Revista de Fomento Social – issue 255 (july-september 2009)
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Religious Freedom in Spain. Updating the law?
-----------------------------------------Editorial Board------------------------------------The Spanish government has announced its intention to submit a proposal for an
“organic law on religious freedom” to replace the existing one which has been in effect
for nearly thirty years now. We do not yet know the details about this proposal, but all
in all, it seems to be a good opportunity to discuss the exercise of religious freedom in
Spain in the light of what has transpired in our country in the last third of a century.
The right to religious freedom is known to be a human right and is recognized and
protected as such in the Western context, though in a variety of ways. So we deem it
important to begin by defining the principal postures taken by different States in our
cultural environment regarding religious practice. On one hand, our intention is to
broaden our scope and horizon by shedding light on how to exercise this right, and, on
the other hand, we want to contextualize and better understand the choices made by
Spanish constituents in this matter. The constitutional regulation of this fundamental
right will be discussed below, as it encompasses the great legal and political framework
which will determine this right in our country. We will briefly touch on the
development of this right in the Law of Religious Freedom of 1980 (which will hence
be referred to as the LOLR (Law of Liberty of Religion). Then we will try to identify
the most relevant changes taking place in Spanish society between 1978 and the present
day that have played an important role in the exercise of the right to religious freedom.
Through this approach we seek to identify, first of all, the great challenges facing Spain
at the present time with respect to the recognition and exercise of this fundamental right.
Then we will consider the inescapable premise from which these challenges must be
approached and addressed and in conclusion we will propose possible lines of action or
responses to them.
1.
The main legal and political framework governing religious freedom in our
culture
The fundamental right to religious freedom is not the same in all our Western
societies. To clearly focus our discussion, we have ventured to establish a typology to
help clarify the current Spanish situation. Each model is based on legal principles, often
of a constitutional type, that shape the act of State through which the fundamental right
to religious freedom is protected and put into practice. These principles provide the
means to regulate religious matters and to control the content of the exercise of religious
freedom, and the two must be consistent. Finally, these principles provide elements for
the interpretation and application of these rules and regulations, and provide for any
unexpected contingencies that the law must contend with. In short, they are the
premises behind the development and implementation of a system which provides for
the individual right to religious freedom. In general in our European and North
American setting, we can identify three main models:
1.1. Confessional or Identification Models
This is the model found in confessional countries. It occurs in the north of Europe
(almost all the Scandinavian countries), in the Netherlands and the United Kingdom, all
of which being countries predominantly Protestant although Greek is another example,
and it is predominantly Orthodox. History has demonstrated that confessional States
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associated with a state religion end up with very weak lay participation in the public
arena, but, on the other hand, very often shift into a very pronounced cultural and social
secularization. In fact, the citizens of these countries are almost always characterized
by very little religious dedication and affiliation though, paradoxically, they keep up
appearances in public with regard to traditional religious references. Different churches
or denominations sometimes seem to be established State religions, but often only one
of them is the actual official national or state Church.
In all these countries the religious element has been important, for various
historical reasons, in identifying and characterizing the State itself. Note the case of the
Anglican Church in the United Kingdom and the major role played by a prince`s civil
power in the reformed churches.
1.2. Secular or Abstentionist Models
These models existed previous to the emergence of the welfare state. They came into
being at crucial historical moments that were sometimes revolutionary and antireligious. The important thing was to affirm freedom of conscience and religious
freedom. That is why they are respectful and protective toward the right to religious
freedom, but they are not models that support the advancement of this right, in
subsequent policies of the welfare state. This model, according to the social
circumstances which conceived it, has led, in turn, to two sub-models:
* Excluding Secular Model
This is typical of countries with a secular state characterized by excluding or
negative secularity. In contemporary Europe, some states, notably France, have defined
a form of religion and state relations based on the respect and protection of religious
belief and practice, but with absolute state neutrality in this respect and with the explicit
exclusion of any state recognition of religion in public life. In France the process of the
cultural and axiological secularization of society has been parallel to the legal process of
secularization in public life. France is not alone in Europe, as Turkey has also been a
secular state since its foundation, but obviously they are two very different situations.
France, a traditionally Christian country, is a largely secular society with strong
religious pluralism while Turkey, a predominantly Muslim country, is characterized by
little and uneven secularization.
States that historically move within this model sought to avoid the monopoly
involved in a dominating religion involved in social, political and legal realities. To do
this, an absolute distance was marked between the State and religious phenomena,
which in France, for example, practically limits religion to the private domain. In its
day this position was historically innovative and has been a key element characterizing
the State itself. For the French State, its secular character is one of its main identity
marks, although it is true that there have recently been qualified voices in favor of
reconsidering this stand1. It is most likely that the growth of religious groups that used
1
In recent years, the future validity and viability of the secular French model has also been questioned
and not only by those who are against a negative, cold secularism or simply a laical, positive (or warm)
secularity. There are also those who, without questioning the core question of the validity of the secular
State, are willing to grant a primary historical and social role to religions, and especially Christianity. As
proof of this are several speeches given by the French president Nicolas Sarkozy in Rome and in Ryan
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to be in a minority and with very diverse cultural traditions (those of Muslim origin)
now requires the state to support a more active policy than that of laissez-faire with
respect to religion, so as not to isolate large sectors of the population.
* Inclusive Secular Model
In Europe several countries answer to this model, but it is in the United States
where it is found most clearly and in the most exemplary fashion. The First
Amendment to the Constitution of the United States forbids conferring state status to
any religious denomination, or that any should receive state aid. However, precisely
because no single denomination has ever been recognized officially, there has been no
difficulty or rejection with respect to the presence of different faiths in public life,
whether only one or frequently several different ones all at the same time. The practice
of ecumenical religion in public life, with constant references to values, symbols and
religious beliefs as the common heritage of the American nation, is inseparable from the
spirit of this country. This model clearly differentiates the state and society so that,
although the state is secular, society is not. 2
1.2. Cooperative Models, previously of Common Accord
These models typically arose in confessional countries that began by approving
religious freedom as a human right and a development of the welfare state, and went on
to allow the existence of many denominations. Then, as the welfare States that they
were, they tried to facilitate the development of fundamental rights. Often these States
had previously entered into Concordats with the Holy See. This model existed in
Germany, Italy and also, as we will see below, in Spain. Cooperation can include
giving legal status to religious denominations in various forms: Germany grants the
legal status of corporation to different religious denominations while Spain’s
associations are of constitutional relevance.
In the social and political life in these countries there is still an identification with
a historical religion that is socially predominant as the national religion, which is
frequently reflected in traditionally symbolic religious denominations in public life3.. In
these countries a weak legal secularization has taken place in public life with different
levels of cultural secularization, although in general the predominant religion still plays
an important role, especially in cultural, social and axiological aspects that are
supported by a strong intertwining net of institutions.
(Saudi Arabia). Cf., our edition of the speech of N.SARKOZY (2008) “Speech given by the President in
the Leteran Republic (Rome, 20-XII-2007)”: Revista de Fomento Social 63 (2008) 141-149.
2
The following words of President Bill Clinton were very significant in this respect: “(…) -- one of the
proudest things I've been able to do as President was to sign into law the Religious Freedom Restoration
Act in 1993. (…) our Founders understood that religious freedom basically was a two sided-coin. The
Constitution protected the free exercise of religion, but prohibited the establishment of religion. It's a
careful balance that's uniquely American. It is the genius of the First Amendment. It does not, as some
people have implied, make us a religion-free country. It has made us the most religious country in the
world.”…. Speech “Religious Freedom in North America”, delivered 12-VI-1995 in James Madison High
School in Virginia.
3
As we will see, the use of symbols in public is one of the topics of debate in the exercise of religious
freedom in Spain.
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This brief overview allows us to draw our first conclusion. The regulation and
implantation of religious practice responds, first and foremost, to different historical and
social processes that fall into different systems or legal models. That is why the most
advanced democratic countries in the world have a great variety of models, from the
strictly denominational (United Kingdom) to the most secular (France). What is
significant is that in both these models, the position adopted by the State with respect to
religion is an important element identifying the State itself. There are intermediate
situations whose response to religious practice is motivated by elements that
characterize the State itself, always based on accepting the existence of many different
denominations as part of the exercise of religious freedom. Thus in societies and States
more oriented towards the classical liberal State, we find secular models like the case of
the United States. On the other hand, in socialist States like Germany, Italy and Spain,
we find a model of cooperation with denominations in order to amplify the fundamental
right of religious freedom to the fullest.
2. Regulating Religious Freedom in Spain
2.1. Background
In the 19th century there was both an official State religion, as occurred in the
liberal Constitution of 1812, and also a regime of tolerance for different faiths, with
freedom to worship in private (as established by the Constitution of 1876).
The Republican Constitution of 1931 established that “The Spanish State does not
have an official religion” (art. 3); that the State, regions, provinces and municipalities
will not maintain, favor nor aid churches, associations and religious institutions
economically. (art. 26); that “freedom of conscience and the right to freely profess and
practice any religion is guaranteed in Spanish territory, only subject to the respect owed
to the demands of public morals.” (art. 27).
The fundamental Laws of Franco’s dictatorship brought back the establishment of a
confessional State. Later, after the Second Vatican Council, the new Catholic doctrine
influenced Franco’s legislation, though more in theory than in actual fact. In the
Council declaration Dignitatis humanae on religious freedom (1965)4, it was stated that
religious freedom is essentially based on a person’s human dignity, which is why it is
everyone’s right. It consists of the immunity that should protect everyone. As a result,
nobody, no individual, neither collectively nor institutionally, can “oblige anyone to act
contrary to his own conscience, or prohibit actions guided by one’s conscience, either
privately or in public”.5 The Council also encouraged society to legally recognize
religious freedom by making it a civil right. The Council, furthermore, went on to say
more about the basic right of religious freedom:
All men, as they are people, and therefore endowed with reason and will, and
as such, charged with a personal responsibility, are impelled by their own nature to
seek the truth, and also have the moral obligation to seek it out especially in all that
refers to religion. They are also obliged to follow the known truth and live their
4
Cfr. RUIZ-GIMÉNEZ, J. (1968) The II Vatican Council and Human Rights (El Concilio Vaticano II y los
derechos del hombre), Madrid, Notebooks for Dialogue; and RUIZ-GIMÉNEZ, J. (1985) The Road to
Democracy (El camino hacia la democracia. Escritos en “Cuadernos para el Diálogo)”, Madrid, Center
of Constitutional Studies [edición del INSTITUTO FE Y SECULARIDAD].
5
SECOND VATICAN COUNCIL (1965) Declaration Dignitatis humanae, n.2.
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whole lives according to the demands of this truth. But man cannot satisfy this
obligation in a way that is suited to his own nature if he does not enjoy
psychological freedom and at the same time immunity from any external coercive
action. (…) the right to religious freedom is not based on the subjective existence of
this person, but rather on his very nature. This is why the right to this immunity
also belongs to those who do not fulfill the obligation to search for and abide by
this truth, and the exercise of this right cannot be forbidden with the pretext of
having to respect due public order. 6
In 1967, the Spanish State, despite its confessional characteristics, found itself
“forced” 7 to introduce the Council principle of religious freedom into law in its Law 4
/1967.. 8 This law established a system of freedom of worship in a regime of tolerance
more like that of 1876, which was to be interpreted within the context of an
authoritarian and confessional State, and therefore lacked both the recognition of a
constitutional system of public rights and freedom as well as a system of guarantees.
2.2. The Constitution of 1978: the fundamental right of religious freedom
The Constitution of 1978 took a forward leap in Spanish constitutional history
with the introduction of the principle of unrestricted religious freedom. Article 16 of the
Spanish Constitution laid the foundations of legal pronouncement on religious issues in
the first amendment’s guarantee of individual and collective religious freedom 9, and the
third 10 amendment’s declaration of a non-confessional state, as well as establishing
State cooperation with different religious denominations, among them the Catholic
Church. . To correctly interpret these constitutional principles describing the
ecclesiastical right of the State, one must consult the general values and principles that
form the groundwork of the law and are the base culture that gives rise, like different
offshoots, to the principles and values involved in each legal branch. 11..
Thus we begin with the supreme values of liberty and equality, as the way to
incorporate the dignity of the person within the law which forms, in virtue of Article 10
of the Constitution and along with other inviolable and inherent rights, one of the
fundamental bases of political order and social peace. The principle of freedom implies
the recognition of ideological and religious freedom in order to be able to practice a
creed (article 16.1 of the Constitution). This ideological religious freedom to practice a
creed must not only have a general and official guarantee but also has to be specifically
6
Ibid.
For a more detailed analysis on all these aspects, mainly in the theological realm, please see the recent
and extensive study by J. L. MARTÍNEZ (2009) Religious freedom and human dignity. Catholic Keys to a
main connection, Madrid, Paulinas, 370 pp.
8
The recently deceased Spanish politician Joaquín Ruiz-Giménez Cortés, (27-VIII-2009), who had been
council auditor, has told how the authorities in Franco’s regime had to accept the council doctrine on
religious freedom into the Spanish legal system despite their many doubts and great resistance. The truth
is that the freedom of religion as understood by the Council clashed with the principle of the confessional
Spanish State.
9
Article 16.1 establishes: “the guarantee of ideological and religious freedom and that related to the
worship of individuals and communities, with no other limitations in its manifestations than those
necessary to maintain public order by law.”
10
Article 16.3 of the Constitution states that: “There will be no State confession. Public authorities will
take into account the religious convictions of Spanish society and will maintain the consequent
relationship of cooperation with the Catholic Church and other denominations”.
7
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put into practice, since Article 9.2 of the Constitution states the it is the public
authorities who must promote conditions for the real and effective freedom and equality
of the individual and the religious groups which the individual forms part of,
eliminating any obstacles that hinder or diminish their total fulfillment. At the same
time, the principle of equality implies the principle of the non-confessional or secular
State (Art.16.3 of the Constitution), meaning that the State cannot adopt any one
religion over another because by doing so, it would imply favoritism toward subjects
who profess one concrete creed in preference to others who profess different
convictions or simply, do not believe in any religion. It is precisely this constitutional
recognition of the fundamental right of religious freedom and the principle of laicism
which leads to the need to recognize the principle of cooperation with all religious
denominations12. Since the State is therefore not competent in this area due to the
laical principle, or even constitutionally, the State is thus obliged to seek the
cooperation of religious denominations so that the religious groups themselves,
counting on State collaboration, can make the fundamental right of religious freedom a
true reality for State citizens. The sociology of religions shows us how this fundamental
right is carried out, in practice, through participation in or being a member of a
particular religious congregation, which makes State collaboration with these religious
denominations imperative in order to be able to finally guarantee the fulfillment of this
right.
2.3. The Organic Law of Religious Freedom of 1980 (LOLR)
This is a “principlistic” law that forms part of the block of constitutionality. It
deals with a norm of a very general type that develops what could be called sound moral
principles with respect to the fundamental right of religious freedom. Article 1 declares
that the State guarantees the fundamental right of religious freedom in agreement with
what is established by this law (Art. 1.1), that religious beliefs are not grounds for any
type of unfair treatment or discrimination with respect to the law (Art. 1.2), and that no
religion should be considered an official state religion (Art.1.3).
