The European Court of Justice in Luxembourg must decide whether a German doctor lost his job unlawfully at a Catholic clinic for marrying a second time. Germany's federal labor court on Thursday referred the case to Europe after the German constitutional court overturned the lower court's ruling in the doctor's favor.

Offering his snap verdict on the judgment, Andreas Schmeitz, an Aachen-based labor lawyer, said he was "a little surprised" that the court had demurred to Europe. "I can't imagine that the European Court of Justice will make a different decision to the constitutional court," he said.

The Catholic head doctor of the St. Vinzenz clinic in Düsseldorf was fired in 2009 after he remarried following a 2008 divorce. In its original verdict, the federal labor court in Erfurt ruled that the dismissal had been unlawful - agreeing with two previous courts, which said that the decision breached Germany's equal rights laws. The doctor argued that the clinic would not have sacked him if he had not been Catholic.

But even in its original ruling, the federal labor court did add a few caveats which encouraged the clinic to appeal — the Church has the right to fire people who breach its religious laws, according to a special status afforded to Christian churches under the German constitution. Moreover, the court found that the doctor's second marriage had breached the "loyalty clause" in his contract, which forces Church employees to abide by Catholic doctrine, even in their private lives.

Special status

Following the appeal, Germany's constitutional court duly overturned the decision in November 2014, forcing the federal labor court in Erfurt to reconsider its original verdict. According to Germany's highest court, the labor court had failed to recognize "the meaning and reach of the Church's right to self-determination."

Christoph Lerg, a Munich-based lawyer specializing in church law, explained what this means. "The Catholic Church sees itself as an institution that serves the Lord ... and everyone who works for this institution contributes to the missionary duty of the Church," he told DW. "Based on this. [...] certain norms from the Weimar constitution were incorporated into the Federal Republic's constitution, which says that every religious community manages its own affairs within the limits of the laws that apply to everyone."

On this basis, the constitutional court said that the Catholic Church, like any religious community, has the right to make its own rules — especially about who it employs in its hospitals and charities. These have traditionally taken the form of "loyalty clauses" in work contracts, which can also cover the private lives of employees.

Private morality clauses

However, the federal labor court found that there were factors in this case that made the clinic's decision unfair — it found that his sacking was "disproportionate" considering that the clinic had known of his relationship with his new partner for several years and had not taken any measures against him.

The problem was that, since Catholic doctrine does not recognize state divorces as legitimate, his new marriage left the doctor in a position that was, as Lerg put, "highly problematic." "That meant that he had effectively not respected the teaching of the indissolubility of marriage," he said.

For that reason, Schmeitz says he can't imagine that the European court can now decide in favor of the doctor, regardless of equal rights. "For the [Catholic clinic], if he had been a Protestant doctor, then it wouldn't have been a breach of the sacrament, since there wasn't a Catholic marriage in the first place," he said. "In my opinion, the European court will have to conclude that the Church is allowed to treat people unequally."

Churches are huge employers in Germany — the major charities Caritas (run by the Roman Catholic church) and Diakonie (run by the Protestant church) employ around a million people between them.

Germany's Catholic dioceses have slightly liberalized their policy in the past two years, by drawing up work contracts for people of different or no faiths. But this means that, in practice, Catholic employees face significantly higher moral standards than others. Not that this is much help to the doctor in the current case, who is Catholic and signed his work contract several years ago.

Nevertheless, for Lerg this is "a very interesting case," not least because the doctor won three court verdicts before hitting the constitutional wall. "The constitutional court decided that the labor courts made a mistake in assessing the rights of the church," he said.