5 August 2024 

A recent Belgian judgement presents several interesting and worthwhile aspects concerning State interference in the internal affairs of the Church, as well as the issue of the prohibition of discrimination.

The previous Archbishop of Malines-Brussels, Card. De Kesel, and his successor, the current Archbishop Mgr. Terlinden, were both sentenced to pay €1,500 each in damages, plus court costs, for not admitting a woman to the preparatory training course for diaconal ordination[1].

The plaintiff had asked the court to sanction the refusal of both Archbishops of Brussels, to whom she had applied, to admit her to the training course for deacons organised by the Brussels curia on the sole ground that she was a woman.

The applicant's causa petendi centred on the request for a declaration of the unconstitutionality of the canonical provisions, and in particular of canons 241 and 1024 CIC-83, in relation to the principles expressed in Art. 10(3) (‘Equality between women and men is guaranteed’), and 11 (‘The enjoyment of the rights and freedoms granted to Belgians must be ensured without discrimination’) of the Belgian Constitution[2], also stressing how gender equality is also protected by various international instruments to which Belgium has acceded, such as the European Convention on Human Rights (art. 14) and the United Nations Convention of 18 December 1979 on the Elimination of All Forms of Discrimination against Women.

The two archbishops acknowledged that they had not admitted the applicant to the training course on the grounds that she was a woman, but they entrenched themselves behind the Belgian Constitution, under Article 19[3] and especially Article 21, according to which the State has no right to intervene in the appointment of ministers of religion[4]^.

This provision is phenotypical of a general principle that obliges the State to respect the autonomy and capacity for self-management and self-organisation of religious and philosophical communities, by virtue of which State courts cannot make a decision that affects the organisation and internal functioning of a religious community. 

The Antwerp Court, however, referred to precedents of the Belgian Constitutional Court, such as the judgment of 27 April 2017 (no. 45/2017)[5], where it was ruled that state interference in the autonomy of religious communities may also be constitutionally permissible, provided that ‘the measure is subject to sufficiently accessible and precise regulation, pursues a legitimate aim and is necessary in a democratic society, which implies that the interference must respond to “a compelling social need” and that there must be a reasonable relationship of proportionality between the legitimate aim pursued, on the one hand, and the restriction of those freedoms, on the other.’

The Constitutional Court also stated that: ‘The scope of the principle of separation of Church and State is, moreover, inherently susceptible to change and development’, and likewise that “respect for the autonomy of religious communities may vary according to circumstances and times, as well as in the light of the particular characteristics of the matter to which it applies”.

Guaranteeing gender equality, also through Article 10(3) of the Constitution, thus meets a precise legal requirement.

Moreover, continued the Antwerp Court, the applicant's request concerned only admission to the deacons' training program, which does not automatically imply subsequent diaconal ordination[6], nor does participation in such training require prior sacramental ordination.

The Constitutional Court also stated that: ‘The scope of the principle of separation of Church and State is, moreover, inherently susceptible to change and development’, and likewise that “respect for the autonomy of religious communities may vary according to circumstances and times, as well as in the light of the particular characteristics of the matter to which it applies”.

Guaranteeing gender equality, also through Article 10(3) of the Constitution, thus meets a precise legal requirement.

Moreover, continued the Antwerp Court, the applicant's request concerned only admission to the deacons' training programme, which does not automatically imply subsequent ordination as a deacon nor does participation in such training require prior sacramental ordination.

Since the applicant did not ask to be appointed to an ecclesiastical office, nor to be admitted to a training programme that would automatically lead to such an office[7], the petitum does not in any way fall within the scope of appointments of ministers of religion, which is the sole responsibility of the competent ecclesiastical authority under Article 21 of the Constitution.

It is likewise true that the appellant had no right to be admitted to the training programme for deacons, and in fact if she had been excluded on the basis of previous academic training deemed insufficient in the Curia's unchallengeable judgment, nulla quaestio.

She was, however, excluded without - by the explicit admission of the other party - even having her university qualifications evaluated, but solely on the grounds, apart from any other factor, that she was a woman.

And that constitutes a violation of Article 1382 of the old Belgian Civil Code, in force at the time the case was brought: the applicant suffered non-material damage, suffering a constitutionally prohibited discrimination resulting in a loss of opportunity/perte of chance.

