By Juan Ferreiro Galguera
Full professor of Ecclesiastical Law at University of Coruna
Former D/Director General for Promotion and Protection
of Religious Freedom at the Spain Ministry of Justice.
In this speech I am going to talk about three things. First, I will refer to the constitutional principles that should be respected in any kind of State-Church relations. Second, how these principles have been implemented by administrative acts regarding religious minorities. And third, I will show two examples of good practices concerning legal recognizing of religious minorities which we had learned from two previous mistakes.
Art. 16.1 of Spanish Constitution recognizes the fundamental right of religious freedom for individuals and groups and remarks that the only limits of Religious Freedom are those necessary for the maintenance of public order protected by law.
Law 7/1980 of Religious Freedom have implemented this concept of limits, enshrining two kinds:
1) Respect for the fundamental rights of others and
2) Public Order, a legal concept which has 3 dimensions: public security, public health and public morality
According to the Constitution, all the relationships between the public powers and religious groups should be developed in a metaphorical area formed by two coordinates:
- the principle of non confessional State (in Spanish, laicidad o aconfesionalidad)
- the principle of cooperation.
In other words, all relations between public authorities and denominations should take into account those two tenants.
1. The principle of non confessional state, which comes from a constitutional declaration (“No religion shall have State Character” –art. 16.2 of Spanish Constitution-), is based on two pillars:
a) Separation between churches and State.
This concept means that Churches and State are independent & autonomous entities. In other words, neither State nor churches can intervene in the own sphere of the other.
Separation means that State cannot interfere in the realm of religious groups. As an example, public authorities cannot tell Catholic Church how to organize or if women should be priests or not. This subject is competence of the religion.
But at the same time, separation also means that denominations cannot intervene in the own sphere of the State. In other words, religious groups cannot assume roles of the State. As an example, no church can pretend that its morals or its dogmas became automatically laws (that´s competence of the Parliament). Catholic Church has statements regarding abortion. But what is legal or not is established by the Parliament. Another example, in Spain, there are not anymore sits reserved for bishops in the Congress of Deputies, as it used to be in Franco´s Dictatorship. Even though, as we all know, nowadays there are still sits reserved to bishops in the House of Lords of the United Kingdom.
Nevertheless, we shouldn’t mistake Separation principle with Freedom of expression. Many people confuse them. A confession can criticize the government policy or its laws. That isn’t interfering in State´s fields. That is just expressing an opinion which is a manifestation of Freedom of speech.
b) Neutrality of the State before religions.
It means that State is not competent in religious affairs. Public powers cannot practise any faith nor asses the legitimacy of a religious dogmas. This is only competence of individuals and communities, which are the only holders of the fundamental right of religious freedom.
State Cannot determine which group is a real religion and which is a fake one or a Sect. Among other things, because this term is not a legal concept It´s just a sociological one. So the State cannot be neither confessional, nor atheist, or laicist (For as an “estado laicista” is an State which has prejudices towards confessions, treating them worst than to any non religious groups. The State should be neutral (in other words, non confessional or “laico”)
We should underline that there is a difference between: a “laicist” State (“laicista”) and “laico” or “secular” (or “non confessional”) State.
A “laicist” State (or any of its public manifestation: a “laicist” law, sentence or municipal declaration) is an State which has prejudices against denominations, treating them worse than to other groups. In the other hand, a “laico State” (non confessional, or secular) is a State which has not prejudices against religions and it is neutral before religions.
2. With regard to the Principle of Cooperation, the Constitution gives two mandates to the public authorities:
- To take into account the religious beliefs of the Spanish population
- To maintain the resulting relations of cooperation with the Catholic Church and other denominations.
It doesn’t mention specific ways of cooperation, but so far, the main instrument of cooperation have been signing cooperation Agreements with religions that have been classified as “deeply or firmed rooted” by the ministry of Justice (Advisory Commission on Religious Freedom).
As we have just said before, all the relations between State and churches should respect these two principles. Those affairs should be developed in a metaphorical area formed by those 2 coordinates or tenants: principle of non confessional state (secular state) and principle of cooperation.
Lets see how they should be implemented in one specific field: Recognition of religious groups
In Spain we have a Register of Religious Entities under the Ministry of Justice.
