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Religious Freedom in Transition: Spain

Javier Garca Oliva

Online Publication Date: 01 September 2008

To cite this Article Oliva, Javier Garca(2008)'Religious Freedom in Transition: Spain',Religion, State and Society,36:3,269 281 To link to this Article: DOI: 10.1080/09637490802260336 URL: http://dx.doi.org/10.1080/09637490802260336

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Religion, State & Society, Vol. 36, No. 3, September 2008

Religious Freedom in Transition: Spain

JAVIER GARCIA OLIVA

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ABSTRACT After a peaceful and well-conducted transition towards democracy (197578), the Spanish Constitution was enacted in December 1978. This article starts with the events which led to the Civil War (193639) and studies the relationship between the Spanish state and the Catholic Church throughout Francos dictatorship. This background is necessary for a proper understanding of the current legal framework on religion, which is the main aim of this article. In the light of the pronouncements of the Spanish Constitutional Court (SCC), I analyse the various paragraphs of Article 16 of the Constitution, especially with regard to the position of individuals and communities. I also deal with the relationship between religious freedom and ideological freedom. I oer a critical judgment on the position of the Catholic Church and the other religious denominations which concluded agreements with the Spanish state in 1992. Finally, I highlight current trends, particularly the dicult relationship between the socialist government and the Catholic Church in the last few years. Although the situation had signicantly improved by 2007, there are still occasions on which tension between the two institutions is manifest.

Introduction There can be no doubt that at the start of the twenty-rst century Spain is no longer a democracy in transition, as over the last few decades it has experienced an authentic constitutional revolution and the most fundamental democratic principles and values have been rmly established and consolidated. However, in view of the fact that the peaceful and gradual evolution of democracy in Spain has been praised and proposed as a pattern for other democracies in transition, it is important to study the Spanish experience. I shall focus on the situation of religious freedom in Spain through the analysis of the most important legal documents (especially the Spanish Constitution and the Ley Organica de Libertad Religiosa (General Act 7/1980 of 5 July of Religious Liberty1)), as well as the decisions of the Tribunal Constitucional (Spanish Constitutional Court (SCC)). In order for us understand the main features of the current legal system, particularly with regard to the acknowledgement and protection of religious freedom, an analysis of the historical development since the Second Republic (193136) is crucial.

ISSN 0963-7494 print; ISSN 1465-3974 online/08/030269-13 2008 Taylor & Francis DOI: 10.1080/09637490802260336

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Historical Background The Second Republic Why start with the Second Republic, rather than with the inception of contemporary constitutionalism in the nineteenth century? In the words of the historian Sebastian Balfour, the proclamation of the Second Republic on 14 April 1931 was greeted with jubilation in the streets and squares of Spain. The new regime ushered in the rst genuine democracy in Spain. In a country hitherto ruled by an oligarchy of notables, a privileged and largely intolerant clergy and an oppressive military establishment, the Republic promised modernity and social justice. Its supporters had high expectations. (Balfour, 2000, p. 243) This same Second Republic came to an end in the Civil War (193639), the consequences of which are still working themselves out in Spain today. Generally speaking the clergy were regarded as a reactionary force and on the whole they did not welcome the new regime. It would be over-simplistic to regard the Republic as anticlerical without further explanation, as this new political system involved changes of government between left-wing and right-wing parties, and the latter were traditionally closer to Roman Catholicism and the protection of the Catholic Church. However, the right-wing inclination of most of the Catholic hierarchy was to a large extent a result of the anticlerical policy fostered by left-wing parties, including the killing of priests and religiously ordained persons, as indicated later in this paper. The 1931 Spanish Constitution established the separation of church and state (see Esenwein and Shubert, 1995, pp. 4345) and imposed restrictions on the former in relation to its wealth and education. The then prime minister, Manuel Azan a, even declared that Spain was no longer Catholic. Probably the most controversial decision was the dissolution of the Jesuits on the grounds that this order required of its members a vow of allegiance to the Holy Father: allegiance to a foreign power the Holy See or any other was prohibited. This decision showed the politicians of the Second Republic trying to modernise Spain and to ensure loyalty to the secular institutions; at the same time they insisted on respect for religious freedom acknowledged by the Constitution and for the Catholic hierarchy. The latter, however, considered government policies to be anticlerical and antagonistic to the Roman Catholic character of the country. Although the Constitution included a declaration of religious freedom, and the pronouncements of the Catholic Church may seem to be an overreaction, the Constitution did in fact also contain a number of controversial limitations on religious freedom. Furthermore, the Second Republic faced an extremely complicated nancial crisis which would lead to discontent on the part of signicant sectors of the population (Carr, 1980, p. 118). Moreover, leading gures in right-wing governments under the Republic were not loyal to the Republic as an institution, with a preference for a monarchical system like that of Alfonso XIII which predated the Republic. Meanwhile left-wing parties frequently used a boycotting policy, making government very dicult. Relations between church and state also deteriorated: despite eorts by left-wing governments to present themselves as moderate and respectful of religious freedom, the Catholic Church felt increasingly threatened. The last government of the Republic did not succeed in addressing the economic situation. In a context of chaos and instability the military planned a coup

