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Religious Freedom in Transition: SpainJavier García OlivaPublished online: 20 Aug 2008.

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Religious Freedom in Transition: Spain

JAVIER GARCIA OLIVA

ABSTRACT

After a peaceful and well-conducted transition towards democracy (1975–78), the SpanishConstitution was enacted in December 1978. This article starts with the events which led to the

Civil War (1936–39) and studies the relationship between the Spanish state and the CatholicChurch throughout Franco’s dictatorship. This background is necessary for a proper understandingof the current legal framework on religion, which is the main aim of this article. In the light of thepronouncements 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 andcommunities. I also deal with the relationship between religious freedom and ideologicalfreedom. I offer 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, Ihighlight current trends, particularly the difficult relationship between the socialist government andthe Catholic Church in the last few years. Although the situation had significantly 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-first century Spain is no longer ademocracy in transition, as over the last few decades it has experienced an authenticconstitutional revolution and the most fundamental democratic principles and valueshave been firmly established and consolidated. However, in view of the fact that thepeaceful and gradual evolution of democracy in Spain has been praised and proposedas a pattern for other democracies in transition, it is important to study the Spanishexperience.

I shall focus on the situation of religious freedom in Spain through the analysis ofthe most important legal documents (especially the Spanish Constitution and the LeyOrganica 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 (1931–36) iscrucial.

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

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 contemporaryconstitutionalism in the nineteenth century? In the words of the historian SebastianBalfour,

the proclamation of the Second Republic on 14 April 1931 was greeted withjubilation in the streets and squares of Spain. The new regime ushered in thefirst genuine democracy in Spain. In a country hitherto ruled by an oligarchyof notables, a privileged and largely intolerant clergy and an oppressivemilitary 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 (1936–39), theconsequences of which are still working themselves out in Spain today.

Generally speaking the clergy were regarded as a reactionary force and on the wholethey did not welcome the new regime. It would be over-simplistic to regard theRepublic as ‘anticlerical’ without further explanation, as this new political systeminvolved changes of government between left-wing and right-wing parties, and thelatter were traditionally closer to Roman Catholicism and the protection of theCatholic Church. However, the right-wing inclination of most of the Catholichierarchy was to a large extent a result of the anticlerical policy fostered by left-wingparties, including the killing of priests and religiously ordained persons, as indicatedlater in this paper.

The 1931 Spanish Constitution established the separation of church and state (seeEsenwein and Shubert, 1995, pp. 43–45) and imposed restrictions on the former inrelation to its wealth and education. The then prime minister, Manuel Azana, evendeclared that Spain was ‘no longer Catholic’. Probably the most controversial decisionwas the dissolution of the Jesuits on the grounds that this order required of itsmembers a vow of allegiance to the Holy Father: allegiance to a foreign power – theHoly See or any other – was prohibited. This decision showed the politicians of theSecond Republic trying to modernise Spain and to ensure loyalty to the secularinstitutions; 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 theRoman Catholic character of the country. Although the Constitution included adeclaration of religious freedom, and the pronouncements of the Catholic Churchmay seem to be an overreaction, the Constitution did in fact also contain a number ofcontroversial limitations on religious freedom. Furthermore, the Second Republicfaced an extremely complicated financial crisis which would lead to discontent on thepart of significant sectors of the population (Carr, 1980, p. 118). Moreover, leadingfigures in right-wing governments under the Republic were not loyal to the Republicas an institution, with a preference for a monarchical system like that of Alfonso XIIIwhich predated the Republic. Meanwhile left-wing parties frequently used a boy-cotting policy, making government very difficult. Relations between church and statealso deteriorated: despite efforts by left-wing governments to present themselves asmoderate and respectful of religious freedom, the Catholic Church felt increasinglythreatened. The last government of the Republic did not succeed in addressing theeconomic situation. In a context of chaos and instability the military planned a coup

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(see Preston, 1996, pp. 66–73); the political classes had been anticipating this for along time.

