L'ordinamento giuridico tra legge divina e diritto del lavoro: chi si fa troppo giusto, percio' stesso diventa ingiusto
Antonello Olivieri, Professore Associato nell’Università di Foggia
Il saggio intende affrontare il tema della libertà religiosa all’interno della relazione lavoristica in una duplice dimensione: nei rapporti con lo Stato ovvero in relazione agli interessi economici prodotti dal mercato in un contesto sempre più concorrenziale. L’analisi di questi differenti conflitti ha generato una serie di corto circuiti tra Corti nazionali ed europee derivanti principalmente dallo spazio residuale riconosciuto, a livello sovranazionale, a un principio fondamentale: la salvaguardia dell’identità nazionale degli Stati.
The essay deals with the theme of religious freedom within the employment relationship in a double dimension: in relations with the State or in relation to the economic interests produced by the market in an increasingly competitive environment. The analysis of these different conflicts has created the short circuit between National and European Courts. A short circuit that derives mainly from the residual space recognized at European level to a fundamental principle: the protection of the national identity of the States.
Keywords: religious freedom – labour law – dignity – market monotheism – identity of the State.
1. From Antigone’s self-referentiality to Porzia’s sociality - 2. Religio et libertas: between whom and between which values? - 3. Text and context - 4. Religious freedom in the public dimension - 4.1. The political discretion - 4.2. The crucifix - 4.3. Religious festivities - 5. Employment relationship and world outlook between supranational and national case law - 5.1. (Dis)proportionality in US Supreme Court: the Church must be free to choose those who will lead it in its path - 6. The market monotheism - 6.1. The faith test - 6.2. The matter of the veil and the customers' wishes - 7. Conclusions - NOTE
1. From Antigone’s self-referentiality to Porzia’s sociality
The relationship between tout court law and religious freedom has always been a divisive issue, above all because legal considerations have often been confused with the emotional ones. Grando et ignis. If then we consider this dichotomy in the framework of the specific labour field, we easily realize that the person’s implication in the contractual relationship takes on even more peculiar connotations. Moreover, as recalled by Professor Ascarelli, law creates problems, and the problem of law is a problem that belongs to every man and arises daily for each of us . It is, beyond its recent peculiarities, a theme that has involved attention and sensitivity of the ancients and poets. Antigone’s story  is undeniably a story of extraordinary effectiveness, a singular and timeless story that has a universal and always present content; a paradigm for rebuilding the relationship between law and conscience, between lex and ius, between positive laws in force and unwritten, immutable laws. In Sophocles two absolute imperatives are opposed each other, that of the historically given rule and that of conscience as divine command: positive law and natural law. But it is not a real opposition; natural law represents, with respect to positive law, the need for its overcoming. After all, Antigone knows that defying the law of the polis will lead to death; but only with sacrifice can the triumph of the new need [continua ..]
2. Religio et libertas: between whom and between which values?
The issue of religious freedom fits perfectly into the Sophoclean tragedy and Shakespearean work, because it raises the problem of conflict. But conflict between whom and between which values? 1) Firstly, the conflict between certainty and order needs (of which the State is the bearer) and the needs of freedom (expressed by religious pluralism), in the internal and external dimension; 2) Secondly, the conflict between two freedoms: business (private economic initiative) and religious freedom; 3) Lastly, the collision between two or more protected factors (religion, sexual orientation, gender, etc.). We need to distinguish the scope, if the religious freedom is immersed in the public or private sector, if the unwritten law interwines with tangles of the written law or with the anonymous face of the economic one. Then, to discuss religious freedom, we cannot ignore the analysis of the other two monotheisms, law and economy. This conflict can be read and has been read through at least three categories: equality, dignity and freedom. Equality appears to be an overrated category that does not help solve the terms of the question. The irrepressible vis expansiva of equality and its legal techniques – in the legitimate attempt to determine a significant strengthening of the protection regime – runs the risk of going beyond the natural boundaries of equality through a heterogenesis of the aims of anti-discriminatory law. The same directive [continua ..]
3. Text and context
Another element to be highlighted is the short circuit between National and European Courts. A short circuit that derives mainly from the residual space recognized at European level to a fundamental principle: the safeguard of the national identity of the States. A good jurist, according to the best teachings, must be able to read the text but also to understand the context, he cannot do without this dialectical trend, all the more so for the theme that interests us. Indeed, the various European states are committed to managing the complex problems of modern multi-ethnic and multicultural societies, represented symbolically by the questions of the use in public of garments or external identification marks (in a more or less discreet form) of (a specific) confessional belonging, they continue to maintain differences that are anything but negligible or marginal in the way of understanding the position occupied by personal fideistic manifestations in the public sphere. The different attitude of States towards religious experience is destined to reflect on the terms of the concrete balance, where there is a need for balancing. If we compare countries with a Christian religious background and a Muslim one, there are at least two differences that can be explained according to the different religious background. 1) We have constitutions that recall the existence of an Islamic state but not constitutions that address an ideal Christian state; a difference due to a [continua ..]