Then the LOLR regulates the range and content of this right (Art.2) as well as its
limitations 13 (Art.3.2), and finally determines the scope of protection afforded by law,
which excludes “activities, objectives and Entities related to the study and
experimentation of psychic or parapsychological phenomena, or the propagation of
humanistic or spiritual or other types of values unrelated to religious ones (Art 3.2). In
continuation the legal civil status of religious entities is regulated by the inscription of
the entities in corresponding registers (Art.5), their right to organize themselves
independently is recognized as well, and they are also permitted to create and foment
associations, foundations or institutions (Art 6.2). Moreover there is a regulation
contemplated for potential State agreements or cooperation plans with those inscribed
religious denominations and congregations characterized by a notable and deeply rooted
presence in Spain (Art.7).
2. Changes in the last thirty years in the exercise of religious freedom
12
Cf. J. JIMÉNEZ ESCOBAR (2002) Fiscal benefits enjoyed by the Catholic Church. Negotiation, its basis
and scope. (Los beneficios fiscales de la Iglesia católica. Negociación, fundamento y alcance), BilbaoCórdoba, Desclée de Brouwer – ETEA, pp. 179-191.
7
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3.1. From a legal confessional model to a multiconfessional one
We will only refer to two of the most significant events that reflect the transition to this
legal model. The first of them is the signing in 1992 of Cooperation Agreements with
religious denominations other than the Catholic Church. 14 These agreements were a
framework for other types of pacts on religious education, fiscal obligations, legal aid in
the armed forces, etc. They are a consequence of the constitutional principle of
cooperation and involve walking the path of “pacting” to regulate issues affecting the
fundamental right of religious freedom for especially firmly rooted religious creeds.
Thus, the Organic Law of Religious Freedom is constituted within a framework created
for all denominations, regulating certain concrete aspects of the exercise of this right
through the above-mentioned “pacted” norms (agreements with different religious
denominations or communities). This responds to a logical plan in which the State is
responsible for fixing a general guideline, through the constitutionality block framework
(Constitution and Organic Law) and, given its non-confessional status and consequent
lack of competences in this religious area, the state thus collaborates with religious
denominations in concrete ways that permit this right to be fully put into practice and
enjoyed.
The second of these events occurred in the first legislative period of Rodríguez
Zapatero’s government, when the “Pluralism and Coexistence” Foundation was created
through government initiative in order to subsidize some religious minorities and grant
them state funds
3.2. The concept of charitable and humanitarian activities in religious groups
Frequently religious practice is reduced to a mere cultural concept or one related to
convictions. However, in the religious dimension, the moral aspect of a creed is quite
relevant, as religious Sciences have acknowledged. The call to action originating from
different moral principles that guide conduct has given rise to charitable and
humanitarian work of all kinds in most religious denominations
There are activities which are, in themselves and due to their very nature,
unmistakably religious (worship, for example, which only makes sense in an
atmosphere of religious belief). However, there are other activities that are not of this
type but that can be performed for religious purposes, since they deal with activities that
develop the moral dimension that is part of every creed while dealing with health,
education or social care, etc. The final purpose of an activity is assigned by the one
who carries it out, which is why it cannot be deduced that religious motivation is the
exclusive terrain of clearly religiously related activities like worship or the propagation
of the faith.
It is very enlightening to observe how international texts consider acts of charity
and welfare to be classified under the category of religious acts. Thus in the
“Declaration on the Elimination of all types of Intolerance and Discrimination founded
on Religion or Convictions” proclaimed by the General Assembly of the United Nations
on the 25th of November 1981, there is a clear demonstration of “the acknowledgement
of the freedom to found and maintain charitable caring institutions as a manifestation of
the right to religious freedom”.
14
Laws 24/92, 25/92 and 26/92 of 10-XI-1992, referring to Evangelical, Israeli
communities-.
and Muslim
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3.3. The political and legislative expression of religious and axiological pluralism
This aspect affects the exercise of religious freedom. Three types of sociological factors
intervene here: the sociological (the change in values in late modern times), the
ideological (the role of religion in public debate) and the politically strategic (the need
to distinguish between the major political parties on the left and the right).
It is a fact that in Spain, as well as in the rest of Europe, there has been an
important mutation in prevailing social values: rugged individualism, the prevalence in
many instances of the emotional over the rational, and as a result of both of these, of the
aesthetic over the ethical. On the other hand, there is indeed a growing predominantly
consumerist, materialistic, and immanent culture which often eliminates spiritual and
transcendent values from an individual’s vital projects or makes such projects lose their
meaning. All this has contributed to a growing indifference toward religion in broad
sectors of the Spanish population.
Jürgen Habermas has clearly highlighted this problem. For this illustrious
philosopher of our time, there has to be a positive respect for people and lifestyles that
clearly derives its integrity and authenticity from religious convictions, a respect which
becomes “a willing attitude to learn”.
Religion must abandon the attempt to monopolize interpretation, but it should not
renounce connecting to the internal éthos of the religious community through a
“universal legal system and egalitarian social morality”. This expectation reflected in
liberal State laws would thus converge with the interests of religious communities in
that these could thus exert an influence on public opinion and on society as a whole15,
and demands that non-believers that wish to enter into dialogue with religious
communities first recognize “an epistemic state that is not totally irrational”. This
effort, which would be asked of both religious believers and non-believers, places the
State and its authority in a position of ideological impartiality that guarantees the same
ethical freedoms to all citizens and is incompatible with the political generalization of a
secular world vision. This means that secular citizens “should not, on principle, deny
the potential truth of religious convictions, nor deny their fellow citizens who do have
religious convictions the right to contribute to public debates” 16.