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(see Preston, 1996, pp. 6673); the political classes had been anticipating this for a long time. The Military Coup and the Spanish Civil War (193639) On 17 July, in the mistaken belief that the Republic could easily be overthrown, the Spanish Army of Africa rose in Morocco and was followed the next day by garrisons throughout Spain. The failure of the military coup led to a protracted and bloody civil war (Balfour, 2000, p. 252). From the outset the Catholic hierarchy showed support for the rebels. Some bishops were outspoken and used apocalyptic language to describe the situation. In the bishop of Salamancas view the conict was part of a global struggle: On the soil of Spain a bloody conict is being waged between two conceptions of life, two forces preparing for universal conict in every country of the earth . . . . Communists and anarchists are sons of Cain, fratricides, assassins of those who cultivate virtue . . . the war takes the form of a crusade (Balfour, 2000, p. 254). The war saw frequent atrocities against church personnel: priests, nuns and bishops were murdered by partisans of the Republic (see Esenwein and Shubert, 1995, p. 175). When the war came to an end the Nationalist victors initiated a erce policy of persecution against those who had supported the Republic. Many executions took place, no forgiveness was shown (Ellwood, 1994, p. 108) and a signicant number of citizens escaped to France and many countries in Latin America, including Mexico and Argentina. General Francos Dictatorship (193975) After the end of the war, General Francisco Franco became the personication of the regime and all powers were vested in him. The dictatorship now had the opportunity to exercise virtually unqualied power (Grugel and Rees, 1997, p. 23). Throughout Francos long dictatorship until his death his power remained unchallenged, despite the opposition of many social sectors. At the start of the dictatorship the Catholic Church passionately endorsed the new political system. Franco sought to create a confessional state and declared the union of state and church. The autocratic and fascist tendencies of the dictator were however moderated by elements of the system, including representatives of the church and the monarchists. In the rst few years of the new regime, Spain imposed on itself an economic isolation from the rest of the world; this soon proved disastrous. The country was suering the consequences of the widespread destruction of the Civil War, and was ocially neutral in the Second World War; Franco nevertheless showed his preference for the Italo-German alliance. In the early 1950s the signing of a concordat with the Holy See was a landmark in the process of overcoming self-imposed isolation (Mart nez, 1999, p. 93), as were strategic military agreements with the USA and membership of the United Nations. All these developments involved tentative moves towards a more open regime. In the last few years of that decade, a group of technocrats who belonged to the conservative Catholic association Opus Dei were appointed in order to put in hand the economic modernisation of the country (Grugel and Rees, 1997, p. 64). However, the system opposed political or cultural reforms, despite the fact that some members of this organisation would have endorsed them. In the 1960s, Spain witnessed what s, 1999, have been described as the golden years of Francos regime (Molinero and Ysa

