the question of whether the teacher is religiously suitable, since the contrary would necessarily imply making a pronouncement on religious matters, encroaching on religious autonomy, in a matter that is at the core of such freedom —the possibility of appointing those who teach the doctrine— and would be a flagrant violation of the principle of separation between churches and the State.” 119. Regarding the State’s argument concerning the autonomy of the decisions made by the religious authorities when selecting persons who are suitable to teach religion classes, this Court first notes that in the instant case there is no dispute that, in accordance with the right to freedom of conscience and religion, religious communities must be free from any arbitrary interference by the State in areas related to religious beliefs and the organizational life of the community and, in particular, in matters concerning their internal organization. Nevertheless, for this Court, the central point of the discussion lies in determining whether the selection by a religious authority or community of the persons in charge of teaching religious education classes in a public educational establishment is included within the sphere of the autonomy inherent to the right to religious freedom. 120. On this point, the expert witness Rodrigo Uprimny stated, during the public hearing in this case, that “the State cannot interfere in the internal organization of the churches, nor determine who their faithful are, nor their authorities or religious ministers; therefore, in accordance with respect for the organizational freedom of religions, the State cannot invalidate the appointments of these religious ministers.” 157 However, he added that “the counterpart of respect for the autonomy of religions is the autonomy of the public sphere of the State, which must be strictly governed by human rights obligations. Consequently, the State cannot invoke religious beliefs - even if these are held by a majority - to justify discriminatory decisions on the basis of any of the criteria prohibited by international human rights law, including sexual orientation.” 158 121. With respect to this point, the expert witness added that the concept of the “ministerial exception:” 159 operates in ministerial matters [...] in determining who are the members of that church, who are its ministers, its hierarchies, [...] but when this ministerial exception is projected in other spheres it is weakened [...]this idea that religious education teachers are covered by the exception is far from generating consensus [...],in the case of the Catholic religion, I believe that the ministerial exception can be applied there [...] but not when it is applied in the field of education [...] the principles of education must be respected in accordance with the human rights treaties and the universal declaration, training children to respect human rights, fundamental freedoms and tolerance. 122. In relation to the foregoing, it should be recalled that Article 26(2) of the Universal Declaration of Human Rights stipulates, in a similar manner to the American Declaration, that “education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups […].” Likewise, Article 13(1) of the International Covenant on Economic, Social and Cultural Rights recognizes the right of every person to education, which “shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations, racial or religious groups and shall further the activities of the United Nations for the maintenance of peace.” 123. This Court has also emphasized that “the right to education, which contributes to the possibility of enjoying a dignified life and to preventing unfavorable situations for the minor and for society itself, stands out among the special measures of protection for children and among the rights recognized for 157 Statement of Rodrigo Uprimny during the public hearing. 158 Statement of Rodrigo Uprimny during the public hearing. This provision of the jurisprudence of the Supreme Court of the United States prohibits the application of antidiscrimination laws in labor relations between religious institutions with their “ministers”. Cf. Supreme Court of the United States, Case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Case cited by the State in its final written arguments, and by the expert witness Paolo Carozza (evidence file, folios 885 and 886). 159 33

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