4. Religious freedom in the public dimension
How can we find a balance between the needs of freedom and compliance with religious values as well as the needs of certainty and order required by law? The answer, at least in the public dimension, appears – compared to the complexity of the question – very simple: The answer, at least in the public dimension, appears – compared to the complexity of the question – very simple. Creon is the bearer of a monist theory of values, he believes that the only existing value is identified with the good of the polis; the good is unique and therefore there can be no conflicts; there are no similar, comparable assets, there is no proportional judgment to be made; there are no qualitative differences between multiple goods, but only quantitative ones within the single asset considered . Antigone for Creon is not the bearer of a good, she is the bearer of a good that is not good, i.e. it is bad. Antigone is bad in the Latin etymology, captiva i.e. a prisoner of her vision. Why this reflection? If we immerse religious freedom within the publicist dimension there are several paradigmatic examples of Creon’s monist vision, i.e. of how individual Member States, even with the help of internal and European jurisprudence, do not recognize the conflict, they obliterate it. Like saying, silete theologi in munere alieno, recalling Alberico Gentili.
4.1. The political discretion
Emblematic of the possibility for the State to cancel the conflict is the Constitutional Court judgement no. 52/2016. The Court excluded the existence, for the applicant organization, of a valid claim when starting negotiations ex art. 8.3 Cost. (in this case, the atheists and agnostics Union and rationalists UAAR); the act whereby the government has access (or denies to access) to comparison with religious representatives is, in fact, characterized by «wide […] politica discretion». For the Council of State and the Court of Cassation the governmental act - of access to (or refusal of) negotiations aimed at stipulating an agreement - to the list of discretionary acts in a technical sense (not, therefore, political) and therefore justiciable. The object of the technical-discretionary assessment would be the confessional nature or otherwise of the applicant, so that, in the event of a positive assessment, the Government would be obliged to open negotiations and any refusal would be censurable in the judicial context. According to the Constitutional Court, therefore, the reason for the Government’s refusal to initiate consultation becomes irrelevant, since the entire procedure that starts with the request to open negotiations pursuant to art. 8.3 of the Constitution is regulated, ex parte Status, by the broadest political discretion.
4.2. The crucifix
Neutrality and secularity, as we know, represent the two main lines around which an attenuation system – or even a system of cancellation – of conflicts about religious simbolism. Indeed, secularism is intrinsic to the same Christian announcement that is critically placed . It requires exegesis. Christianity is a factor of contradiction unlike other religions that cement their civilization, make it cohesive. Christianity founds and at the same time questions civilization itself; this is the paradox. The main legal issue arises when the symbol of consciousness becomes a symbol of power; when – in other terms – the crucifix becomes the emblem and the cultural and civil sign, of tradition, when science and faith become one by al legal point of view. Is not only a matter of mandatory display of the crucifix in the public space, but it’s also a matter of refusal to work because a religious symbol is exposed. Actually, there is no conflict when the State itself “wears” religious symbols. This is why it is no longer a religious problem; there is a precise political choice, a choice in line with national identity. The State is Creon! The symbol becomes passive, or better it could be said that it is neutralized in its potential discriminatory effects. It is therefore clear that the moment the crucifix enters the public structures in the form of tradition, culture and civilization, it stops the clothes of fideistic, religious [continua ..]
4.3. Religious festivities
In my view, the same theme of religious festivities lends itself very well to the thesis of the absence of conflict in public space. Also in this case the reference to the principle of equality is absolutely misleading. The CJEU’s ruling, Grand Chamber, 22 January 2019, Case – no. 193/17, Cresco investigation Gmbh. v. Sig. Achatzl seems questionable in this regard. The peculiar effects on the rules about official holidays are indications of the relevance that the legislator assures to these celebration moments as connected to the Country’s cultural and religious traditions. Some religious festivities (for example, Christmas) have now assumed a secolarized meaning, linked to customs and traditions rooted in society, so that their civil recognition could hardly be questioned, indeed they could appear as a just consideration of spiritual needs and cultural aspects of the population. Coincidence between official holidays and religious festivities has not prevented from taking into account the holidays of other religious confessions. Let’s consider the obligations relating to the choice of dates for public competitions. Basically, the State is the only one able to mediate between opposing interests, except if we want to admit the irrational and inadmissible possibility of ensuring holidays on all holy days for any religious belief .
5. Employment relationship and world outlook between supranational and national case law
Religious freedom, especially in recent years, has assumed a highly conflicting connotation between vita activa and contemplativa within the employment relationship. This allowed new coordinates to be traced to the problem of the legal relevance of ideology in the employment relationship. The complex wording of article 4.2 of Directive 2000/78 and the absence of clarification interventions by the Court of Luxembourg have contributed to fueling reservations and uncertainties around this text in the balance between individual and collective rights: on the one hand, the right of ethically oriented structures to protect one’s ideological identity; on the other hand, the rights of those who perform their activities within these structures. The guarantee of religious freedom of the confessional organization means, first of all, a guarantee of its identity. No one doubts that religious organizations should be granted a sort of religious exemption, a dispensation from observing the rules of secular law. But can this exemption be considered absolute? The renewed interest in this topic and the critical treatment of the phenomenon derive, essentially, from some well-known case law, which have aroused not a little clamor, correlated to the contrast between the pro-professional attitude of the worker and the system of ideas and values that inspire the employer. The importance of these judgments also derives from the fact that they are [continua ..]
