Post by: Esther Neds·
My name is Esther Neds and I am a 3L working as a clerk for the Center for Global Justice. This semester I have been doing research for Christian Legal Fellowship.
One of the issues I have been researching is the interplay between the individual’s right to freedom of religion and the right of a church to be autonomous and make internal decisions without State interference. An issue arises when these rights conflict. For example, when a church decides to expel a church member, the church member may claim an infringement of her individual right to freedom of religion. If she then sues the church, the church will claim that the decision was internal and should not be subject to State-interference. Whose right is more important? Who wins?
The European Court of Human Rights (ECHR) has traditionally viewed the two rights as equal. Thus, when the rights conflict, the court must do a balancing test to determine which right will prevail. However, this view has changed. In more recent cases by the ECHR and in Australia, the new approach is to view the rights as complementary and not conflicting. When a church member disagrees with a church’s internal decision, her right to freedom of religion has not been violated. Even if the church has kicked her out, in most cases, she will nevertheless have the full right to practice her religion in another church or community. Thus, her freedom of religion is preserved by her right to leave the church and worship elsewhere, and the church’s right to be free from State interference is protected. Basically, when the ECHR was asked whether the individual’s right or the church’s right was more important, the court answered, “Yes.”
This post was written by a Center for Global Justice student staff member. The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice.