DO faith groups have the right to choose who may teach their beliefs to the next generation, or is this the responsibility of the state? This question faces the Inter-American Court of Human Rights (IACHR). A lesbian teacher is challenging Chile’s decision that she cannot serve as a religion instructor owing to her refusal to abide by church teaching on sexuality.
The principles of 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 decisions made on religious grounds. If the IACHR, sitting in Costa Rica, hands down a decision against Chile, it will have enormous implications, touching as it does on the right of churches and other faith groups to choose their own leaders, teachers and those who can act in the church’s name.
All Chilean schools must offer religion classes as part of the regular curriculum, each school being required to cater to all religious traditions present within their student body. All religion teachers are required to obtain a certificate from their religious community confirming their fitness to teach a class on that religion. As Chile is a predominantly Roman Catholic country, religion classes on the Catholic faith are offered in most of its government schools, the local Catholic bishop certifying who is qualified to teach Catholicism in the church’s name.
This arrangement worked well until 2007 when Sandra Pavez, who had taught religion at a government school in San Bernardo for 22 years, revealed that she was in a same-sex relationship, causing scandal among her colleagues, students and parents.
The diocese met Ms Pavez multiple times. She refused to accept that her lifestyle precluded her from teaching Roman Catholic doctrine and practice. The diocese disagreed, holding that her lifestyle violated Catholic canon law, the body of laws governing the Catholic Church. Eventually the diocese revoked Ms Pavez’s certification to teach the Catholic faith. This decision did not affect her employment as a teacher and in fact she was promoted to the more senior position of the school’s Inspector General. Despite this promotion Ms Pavez, aided by LGBTQ organisations, sued the San Bernardo Diocese, falsely claiming that she had been terminated from her employment because of the Church’s decision. She said: ‘I will fight until the end so that there is a precedent in history.’
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 suitable to represent the church as a teacher of religion.
Undaunted, Ms Pavez continued with her case and in October 2008 filed a complaint with the Washington-based Inter-American Commission on Human Rights. This time she sued the state claiming that Chile had allowed her human rights to be violated by the diocese. She claimed that the American Convention on Human Rights gave her the right to ‘no arbitrary interference in private life’.
The case proceeded with Jarndyce vs Jarndyce lethargy and 11 years later, in 2018, the commission ruled in favour of Ms Pavez. It made three recommendations to the Chilean government. First, that Ms Pavez should be reinstated as a religion teacher, regardless of her lack of suitability in the eyes of the Church. Second, that existing legislation allowing the Church to revoke her certificate should be reformed so that it could no longer be applied in a ‘discriminatory’ manner. Third, that the state must ‘train’ those in charge of assessing the aptness of the teachers in the scope and content of the principle of equality and non-discrimination, especially its protection of sexual orientation. In other words, the Commission called on the state to ‘re-educate’ the Catholic bishops on sexuality and discrimination to make them fall in line with LGBTQ orthodoxy.
This ruling touches on more than the right of the Catholic Church to certify teachers of Catholicism in state schools: it affects who can enter any religious teaching or leadership position. The Commission went so far as to state that its conclusions in favour of Ms. Pavez would apply even in cases of private employment. Under this precedent, states could forbid private Catholic, Jewish, Muslim or evangelical schools from teaching their own doctrines by regulating their choice of who teaches them.
This would affect not only the countries involved; it would have a profound impact on the work of missionary churches, ranging from the Lutheran Church – Missouri Synod to the Free Church of Scotland, who work in Latin America and the Caribbean. Local activists will most certainly use such precedent as a bludgeon to pressure governments and legislatures into compliance with LGBTQ rights.
The Chilean government immediately decided to test this ruling and appealed to the Inter-American Court of Human Rights, which set the case for public hearing beginning yesterday in San José, Costa Rica. As the present court has been the most progressive and pro-LGBTQ rights court in the Inter-American system’s history, the prospect is not looking good. The question whether or not religious institutions will continue to enjoy their freedom from state intervention and control is in real danger.