LGBT Discrimination Case Poses Hemispheric Threat

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by Stephen Wynne  •  ChurchMilitant.com  •  August 15, 2019   

Action could 'upend religious freedom' across the Americas

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WASHINGTON (ChurchMilitant.com) - An under-the-radar sexual orientation discrimination case is threatening to undermine religious freedom across the Western Hemisphere.

Years in the making, the case springs from Chile, where an open lesbian is challenging her bishop's decision that she cannot serve as a religion instructor owing to her refusal to abide by Church teaching on sexuality.

It involves two components of the Inter-American Human Rights System: the Inter-American Commission on Human Rights, based in Washington, D.C., and the Inter-American Court of Human Rights, based in San José, Costa Rica. 

In Chile, ecclesial authorities are required by law to certify religious educators as fit to teach theology. If a teacher is deemed no longer suitable to instruct students on matters on religion, certification is withdrawn. 


For two decades, Sandra Pavez worked as a Catholic religion teacher in the diocese of San Bernardo. But in 2007, diocesan officials learned that she had publicly entered into a same-sex relationship, causing scandal among her colleagues and students. They met with Pavez multiple times, warning that if she persisted in flouting Church teaching, they would be forced to revoke her certification. 

Pavez refused their appeals, and her certification was rescinded. By law, she could no longer teach religion, but her school retained her as a member of its education staff. What's more, it promoted her to inspector general, a position of leadership.

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Sandra Pavez

But Pavez wasn't satisfied with this. She filed suit against the diocese of San Bernardo, claiming — falsely — that she had been fired. 

"It cannot be that a person who wants to talk about God is silenced by having a different sexual orientation. I will fight until the end so that there is a precedent in history," Pavez later told Chilean media

"I thought that the Chilean Catholic Church was much more humane and accepted people as they were," she added. "I was very disappointed."

In his analysis of the case, Tomás Henríquez, senior counsel for faith-based legal advocacy group ADF International, writes that Pavez "alleged that the revocation of her certificate had infringed upon her fundamental rights to non-discrimination, to respect for her private life and to protection against arbitrary or abusive interventions against it, and to be free to work without discrimination."

But court after court — including the Supreme Court of Chile — rejected Pavez's claim, ruling that the state has no jurisdiction over the Catholic Church regarding decisions as to who is suitable to represent the Church in matters of religious instruction.  

Local activists will surely use such precedent as a bludgeon to pressure governments and legislatures into compliance, affecting church autonomy.

Unbowed by multiple domestic court defeats, Pavez turned to the increasingly pro-LGBT international human rights system for help. She filed a complaint with the Washington-based Inter-American Human Rights Commission, alleging that by upholding her bishop's decision, Chile was complicit in violating her human rights.

In March, the commission decided in favor of Pavez, concluding that "because the state had allowed the Church to enforce its own rules and doctrine with respect to a Church member seeking to act in the Church's name, it had infringed Ms. Pavez's rights under the American Convention on Human Rights," Henríquez writes. "It stated that under the Convention she had a right to retain her position as a Catholic religion teacher, despite any contrary judgment of the authorities of the Catholic Church."

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The Inter-American Commission on Human Rights

"Importantly, the Commission went so far as to affirm, in dicta for future cases, that its conclusions in favor of Ms. Pavez would apply even in cases of private employment," he continues, "because under the case law of the Inter-American Court of Human Rights, the principle of non-discrimination applies horizontally to disputes among private parties as well."

"In other words, under this precedent, states should forbid private Catholic, Jewish, Muslim, or Evangelical schools from enforcing their own doctrines by their choice of who teaches them," he adds.

The commission has not yet decided whether to advance Pavez's case to the Inter-American Court of Human Rights. If it decides to proceed, this will spell trouble for Christians throughout the Americas.

The United States has not ratified the American Convention on Human Rights and is therefore outside the jurisdiction of the Inter-American Court. 

But, Henríquez notes, the United States is subject to "the commission's jurisdiction, recommendations, and various forms of political pressure," and LGBT activists can be expected to seize upon the commission's decision to force U.S. policy into alignment. 

Elsewhere throughout the hemisphere, he writes, churches face even greater danger: 

It is equally important to consider that even though an adverse ruling against Chile by the Court would be felt geographically only in those states that are under the Inter-American Court's jurisdiction, it would nonetheless have a profound impact on the work of many missionary churches in which hundreds of thousands of Americans of all faith traditions take part in Latin America and the Caribbean. Local activists will surely use such precedent as a bludgeon to pressure governments and legislatures into compliance, affecting church autonomy.

Rolando Jiménez, head of Chilean activist group the Homosexual Integration and Liberation Movement, confirms that Christians have cause to worry.

"We believe that this will be a very important symbolic and political struggle for Latin America and Chile," he said after Pavez filed her complaint with the commission. "It will allow us to end the collusion, the violation of rights in which the Chilean state and the hierarchies of the Catholic Church are accomplices."

If referred to the Inter-American Court, the case will prove to be an uphill battle for defenders of religious liberty. In recent years, the court has drifted increasingly to the Left, such that in January 2016, a judicial panel issued an advisory opinion that same-sex "marriage" and gender identity change are protected by the American Convention on Human Rights.

"Human rights treaties are living instruments whose interpretation must accompany the evolving times and present conditions of life," the court declared. "A restrictive interpretation of the concept of 'family' that excludes the affective bond between couples of the same sex from the protections of the inter-American system would frustrate the object and purpose of the treaty."

The question whether or not religious institutions will continue to enjoy their freedom from state intervention and control hangs dangerously in the balance.

The court called on countries to begin taking steps to legalize same-sex "marriage," citing "its doctrine of constitutional control whereby its opinions are to be treated as binding precedents by courts on the entire American continent," notes Stefano Gennarini, vice president for legal studies at the Center for Family and Human Rights (C-Fam).

Ominously, Gennarini adds, the judicial panel dismissed religious objections, declaring that "such convictions cannot affect what the Convention establishes about discrimination based on sexual orientation."

In light of this, Henríquez sees trouble ahead. 

"The Commission is currently in the process of making the decision whether to actually sue Chile at the Inter-American Court," he explains. "If it does indeed make the decision to send this case to the Court, it will be up to the seven judges who make up the tribunal to ultimately decide the matter."

"But seeing that this has been the most progressive and pro-LGBT rights Court in the Inter-American System's history, the prospect of the matter is not looking good," he adds. "The question whether or not religious institutions will continue to enjoy their freedom from state intervention and control hangs dangerously in the balance."

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