15
Cfr. A. CORTINA (2001) Alliance and Contract. Politics, ethics and religion.. (Alianza y contrato.
Política, ética y religió)n, Trotta, Madrid, especially pgs. 133-182.
16
Habermas not only contends that the participation of religious groups in public life should be
protected, but also goes further to consider that this kind of participation is appropriate and necessary for
the State: the constitutional democratic State demands greater commitment from the individual who, as a
citizen, should take on the role of being an author of this right, that is, to the point where this citizen
creates within himself the constitutional State and thus himself becomes a self-founded social political
order. This lack of external reference in the founding of a political order, on the other hand, is related to
an intense and generous interest, not merely in self-gratification, but in the common good. The state of
deficiency in which the secular citizen lives gives rise to a “greater motivational effort·”, impossible to
enforce through legal means, an effort related to political virtues that are essential for the existence of a
democracy. The status of the citizen, concludes Habermas, is embedded within a civil society that feeds
on pre-political sources, that is, spontaneous ones. Many political arguments judge, in fact, the correct
interpretation of constitutional principles, or in other words, the dialogue is founded on principles of
justice that “find accommodation within the very densely woven fabric of cultural orientations”. In
Habermas’ opinion, in order for the recuperation of social solidarity to have any hope for success in the
life of the constitutional State, it deems the State, in its own interest, to “handle with great respect all
those cultural sources which nourish our legal conscience and the solidarity of our citizens.”
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Secular positions that ultimately end up excluding others, due to an unreal
identification between the State and society, are the sometimes unintentional result of an
extreme secularization that runs off track. Sometimes this exclusion reaches the point
of insulting or discriminating against religious groups in public simply for being what
they are. Indeed, the State is laical, but society is not. It cannot ignore part of society
because its role as a democratic State involves defending the values of the whole
society.
A commonplace public opinion now worthy of mention is how, for a long time
and especially in the last twenty years, a leftist government is said to only differentiate
itself from a right wing one through changes in cultural aspects, since both leanings
share a basic consensus about the socio-economic model (with some logical nuances).
.However, due to both the emergence of the individual who challenges the paradigm of
illustrated modernity17, and to the lack of emancipating proposals from leftist or
neoliberal right wingers, changes in cultural values (in a strictly religious sense,
although with great symbolic potential) are all too propitious for staging the “cleavage”
between the left and right. Ever since Spain entered the European Union, and then the
EEC, the policies of governments at both extremes have fomented this cultural
exclusivity in the resolution of political differences: changes are seen in the key of
emancipation, and of progress.
The need for differentiation mentioned above has led the ruling party in our
country in recent years to brandish the flag of a supposed progress in individual rights
as an element of differentiation. Another controversy has been the secondary school
subject of Education for Citizenship, which has provoked significant social and political
tension. 18
These important legislative changes affect not only the interests of social groups,
but also refer to related issues that are not always sufficiently clarified or explained in
philosophical and ethical debates, and that particularly affect values and worldviews.
These legislative reforms have been approved without the desired consensus of the two
major parties that represent much of the citizenry, which is why the articulation of the
values professed in different sectors is not reflected in the legislation enacted. In
addition, there is a degree of disqualification and disregard for the arguments that
religious groups put forth in public, and the more traditional sectors are unable to
intervene in this debate though they use examples and arguments characteristic of the
country’s citizenship, in a language that is secular and in terms of civic ethics, although
ultimately inspired by the morality of religion itself. The events that we have just
evoked help us to understand what has been happening in Spain during the last two
years. This context of confrontation is what is prompting the need for a reform in the
LOLR.
17
Cfr. A. TOURAINE (2005) A New Paradigm for today’s world (Un nuevo paradigma para el mundo de
ho)y, Barcelona, Paidós, pp. 129-179
18
On this topic we wrote the editorial commentary Citizenship and education: challenges, unknown
factors, possibilities ( “Ciudadanía y educación: desafíos, incógnitas, posibilidades”: Revista de
Fomento Social 62 (2007) 151-177.
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All this has taken place in a social atmosphere where the majority of the
population feel inhibited about these debates due to their religious indifference. The
issues boil down to positions which are often very extreme. Many puzzled citizens
observe in bewilderment the heat and intensity in the exchanges of opinions reported by
the media. Only through extreme polarization and indifference are certain legal changes
wrought which, in a more mature society, would require at least a minimum of broad
consensus among the major social protagonists. Sometimes it seems that the old
conflict, although under new guises, between clerical and anticlerical stances is
regaining strength in public opinion, even though it is a trend we thought long left
behind and more typical of the 19th century than of our own. 19
We consider that the State cannot make it a principle to dismiss or ignore the
options and worldviews of society and groups that are part of it, when these are
19
A good example of this confrontation was the secular reaction to the PSOE Conference held in the
spring of 2008, after the socialist electoral victory. It was, according to socialist analysts, in answer to the
Madrid church-led demonstration on December 30th, 2007 to celebrate a Family Church Day.
In this spiral of reactions it is rarely easy to identify the starting point of a provocation, or
whether it is in fact a reaction. Without trying to settle who started first, let’s try to recall some facts that
have never been clarified. With respect to some of the first legislative initiatives of PSOE after its 2004
electoral victory, there was a strong reaction from some sectors of the church hierarchy, including
demonstrations in the streets, particularly with respect to the three legislative changes that modified the
civil code regarding matrimony and its dissolution, and the introduction of citizenship education into
school programs.
