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Published online by Cambridge University Press: 28 April 2009
In Spain, immigration has been one of the main reasons for a significant number of conflicts regarding the use of religious symbols. In this context, the fundamental rights and freedoms enshrined in the Spanish Constitution are expected to play a very important role as a criterion to solve these tensions. However, a more accurate response is provided by case law, where the variety of circumstances that surround each conflictual situation can be taken into account to reach the best solution.1
1 I would like to thank Dr Javier García Oliva, Lecturer at Bangor University and Research Associate at the Centre for Law and Religion at Cardiff University, for his invaluable assistance with the preparation of this article.
2 Article 1 of the Spanish constitution reads: ‘Spain considers itself a social and democratic state governed by laws which advocate liberty, justice, equality, and political pluralism as the superior values of its legal order.’
3 The article reads: ‘Freedom of ideology, religion, and cult of individuals and communities is guaranteed without any limitation in their demonstrations other than that which is necessary for the maintenance of public order protected by law. No one may be obliged to make a declaration on his ideology, religion, or beliefs. No religion shall have a state character. The public powers shall take into account the religious beliefs of Spanish society and maintain the appropriate relations of cooperation, with the Catholic Church and other denominations.’
4 Organic Law 7/1980, 5 July 1980 on religious freedom (Boletín Oficial del Estado (BOE), 24 July 1980). The features of the organic laws are described in Article 81 of the Spanish Constitution: ‘Organic laws are those relative to the exercise of fundamental rights and public liberties, those approved by the Statutes of Autonomy and the general electoral system, and the others provided for in the Constitution. The approval, modification, or repeal of organic laws shall require an absolute majority of the House of Representatives in a final vote on the entire bill.’
5 Article 2.1 of the Organic Law on Religious Freedom, states: ‘1. The freedom of worship and religion guaranteed by the Constitution secures the right, which may therefore be exercised by all without duress, to:
a) Profess whatever religious beliefs they freely choose or profess none at all; change or relinquish their faith; freely express their own religious beliefs or lack thereof or refrain from making any statement in such regard.
b) Take part in the liturgy and receive spiritual support in their own faith; celebrate their festivities; hold their marriage ceremonies; receive decent burial, with no discrimination for reasons of religion; be free from any obligation to receive spiritual support or participate in religious services that are contrary to their personal convictions.
c) Receive and deliver religious teaching and information of any kind, orally, in writing or any other means; choose religious and moral education in keeping with their own convictions for themselves and any non-emancipated minors or legally incompetent persons, in and outside the academic domain.
d) Meet or assemble publicly for religious purposes and form associations to undertake their religious activities in community in accordance with ordinary legislation and the provisions of this General Act.’
For a broad analysis on the content of this Law, see Ciáurriz, MJ, La libertad religiosa en el Derecho español: la Ley Orgánica de Libertad Religiosa (Madrid, 1984)Google Scholar.
6 STC 101/2004, 2 June 2004. The Constitutional Court (Tribunal Constitucional) only considers constitutional matters – cases of alleged violation of constitutional rights and disputes between the state and autonomous communities. For an analysis of the Spanish Constitutional Court's decisions during 1991, see Chacón, R Rodríguez, El factor religioso ante el tribunal constitucional (Madrid, 1992)Google Scholar. Interesting material on specific aspects of Spanish constitutional jurisprudence can be found in Martínez-Torrón, J (ed), La libertad religiosa y de conciencia ante la justicia constitucional: Actas del VIII congreso internacional de derecho eclesiástico del estado (Granada, 1998)Google Scholar.
7 See, generally, Arribas, S Cañamares, Libertad religiosa, simbología y laicidad del Estado (Pamplona, 2005), p 25Google Scholar.
8 Article 10.2 of the Constitution states: ‘The norms relative to basic rights and liberties which are recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements on those matters ratified by Spain’.
9 In particular, the European Court of Human Rights jurisprudence constitutes a guiding principle in interpreting the content and limits of every fundamental right recognised in the Spanish Constitution, given the binding nature of the Convention for all members of the Council of Europe. On the jurisprudence of this body, see J García Oliva, ‘La cuestión de la simbología religiosa en el Reino Unido’, (2008) 16 Revista General de Derecho Canónico y Eclesiástico del Estado, published at <http://www.iustel.com/>, accessed 27 January 2009.
10 On the limits of the free exercise considered by the Organic Law, see Combalía, Z, ‘Los límites del Derecho de libertad religiosa’ in Tratado de Derecho Eclesiástico (Pamplona, 1994), p 470Google Scholar.
11 Concurring with this position, see sentence 53/1986, statement regarding law 3, and sentence 137/1990, 19 July 1990, statement regarding law 6.
12 Constitutional Court decision 46/2001, 15 February 2001, statement regarding law 11.
13 See Spanish Supreme Court decision, 27 June 2007.
14 See generally, the Constitutional Court decisions 5/1981 of 13 February 1981 (BOE, 24 February 1981) and 24/1982 of 13 May 1982 (BOE, 9 June 1982).
15 ‘Spaniards are equal before the law, without any discrimination for reasons of birth, race, sex, religion, opinion, or any other personal or social condition or circumstance.’
