Academic journal article Brigham Young University Law Review

Relations with Religious Minorities: The Spanish Model

Academic journal article Brigham Young University Law Review

Relations with Religious Minorities: The Spanish Model

Article excerpt

Alberto de la He

Article 16 of the Spanish Constitution of 1978 obliges the public authorities to take "into account the religious beliefs of Spanish society" and "to maintain appropriate cooperation with the Catholic Church and the other denominations."1 The text of the aforementioned Article 16 emphasizes the constitutional importance given to the question of the different denominations and their presence in public life by the new Spanish legal system; the religious beliefs of the Spanish people are considered to be of such importance that the Constitution expressly takes them into consideration.2 From this point of view, the new legislation is, in and of itself, an important and well-known innovation change from the previous situation, in which the denominations were regulated by the Law of Religious Freedom of June 28, 1967.3 This law was an innovation because the previous constitution existing during Franco's regime, known as the "Fundamental Laws," did not take directly into consideration the non-Catholic denominations, leaving them instead to be dealt with by the Law of Religious Freedom mentioned above.4

The 1978 constitution, however, establishes the obligations of the State towards the denominations with which it must maintain relations of cooperation,5 and the new General Act on Religious Liberty (LOLR) of July 5, 19806 sets out, in Article 7.1, that such cooperation should normally be through agreements between the State and the denominations:7 "Taking into account the religious beliefs existing in Spanish society [the State] shall establish Cooperation Agreements or Conventions with the Churches, Denominations, and Religious Communities enrolled in the Registry where warranted by being deeply rooted in Spain due to presence and number of followers."8

A number of problems, recognized by experts on the subject, become apparent upon reading the mentioned texts.9 For example, exactly what should the cooperation stipulated in Article 16.3 of the Constitution consist of? Though the law does not define the content or goals of such cooperation, it pre-supposes that either the State and the denominations have common objectives or, if only the denominations have objectives, then the objectives must be of an obvious public interest. Another of these problems is that of determining which of the non-Catholic denominations can aspire to signing an agreement with the State.10

We should bear in mind that these two questions are related to each other. The fact that the LOLR places restrictions on some denominations (using very general terms like Churches, Denominations and Religious Communities") in terms of the possibility of their signing agreements with the State could be interpreted to mean that the State considers that only certain religious groups serve the public interest. However, according to Article 7.1 of the LOLR, the determination of the characteristics of the groups which may sign such agreements is based on other criteria. They must meet two conditions: that of being "inscribed"2 in the special Registry;" and that of "having deep roots in Spain," as a result of "their presence and number of followers."13

It is obvious that these two requirements, which must be complied with if a denomination is to sign an agreement with the State, are of an entirely different nature. The first, inscription in a special Registry, is, a priori, a question of form,14 while the second is based on social facts. And neither of them is a consequence of the other. After all, we might suppose the existence of a well-known, deeply rooted denomination with a large number of members in Spain that has not inscribed its organization in the Registry. Or there might be denominations inscribed in the special Registry that have few members and are neither well-known nor deeply rooted in the country. Consequently, the possibility of confessions signing agreements with the State depends on complying with two legal requirements which are completely independent of each other: in one case the will of the denomination that applies for the inscription concurs with that of the State that accepts it, while in the other case, we see the concurrence of a sociological fact, totally unrelated to the will of either of the parties, with the will of the State that evaluates it. …

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