The Military Coup and the Spanish Civil War (1936–39)

‘On 17 July, in the mistaken belief that the Republic could easily be overthrown, theSpanish Army of Africa rose in Morocco and was followed the next day by garrisonsthroughout Spain. The failure of the military coup led to a protracted and bloody civilwar’ (Balfour, 2000, p. 252). From the outset the Catholic hierarchy showed supportfor the rebels. Some bishops were outspoken and used apocalyptic language todescribe the situation. In the bishop of Salamanca’s view the conflict was part of aglobal struggle: ‘On the soil of Spain a bloody conflict is being waged between twoconceptions of life, two forces preparing for universal conflict in every country of theearth . . . . Communists and anarchists are sons of Cain, fratricides, assassins of thosewho 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 bishopswere 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 fierce policy ofpersecution against those who had supported the Republic. Many executions tookplace, no forgiveness was shown (Ellwood, 1994, p. 108) and a significant number ofcitizens escaped to France and many countries in Latin America, including Mexicoand Argentina.

General Franco’s Dictatorship (1939–75)

After the end of the war, General Francisco Franco became the personification of theregime and all powers were vested in him. The dictatorship now had the opportunityto exercise virtually unqualified power (Grugel and Rees, 1997, p. 23). ThroughoutFranco’s long dictatorship until his death his power remained unchallenged, despitethe opposition of many social sectors.

At the start of the dictatorship the Catholic Church passionately endorsed the newpolitical system. Franco sought to create a confessional state and declared the unionof state and church. The autocratic and fascist tendencies of the dictator were howevermoderated by elements of the system, including representatives of the church and themonarchists.

In the first few years of the new regime, Spain imposed on itself an economicisolation from the rest of the world; this soon proved disastrous. The country wassuffering the consequences of the widespread destruction of the Civil War, and wasofficially neutral in the Second World War; Franco nevertheless showed his preferencefor the Italo-German alliance.

In the early 1950s the signing of a concordat with the Holy See was a landmark inthe process of overcoming self-imposed isolation (Martınez, 1999, p. 93), as werestrategic 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 theconservative Catholic association Opus Dei were appointed in order to put in handthe economic modernisation of the country (Grugel and Rees, 1997, p. 64). However,the system opposed political or cultural reforms, despite the fact that some membersof this organisation would have endorsed them. In the 1960s, Spain witnessed whathave been described as the golden years of Franco’s regime (Molinero and Ysas, 1999,

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p. 131), but the disparity between economic growth and political paralysis becamemore obvious as the years went by. Discontent grew steadily in many sectors ofsociety. In the mid-1960s universities widened their traditional upper-class intake toinclude the middle classes; the new entrants became aware of the freedoms enjoyed bytheir counterparts elsewhere in Europe. Socialists and communists, though theirpolitical parties were still banned, dreamt of the end of the political system. Indeed theCommunist Party fostered an significant degree of popular agitation, instigated andfunded by the USSR, as occurred in other democratic countries all over Europe in the1960s and early 1970s.

An important role was played by the Catholic Church at this time. Many clergyfound it increasingly difficult to accept the reactionary political system, and thosepopularly known as ‘red priests’ (curas rojos) occupied distinctly ‘left-wing’ positions.Pope Paul VI tried to distance himself from Franco and their relationship was clearlycold. The Second Vatican Council supported principles such as religious freedom inDignitatis humanae; this created an embarrassing situation for the Spanish politicalsystem. Pressure from the Catholic Church led to the enactment of the 1967 ReligiousFreedom Law (Ley 44/1967 de Libertad Religiosa), which recognised tolerancetowards other religious denominations. In 1971 the Catholic Church decided to askfor forgiveness from the Spanish people for its role in the Civil War and in 1973 thebishops asked for the de-confessionalisation of the state. Franco considered thesemoves as a betrayal or stab in the back. One of the forces that contributed to asuccessful transition to democracy was certainly the Catholic Church.

In the early 1970s the country went through a severe financial crisis (which would beprolonged into the first years of the democratic transition and which may well explainsome of the difficulties that the new political system had to face). By then theopposition to Franco had brought together left-wing political parties, the intellectualclass and the most progressive sectors of the Catholic Church. The dictator died on 20November 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 castdoubts on the feasibility of the continuation of a dictatorship in a now mainlydemocratic Western Europe.