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p. 131), but the disparity between economic growth and political paralysis became more obvious as the years went by. Discontent grew steadily in many sectors of society. In the mid-1960s universities widened their traditional upper-class intake to include the middle classes; the new entrants became aware of the freedoms enjoyed by their counterparts elsewhere in Europe. Socialists and communists, though their political parties were still banned, dreamt of the end of the political system. Indeed the Communist Party fostered an signicant degree of popular agitation, instigated and funded by the USSR, as occurred in other democratic countries all over Europe in the 1960s and early 1970s. An important role was played by the Catholic Church at this time. Many clergy found it increasingly dicult to accept the reactionary political system, and those popularly known as red priests (curas rojos) occupied distinctly left-wing positions. Pope Paul VI tried to distance himself from Franco and their relationship was clearly cold. The Second Vatican Council supported principles such as religious freedom in Dignitatis humanae; this created an embarrassing situation for the Spanish political system. Pressure from the Catholic Church led to the enactment of the 1967 Religious Freedom Law (Ley 44/1967 de Libertad Religiosa), which recognised tolerance towards other religious denominations. In 1971 the Catholic Church decided to ask for forgiveness from the Spanish people for its role in the Civil War and in 1973 the bishops asked for the de-confessionalisation of the state. Franco considered these moves as a betrayal or stab in the back. One of the forces that contributed to a successful transition to democracy was certainly the Catholic Church. In the early 1970s the country went through a severe nancial crisis (which would be prolonged into the rst years of the democratic transition and which may well explain some of the diculties that the new political system had to face). By then the opposition to Franco had brought together left-wing political parties, the intellectual class and the most progressive sectors of the Catholic Church. The dictator died on 20 November 1975. The death of his prime minister and right-hand man, Carrero Blanco, two years earlier in an attack by the terrorist organisation ETA had already cast doubts on the feasibility of the continuation of a dictatorship in a now mainly democratic Western Europe. The Democratic Transition (197578) The real transformer and the mechanic of the most successful peaceful democratic transition in Europe was King Juan Carlos, who was crowned two days after Francos death and who, from the very beginning of his reign, showed his democratic commitment (see Balfour, 2000, p. 273). He had very craftily kept this hidden during Francos life. It seems unquestionable that Franco could never have envisaged a development even remotely similar to what took place between 1975 and 1978. On the n, on behalf of the Catholic Church, coronation of the new king, Cardinal Taranco claimed that the latter did not require any privilege from the state but simply freedom to carry out its functions and defend the Gospel. However, the bonds between the monarchy and Catholicism were exemplied in that ceremony. For six months after Francos death Carlos Arias Navarro (see Preston, 1986, pp. 5391) continued as president of the government, but it soon became clear that he remained identied with the gure and principles of Franco and that he would not be capable of introducing the reforms which Spain needed so desperately. The fundamental transformations desired by Juan Carlos were carried out by Adolfo rez (see Ortiz, 2006), a conservative political gure who came from the old system Sua

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but who turned out to be a moderate and inclusive leader. He was appointed by King Juan Carlos as Arias Navarros successor and he founded the Union del Centro Democratico (UCD), a centre-right political party which would win the rst democratic elections on 15 June 1977. These elections, the rst by universal surage, were possible only after the enactment of the Political Reform Law (Ley para la Reforma Poltica) passed by the Cortes Generales (the old unelected parliament left over from Francos time): it provided for the dissolution of the Cortes Generales and signalled the start of a completely new period in Spanish history. rez, Santiago Carrillo, leader of the Communist Party, Alongside the king and Sua played a role which should not be underestimated. He came back to Spain after many rez, the president of the years in exile and engaged in a productive dialogue with Sua stegui, 1999, p. 270). Sua rez had envisaged from the start that a government (Aro democratic peaceful transition would never be successful without taking the communists on board. Their acceptance of the monarchy as a form of state bearing in mind their well-known allegiance to republican principles was an honourable example of historical pragmatism. Out of the elections held in June 1977 a bicameral parliament comprising a Congress of Deputies (Congreso de los Diputados) and a Senate (Senado) was established. This legislative body would be in charge of approving a constitution, previously prepared by the so-called Parents (Padres ) of the Constitution including left-wing, right-wing and nationalist leaders in an outstanding example of compromise and reconciliation, and ratied overwhelmingly by the Spaniards in a referendum on 6 December 1978. Three years later, on 23 February 1981, the admirable response of the democratic institutions, especially the crown, to a military coup organised by Lieutenant Colonel Tejero signalled the consolidation of the new democratic system (see Preston, 1986, chap. 7). That day several members of the army sought the support of the crown to return to the situation prior to 1975. The rm response of the king in defence of the young democracy has been highly praised.2