There was an attempt by a section of PSOE to secularly interpret this new “citizenship
education” in the Manifesto for the Secular in Malaga. December 6, 2007. It had a limited impact, but
nonetheless did draw attention to the fight for position in the very heart of the party because one of the
groups, that of militant Christians in PSOE, reacted to this Manifesto. Our magazine reports on both the
Manifesto and the reaction of the “Christian socialists” as well as that of Archbishop Sebastian Aguilar .
Cfr. Revista de Fomento Social 60 (2006) 645-665.
The autumn of that same year produced a new chain of reactions from Catholic sectors that
reached a highpoint on the Family Church Day which in the last few years had simply been celebrated on
the last Sunday after Christmas, but that December 30th of 2007 it was an enormous success in media
coverage and occupation of the public space in the center of Madrid. That autumn the government had
followed an “appeasement” policy under the direction of Vice-President Mª Teresa Fernández-de-laVega, who attended canonizations in the fall of 2007 in Rome, along with the previously named (2006)
Spanish Embassador to the Holy See, Francisco Vazquez. They were also maintaining a good
relationship with the Nuncio in Spain, Manuel Monteiro de Castro (Nuncio between 2000 and 2009), who
often declared that the relations between the Holy See and the Spanish government were good, which was
favorably corroborated by the Cardenal Secretary of State, Tarsicio Bertone: “there is no pending conflict
at all”. The position adopted by the party at the beginning of 2008 is interpreted by some analysts as a
legitimate and understandable reaction regarding the church hierarchy’s intention to turn religious
leanings into a “political “question in the pre-campaign and electoral campaign of the winter of 2008.
What does seem perfectly clear is that the well-thought-out resolution “More secularity for a more
harmonious coexistence” that was passed by PSOE in its January 2008 conference, only can be explained
as an attempt to pact the position between the party’s secular sector, reacting to what they interpret as an
aggressive catholic posture, and the moderates who were in favor of avoiding ideological excesses and
wanted to govern counting on more social support including a good part of Catholic public opinion.
As we know, the issue of laicism was not included in PSOE’s electoral program which was just
getting under way in October 2007. One group, which included some outstanding legal “ecclesiastical
followers” in PSOE proposed that the agreements between the State and the Holy See be revised. Not
until January did the press report appear on two news items that led to including the issue in the political
conference. El Público of 16-I-2008 proposed an observatory of laicism. In this immediate context, the
Socialist left wing proposed 3 amendments: denouncing the agreements, eliminating fiscal exemptions
and asking for a revision of the Religious Freedom Law of 7/1980. The proposal was not approved but
did get enough votes to pass through the Plenary that approved the very moderate version reached by
consensus and to which we are referring.
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expressed through the citizens’ own channels for freedom of expression, including
education and public demonstrations. It does not seem relevant on the other hand that
acts of worship in public spaces could justify, even indirectly, the need to clarify the
morale of each denomination in political and legislative terms. When out in public,
those with religious convictions should act as citizens, and not as believers (which is
their ultimate motivation). That is why it is not appropriate, in legal and political
terms, to use these specific and exclusive options that are channels of faith, specifically
religious signs of manifestation, which are protected and supervised by the state in the
framework of their final objectives: the expression and community manifestation as
believers, of their relationship with the transcendental.
The relationship of this with freedom of religion is clear and unambiguous. On
one hand, to exclude and disqualify believers’ options from public debate, based on
moral choice, means an ignorance of what is inherent in every religious faith: a morality
that should inspire, encourage and promote the option of faith, in both personal and
social life. If this is not accepted and the concept of religion is relegated specifically to
the private sphere, this is a de facto mutilation of part of the exercise of religious
freedom by leaving it limited to its cultural aspect and individual, not social, morality.
We consider that this attitude does not properly respect the fundamental right of
religious freedom. Adding to this the discredit or negative prejudice towards religious
demonstrations of certain sectors or social groups that would like to become involved as
citizens in the public square, means undermining one of the fundamental foundations of
the Spanish constitution: its democratic character. (“Spain is constituted as a
democratic and social State-...”).
The a priori attitudes that disqualify arguments coming from religious sectors,
even when made through the correct channels and in a language understood by the
majority of countrymen, involves a weakening of a social State (that claims that rights
should develop in the most comprehensive way possible) and a democratic one (that
asserts that participation of society in public life should go beyond the right to
participate solely through active and passive suffrage).
3.4. The sudden barrage of new and demographically numerous cultural and religious
groups
The massive arrival of a Muslim population to our country has given Islam a high social
profile here. This fact presents several challenges to a lay State that wants to develop
the fundamental right of religious freedom for all its citizens. These challenges are at
several levels: the legal-political framework that covers religious freedom in our
country, and certain existing limitations in the exercise of this right (Constitution, Art
16.1 and LOLR (Law of Religious Freedom), Art 3.1).
Islam is a religion that shapes all aspects of life for its faithful in all of its
dimensions. The personal and the social are strongly illuminated by religion in the
countries of Muslim tradition where many immigrants to Spain come from. Religion,
the law and politics are very often strongly and narrowly linked, and religious freedom
has not developed anywhere near as much as in American or European countries. For
all we know, the Muslim faith itself has not reflected on the principle and reach of
religious freedom as deeply as other faiths have.
