What is legal is not always moral, a German court observed this past week, holding that an organization may dismiss an employee for conduct that the state affirms as being within the law but which the organization views as wrong. This sort of story in an American context might generate a line or two of commentary, but little more in the wake of the 2012 U.S. Supreme Court decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which held there was a "ministerial exception" to labor laws that forbade the state from interfering in church employment issues.
As the New York Times reported in 2012:
“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Chief Justice John G. Roberts Jr. wrote in a decision that was surprising in both its sweep and its unanimity. “But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.”
The wire service agency DPA (Deutsche Presse-Agentur) reported last Friday on a similar case making its way through the German courts. In a story entitled "Kündigung von Religionslehrer wegen Bordell ist rechtens."(Terminating a Religion Teacher over a Brothel is legal) the DPA lays out the facts of the case using an economy of words with only a modicum of comment in the lede, which states:
Schüler in Religion unterrichten und nebenbei Miete aus einem Bordell kassieren - darf das sein? Seine Arbeitgeber schmissen einen Lehrer deshalb raus. Zu recht, fand das Arbeitsgericht. Das letzte Wort ist allerdings noch nicht gesprochen.
Teach students in religion while collecting rent from a brothel - may that be? His employer threw him out. And rightly so held the Labour Court. But the last word has not been spoken.
The article reports a Hebrew School teacher employed by the Jewish Community in Baden-Baden was dismissed after an investigation into financial irregularities at the board disclosed the teacher owned two apartments which he let to a brothel. In affirming the dismissal, the court held this was:
... «einen ausreichend schweren Verstoß gegen die Loyalitätspflichten gegenüber seinem jüdischen Arbeitgeber aufgrund seiner Vorbildfunktion als Religionslehrer». Die Weiterbeschäftigung sei für den Arbeitgeber nicht zumutbar. ...
("a sufficiently serious breach of the duty of loyalty towards his Jewish employer for failing to exhibit the exemplary conduct expected of a teacher of religion." It was not reasonable for the employer to continue his employment.)
The article noted the man had taught at the schul for over twenty years and had cancelled the brothel lease once it had come to the notice of the Jewish community leaders. DPA reports the case is likely to be appealed.
In these days of Hobby Lobby and disputes over the Affordable Health Care Act (a.k.a. Obamacare), the Baden-Baden schul case speaks to the issue of religious liberty in a European setting.
Has DPA has approached this story with a set of secularist notions -- assuming its audience will understand the context and worldview being presented as its own? That is how I read this article.
Would the labor court have upheld the dismissal if the applicant had worked at a bank? Would it not have been helpful to add a line or two to say that the right to dismiss someone for lawful but immoral conduct applies to commercial enterprises as well as religious ones?
Or did the decision turn on the overtly religious nature of the man's employment? The citation from the court's ruling is ambiguous on this point. Is the "exemplary conduct expected of a teacher of religion" the same conduct expected of others? Or is the key phrase here "religion"? What if this man taught science at a state school? Would being the landlord of a brothel be grounds for dismissal? Fleshing out this distinction for a German, as well as an American audience would have improved the story.
And, what of the elephant in the room? Judaism and modern Germany? The conduct that led to the teacher's dismissal is the stuff of Nazi fantasies -- the evil amoral Jew who proclaimed public virtue while practicing secret vice. My mind turned to the 1940 Nazi propaganda classic Jud Süß as I read the article.
How might these actions have motivated the board in dismissing a Hebrew School teacher of twenty year's standing? What subtext would a non-Jewish German reader read in this story? Or do I have Nazis on the brain?
This may be too much to ask of a wire service story, but the religion ghosts in this article are howling to be let loose.