Religious Freedom in the Spanish Constitution:3 an Analysis of Article 16 Introduction Summarising the Spanish model of ecclesiastical law, regulated by Article 16 of the Constitution of 1978, one could say that despite having embraced the principles of freedom and non-discrimination the Spanish legal system has chosen to maintain a special relationship with the majority Roman Catholic Church, and to reject the uniformity consequent on a separatist formula. The Constitution recognises the nonconfessional nature of the state, as well as the principles of religious freedom and cooperation. It also declares the principle of equality of all Spaniards irrespective of n (2001, p. 2) argues, the reason for its success is that the religion. As Mart nez Torro Constitution of 1978 eectuated a gradual transformation of the Spanish confessional State into a regime based on religious freedom without breaking abruptly with the nations historic tradition. Article 16.1: Religious Freedom4 Article 16.1 reads: Freedom of ideology, religion and worship of individual and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law.5

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As Souto Paz (2003, p. 246) points out, the Constitution does not use the terminology of the Universal Declaration of Human Rights, which refers to the freedom of thought, conscience and religion, though the content itself is very similar. The Universal Declaration is nevertheless crucial in the Spanish context as according to Article 10.2 of the Constitution the rules relating to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratied by Spain. This article, therefore, becomes a safeguard or a mechanism nchez, 2002, p. 85). of protection of fundamental rights (see Mart n Sa Religious freedom is not only an individual right, but also a superior value6 of the legal system (Sentencia del Tribunal Constitutional (STC) 130/1991, FJ 4) and this means in practical terms that all dierent freedoms must be made compatible with this principle, which the SCC has dened as one of the basic principles of our juridical and political system which determines the attitude of the state towards religious groups and the relationships between the state and the churches and other religious bodies (STC 24/1982, FJ 1).7 We should note that religious freedom cannot be properly understood without taking into account the more general question of ideological freedom. While religious freedom can be dened as absence of compulsion in the matter of choosing a faith and subsequently living in accordance with it, ideological freedom, according to the SCC, does not exhaust itself in the right to adopt a certain intellectual position with regard to ones life and ones judgment according to ones personal convictions, but it also comprises an external dimension of agere licere, in compliance with ones ideas, without suering for this reason any kind of punishment by the public authorities (STC 24/1982, FJ 10). As Llamazares states, ideological freedom is not incompatible with hesitation or doubt; in fact, it is intrinsically linked with them. In his view, which is not shared by many other commentators, religious freedom and freedom of belief are just branches of this wider freedom (Llamazares, 2003, p. 286). Equally, Souto Paz (2003, pp. 24647) has indicated that religious freedom is one element within the wider concept of freedom of thought, conscience and ideology. Both authors have taken a very innovative stance in the course of the last few years, although from slightly dierent angles, and have successfully left behind the traditional clear-cut distinction between ideological and religious freedom, suggesting that the latter is a branch of the former. Addressing the dierence between religious and ideological freedoms, Rossell points out that they are equal rights as far as their content is concerned, but they have dierent scope and mechanisms of collective exercise (Rossell, 1999, p. 128). The SCC has linked both ideological and religious freedoms with freedom of teaching: freedom of teaching, as a manifestation of ideological and religious freedoms and the right freely to express thoughts, ideas and opinions, includes the right to set up educational institutions and the right of teachers to develop their functions within the limits of their jobs as well as the right of parents to choose the religious and moral education for their children. (STC 5/1981, FJ 7) Article 16.1 acknowledges the religious freedom both of the person and of the community. Both must be included if religious freedom is to develop its full dimension. In fact, in contemporary constitutionalism, while the recognition of individual fundamental rights as human rights is the starting point of any discussion, there is subsequent acknowledgment of the collective dimension of these rights. As far