The Democratic Transition (1975–78)

The real transformer and the mechanic of the most successful peaceful democratictransition in Europe was King Juan Carlos, who was crowned two days after Franco’sdeath and who, from the very beginning of his reign, showed his democraticcommitment (see Balfour, 2000, p. 273). He had very craftily kept this hidden duringFranco’s life. It seems unquestionable that Franco could never have envisaged adevelopment even remotely similar to what took place between 1975 and 1978. On thecoronation of the new king, Cardinal Tarancon, on behalf of the Catholic Church,claimed that the latter did not require any privilege from the state but simply freedomto carry out its functions and defend the Gospel. However, the bonds between themonarchy and Catholicism were exemplified in that ceremony.

For six months after Franco’s death Carlos Arias Navarro (see Preston, 1986, pp.53–91) continued as president of the government, but it soon became clear that heremained identified with the figure and principles of Franco and that he would not becapable of introducing the reforms which Spain needed so desperately. Thefundamental transformations desired by Juan Carlos were carried out by AdolfoSuarez (see Ortiz, 2006), a conservative political figure who came from the old system

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but who turned out to be a moderate and inclusive leader. He was appointed by KingJuan Carlos as Arias Navarro’s successor and he founded the Union del CentroDemocratico (UCD), a centre-right political party which would win the firstdemocratic elections on 15 June 1977. These elections, the first by universal suffrage,were possible only after the enactment of the Political Reform Law (Ley para laReforma Polıtica) passed by the Cortes Generales (the old unelected parliament leftover from Franco’s time): it provided for the dissolution of the Cortes Generales andsignalled the start of a completely new period in Spanish history.

Alongside the king and Suarez, Santiago Carrillo, leader of the Communist Party,played a role which should not be underestimated. He came back to Spain after manyyears in exile and engaged in a productive dialogue with Suarez, the president of thegovernment (Arostegui, 1999, p. 270). Suarez had envisaged from the start that ademocratic peaceful transition would never be successful without taking thecommunists on board. Their acceptance of the monarchy as a form of state – bearingin mind their well-known allegiance to republican principles – was an honourableexample of historical pragmatism. Out of the elections held in June 1977 a bicameralparliament comprising a Congress of Deputies (Congreso de los Diputados) and aSenate (Senado) was established. This legislative body would be in charge ofapproving a constitution, previously prepared by the so-called Parents (Padres ) of theConstitution – including left-wing, right-wing and nationalist leaders – in anoutstanding example of compromise and reconciliation, and ratified overwhelminglyby the Spaniards in a referendum on 6 December 1978.

Three years later, on 23 February 1981, the admirable response of the democraticinstitutions, especially the crown, to a military coup organised by Lieutenant ColonelTejero 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 toreturn to the situation prior to 1975. The firm response of the king in defence of theyoung democracy has been highly praised.2

Religious Freedom in the Spanish Constitution:3an Analysis of Article 16

Introduction

Summarising the Spanish model of ecclesiastical law, regulated by Article 16 of theConstitution of 1978, one could say that despite having embraced the principles offreedom and non-discrimination the Spanish legal system has chosen to maintain aspecial relationship with the majority Roman Catholic Church, and to reject theuniformity consequent on a separatist formula. The Constitution recognises the non-confessional nature of the state, as well as the principles of religious freedom andcooperation. It also declares the principle of equality of all Spaniards irrespective ofreligion. As Martınez Torron (2001, p. 2) argues, ‘the reason for its success is that theConstitution of 1978 effectuated a gradual transformation of the Spanish confessionalState into a regime based on religious freedom without breaking abruptly with thenation’s historic tradition’.

Article 16.1: Religious Freedom4

Article 16.1 reads: ‘Freedom of ideology, religion and worship of individual andcommunities is guaranteed, with no other restriction on their expression than may benecessary 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 theterminology of the Universal Declaration of Human Rights, which refers to thefreedom of thought, conscience and religion, though the content itself is very similar.The Universal Declaration is nevertheless crucial in the Spanish context as accordingto Article 10.2 of the Constitution ‘the rules relating to the fundamental rights andliberties recognized by the Constitution shall be interpreted in conformity with theUniversal Declaration of Human Rights and the international treaties and agreementsthereon ratified by Spain’. This article, therefore, becomes a safeguard or a mechanismof protection of fundamental rights (see Martın Sanchez, 2002, p. 85).