To be entitled to the fundamental right of religious freedom, groups do not need to adopt any special legal form. But they have the option to enroll in the Register of Religious Entities if they fulfill these requirements:
- presenting notice of the foundation or establishment in Spain
- Its Entity name (appropriate to be distinguished from any other religious group) and its address.
- Internal norms about organization and their representative bodies
- Declaration of religious purposes
Once registered, the group is recognized by the State as a denomination, and this recognition entails some extra rights.
Best practices of Spain before applications to enroll the Register of Religious Entities.
According to the already mentioned principles, the State (Register of Religious Entities) should act before these requests from a position of ideological neutrality. Sometimes we didn´t but at the end we have learned from our mistakes. I am going to refer to 2 typical errors which ended in 2 examples of good practices, thanks to the help of the Constitutional Court
a) a former wrong attitude: Theological temptation of the State:
Sometimes the State assumed the role of a maximum cleric: deciding whether a group is or not religious. it used to do so, having in its unconscious mind the paradigm of traditional religions (basically, the paradigm of monotheistic denominations (Judaism, Islam, Christianity).
An example: when Church of Unification or Scientology first demanded to be enrolled in the Register of Religious Entities, not only them but also some judges answered that their purposes were not religious but philosophical. So, the judge said that they were not a religious group but a philosophical one.
Correction of that thesis made by the Spanish Constitutional Court
State cannot do a MATERIAL CONTROL, in other words, It cannot control the legitimacy of religious believes (this is a real religion, this is a faked one, a sect, etc.).
Coming from the public powers, this attitude is against the principle of Neutrality (State cannot value or asses religious dogmas, cause this is competence of individuals and communities, which are the only holders of that Fundamental Right).
Besides, according to the official interpretation of Human Rights Committee, the term “religion” should be broadly construed so that it is not limited to traditional religions or similar. From this authorised point of view, religious freedom protects:
§ theistic, non theistic and atheistic beliefs
§ new established religions
§ those followed by a minority of people
State´s role before an application to enter the Register is just to do a FORMAL CONTROL, in other words, to control if a group fulfills the legal requirements (already mentioned). The most troublesome is expressing their “religious purposes”. Regarding this requisite, the State should make an “Act or Faith”, presuming the group believes in what they say they believe …unless there are solid proofs regarding criminal purposes (example: fraud…) of this groups
b) Another former wrong attitude: Temptation of Prejudice
When the State echoes prejudices (clichés, stereotypes) existing in the society. For example: “this group abducts its followers...”
Correction from the Constitutional Court.
According to this Tribunal, charges are to be proved before Court. Evidences (not rumours) are needed to condemn. You cannot criminalize any institution for crimes committed by some of its members, as long as this crimes are not a purpose of the group. For example you cannot criminalize Catholic Church because crimes committed by some clerics (sexual harassment).
In this logic, Scientology went through a long criminal trial in Spain, accused of many crimes, but at the end it was acquitted of all of them.
Thad doesn’t mean that State has no any control over religious groups. If the State (for example the Register of Religious Entities) suspects that a group uses methods or seeks for illegal goals, they should stop the process of registration and send the case to the Judge. But, only if they are sentenced guilty, the refusal to register is acceptable.
Why is important being registered in the Register of Religious Entities?
It is important, mainly for two reasons. The enrolled groups not only enjoy of legal recognition of its religious character from the State but they also have extra rights, among others, once they have obtained the classification of “Deeply or firmly rooted” in Spanish society they can sign Cooperation Agreements with the Spanish State.
So far the State has signed Cooperation Agreements:
- With Catholic Church in 1979 (it is also a international Treaty,
- With the other 3 denominations which have obtained the “deeply rooted declaration” : Muslims, Protestants, Jews (these Agreements have been passed as ordinary Laws (Laws 24,25,26 of November 10th 1992)
According to the Spanish law we can distinguish among 4 types of denominations from a legal perspective:
o Non registered religions
o Registered denominations (enrolled in the Register of Religious Entities)
o Registered and classified as “deeply or firmly rooted” by the Advisory Commission on religious freedom (so far: Jehovah Witnesses, Buddhism, Mormons and Christian Orthodox.
o Denomination with Cooperation Agreements: Catholic Church, Muslims, protestants and Jewish.
Full professor of Ecclesiastical Law at University of Coruna
Former D/Director General for Promotion and Protection
of Religious Freedom at the Spain Ministry of Justice.
In this speech I am going to talk about three things. First, I will refer to the constitutional principles that should be respected in any kind of State-Church relations. Second, how these principles have been implemented by administrative acts regarding religious minorities. And third, I will show two examples of good practices concerning legal recognizing of religious minorities which we had learned from two previous mistakes.
Art. 16.1 of Spanish Constitution recognizes the fundamental right of religious freedom for individuals and groups and remarks that the only limits of Religious Freedom are those necessary for the maintenance of public order protected by law.
Law 7/1980 of Religious Freedom have implemented this concept of limits, enshrining two kinds:
1) Respect for the fundamental rights of others and
2) Public Order, a legal concept which has 3 dimensions: public security, public health and public morality
According to the Constitution, all the relationships between the public powers and religious groups should be developed in a metaphorical area formed by two coordinates:
- the principle of non confessional State (in Spanish, laicidad o aconfesionalidad)
- the principle of cooperation.
In other words, all relations between public authorities and denominations should take into account those two tenants.
1. The principle of non confessional state, which comes from a constitutional declaration (“No religion shall have State Character” –art. 16.2 of Spanish Constitution-), is based on two pillars:
a) Separation between churches and State.
This concept means that Churches and State are independent & autonomous entities. In other words, neither State nor churches can intervene in the own sphere of the other.
Separation means that State cannot interfere in the realm of religious groups. As an example, public authorities cannot tell Catholic Church how to organize or if women should be priests or not. This subject is competence of the religion.
But at the same time, separation also means that denominations cannot intervene in the own sphere of the State. In other words, religious groups cannot assume roles of the State. As an example, no church can pretend that its morals or its dogmas became automatically laws (that´s competence of the Parliament). Catholic Church has statements regarding abortion. But what is legal or not is established by the Parliament. Another example, in Spain, there are not anymore sits reserved for bishops in the Congress of Deputies, as it used to be in Franco´s Dictatorship. Even though, as we all know, nowadays there are still sits reserved to bishops in the House of Lords of the United Kingdom.
Nevertheless, we shouldn’t mistake Separation principle with Freedom of expression. Many people confuse them. A confession can criticize the government policy or its laws. That isn’t interfering in State´s fields. That is just expressing an opinion which is a manifestation of Freedom of speech.
b) Neutrality of the State before religions.
It means that State is not competent in religious affairs. Public powers cannot practise any faith nor asses the legitimacy of a religious dogmas. This is only competence of individuals and communities, which are the only holders of the fundamental right of religious freedom.
State Cannot determine which group is a real religion and which is a fake one or a Sect. Among other things, because this term is not a legal concept It´s just a sociological one. So the State cannot be neither confessional, nor atheist, or laicist (For as an “estado laicista” is an State which has prejudices towards confessions, treating them worst than to any non religious groups. The State should be neutral (in other words, non confessional or “laico”)
We should underline that there is a difference between: a “laicist” State (“laicista”) and “laico” or “secular” (or “non confessional”) State.
A “laicist” State (or any of its public manifestation: a “laicist” law, sentence or municipal declaration) is an State which has prejudices against denominations, treating them worse than to other groups. In the other hand, a “laico State” (non confessional, or secular) is a State which has not prejudices against religions and it is neutral before religions.
2. With regard to the Principle of Cooperation, the Constitution gives two mandates to the public authorities:
- To take into account the religious beliefs of the Spanish population
- To maintain the resulting relations of cooperation with the Catholic Church and other denominations.
It doesn’t mention specific ways of cooperation, but so far, the main instrument of cooperation have been signing cooperation Agreements with religions that have been classified as “deeply or firmed rooted” by the ministry of Justice (Advisory Commission on Religious Freedom).
As we have just said before, all the relations between State and churches should respect these two principles. Those affairs should be developed in a metaphorical area formed by those 2 coordinates or tenants: principle of non confessional state (secular state) and principle of cooperation.
Lets see how they should be implemented in one specific field: Recognition of religious groups
In Spain we have a Register of Religious Entities under the Ministry of Justice.