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as religious freedom is concerned, believers must be able to full the tenets of their faith both individually and alongside the rest of the group. In principle, in view of the fact that the dignity of the person is the basis of public order and social peace, the individual person has the right to religious freedom (see STC 120/1990, FJ 4), and the protection of this freedom is a minimum requirement that should never be neglected. However, the recognition of religious freedom would not make sense if the collective dimension were not endorsed at the same time. This principle has been established in the case law of the SCC,8 and has also been studied (1994, p. 132), for example, states that by commentators. Dom nguez Bartolome religion is more than a personal matter and is essentially an aspect of the group as well, regardless as to whether or not this fact is accepted by the public authorities. It is commonly accepted that religious freedom comprises two stages: (1) the adoption of faith, which is personal by nature, and (2) the point at which the individual declares his or her religious beliefs and acts accordingly. It is worth mentioning that Article 16.1 concludes with a reference to public order as a limit to manifestations or expressions of the principle of religious freedom. Indeed, an absolutely unlimited exercise of this right could harm other citizens and in that case the state would be failing to carry out its proper functions. The SCC has stated in several decisions that no right has an absolute nature (STC 129/1996, FJ 6). However, it has also emphasised that the expansive force of all fundamental rights restricts the extent of the laws which limit these rights; this explains why these limits to fundamental rights must be interpreted very restrictively . . . (STC 159/1986, Extracto 5). Both religious and ideological freedoms are essentially negative, as all they require is the neutrality of the public authorities. The latter should refrain from imposing an ocial thought on matters such as philosophy, culture, politics, science, religion and indeed any particular understanding of human life. This self-imposed neutrality on the part of the public authorities, which by denition comprises a recognition of essential human rights, means that all beliefs are equal before the law. This is stated in Article 14 of the Constitution.9 Article 16.2: Acknowledging Ones Beliefs Cannot be Compulsory Article 16.2 reads: Nobody may be compelled to make statements regarding his religion, beliefs or ideology. In considering the implications of this important principle, we should note that alongside religion and ideology this article also mentions beliefs. These can be dened as a system of religious tenets that may be either rejected or accepted by the individual; if he or she accepts them, the individual then goes on to commit himself or herself to living in accordance with them. These beliefs therefore have both a theoretical and a practical dimension. It could also be argued that despite the fact that freedom of conscience is not explicitly acknowledged by Article 16, conscience is nevertheless contained in the term beliefs, which seems to be broad enough to embrace it. The SCC has declared that the fundamental right recognised by Article 16 of the Constitution comprises, alongside the freedoms of conscience and thought, both in the personal and external arenas, a freedom of action in relation to which Article 16.2 establishes a mechanism of protection when it declares that

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Javier Garca Oliva nobody may be compelled to make statements regarding his religion, beliefs or ideology. (STC 19/1985, FJ 2)