Religious freedom is not only an individual right, but also a superior value6 of thelegal system (Sentencia del Tribunal Constitutional (STC) 130/1991, FJ 4) and thismeans in practical terms that all different freedoms must be made compatible with thisprinciple, which the SCC has defined as ‘one of the basic principles of our juridical andpolitical system which determines the attitude of the state towards religious groupsand 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 properlyunderstood without taking into account the more general question of ideologicalfreedom. While religious freedom can be defined as absence of compulsion in thematter of choosing a faith and subsequently living in accordance with it, ideologicalfreedom, according to the SCC, ‘does not exhaust itself in the right to adopt a certainintellectual position with regard to one’s life and one’s judgment according to one’spersonal convictions, but it also comprises an external dimension of agere licere, incompliance with one’s ideas, without suffering for this reason any kind of punishmentby the public authorities’ (STC 24/1982, FJ 10). As Llamazares states, ideologicalfreedom is not incompatible with hesitation or doubt; in fact, it is intrinsically linkedwith them. In his view, which is not shared by many other commentators, religiousfreedom and freedom of belief are just branches of this wider freedom (Llamazares,2003, p. 286). Equally, Souto Paz (2003, pp. 246–47) has indicated that religiousfreedom is one element within the wider concept of freedom of thought, conscienceand ideology. Both authors have taken a very innovative stance in the course of thelast few years, although from slightly different angles, and have successfully leftbehind the traditional clear-cut distinction between ideological and religious freedom,suggesting that the latter is a branch of the former. Addressing the difference betweenreligious and ideological freedoms, Rossell points out that ‘they are equal rights as faras their content is concerned, but they have different scope and mechanisms ofcollective 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 religiousfreedoms and the right freely to express thoughts, ideas and opinions,includes the right to set up educational institutions and the right of teachersto develop their functions within the limits of their jobs as well as the rightof 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 thecommunity. Both must be included if religious freedom is to develop its fulldimension. In fact, in contemporary constitutionalism, while the recognition ofindividual 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 fulfil the tenets of theirfaith 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 publicorder and social peace, the individual person has the right to religious freedom (seeSTC 120/1990, FJ 4), and the protection of this freedom is a minimum requirementthat should never be neglected. However, the recognition of religious freedom wouldnot make sense if the collective dimension were not endorsed at the same time. Thisprinciple has been established in the case law of the SCC,8 and has also been studiedby commentators. Domınguez Bartolome (1994, p. 132), for example, states thatreligion is more than a personal matter and is essentially an aspect of the group aswell, regardless as to whether or not this fact is accepted by the public authorities. It iscommonly accepted that religious freedom comprises two stages: (1) the adoption offaith, which is personal by nature, and (2) the point at which the individual declareshis or her religious beliefs and acts accordingly.

It is worth mentioning that Article 16.1 concludes with a reference to public order asa 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 casethe state would be failing to carry out its proper functions. The SCC has stated inseveral 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 rightsrestricts the extent of the laws which limit these rights; this explains why these limits tofundamental rights must be interpreted very restrictively . . .’ (STC 159/1986, Extracto5).

Both religious and ideological freedoms are essentially negative, as all they requireis the neutrality of the public authorities. The latter should refrain from imposing anofficial thought on matters such as philosophy, culture, politics, science, religion andindeed any particular understanding of human life. This self-imposed neutrality on thepart of the public authorities, which by definition comprises a recognition of essentialhuman rights, means that all beliefs are equal before the law. This is stated in Article14 of the Constitution.9

Article 16.2: Acknowledging One’s Beliefs Cannot be Compulsory

Article 16.2 reads: ‘Nobody may be compelled to make statements regarding hisreligion, beliefs or ideology.’

In considering the implications of this important principle, we should note thatalongside ‘religion’ and ‘ideology’ this article also mentions ‘beliefs’. These can bedefined as a system of religious tenets that may be either rejected or accepted by theindividual; if he or she accepts them, the individual then goes on to commit himself orherself to living in accordance with them. These ‘beliefs’ therefore have both atheoretical and a practical dimension.