5.1. (Dis)proportionality in US Supreme Court: the Church must be free to choose those who will lead it in its path
No space for a judgment of proportionality is granted by the US Supreme Court. The case is singular and questionable both in its ethical and legal aspects. The Supreme Court of the United States, in Hosanna Tabor 2012, embraced a wide meaning of religious exemption. The employee (Cheryl Perich), a teacher at the Hosanna Tabor Lutheran school who was diagnosed with a narcolepsy problem, after a prolonged absence due to disability, asks to come back to work, with the favourable opinion of her attending physician. When she finds out that she has been replaced, and therefore threatens to take legal action, she is dismissed: it is contrary to the doctrine of the Synod to want to resolve a dispute by resorting to civil justice and not to the internal rules – or domestic jurisdiction – of the congregation itself, and the mere fact of having manifested such an intention implies a breach of the loyalty obligation to the organization and, therefore, justifies the dismissal. No other ideological disagreement had intervened before between the teacher and the school; nor had Perich’s behavior, even in private life, ever departed from the dogmas of the religious community. Only the long absence for narcolepsy, before, and the threat to appeal to the civil judge against the replacement, then, constituted the presuppositions of the case. Having been brought before the Supreme Court the matter of the alleged unlawful dismissal – considered by the applicant [continua ..]
6. The market monotheism
The «vita activa» and «vita contemplativa» relationship is then developed in a completely peculiar manner within the other monotheism, that of the market. In this case, the judgment of proportionality represents, instead, a useful legal instrument to reconcile two opposite needs, to dominate precisely the conflict in which the same theme of religious festivities can assume a different connotation, also in economic and productive terms.
6.1. The faith test
Let’s consider the Kosteski’s ECHR judgement in which we even get to syndicate the forum internum, based on presumed economic needs. What is the fact? The applicant, a technician from a Macedonian power company, does not show up at the workplace, having warned his superiors the day before that he wanted to celebrate two Islamic religious festivities. In both cases, the right to take time off work (without salary cuts) is recognized by a decree of the Ministry of Labour for all followers of the Muslim religion to coincide with the festivities of that religion. The employee’s absence coincides with a particularly intense week of work, on the basis of which the managers had expressly asked that everyone be present in order not to suffer an economic prejudice. The employer imposes a financial penalty. The Court of first instance and the Appeal Court rejected the claim, stating that the plaintiff failed to provide adequate evidence of his Islamic faith. By his own admission, in fact, during the holiday day he did not go to the mosque but expressed his religious beliefs individually. According to the Constitutional Court, a simple statement about religious faith, in order to enjoy relating benefits (among which, as in this case, off work time) cannot be sufficient if not supported by objective evidence. What are the objective evidences? ECHR proceeds to carry out a real faith test. The leader of the Islamic community is asked to provide [continua ..]
6.2. The matter of the veil and the customers' wishes
What are the limits within which customers, and with them the employer’s market interest, have the power to affect the employee’s rights in private law? I refer to the famous or notorious Achbita and Bougnaoui cases . With regard to the principle of protecting the identity of states, not many have analyzed national case law, which (in France and Belgium) had excluded the existence of direct or indirect discrimination and therefore the contra legem status of the ban imposed by the employer. Not by chance, the Court of Appeal of Paris balances precisely the two opposite needs: economic initiative and religious freedom; it emphasized how a commercial company is characterized precisely by its purpose of providing customers with goods or services that satisfy them. Hence the need to take into account their different personal beliefs and to impose a restriction on the freedom of employees who come into contact with them, in the form of a «obligation de discrétion». It seems that French judges of the Court of Appeal have merely positively assessed the proportionality of the measure in relation to the purpose pursued by the company, in this way supported by the non-absolute nature of the prohibition, «seulement limitée aux contacts avec la clientèle». The interpretative path can be endorsed. Between the desire to protect the corporate image and the desire to manifest [continua ..]
I don’t know what to expect behind the reasons of faith. The intervention of the French legislator is outlined as a clear-cut, shareable position or not. I believe that the reference to the principle of national identity in religious matters – which has already in some cases influenced the judges of Luxembourg and Strasbourg – cannot be underestimated and must enter into the eventual judgment of proportionality entrusted to the judge, as element intended to affect the application of EU law. Also in this case a conflict is created: a conflict between the need for uniform application of Union law and the protection of the specific expression of national identities reflected in the constitutional arrangements of ecclesiastical law of the different Countries of the Union. The enhancement of this last principle would give rise to a sort of reverse process according to which is not the guarantee of fundamental rights that influences the concrete framework, but is the institutional and organizational dimension of religious experience that affects exercise of the fundamental rights. So, this call to identity can be translated as order and certainty instrument between labour law and religious freedom. In conclusion, there is a common red thread that intimately connects ancient Greece, Shakespearean Europe and the current context. It is the theme of justice. An individual justice (Antigone), collective (Creon), functional (Porzia), a rational [continua ..]