Spanish Ecclesiastical Law and Religious Freedom
On the Spanish Stock Plan (1978)
Legal Norms
In Spain, Article 1.1 of the Spanish Constitution (EC) establishes freedom, justice, equality, and political pluralism as core values. Articles 9-10 promote societal development and progress. The relationship between the State and religious confessions has changed due to the recognition of religious freedom.
Informing Principles of Spanish Ecclesiastical Law
Spain is a secular state. The principles informing ecclesiastical law are enshrined in Articles 14-16 of the EC: secularism, equality, religious freedom, and cooperation. These civil and legal principles unify the diverse aspects of ecclesiastical matters. Hermeneutics (rules of interpretation) and a focus on citizenship guide the application of these principles.
Principles of Religious Freedom
When the State recognizes its citizens, it assumes:
- Immunity from coercion: Citizens cannot be compelled to practice a religion or perform acts of faith.
- Obligation to promote and guarantee religious freedom.
Principle of Equality
- Substantial Equality (Art. 9.2 EC): The State is obligated to create conditions for the enjoyment of rights in a situation of effective equality.
- Legal Equality (Art. 14 EC): Individuals and autonomous communities are equal before the law.
All faiths are entitled to religious freedom. Legal security protects against arbitrariness, and the administration cannot discriminate based on religion. The legislature cannot justify different legal treatment based on religious affiliation.
Principle of Secularism
Modern secularism is not hostility towards religion but respect for the rule of law concerning religious citizens. The State must act secularly, recognizing the religious factor as a social factor and acknowledging religious communities as holders of rights. Where possible, confessions should be involved in drafting relevant legal rules, and bilateral sources like ecclesiastical law should be assimilated.
Article 9 of the EC ensures the realization of effective means for freedom, and Article 16.3 addresses religious books and citizens’ rights.
Principle of Cooperation
Article 16.3 of the EC establishes the principle of cooperation. Stemming from state neutrality, this principle recognizes the difference between faiths as legal subjects and specific communities with an institutional dimension. Cooperation between the two powers (state and religious communities) addresses the existing demand for religion. Public authorities must create conditions for religious freedom while respecting pluralism and equality. Cooperation involves participation, concrete acts, and pacts between the State, Autonomous Communities (CAAC), and other denominations.
Categorization of Spain in Religious Matters
Analysis of Article 16 suggests that there isn’t a clear pattern of secularism and separation in Spain. The State establishes a form of ‘underhand’ secularism by expressly mentioning the Catholic religion, although this mention should be understood as a model. Some authors consider Spain to be ‘pluri-confessional.’ Furthermore, there is a semi-separation of church and state, placing Spain’s system between the French and German models, with a respectful separation where the State is constitutionally obligated to cooperate with religious confessions for the full development of the person.
Characteristics of Pseudo-Religious Sects
- Use of hierarchical and coercive programs
- Influence through mind control
- Presence of a charismatic and powerful leader
- Significant purchasing power
- Use of unethical recruitment techniques and thought modification
Religious Sects
- Dogma: Constitutes divine revelation, permanent and open.
- Leader: Receives divine communications, dictating the consciences of the group members.
- Followers: A group of believers subjected to the leader’s influence.
Non-Religious Sects
- Dogma: Strange principles aimed at manipulating the consciences and lives of followers with the promise of self-improvement or a better world.
- Leader: Controls the consciences and lives of followers, believing their own beliefs to be the only valid source.
- Followers: Adhere to the individual leader and their teachings.
Some sects are considered destructive or harmful due to their recruitment methods. Anyone can be recruited, but young, psychologically vulnerable, or marginalized individuals are more susceptible.
Religious, Ideological, and Freedom of Conscience
Ideological Freedom
The right to have one’s own conception of the world, man, and life. It encompasses the freedom to act according to one’s ideas without sanction. Ideological and religious freedom both offer comprehensive worldviews, one based on reason, the other on faith. Atheism is protected under freedom of ideology. The Supreme Court has stated that agnostic and atheistic convictions fall under freedom of ideology.
Freedom of Conscience
Not explicitly in the Constitution, it’s understood as the ability to make moral judgments about one’s actions and the authority to act accordingly. It includes the right to form one’s own conscience. While debated among legal scholars, the Constitutional Court has affirmed the right to act according to one’s conscience and the right to form it, implicitly grounded in Article 16 of the EC.
Religious Freedom
The right to live in agreement or disagreement with the demands of a particular religion without limitations, except for public order. It is a fundamental right (Art. 16), protected by Art. 53.2 EC and developed by the Organic Law of Religious Freedom (LOLLR). Its interpretation aligns with international treaties and is based on human dignity.
Legal Nature
A fundamental right with special protection (Art. 53.2 EC). It has institutional value and is essential to achieving the values of the Constitution. It cannot be prohibited, even during states of emergency (Art. 55.1 EC). It is a subjective right involving the right to act and the obligation to respect others, limited by public order.
Subjects
Applies to natural and legal persons. Individual freedom is for Spaniards and foreigners residing in Spain. Minors can exercise religious freedom if they possess the capacity for judgment (parental duty and the child’s best interest are considered). The LOLLR and RDRER grant ownership to religious entities and federations. The State and public authorities are the obligated parties.
Content and Scope
Article 2 LOLLR outlines individual rights: profession and manifestation of beliefs, changing or abandoning religion, practicing worship, receiving religious assistance, commemorating religious festivities, celebrating marriage according to one’s faith, receiving a decent burial, and receiving religious assistance as provided by the confession.
Freedom of propaganda and teaching (Art. 2.1 c) LOLLR) and access to media (Art. 20 EC) are guaranteed. Religious education is ensured through a plurality of centers, with voluntary religious teaching in public schools and a ban on teacher indoctrination.
The right to assembly, demonstration, and religious association (Art. 2.1 d) LOLLR) allows for meetings without prior permission (notification 10 days in advance is required for demonstrations). These rights may be suspended during states of alarm or exception. The right of religious association is governed by the law of March 22, 2003.
Collective rights of confessions (Art. 2.2 LOLLR) include establishing places of worship and meeting, appointing and training ministers, disseminating and propagating their religion, maintaining relationships with their own associations and other faiths.
Limits
Article 16 EC: The limit is the maintenance of public order protected by law. Article 3 LOLLR: Public order protects the rights of others, public freedoms, and fundamental rights, safeguarding public health, safety, and morality. Public order has a dual role: protecting the legal exercise of religious freedom and preventing its misuse.
Proselytism and Illicit Activities
Not all groups are religious or criminal. Conflicts arise regarding:
- Recruitment methods (proselytism)
- Timing of leaving the group
- Activities within the group (drug use, prostitution, etc.)
- Impact on family heritage
Concerns include mind control and undue influence. Freedom of expression is fundamental and should not be illegitimately suppressed. However, coercive recruitment tactics and harmful activities within the group are cause for alarm.