Academic journal article Brigham Young University Law Review

Freedom of Religion in the Case Law of the Spanish Constitutional Court

Academic journal article Brigham Young University Law Review

Freedom of Religion in the Case Law of the Spanish Constitutional Court

Article excerpt


This article briefly examines the case law of the Spanish Constitutional Court in the field of freedom of religion with respect to the legal status of churches and religious groups as well as the protection of individual freedom of conscience. Due to the limited space available, this study focuses only on the Court's most significant decisions.1

My goal is to provide an overview of the main issues concerning religious liberty that have come to the jurisdiction of the Spanish Constitutional Court and analyze the way in which the Court has applied constitutional principles. This analysis will reveal some deficiencies that can be-and must be-corrected, especially with regard to the individual aspects of freedom of conscience. As we will see, on the whole, the Court's approach to these issues does not differ much from the one taken by the European Court of Human Rights, which acts as a sort of Constitutional Court, interpreting the freedoms included in the European Convention on Human Rights of 1950.

Part II of this article describes briefly the historical antecedents of the current Spanish constitutional treatment of religious freedom. Part III outlines the fundamental principles that undergird Spanish law regarding religious issues, i.e., the "ecclesiastical law of the State."2 Part IV subsequently examines the Court's case law regarding the basic legal position of churches, including the Catholic Church, non-Catholic churches, and new religious movements. Part IV focuses on the manner in which the Court's decisions affect the protection of the individual's freedom of conscience. Finally, Part V provides several conclusory observations.

As an introductory remark, it may be useful to note that the Spanish Constitutional Court's structure and function is very different from the U.S. Supreme Court. Indeed, the Spanish Court most closely resembles the German and Italian Constitutional Courts, which served as models and sources of guidance for the Spanish Court.3

In Spain, the Constitutional Court is the only court entitled to declare a law unconstitutional.4 The Court can do this by deciding a motion of unconstitutionality (recurso de inconstitucionalidad) or a question of unconstitutionality (cuestion de inconstitucionalidad). The former involves an examination of the constitutionality of a statute in abstracto, i.e., independently from its application to a particular case, and can be filed by the government, the Spanish Ombudsman (Defensor del Pueblo), fifty congressmen or senators, and some collegial bodies of Spain's autonomous regional communities. The latter can be submitted by any Spanish court that considers that a statute applicable to a particular controversy may be unconstitutional. An ordinary court cannot itself declare a statute unconstitutional, but can propose its opinion on the issue in the form of a "question" and ask the Constitutional Court to decide the issue.

In addition, the Constitutional Court decides motions of protection (recursos de amparo), i.e., petitions filed by individual or legal persons that believe that their constitutional rights and freedoms have been violated. Aggrieved parties may file such petitions after having exhausted the judicial remedies available before the ordinary courts. The majority of Constitutional Court decisions resolve recursos de amparo. This is true also with regard to the general issue of religious freedom, although some interesting issues on religion have been decided through the other two channels.

Finally, those readers who belong to common law systems should bear in mind that case law is only a part of the law-and not the most important part-in a civil law system like Spain. This fact applies to the case law of the Constitutional Court as well, notwithstanding the Court's significance as the supreme oracle of the Spanish Constitution. Church-state relations and religious freedom are matters that are strongly regulated by statutory law and by-laws, as well as by formal agreements between the state and the most influential religious communities. …

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