Summary.

1.- Introduction. 2.- Historical precedents. 3. - New situation starting from 1978. 3.1. The Constitution. 3.2. The Agreements with the Catholic Church. 3.3. The Organic Law of Religious Freedom. 3.4. The Agreements with Protestants, Jews and Muslims of 1992. 3.5. - The sentences of the Constitutional Tribunal (February 15, 2001) and the Regulatory Law of the Right of Association (March 22, 2002). 4. Conclusion.

The Author is located in the scene of the Western History and he describes how the separation has been produced between Religion and Law, in spite of the tendency to the union that they have. In that description, the moments and the most significant factors are pointed out, as well as the constant orientation of that evolution: the secularism [1] like necessary condition for the fullness in the exercise of the freedom of conscience.

 

1. - Introduction.

Initially, the terms majority and minority are related with a quantitative relationship. The decisive aspect is not the same relationship, but the dominant character of the relationship.

When we use the expression minorities, we refer to non dominant minorities, without taking in consideration if their members are national or not.

When we speak of minorities, we are thinking on cohesive groups. This cohesion will be defined by the possession of some religious beliefs and a common purpose of professing them, to practice them and to preserve them, as a part of the own identity and the difference of the group with respect to the others existent groups in the society.

2. - Historical precedents.

It is already a common place to say that Spain was an example of religious tolerance during the end of the Middle Ages, between Muslims, Jews and Christians. We can remember that King Fernando the Third, or the Saint, was called the king of the three religions, and to his son, Alfonso the Tenth, or the Sage, founded the School of Translators of Toledo.

In its European context, it was a really admirable small island. But it is not opportune to make a mystification of that historical fact. It is true that there is a tolerant attitude of the Christian kings toward the Muslims and Jews. And it was a similar attitude of the Muslims kings toward Christian and Jews. But they were citizens of second class and they had to pay more taxes, they did not have access to public office in the Kingdom, and they lived in separated areas or ghettos. The horizontal intolerance and Jews persecutions were very common, mainly in the XIVth Century.

In any case, the period of relative tolerance it was not too large. It finished with the expulsion of the minorities. Initially the Jews (at the end of the XVth century) and one century later, the Muslim minority.

This fact has a double meaning:

1º) It was an expression of the most radical intolerance: It was denied the right to the existence of those who had different beliefs.

2º) It was inserted a criterion of differentiation between the new converted people and the old Christian. This criterion of differentiation was the ius sanguinis or purity of blood. It was established a different status between the new converted people and the old Christians.

This situation will be prolonged until the XIXth century, in spite of the parliamentary liberalism.

A new concepts of nation and nationality will appear in the XIXth century. This new concepts will identify two ideas in Spain: the idea of Spanish citizen with the idea of Catholic citizen. It will not be conceivable a Spanish that is not Catholic.

It is illustrated with an anecdote. The ephemeral Spanish Constitution of 1869, recognizes the right of freedom of religion, by first-time. But with a curious formula. That right is initially recognized to the foreigners who live in Spain. And it is added: if there is some non Catholic Spaniard, he will have also the freedom of religion.

?It is not easy to find a Spaniard, who admits by himself, not to be Catholic.

Constitution of 1869 opens a door for the shy formation of religious minorities in Spain. The tolerance intended like the lesser of two evils, was recognized in the following Constitution of 1876. This Constitution will recognize the freedom of conscience in private, for citizens and foreigners.

Under this umbrella, some Protestant groups will appear, and some time after, some Jews and Muslims.

The cautious and timorous evolution that we have pointed out was always made with the great opposition of the Catholic Church that, on the base of its majority character, pretended to control the doctrinal orthodoxy, and the orthodoxy of the Spaniards´ behaviors.

The two most extreme expressions of that fight among the political and the religious power, were the Second Spanish Republic of 1931 and the Dictatorship of General Franco.

The Second Spanish Republic of 1931, opts for the recognition of the civil right of liberty of conscience and the separation between Church and State, with a certain negative attitude regarding the religious beliefs, without any type of cooperation with the religious groups.

The Dictatorship of General Franco, accepts the desires of the Catholic Church, because the catholic Church will obtain the doctrinal control of education and information, although timidly it admits a certain tolerant attitude as pale memory of the Constitution of 1876, although more clipped, with the exception of the African territories regarding the Muslims.

The level of tolerance will be increased after the Law of freedom of religion of 1967. This Law will consolidate and stabilize the minorities.

3. - New situation starting from 1978.

It is necessary to mention 4 norms if we want to understand the complexity and the sense of our system´s evolution: the Constitution of 1978, the Agreements between the Spanish State and the Catholic Church of 1979, the Organic Law of religious freedom of 1980 and the Agreements with some minority religious groups (Protestants, Jews and Muslims) of 1992.