To be entitled to the fundamental right of religious freedom, groups do not need to adopt any special legal form. But they have the option to enroll in the Register of Religious Entities if they fulfill these requirements:
- presenting notice of the foundation or establishment in Spain
- Its Entity name (appropriate to be distinguished from any other religious group) and its address.
- Internal norms about organization and their representative bodies
- Declaration of religious purposes
Once registered, the group is recognized by the State as a denomination, and this recognition entails some extra rights.
Best practices of Spain before applications to enroll the Register of Religious Entities.
According to the already mentioned principles, the State (Register of Religious Entities) should act before these requests from a position of ideological neutrality. Sometimes we didn´t but at the end we have learned from our mistakes. I am going to refer to 2 typical errors which ended in 2 examples of good practices, thanks to the help of the Constitutional Court
a) a former wrong attitude: Theological temptation of the State:
Sometimes the State assumed the role of a maximum cleric: deciding whether a group is or not religious. it used to do so, having in its unconscious mind the paradigm of traditional religions (basically, the paradigm of monotheistic denominations (Judaism, Islam, Christianity).
An example: when Church of Unification or Scientology first demanded to be enrolled in the Register of Religious Entities, not only them but also some judges answered that their purposes were not religious but philosophical. So, the judge said that they were not a religious group but a philosophical one.
Correction of that thesis made by the Spanish Constitutional Court
State cannot do a MATERIAL CONTROL, in other words, It cannot control the legitimacy of religious believes (this is a real religion, this is a faked one, a sect, etc.).
Coming from the public powers, this attitude is against the principle of Neutrality (State cannot value or asses religious dogmas, cause this is competence of individuals and communities, which are the only holders of that Fundamental Right).
Besides, according to the official interpretation of Human Rights Committee, the term “religion” should be broadly construed so that it is not limited to traditional religions or similar. From this authorised point of view, religious freedom protects:
§ theistic, non theistic and atheistic beliefs
§ new established religions
§ those followed by a minority of people
State´s role before an application to enter the Register is just to do a FORMAL CONTROL, in other words, to control if a group fulfills the legal requirements (already mentioned). The most troublesome is expressing their “religious purposes”. Regarding this requisite, the State should make an “Act or Faith”, presuming the group believes in what they say they believe …unless there are solid proofs regarding criminal purposes (example: fraud…) of this groups
b) Another former wrong attitude: Temptation of Prejudice
When the State echoes prejudices (clichés, stereotypes) existing in the society. For example: “this group abducts its followers...”
Correction from the Constitutional Court.
According to this Tribunal, charges are to be proved before Court. Evidences (not rumours) are needed to condemn. You cannot criminalize any institution for crimes committed by some of its members, as long as this crimes are not a purpose of the group. For example you cannot criminalize Catholic Church because crimes committed by some clerics (sexual harassment).
In this logic, Scientology went through a long criminal trial in Spain, accused of many crimes, but at the end it was acquitted of all of them.
Thad doesn’t mean that State has no any control over religious groups. If the State (for example the Register of Religious Entities) suspects that a group uses methods or seeks for illegal goals, they should stop the process of registration and send the case to the Judge. But, only if they are sentenced guilty, the refusal to register is acceptable.
Why is important being registered in the Register of Religious Entities?
It is important, mainly for two reasons. The enrolled groups not only enjoy of legal recognition of its religious character from the State but they also have extra rights, among others, once they have obtained the classification of “Deeply or firmly rooted” in Spanish society they can sign Cooperation Agreements with the Spanish State.
So far the State has signed Cooperation Agreements:
- With Catholic Church in 1979 (it is also a international Treaty,
- With the other 3 denominations which have obtained the “deeply rooted declaration” : Muslims, Protestants, Jews (these Agreements have been passed as ordinary Laws (Laws 24,25,26 of November 10th 1992)
According to the Spanish law we can distinguish among 4 types of denominations from a legal perspective:
o Non registered religions
o Registered denominations (enrolled in the Register of Religious Entities)
o Registered and classified as “deeply or firmly rooted” by the Advisory Commission on religious freedom (so far: Jehovah Witnesses, Buddhism, Mormons and Christian Orthodox.
o Denomination with Cooperation Agreements: Catholic Church, Muslims, protestants and Jewish.