It is precisely because the state must be neutral and should refrain from interfering in the ideological and religious choices of its citizens that the latter cannot be compelled to comment on their ideology, religion or beliefs. Article 16.3: The Non-Confessional Nature of the State; Cooperation with the Catholic Church and Other Religious Bodies Article 16.3 reads: There shall be no State religion. The public authorities shall take the religious beliefs of Spanish society into account and shall in consequence maintain appropriate cooperation with the Catholic Church and other confessions. With this statement, the Constitution of 1978 breaks with an almost uninterrupted tradition of Catholic confessionalism. In fact, with only two exceptions (the diz Constitutions of 1869 and 1931), fundamental laws since the Constitution of Ca in 1812 (the rst Spanish constitution), and before them, the legislation enacted since the creation of the Spanish state under the Catholic king and queen Fernando and Isabel, regarded Catholicism as the ocial faith of the state. As noted above, the Catholic Church sought independence from the state in the last decades of General Francos dictatorship, and in the mass celebrated on occasion of the enthronement of King Juan Carlos the church passionately declared its lack of interest in any privileged position. It expected only to be recognised as free to carry out its functions. Even if some right-wing sectors of the political class supported the maintenance of the Catholic nature of the state, this option was practically ruled out. The SCC has rightly emphasised the neutrality of public authorities towards religious beliefs as an indispensable feature of Spanish democracy, establishing that it is required for the peaceful coexistence of dierent religious beliefs which exist in a pluralistic and democratic society (STC 177/1996, FJ 9). However, the Constitution has not chosen a separatist model, like the French one, as this would have been completely alien to the Spanish historical tradition. On the contrary, it has embraced a system of cooperation similar to that in Italy, Germany and Belgium and a good many other European countries. In a landmark case the SCC has interpreted these constitutional provisions in a way which should head o any possible confusion between public authorities and religious bodies: the constitutional legislature has highlighted that religious bodies should never go beyond their own aims or functions, as these can never be equal to those of the state. Therefore they cannot hold the same juridical position (STC 340/1993, FJ 4). The Constitution explicitly mentions the Catholic Church, and this has understandably occasioned concern and controversy. It could be argued that this mention is a preemptive strike against suspicions that the intention is to return to the situation at the time of the Second Republic. In fact, it has been justied on historical and sociological grounds: when the Constitution was enacted 99 per cent of the population were Catholics at least nominally and the percentage continues high today, although it is now signicantly lower than in the late 1970s (around 80 per cent, rdez Canto n has indicated that the legislature according to recent state surveys). Berna did not intend to recognise the sociological confessionalism of the Spanish state (even though perhaps it did so in an indirect way), because the style that has been used is quite signicant: it is a legal order and not simply a recognition of a sociological reality rdez Canto n, 1989, p. 410). The truth is that the Catholic Church is mentioned (Berna

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within the framework of the crucial prior recognition that no denomination is the ocial faith of the state and that no denomination has privileges over any other. Meanwhile an acknowledgement of the historical role played by the Catholic Church no doubt explains why the SCC has made rulings such as the following: Article 16.3 does not prevent the armed forces from celebrating religious festivities or taking part in such events (STC 177/1996, FJ 10). This decision was in response to the refusal by a soldier to participate in a Catholic festival, and although it recognised the right of that soldier to be exempted from such an activity, it also endorsed the right of the army to maintain its religious traditions, despite the fact that many members of the armed forces may not profess Catholicism nowadays.

Legislation Concerning the Relationship of the State with Religious Denominations nica de Libertad Religiosa (General Act 7/1980 of 5 July of Religious The Ley Orga Liberty)
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Article 16 is in the section of the Spanish Constitution entitled Fundamental Rights and Public Liberties. In compliance with Article 81 of the same Constitution, those constitutional provisions must be developed by a specic type of law known as leyes organicas. Article 16 has been developed by the Ley Organica de Libertad Religiosa 7/ 1980, the most important provisions of which are Articles 5 and 7. The former establishes that the recognition of legal personality is dependent upon registration with the public registry created for this purpose and kept at the Ministry of Justice, the Registro de Entidades Religiosas. The latter establishes that the state may sign agreements of cooperation with religious denominations as long as various requirements are met. I shall look at these requirements below, in relation to agreements between the state and religious minorities. The Legal Position of the Catholic Church In the light of this explanation of the role of the Ley Organica de Libertad Religiosa one might expect that it regulates all religious bodies including the Catholic Church. However, this is not the case. In fact, as a result of the historical relationship between the state and the Catholic Church the latter is not, generally speaking, aected by the provisions of the Ley Organica. Relations between the Spanish public authorities and the Catholic Church are regulated by four international agreements signed by the Spanish state and the Holy See on 3 January 1979. Because of their international nature, their amendment or repeal requires the consent of both parties. These four international agreements can be considered as partial concordats, and they have replaced the former concordat which the Holy See and General Franco signed in 1953. These international agreements have become a sort of model in the ecclesiastical legal framework and other denominations have sought to raise their legal position to the level reached by the Catholic Church in the 1979 agreements and their subsequent development. The 1992 Agreements with Other Religious Bodies The Constitution does not specify which instruments of cooperation the legislature would need to develop in due course. Consequently the provisions of the Ley Organica