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All of this leads to some important challenges for the lay State, since the citizens
of the Muslim religion who come from countries where the above mentioned politicallegal character prevails have to exercise their right to religious freedom in a totally
different legal, political and social environment. The State must cooperate so that these
citizens can develop this right in a way in which they can perceive real integration in
their host country, so that they do not become isolated in closed communities that live
back to back with society. The challenge consists of avoiding a certain bipolarization
between being a believer and a citizen. The dilemma of these two situations is a false
dilemma. The horizon should be for them to consider themselves citizens who are
believers, so that with their own point of view they can participate in public debates,
and this participation should be encouraged.
A case of this kind is the comparison between the social role of women in traditional
Muslim societies and the role that the host countries promote and try to amplify. This
difference in perception sometimes arises as a confrontation between human rights (one
of the limits to the exercise of religious freedom) and the prescriptions of the creed
itself. We understand that in this regard one must be very careful about interventions
made by public authorities so as not to give rise to false or apparent dilemmas, which is
something that often occurs in the media. So it will not be easy then to take general
decisions, normal ones with respect to this right; instead this type of question would
have to be dealt with, if some type of contradiction is involved, through multi-sided
approaches and measures of many different types. In any case, we cannot ignore the
seriousness of certain situations which are incompatible with our democratic traditions
and our concept of human rights, especially with respect to women’s cultural and social
status, and, on the other hand, it would be advisable to encourage the media not to
approach these topics too naively or in too simplified a fashion, as this could blur the
issue and confuse many sectors of the population.
Another important challenge is the real and not only imagined risk (although the
latter also exists to a certain extent) to be found in the latent fundamentalism of Islamic
“jihadism” and its possible support by very small fragments of the Muslim population
which could generate in some a certain distrust of citizens of the Muslim faith. Any
inkling of this sort of trend should be rapidly discredited through a variety of actions.
Citizenship education, knowledge about other denominations and the experience of
peaceful coexistence would contribute to mitigate or cut these hypothetical tendencies
in the bud. This should not hinder State law enforcement agencies from identifying any
deviant behavior in a religious community that could lead to disturbances in public
order, since there is a clear and unequivocal limit to the exercise of this freedom.
Neither would we want to exclude a priori from this category any possible deviant
attitudes or behavior on the part of certain fundamentalist sectors within Catholicism
itself or from any other denomination. Society must be alert to the incompatibility
between the democratic éthos and certain backward or manipulative practices with
respect to human dignity like those we have made reference to.
3. Some guidelines with respect to recent changes
4.1. On the need for a new LOLR and its basis
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We think that the changes mentioned do not necessarily require a new Organic Law of
Religious Freedom. As mentioned above, the current Law is a Law of principles that
can be perfectly interpreted, applied and developed to confront the challenges that the
exercise of religious freedom poses in Spain at this time. In the following section we
will refer to some of the measures that could be taken.
At any rate, we believe that any possible changes or replacements to this important
LOLR, which forms a part of the block of constitutionality, must be made from very
solid foundations based necessarily on a consensus in political and in technically-legal
aspects.
It would also be recommendable, as for any other draft of legislation, that the
public relations phase of the law include the opinions of different religious
denominations, as is usually done in bills that affect specific population groups.
At the same time, such an important and sensitive matter as this one must be
regulated from well-established legal and historical bases There are issues in which
legislative prudence is an indispensible requirement, soundly established and treading
firm ground. We mention this aspect because, on occasion, there has been talk in
political and academic circles of a desire to regulate the law of religious freedom within
a framework of a law of beliefs and convictions20. This approach pertains to a minority
in academic circles and in our cultural context and would mean a break in the evolution
and development of legal institutions in our country.
Without going into a technical and legal analysis at this point, the contents of the
right to religious freedom are a great deal more clear-cut than the realm of actual
convictions themselves which present profiles that are a lot more diffuse and
ambiguous. Moreover the exercise of this right presents very different characteristics,
since the group and community dimension are of a size and nature that do not figure in
the exercise of the convictions of those with no religious beliefs.
Finally the
relationship with transcendence, through acts of worship, also grants some specific
particularities to this right.
Just because these beliefs or convictions are a result of freedom of conscience
does not justify the use of molds or unitarian schemes to regulate them. There are many
rights derived from a freedom which do not have to be regulated and developed
according to a single format. It would be even less comprehensible to understand
religious freedom to be derived from ideological freedom, as has been put forward on
occasion. Religion is not limited exclusively to the ideological, and to consider religion
to be one more manifestation of these ideologies would be reducing the religious
phenomenon in a way that does not correspond to reality. That is why Spanish
constituents clearly distinguished between ideological and religious freedom in Art. 16.
4.2. Some suggestions about action by public authorities
Moving toward a comprehensive development of the right to religious freedom requires,
on one hand, recognizing that the moral dimension inherent to any religious creed
20
Cfr. J. LORENZO (2009) New Life (Vida Nueva), …-IX-2009, pg 30,
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really leads to freedom to have opinions, to educate and to intervene in public life
according to one’s own convictions. This type of participation using the channels
available to citizens to take part in public life should be done through the instruments
specifically intended for this purpose: freedom of expression (in any of the
communication media) and in manifestation or education (in any of their spheres and
levels). The regulation of the way in which the activity is carried out will correspond to
general law and not to the specific special right of religious freedom itself.
