in Steve D. Smith, The Jurisdictional Conception of Church Autonomy, in 19, 19–38 (Micah Schwartzman, Chad Flanders & Zoë Robinson eds., Oxford University Press 2016).
[8] Both Croatia and Romania require formal church endorsement of religion teachers who teach in state schools; in these cases, churches withdrew their endorsements of the respective teachers.
[9] This is explained in Javier Martínez-Torrón, Fernández Martínez v. Spain: An Unclear Intersection of Rights, in 192, 192 (Stijn Smet & Eva Brems eds., Oxford University Press 2017).