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de Libertad Religiosa proposing instruments of cooperation existing in other jurisdictions, for example Italy, were an initiative on the part of the Spanish parliament. The same applies to the four international agreements signed with the Holy See, although these were probably indispensable in order to replace the Concordat of 1953, which had become completely outdated after the enactment of the Constitution; and indeed the four agreements were signed just a few days after that enactment. In compliance with Article 7 of the Ley Organica de Libertad Religiosa, a religious group which signs an agreement with the Spanish government must be well-known as rooted (notorio arraigo) in Spanish society. This requirement could have been interpreted very restrictively by the executive, as it might be argued that strictly speaking Catholicism is the only faith which could claim to be well-known as rooted in Spain, at least until ve or ten years ago. However, in 1992 the government took a very inclusive approach and favoured agreements with three religious federations: the Federation of Evangelical Religious Entities of Spain (Federacion de Entidades Evangelicas de Espana), the Federation of Israelite Communities of Spain (Federacion de Entidades Israelitas de Espana) and the Islamic Commission of Spain (Comision Islamica de Espana).10 These agreements were subsequently approved by three ordinary acts of parliament. It is thus clear that the regulation of relations between the state and the Catholic Church is signicantly dierent from the regulation of its relations with other religious bodies. The former are regulated by international treaties and cannot be modied unilaterally by the state, while in the case of the latter the crucial dierence is that the public authorities have the power to amend or repeal these laws. Of course, on political grounds this is highly unlikely to happen, but from a purely legal point of view it is a real possibility. The signature of these agreements has undoubtedly been a step forward, even though a detailed analysis of their contents shows that the three agreements are similar in many respects and are not fully adequate to the specic needs of the three religious entities with which they have been concluded. Furthermore, Protestant denominations were required to come together under the umbrella of a common federation unlike what happened in Italy (see Garc a Oliva, 2008) and this has given rise to criticisms by some Protestant groups. Other Religious Bodies In order to qualify to sign agreements with the state, religious denominations must meet two requirements: (1) they must be well-known as rooted; and (2) they must be registered in the public registry created for this purpose and kept at the Ministry of Justice. This brings us to a third category of religious bodies in the Spanish framework: a good number of non-Catholic denominations which are outside the three federations with which the state has concluded agreements.11 Some of these denominations may decide in the future to sign an agreement with the state as long as they are deemed to be well-known as rooted, which is a matter of discretion on the part of the government, not subject to or directed by any specic and objective rules or criteria. There is also a further condition which will need to be met. Article 5.2 of the Ley Organica says that a declaration of religious purpose is required to enable a group to acquire legal personality. This cannot be other than a procedural matter: otherwise the registry would end up in the position of being able to decide whether a particular group is or is not a religion, as Polo Sabau (2002, pp. 2950) has pointed out.