16 Article 38 of the Spanish constitution reads: ‘Free enterprise within the framework of a market economy is recognized. The public authorities guarantee and protect its exercise and the defence of productivity in accordance with the demands of the general economy and as the case may be, in keeping with planning.’ For decisions of the Constitutional Court, see, for example, sentence 88/1985, 19 July 1985, and sentence 20/2002, 28 January 2002.
17 Sentence, 9 September 2002. The Superior Court of Justice is the highest court within each autonomous community of Spain. It is divided into four chambers: civil, criminal, administrative and labour.
18 Article 16.2 of the Constitution states: ‘No one may be obliged to make a declaration on his ideology, religion, or beliefs.’
19 It reads: ‘Free enterprise within the framework of a market economy is recognized. The public authorities guarantee and protect its exercise and the defence of productivity in accordance with the demands of the general economy and, as the case may be, in keeping with planning.’
20 On this topic, see Woehrling, J, ‘L'obligation d'accommodement raisonnable et l'adaptation de la société à la diversité religieuse’, (1988) 43 McGill Law Journal 325–401Google Scholar.
21 Loi n° 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics. (Law 2004-228 of 15 March 2004, concerning, as an application of the principle of the separation of church and state, the use of symbols or garments that are religious in nature or appearance in state primary and secondary schools.) The Bill came into effect on 2 September 2004, at the beginning of the following academic year. Although the law does not make explicit references to any particular symbol, it is aimed at forbidding the wearing of Muslim headscarves by schoolgirls.
22 Until the 2004 law was enacted, the French Council of State admitted the use of religious symbols in state schools when the rights of the other members of the educational community were not at risk. For more on French jurisprudence on that issue, see Cañamares Arribas, Libertad religiosa, pp 72–82.
23 Article 9.2 reads: ‘It is the responsibility of the public powers to promote conditions so that liberty and equality of the individual and the groups he joins will be real and effective; to remove those obstacles which impede or make difficult their full implementation; and to facilitate participation of all citizens in the political, economic, cultural, and social life.’
24 In its sentence 46/2001, on 15 September 2001, the Spanish Constitutional Court regarded the church–state separation principle, enshrined in Article 16.3 of the Constitution, as ‘positive neutrality’.
25 Sentence passed on 12 June 1990. The Supreme Court (Tribunal Supremo) is the highest level of justice in the Spanish system. Its jurisdiction extends throughout Spanish territory and over all judicial matters. It is divided into five chambers (civil, criminal, social, military and administrative) and hears appeals for the annulment, or revision, of sentences handed down by the lower courts. It also tries civil or criminal cases against the President of the Government, Ministers, Members of Parliament, etc.
26 Sentence, 94/1985, of 29 July 1985.
27 Sentence 130/1991, of 6 June 1991. For a more thorough analysis of this decision, see Martínez-Torrón, J, ‘Freedom of religion in the case law of the Spanish constitutional court’, (2001) Brigham Young University Law Review 721–722Google Scholar.
28 Article 27.10 of the Constitution states: ‘The autonomy of universities is recognized under the terms established by law.’ That law is the Organic Law of Universities, 21 December 2001. The autonomy of the universities includes, inter alia, the following: the drafting of internal statutes and, in the case of private universities, their own rules of organisation and operation, as well as other rules of internal regime; the election, appointment and removal of the relevant organs of government and representation; the creation of special structures acting as a support for research and teaching; the selection, training and promotion of teaching and research staff and administrative services, as well as determining the conditions under which they have to develop their activities; the issuance of official titles that are valid throughout the national territory and its own diplomas and degrees; the development, approval and management of their budgets, and administration of their property.
29 Superior Court of Justice of Andalusia, decision of 13 March 2003.
30 Superior Court of Justice of Andalusia, decision of 18 March 2005.
31 The Spanish Constitutional Court declared in a 1996 decision that the participation of the armed forces in a religious ceremony is consistent with the church-state separation principle. This case challenged an armed force parade in honor of the Virgin Mary who since 1810 was considered the Supreme General of the Army. From a religious neutrality perspective, the Constitutional Court said nothing about that honorific title granted by the military to Our Lady. See Constitutional Court decision 177/1996, November 11, 1996. For a critical analysis of this decision, see Martín, Isidoro, “Celebración por las Fuerzas Armadas de festividades religiosas y principio de laicidad”, La libertad religiosa y de conciencia ante la justicia constitucional: Actas del VIII Congreso Internacional de Derecho Eclesiástico del Estado, (Granada, 1998), p 657Google Scholar.
32 Article 37 of the Spanish Statute of Workers provides that this rest will encompass one and a half days and that, as a general rule, this will include the entire Sunday and Saturday afternoon or Monday morning.
33 Sentence 19/1985, 13 February 1985.
34 Article 46 of the Constitution reads: ‘The public authorities shall guarantee the preservation, and promote the enrichment, of the historical, cultural, and artistic heritage of the peoples of Spain and the property that makes them up, regardless of their legal status and their ownership. The penal law shall punish any offences against this heritage.’
35 See Navarro-Valls, R and Palomino, R, Estado y religion: textos para una reflexión crítica (Barcelona, 2000), p 10Google Scholar.
36 STC 154/2002, 18 July 2002.
37 Sentence 46/2001, 15 September 2001.
38 See US Supreme Court Justice Goldberg's dissenting opinion in School District of Abington v Schempp, 374 US 203, at 308.