3.1. The Constitution.

The Constitution sought, in this topic, to overcome the confrontation among the positions maintained by the Second Spanish Republic and the Dictatorship of General Franco. Consensus was the solution.

Article 16 of the Spanish Constitution, consecrates the liberty of conscience (ideological or not) and the secularism [2] of the Spanish State. This solution implies religious neutrality and separation between Church and State. This solution will be compatible with the cooperation between Church and State, if this cooperation is necessary for the real and effective equality and freedom, in order to remove the obstacles that are opposed to its fullness. But nothing else. The cooperation has its support in the rights of equality and freedom, but this cooperation is limited by the secularism.

It is opted by an intermediate road among the laicism (contrary to the religious beliefs) and the confessional State (favorable to the religious beliefs). The State will be neutral regarding the religious beliefs.

This position, at first sight unequivocal, from the perspective of the finalist interpretive principle, (that is the decisive one according with the article 3.1 of our Civil Code), it was muddled by two unnecessary added:

1) The reiteration of the public powers obligation of cooperation with the religious groups, considering the religious beliefs of the Spanish society.

2) And the expressed mention of the Catholic Church, in the article 16.3 of the Spanish Constitution.

The spokesman of the political group that supported the Government (UCD) during the parliamentary discussion of the Spanish Constitution, focused his speech on tranquillize the groups that were opposed to that double inclusion. He assured that it didn't imply any privilege.

Unfortunately, the pessimistic forecasts of the political opposition have been completed. The Agreements with the Catholic Church have driven to a situation of artificial inequality among the religious groups. Now we have an evident privileged position of the Catholic Church.

The evolution in that sense has been possible because the first interpretations and applications of the constitutional were made in the climate of the so called political transition. During the political transition, the most progressive sectors didn't like to make a frontal opposition against the most reactionary forces. They did not like to risk the democracy.

3.2. The Agreements with the Catholic Church.

They are only signed five days after the promulgation of the Spanish Constitution. That fact and the complexity of a negotiation of this type, explains the multiple ambiguities and misleading expressions that we find in them. This is a consequence of the praiseworthy of the negotiators in order to eliminate the hypothetical contradictions as much as possible.

It is not that, the most serious thing and neither the most worrying.

The four agreements are signed in 1979, only five days later, after the Constitution.

The four Agreements of 1975, are only temporarily post-constitutional, but formally they are pre-constitutional and they are not constitutional from the point of view of their inspiring principle. They have some unconstitutional rules, sometimes because it is not possible a constitutional interpretation, other times because the Catholic Church is opposed to every constitutional interpretation.

The Agreements with the Catholic Church have in our legal system the consideration of International Treaties. By this reason they will have the same rules for repeal, modification or suspension that the International Treaties (Article 96 of the Spanish Constitution).

Those Agreements act as shield for the privileged position of the Catholic Church in detriment of the sovereignty of the public powers. Even in many aspects regarding with Human Rights. The Catholic Church may offer its opposition to the modifications or improper interpretations. In these cases, the public powers become their hostages.

The Agreements obstruct the free exercise of the sovereignty, especially in the matter of Fundamental Rights. In some occasions, they force to those public powers to appear as the violators of those Fundamental Rights, like a consequence of previous decisions of the ecclesiastical authorities.

So, the circle is closed. The Agreements with the Catholic Church become interpretive instrument of the own Constitution, according with the interpretation of some author. This absurd interpretation put this Agreements on the same level of the International Treaties about Human Rights ratified by Spain.

The laity for which had bet the constitutional text originally, has become sociological confessionality [3] in fact, because of the influence of those agreements.

3.3. The Organic Law of Religious Freedom.

The promulgation of the Organic Law of Religious Freedom in 1980 provoked the alarm.

The members of the Catholic Church maintained the thesis that the new Law didn't affect them. It was a Law for the other religious groups. The statute of the Catholic Church was determined by the Agreements. Inequality was made official.

So it was riveted the thesis sustained by the defenders of the Catholic Church´s interest. According with this thesis, the Constitution must be interpreted in conformity with the Agreements.

In this Law, some dispositions settled down in perfectly acceptable principle, but their interpretation and application by the Administration and even by the Tribunals it finishes forcing the principle of equality. I will refer to three cases:

1^st) The Law demanded that the religious confessions must be registered in a special Registry to enjoy juridical personality, at least in their relationships with another part, with an exception: the Catholic Church.

But that is not all.

The Administration will decide with full discretional power, what requirements are required, including some unforeseen in the law.

The religious groups should express in the presented documentation their religious purposes. Public Administrators have understood that they have competence to decide if those purposes are truly religious or not. Burden of proof was for the religious group. The State has renounced to decide which is the true religion, but the State has not renounced to say if some religious groups is really a religious group. What has happen with the separation principle? Administration opts for the system of recognition, not by the system of declaration.