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Another relevant issue, which goes beyond the scope of this article, is the growth of new religious movements in Spain. This is an increasingly important reality, studied in depth by Navas Renedo (2001). The SCC has taken a very progressive stance in relation to these new religious groups and has declared that the fundamental right of religious freedom does not refer only to the traditional religions or those which have characteristics or institutional practices similar to those of the traditional religions (STC 46/2001, FJ 4). Nevertheless, this same court has established limitations on parents on the grounds of their religious beliefs in order to protect the interests of their children (STC 141/2000, FJ 5). These limitations could include decisions such as the withdrawal of custody of the children. Current Trends and the Outlook for the Future The last few years have witnessed an ongoing tension between the Spanish government and religious bodies, particularly the Catholic Church. There have been several areas of disagreement, but the teaching of religion in state schools and the recognition of gay marriages for the rst time in Spanish history have been the two most outstanding matters (see Garc a Oliva, 2005, pp. 199205). Law 13/2005, of 1 July, reforming the Civil Code and sanctioning same-sex marriages, was contested passionately by the Catholic Church, which alongside the main opposition party, the Partido Popular, conducted a campaign to reject the new law and organised demonstrations. According to Article II of the agreement of 3 January 1979 between the Spanish state and the Holy See, concerning education and cultural matters, educational plans . . . shall include the teaching of the Catholic religion in all educational centers, in conditions equal to those of the basic subjects . . . (de la Hera and Mart nez de Codes, 1998). This provision has proved controversial because various pieces of legislation enacted over recent decades have tended to play down the value of this subject, and at times its mark, unlike the mark in all other basic subjects, has not counted towards university entry. On the other hand, the question of the nature and status of an alternative subject to Catholic religion for those students who choose not to study the latter has also raised serious diculties. Further problems have arisen after the passing of the new Ley Organica 2/2006, de 3 de mayo, de Educacion. This law contains provisions regarding a new discipline known as Education in Citizenship (Ensenanza para la Ciudadana), which were ercely criticised by some members of the Catholic hierarchy. Many citizens declared that they would exercise their right of conscientious objection to this subject on the grounds of its secular and antireligious nature. However, despite the initial negative reaction to this law in some social sectors, the vast majority of Spanish students have in fact taken this subject during the current academic year (20072008). Indeed, in September 2007 the president of the Spanish Episcopal Conference, Ricardo zquez, declared his respect for those Catholic parents who would not prevent Bla their children from studying Ensenanza para la Ciudadana. There has been tension between the state and the Catholic Church under the socialist government after the era of the centre-right Partido Popular (19962004). The relationship seems to be signicantly improving, but it remains to be seen how it will develop in the course of the next few years. The openly antagonistic approach on the part of signicant members of the Spanish Episcopal Conference towards the socialist government in the recent electoral campaign and the defeat of the moderate sector headed by Bishop Blazquez in the latest elections for the presidency of the Episcopal

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Conference12 are not a very promising start for the foreseeable future. Separation between public authorities and religious bodies is not incompatible with cooperation, however; and such cooperation in Spain at the beginning of the twenty-rst century is taking place in a completely consolidated democracy. Notes
1 The wording of this English translation of the title of the law is taken from de la Hera and Mart nez de Codes (1998). 2 For instance, after the collapse of the attempted 1981 coup, in an emotional statement on television, Santiago Carrillo, the leader of the Communist Party and a staunch republican, said God save the King, and added Today, we are all monarchists. 3 For an interesting and extremely thorough analysis of religious freedom in Spain, see Barrero Ortega (2006). rrez del Moral and Can 4 See Gutie ivano Salvador (2003, p. 19): they rightly point out that religious freedom is becoming increasingly important by the day. 5 All quotations from the law and the Constitution are taken from the English versions in de la Hera and Mart nez de Codes (1998). 6 Article 1.1 of the Spanish Constitution: Spain in hereby established as a social and democratic State, subject to the rule of law, and advocating as higher values of its legal order, liberty, justice, equality and political pluralism. 7 All quotations from SCC decisions are my own translations. 8 See STC 64/1988, FJ 1: Although fundamental rights are rights that the individual holds actively and the state is then regarded as a passive subject, in order to develop them properly, it must be acknowledged that they cannot be exclusively exercised by physical persons, but also by groups and organisations which aim to defend certain features of this religious freedom. See also STC 128/2001, FJ 2. 9 On the relationship between the principle of equality and labour law, see STC 59/1992, FJ 4. See also STC 109/1988, which deals with the employment status of individuals providing a service to members of religious orders. 10 The English translations of the names of these federations are taken from de la Hera and Mart nez de Codes (1998). 11 There are still other categories: those denominations not registered in the religious registry but in the registry of associations either because they preferred that or because they were not allowed any alternative and those denominations which prefer not to have legal personality in civil law and therefore have not sought registration. 12 The winner was Cardinal Rouco Varela, a former president of the Episcopal Conference. He consistently opposed many of the policies of the current socialist government, including the laws on gay marriages and education. In December 2007, in the course of a demonstration in favour of the traditional model of the family, he claimed that many of the governments actions were steps backwards in terms of recognition of human rights.

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