It could also be argued that despite the fact that freedom of conscience is notexplicitly acknowledged by Article 16, ‘conscience’ is nevertheless contained in theterm ‘beliefs’, which seems to be broad enough to embrace it. The SCC has declaredthat

the fundamental right recognised by Article 16 of the Constitutioncomprises, alongside the freedoms of conscience and thought, both in thepersonal and external arenas, a freedom of action in relation to whichArticle 16.2 establishes a mechanism of protection when it declares that

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‘nobody may be compelled to make statements regarding his religion, beliefsor ideology’. (STC 19/1985, FJ 2)

It is precisely because the state must be neutral and should refrain from interfering inthe ideological and religious choices of its citizens that the latter cannot be compelledto comment on their ideology, religion or beliefs.

Article 16.3: The Non-Confessional Nature of the State; Cooperation with the CatholicChurch and Other Religious Bodies

Article 16.3 reads: ‘There shall be no State religion. The public authorities shall takethe religious beliefs of Spanish society into account and shall in consequence maintainappropriate cooperation with the Catholic Church and other confessions.’

With this statement, the Constitution of 1978 breaks with an almost uninterruptedtradition of Catholic confessionalism. In fact, with only two exceptions (theConstitutions of 1869 and 1931), fundamental laws since the Constitution of Cadizin 1812 (the first Spanish constitution), and before them, the legislation enacted sincethe creation of the Spanish state under the Catholic king and queen Fernando andIsabel, regarded Catholicism as the official faith of the state.

As noted above, the Catholic Church sought independence from the state in the lastdecades of General Franco’s dictatorship, and in the mass celebrated on occasion ofthe enthronement of King Juan Carlos the church passionately declared its lack ofinterest in any privileged position. It expected only to be recognised as free to carryout its functions. Even if some right-wing sectors of the political class supported themaintenance of the Catholic nature of the state, this option was practically ruled out.The SCC has rightly emphasised the neutrality of public authorities towards religiousbeliefs as an indispensable feature of Spanish democracy, establishing that it is‘required for the peaceful coexistence of different religious beliefs which exist in apluralistic and democratic society’ (STC 177/1996, FJ 9). However, the Constitutionhas not chosen a separatist model, like the French one, as this would have beencompletely alien to the Spanish historical tradition. On the contrary, it has embraced asystem of cooperation similar to that in Italy, Germany and Belgium and a good manyother European countries. In a landmark case the SCC has interpreted theseconstitutional provisions in a way which should head off any possible confusionbetween public authorities and religious bodies: ‘the constitutional legislature hashighlighted 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 samejuridical position’ (STC 340/1993, FJ 4).

The Constitution explicitly mentions the Catholic Church, and this has under-standably occasioned concern and controversy. It could be argued that this mention isa preemptive strike against suspicions that the intention is to return to the situation atthe time of the Second Republic. In fact, it has been justified on historical andsociological grounds: when the Constitution was enacted 99 per cent of the populationwere Catholics – at least nominally – and the percentage continues high today,although it is now significantly lower than in the late 1970s (around 80 per cent,according to recent state surveys). Bernardez Canton has indicated that ‘the legislaturedid not intend to recognise the sociological confessionalism of the Spanish state (eventhough perhaps it did so in an indirect way), because the style that has been used isquite significant: it is a legal order and not simply a recognition of a sociological reality’(Bernardez Canton, 1989, p. 410). The truth is that the Catholic Church is mentioned

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within the framework of the crucial prior recognition that no denomination is theofficial faith of the state and that no denomination has privileges over any other.

Meanwhile an acknowledgement of the historical role played by the CatholicChurch 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 ortaking part in such events’ (STC 177/1996, FJ 10). This decision was in response to therefusal by a soldier to participate in a Catholic festival, and although it recognised theright of that soldier to be exempted from such an activity, it also endorsed the right ofthe army to maintain its religious traditions, despite the fact that many members ofthe armed forces may not profess Catholicism nowadays.