The request for admission to the training course for deacons, moreover, since it was clear ab initio that it could not lead to the ordination of the applicant as a deacon, could only respond to the desire of the latter - who had been active in the parish for many years - to deepen her own training, thus - albeit in an unusual way - fulfilling the obligation and exercising the right that can. 229 §1 CIC recognises to all the lay faithful[8], and with particular attention to women[9], as established already in the aftermath of the Council[10], subsequently confirmed[11], and most recently reaffirmed several times by Pope Francis since the beginning of his Pontificate[12].

Stefano Testa Bappenheim

[1] N. 23/788/A e 24/11/1, of 25 June 2024; Civil Court of First Instance of Antwerp, Mechelen Section.

[2] See https://www.senate.be/doc/const_fr.html, art. 10: “...L’égalité des femmes et des hommes est garantie”, art. 11: “La jouissance des droits et libertés reconnus aux Belges doit être assurée sans discrimination....”

[3] “La liberté des cultes, celle de leur exercice public, ainsi que la liberté de manifester ses opinions en toute matière, sont garanties, sauf la répression des délits commis à l’occasion de l’usage de ces libertés.”

[4] “L’État n’a le droit d’intervenir ni dans la nomination ni dans l’installation des ministres d’un culte quelconque, ni de défendre à ceux-ci de correspondre avec leurs supérieurs, et de publier leurs actes, sauf, en ce dernier cas, la responsabilité ordinaire en matière de presse et de publication. [...]”

[5] https://www.const-court.be/public/f/2017/2017-045f.pdf

[6] See Catechism of the Catholic Church, no. 1578, v. https://www.vatican.va/archive/catechism_it/index_it.htm; see also A.C. JEMOLO, Esiste un diritto dei fedeli al Sacramento?, in Rivista di diritto pubblico, VII, 1915, 2ª, pp. 133 ss.; E. BAURA, Il ministero ordinato. Profili canonici, in AA.VV., Il sacramento dell’ordine, Milano, 2011, pp. 35 ss.; P. VALDRINI, Les ministres sacrés ou les clercs, in Année Canonique, 1987, pp. 321 ss.

[7] Which was impossible at the time, ex can. 1024 CIC.

[8] Can. 229, §1; see J.I. ARRIETA, Formation et spiritualité des laïcs, in Année canonique, 1985, pp. 167 ss.; M. D’ARIENZO, Riflessioni sul concetto giuridico di responsabilità. Aspetti canonistici, in Diritto e religioni, 2010, 2, pp. 41 ss.

[9] O. FUMAGALLI CARULLI, L’identità della donna, in AA.VV., Diritto, persona e vita sociale, II, Milano, 1984, pp. 506 ss.

[10] With the opening of the Theological Faculties to lay men and women, foreseen expressis verbis by the Normae quaedam ad Constitutionem Apostolicam Deus scientiarum Dominus de studiis academicis ecclesiasticis recognoscendam, of the S. Congregatio Pro Institutione Catholica, of 20 May 1968, which reformed in accordance with the the Council the Cost. Ap. “Deus scientiarum Dominus” by Pio XI (https://www.vatican.va/content/pius-xi/la/apost_constitutions/documents/hf_p-xi_apc_19310524_deus-scientiarum-dominus.html), see A. BEA, SJ, La Costituzione Apostolica “DEUS SCIENTIARUM DOMINUS„ Origine e Spirito, in Gregorianum, 1941, pp. 445 ss.

[11] V. JOHN PAUL II, Es. Ap. “Christifideles laici”, 30 December 1988, n. 51, in https://www.vatican.va/content/john-paul-ii/la/apost_exhortations/documents/hf_jp-ii_exh_30121988_christifideles-laici.html; BENEDICT XVI, Es. Ap. “Verbum Domini”, 30 September 2010, n. 85, in https://www.vatican.va/content/benedict-xvi/it/apost_exhortations/documents/hf_ben-xvi_exh_20100930_verbum-domini.html

[12] FRANCIS, Es. Ap. “Evangelii Gaudium”, 24 November 2013, n. 103, in https://www.vatican.va/content/francesco/it/apost_exhortations/documents/papa-francesco_esortazione-ap_20131124_evangelii-gaudium.html; ID., Discorso ai membri della Commissione Teologica Internazionale, 5 december 2014, in https://www.vatican.va/content/francesco/it/speeches/2014/december/documents/papa-francesco_20141205_commissione-teologica-internazionale.html; ID., Discorso alla Plenaria del Dicastero della cultura,  7 February 2015, in https://www.vatican.va/content/francesco/it/speeches/2015/february/documents/papa-francesco_20150207_pontificio-consiglio-cultura.html.