Freedom of worship in the public sphere, unlike in temples and other places of
worship, should not be used to participate in this type of debate, because its purpose, for
which it is protected by law, is different.
On the other hand, what is needed is a real understanding of the meaning of
religion that is not limited to only worship or the propagation of beliefs, because the
moral dimension of religious life includes commitment through works of charity,
education, and social, medical and hospital assistance. In this case, although the activity
is not in itself of a religious nature, the motivation for it could be, and it is carried out as
a demonstration of religious freedom. That is why it would be a good idea to facilitate
access to the register of religious entities to those configured according to their own
guidelines (like Canon Law for example) to enable them to carry out these activities.
Religious freedom also means respecting the way in which the members of these
denominations organize themselves, and not submit them to legal arrangements
designed by the State which might not always be suitable for all religious groups. This
could be resolved by modifying or reinterpreting second level laws.
Active orientation and collaboration in a multi-religious framework is the main
challenge for citizens educated in Muslim traditions where this right is usually found in
uniform cultural settings. Active collaboration and education for all citizens is
absolutely essential, both for those of Muslim faith as well as for the rest of the
population, as they promote both the active and passive participation of these groups in
areas of citizenship. This collaboration will enable these citizens to develop the right to
religious freedom in harmony within their legal and cultural setting, and avoid the
tendency to turn their backs on society.
Supporting minority religious groups is a priority task for the social State, which
should contribute to the most comprehensive advancement possible in the fundamental
right to religious freedom of its citizens. The smaller and more isolated a religious
group is, the more difficulties it can encounter in achieving for its members the right to
religious freedom. The “Pluralism and Coexistence” Foundation founded through
government initiative in 2004 probably intends to walk this path. But we feel that the
possibility for collaboration agreements must also extend to minority religious groups.
To do so, it will be necessary to reinterpret the extent of the notably deeply rooted
LOLR or develop its content in more generous terms. If this is not enough, we should
consider the desirability of modifying the Organic Law on this point.
Regarding the issue of religious symbols, everyone, especially public authorities,
must act prudently. We said at the beginning of this editorial that in many countries
religious symbols still existed in public life as a model of cooperation. We are facing a
delicate issue, since more than anything else, symbols connect with emotions and
feelings, and this is a topic that could easily lead to bitter confrontations. Moreover, we
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are in a country that has not been particularly skillful as far as the use of its own
symbols is concerned. One proof of this is the associations made relatively recently
with certain political ideologies in which some people identified the national flag with
different connotations; another is the distress felt by some about not having any lyrics
for the national anthem. Finally, religious symbols transmit not only feelings of
identity with a religion, but also cultural and artistic manifestations. Therefore, any
potential measures with respect to symbols taken for the sake of being secular or nondenominational should be approached with the utmost tact, evaluating case by case the
character or nature that this symbol generally evokes (religious, artistic, cultural
identification), and how , in each case, the principle of non-denominationalism could be
affected. It is also necessary to proceed from the idea that, while in public buildings
there may be a greater degree of identification with the State, this identification need not
be so intense in such public spaces as streets, squares and so on since these are also
social settings. These measures would be framed within the vision of an integrally
secular State. 21
4. Conclusion: moving towards integral secularism
We conclude our commentary by proposing secularism in its fullest sense as the
framework for a new law of religious freedom, as proposed by our Constitution. The
laicism that some call inclusive and including, and others call positive, 22 could also be
called integral secularism. In the first place, integral secularism implies openness to a
non-reducing anthropology, an integral humanistic vision which considers a person in
all his needs for expression or dimensions, including an acceptance of transcendence. 23
An integral secularism also integrates the truly existing plurality of faiths. Finally,
integral secularism integrates the recognition of all dimensions of the right to religious
freedom—the cultural, that of beliefs, the axiological or moral, accepting its projection
in social life (charity, health, education), politics ( public opinion and the opinions of
the groups which make up the public) and cultural (artistic, literary presence etc. in their
religious dimension).
In summary, we opt for a positive, creative and open re-reading of our constitutional
laicism that we understand as integral secularism. From the Christian conception that
inspires our publication, we think that this secularism open to the transcendent
perception of the person is civically valid and theologically legitimate. This integral
humanism of personalist tradition can inspire both our policies regarding the
advancement of the fundamental right of religious liberty, as well as our reflection on
religious freedom conceived through humanism and solidarity.
21
The Resolution of the PSOE Conderence in the spring of 2008 hits the nail on the head. It affirms that
actions on issues like this should be carried out “according to the general feelings of the citizens, since it
is not the socialists’ intention to act upon legal force but instead to direct and accompany this evolution in
Spanish society.”.
22
Expression used recently by both the Pope and the French President Sarkozy.
23
In his last encyclical, Caritas in veritate on 29-VI-2009, Benedict XVI referred to this humanistic
concept, quoting the words of Pope Paul VI in Populorum progressio (1967): “There is then only one true
humanism that opens to the Absolute in recognition of a vocation that expresses the true idea of human
life”. The integral humanism proposed here is the basis of an integral human development like that
proposed by the Pope (Caritas in veritate, nn. 17 y 19).