Legislation Concerning the Relationship of the State with Religious Denominations

The Ley Organica de Libertad Religiosa (General Act 7/1980 of 5 July of ReligiousLiberty)

Article 16 is in the section of the Spanish Constitution entitled ‘Fundamental Rightsand Public Liberties’. In compliance with Article 81 of the same Constitution, thoseconstitutional provisions must be developed by a specific type of law known as leyesorganicas. 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 formerestablishes that the recognition of legal personality is dependent upon registrationwith the public registry created for this purpose and kept at the Ministry of Justice, theRegistro de Entidades Religiosas. The latter establishes that the state may signagreements of cooperation with religious denominations as long as variousrequirements are met. I shall look at these requirements below, in relation toagreements 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 Religiosaone 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 betweenthe state and the Catholic Church the latter is not, generally speaking, affected by theprovisions of the Ley Organica.

Relations between the Spanish public authorities and the Catholic Church areregulated by four international agreements signed by the Spanish state and the HolySee on 3 January 1979. Because of their international nature, their amendment orrepeal requires the consent of both parties. These four international agreements can beconsidered as partial concordats, and they have replaced the former concordat whichthe Holy See and General Franco signed in 1953.

These international agreements have become a sort of model in the ecclesiasticallegal framework and other denominations have sought to ‘raise’ their legal position tothe level reached by the Catholic Church in the 1979 agreements and their subsequentdevelopment.

The 1992 Agreements with Other Religious Bodies

The Constitution does not specify which instruments of cooperation the legislaturewould 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 otherjurisdictions, for example Italy, were an initiative on the part of the Spanishparliament. The same applies to the four international agreements signed with theHoly See, although these were probably indispensable in order to replace theConcordat of 1953, which had become completely outdated after the enactment ofthe Constitution; and indeed the four agreements were signed just a few days after thatenactment.

In compliance with Article 7 of the Ley Organica de Libertad Religiosa, a religiousgroup which signs an agreement with the Spanish government must be ‘well-known asrooted’ (‘notorio arraigo’) in Spanish society. This requirement could have beeninterpreted very restrictively by the executive, as it might be argued that strictlyspeaking Catholicism is the only faith which could claim to be ‘well-known as rooted’in Spain, at least until five or ten years ago. However, in 1992 the government took avery inclusive approach and favoured agreements with three religious federations: theFederation of Evangelical Religious Entities of Spain (Federacion de EntidadesEvangelicas de Espana), the Federation of Israelite Communities of Spain (Federacionde Entidades Israelitas de Espana) and the Islamic Commission of Spain (ComisionIslamica de Espana).10 These agreements were subsequently approved by threeordinary acts of parliament. It is thus clear that the regulation of relations between thestate and the Catholic Church is significantly different from the regulation of itsrelations with other religious bodies. The former are regulated by internationaltreaties and cannot be modified unilaterally by the state, while in the case of the latterthe crucial difference is that the public authorities have the power to amend or repealthese laws. Of course, on political grounds this is highly unlikely to happen, but froma purely legal point of view it is a real possibility.

The signature of these agreements has undoubtedly been a step forward, eventhough a detailed analysis of their contents shows that the three agreements aresimilar in many respects and are not fully adequate to the specific needs of the threereligious entities with which they have been concluded. Furthermore, Protestantdenominations were required to come together under the umbrella of a commonfederation – unlike what happened in Italy (see Garcıa Oliva, 2008) – and this hasgiven rise to criticisms by some Protestant groups.

Other Religious Bodies

In order to qualify to sign agreements with the state, religious denominations mustmeet two requirements: (1) they must be ‘well-known as rooted’; and (2) they must beregistered in the public registry created for this purpose and kept at the Ministry ofJustice. This brings us to a third category of religious bodies in the Spanishframework: a good number of non-Catholic denominations which are outside thethree federations with which the state has concluded agreements.11 Some of thesedenominations may decide in the future to sign an agreement with the state as long asthey are deemed to be ‘well-known as rooted’, which is a matter of discretion on thepart of the government, not subject to or directed by any specific and objective rules orcriteria.

There is also a further condition which will need to be met. Article 5.2 of the LeyOrganica says that a declaration of religious purpose is required to enable a group toacquire legal personality. This cannot be other than a procedural matter: otherwise theregistry would end up in the position of being able to decide whether a particulargroup is or is not a religion, as Polo Sabau (2002, pp. 29–50) has pointed out.

