Even concerning the appointment of clergy who are not holders of public office, làm mái tôn tại hà nội the state may have an obligation to prohibit gender discrimination. Under CEDAW, the parties are obliged to take appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of practices that are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. This is a fairly weakly worded – although unique – provision of an obligation on the state to attempt to effect change. Nevertheless, it means that the state must endeavour to eradicate culturally determined gender roles even in private religious organizations.
The argument for imposing a legal obligation of non-discrimination on private religious organizations becomes stronger the clearer the involvement of the state with the religious organization. If the religion is legally or financially established or supported by the state there will be a stronger reason for demanding that the state reverse the discriminatory practice. But there is a basis for arguing that the states must promote non-discrimination even in religious organizations in which it is not involved.
Discrimination in appointment to religious office as a concern for international law
There is further indication that discrimination against women within religions, even in areas which are at the core of religious doctrine, is an issue in which international law can legitimately intervene. The former UN Special Rapporteur, Elizabeth Odio Benito, suggested in her study to the Sub-Commission on Prevention of Discrimination and Protection of Minorities that studies be undertaken about discrimination against women within churches and within religions, including discrimination in ceremonies and worship, in becoming ministers of religion and in having a part in the hierarchal organizations of religions. She calls for immediate attention to this issue by the UN and recommends that the Sub-Commission undertake this study. Her suggestion implicitly includes a determination that discrimination of women by religions is within the ambit of international human rights law. The UN has taken no further action on this.
Application of constitutional non-discrimination principles to religious organizations is also absent in most states. A state constitution, which takes an important step in this direction, is that of South Africa. In South Africa, the non-discrimination provision of the Constitution has application for private actors, which would include religious bodies. Legislation which must be enacted in order to prohibit such discrimination by religious organization would certainly be controversial, raising objections such as those voiced by Van der Vyver, that a scenario in which ‘the Roman Catholic Church might be constrained to justify its internal ruling before a secular tribunal smells of totalitarianism of the worst kind.
The European Court of Human Rights has dealt with this issue only indirectly, as we saw in Chapter 3. It ruled that where a state-church decided to ordain women clergy, a clergyman who did not approve could not claim his right to freedom of religion was infringed. The question whether state-churches were obligated to ordain women clergy did not arise.