This way of procedure demands that the Administration must have a concept of religion. The concept of religion assumed a priori by the Public Administration is only a concept related with the religions of the Book (Judaism, Christianity and Islamism) or the similar religions with one of them.

The denial of the inscription on these bases, it doesn't only put on interdict the laity, but rather it clearly violates the rights of freedom of religion and the rights of association and inscription. Each one of them are part of the essential content of gives the previous one. So, it is easy to leave outside of the legal protection, the religious movements that are uncomfortable.

But it is not that the only reason for the negation of the inscription. It is also demanded, without constitutional support, that the religious group must have a significant number of believers. This formula is uncertain and it allows the discretionary power of the Administration.

2^nd) The new Law contemplates the possibility that the State may sign an agreement of cooperation with the religious groups. They must complete certain requirements, specially a notorious presence in the society, that I will refer in the following section. In those agreements the religious groups affected may obtain the fiscal benefits foreseen in the legal system for the non-profit entities, with full respect of the principle of equality.

That said is perfectly acceptable. The problem arises as consequence of the anomalies in its application. I will point out those more significant:

1) Only the religious groups with a Cooperation Agreement will enjoy the fiscal benefits. Al the others are excluded. Even although they are inscribed in the Special Registry of Religious Entities. It crashed with the principle of equality.

2) The benefits applied are not the foreseen ones in the general juridical system.

3^rd) The Law introduces the uncertain juridical concept of "notorious presence". It is only possible to sign Agreements of cooperation between the State and the religious groups with this notorious presence.

It is reasonable to demand some certain stability and future viability.

The problem arises hereinafter.

It is an uncertain juridical concept whose determination is in hands of discretionary of the Administration with the risk of arbitrariness.

Spain has been during centuries a country with an excluding doctrinal confessiona [4] l State, just with two ephemeral parenthesis (no more than seven years each one): the Constitutions of 1869 and 1931.

It was made a generous interpretation with Protestants, Jews and Muslims, but starting from that moment that possibility has closed, forcing the fraud of law. I will give a single example: the Orthodox Church was incorporated to the Federation of Protestant Churches in order to be able to be made beneficiary of the corresponding agreement of cooperation.

It is necessary to distinguish five steps of inequality:

1) Catholic church.

2) Religious groups with an Agreement of cooperation with the State.

3) Entities non lucrative of general interest.

4) Religious groups inscribed in the special Registry of Religious Groups.

5) Non registered religious groups.

3.4. The Agreements with Protestants, Jewries and Muslims of 1992.

The Agreements with Protestants, Jews and Muslims of 1992 introduce important novelties.

This agreements have not international character.

In the own agreements it is foreseen their unilateral development by the Government and even its parliamentary modification, with the alone obligation, in both cases, of communication to the affected religious groups.

The Agreements with those three minority confessions, (teaching, religious assistance, marriage, etc) have a different content that the agreements with the Catholic Church. They are being used as alibi of the privileged position of the Catholic Church.

3.5. - The sentences of the Constitutional Tribunal (February 15, 2001) and the Regulatory Law of the Right of Association (March 22, 2002).

The Sentence of the Constitutional Court restores the interpretation of article 16 of the Constitution in terms of separation between Church and State.

The Constitutional Court calls positive secularism, like some thing different of the confessional [5] State and the laicism [6] system.

This positive secularism includes the neutrality of the State and its separation of the religious groups. It excludes any confusion of subject, activities or religious purposes with the publics of the state.

But, at the same time, this positive secularism is compatible with a certain type of cooperation: the necessary one to make that the equality and the freedom are real and effective or to remove the obstacles that are opposed to their fullness. Any other type of cooperation has its limit in the positive secularism.

The Constitutional Tribunal is also pronounced about the requirements demanded by the Administration for the inscription in the Registry.

It opts for a wide concept of religion. The Administration can not define the religious things.

The Regulatory Organic Law of the Right of Association, applicable to the special associations, as the religious groups, it is not only a supplementary regulation, but also as common legal minimum.

It denies to the Administration the possibility of refusing the inscription for something that are not defects in the documents that should be presented: minutes of creation and Statutes.

The minimum number of creators is only three persons.

4. Conclusion.

Spain at the moment is a State with a deeply secularized society, but with a legal system with several residuals of confessionality.

The current Government, sensitive to the flatteries and pressures of the Catholic Church, emulating not to the turtle but to the crab, it is increasing both things alarmingly. The risk of confessionality is clear.

The sentence of the Constitutional Court and the Law of Associations force the public powers (executive, legislative and judicial) to proceed as soon as possible to the purification of the juridical system, to eliminate the residuals of confessionality, inequality and discrimination by religious reasons.

I should admit that, if I see what is happening, I don't feel too optimistic.

NOTES

1. Secularism: It is interpreted like neutrality of the State, and separation between Church and State. [back]