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Another relevant issue, which goes beyond the scope of this article, is the growth ofnew religious movements in Spain. This is an increasingly important reality, studied indepth by Navas Renedo (2001). The SCC has taken a very progressive stance inrelation to these new religious groups and has declared that ‘the fundamental right ofreligious freedom does not refer only to the traditional religions or those which havecharacteristics or institutional practices similar to those of the traditional religions’(STC 46/2001, FJ 4). Nevertheless, this same court has established limitations onparents on the grounds of their religious beliefs in order to protect the interests of theirchildren (STC 141/2000, FJ 5). These limitations could include decisions such as thewithdrawal of custody of the children.

Current Trends and the Outlook for the Future

The last few years have witnessed an ongoing tension between the Spanishgovernment and religious bodies, particularly the Catholic Church. There have beenseveral areas of disagreement, but the teaching of religion in state schools and therecognition of gay marriages for the first time in Spanish history have been the twomost outstanding matters (see Garcıa Oliva, 2005, pp. 199–205).

Law 13/2005, of 1 July, reforming the Civil Code and sanctioning same-sexmarriages, was contested passionately by the Catholic Church, which alongside themain opposition party, the Partido Popular, conducted a campaign to reject the newlaw and organised demonstrations.

According to Article II of the agreement of 3 January 1979 between the Spanishstate and the Holy See, concerning education and cultural matters, ‘educationalplans . . . 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 Martınez deCodes, 1998). This provision has proved controversial because various pieces oflegislation enacted over recent decades have tended to play down the value of thissubject, and at times its mark, unlike the mark in all other ‘basic subjects’, has notcounted towards university entry. On the other hand, the question of the nature andstatus of an alternative subject to Catholic religion for those students who choose notto study the latter has also raised serious difficulties.

Further problems have arisen after the passing of the new Ley Organica 2/2006, de 3de mayo, de Educacion. This law contains provisions regarding a new discipline knownas Education in Citizenship (Ensenanza para la Ciudadanıa), which were fiercelycriticised by some members of the Catholic hierarchy. Many citizens declared thatthey would exercise their right of conscientious objection to this subject on thegrounds of its ‘secular and antireligious’ nature. However, despite the initial negativereaction to this law in some social sectors, the vast majority of Spanish students havein fact taken this subject during the current academic year (2007–2008). Indeed, inSeptember 2007 the president of the Spanish Episcopal Conference, RicardoBlazquez, declared his respect for those Catholic parents who would not preventtheir children from studying Ensenanza para la Ciudadanıa.

There has been tension between the state and the Catholic Church under thesocialist government after the era of the centre-right Partido Popular (1996–2004). Therelationship seems to be significantly improving, but it remains to be seen how it willdevelop in the course of the next few years. The openly antagonistic approach on thepart of significant members of the Spanish Episcopal Conference towards the socialistgovernment in the recent electoral campaign and the defeat of the moderate sectorheaded 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. Separationbetween public authorities and religious bodies is not incompatible with cooperation,however; and such cooperation in Spain at the beginning of the twenty-first century istaking 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

Martınez de Codes (1998).2 For instance, after the collapse of the attempted 1981 coup, in an emotional statement ontelevision, 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, seeBarrero Ortega (2006).

4 See Gutierrez del Moral and Canivano Salvador (2003, p. 19): they rightly point out thatreligious freedom is becoming increasingly important by the day.

5 All quotations from the law and the Constitution are taken from the English versions in dela Hera and Martınez de Codes (1998).

6 Article 1.1 of the Spanish Constitution: ‘Spain in hereby established as a social anddemocratic State, subject to the rule of law, and advocating as higher values of its legalorder, 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 holdsactively 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 physicalpersons, but also by groups and organisations which aim to defend certain features of thisreligious 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 aservice to members of religious orders.

10 The English translations of the names of these federations are taken from de la Hera and

Martınez 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 legalpersonality 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 thelaws on gay marriages and education. In December 2007, in the course of a demonstration infavour of the traditional model of the family, he claimed that many of the government’sactions were steps backwards in terms of recognition of human rights.

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Balfour, S. (2000) ‘Spain from 1931 to the present’, in R. Carr (ed.) Spain: a History (Oxford,Oxford University Press, 2000), pp. 243–82.

Barrero Ortega, A. (2006) La libertad religiosa en Espana (Madrid, Centro de Estudios Polıticos

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