Perspectives on Religious Freedom in Spain
Paz, Jose Antonio Souto, Brigham Young University Law Review
Given that the theme of this symposium is "Emerging Perspectives on Religion and Human Rights," Spain's experience may be of particular interest, for it involves the transition from a secularly confessional political system to one that promotes religious freedom and cooperation between the state and all religious faiths. Spain's political transition has, however, been more than a simple shift from an authoritarian regime to a democratic one. To this fact-itself transcendent-one must add the task of reconciling a nation torn by a civil war that ultimately concluded with the imposition of an authoritarian regime in place of a democratic system. These historical underpinnings have affected the decisions of those politicians (both government and opposition) responsible for the transition and have profoundly affected Spanish society as a whole. This political sensitivity caused by Spain's historical experiences became intensified during the drafting of the Constitution of 1978, when legislators attempted to look to the past without hatred, while simultaneously striving to avoid past errors.
In Spain's recent history, religion has faced two clearly distinct political environments: a) a situation of crisis stemming from Republican policies during the Second Republic (1931-1936), which ultimately resulted in the so-called "religion question" ("cuestion religiosa"); and b) an authoritarian regime characterized by religious support, with the Catholic Church regaining its traditional privileges and the state resuming its former position as a Catholic state.1
With this historical background in mind, the constitutional delegates responsible for drafting Spain's present Constitution, the Constitution of 1978, were forced to navigate between two seemingly irreconcilable positions. The delegates felt the urgency to offer a solution acceptable to all parties, sharing the general consensus that dominated the period preceding the adoption of the Constitution.2
It can be stated unequivocally that Spain has satisfactorily overcome the religion question faced by the constitutional delegates. To the delegates' credit, the juridical regime established by the Constitution of 1978 and subsequent legislation has provided a positive framework for the development of religious freedom and church-- state relations in Spain. In particular, Spain has permitted the protection of individual and collective religious freedoms while fostering positive, cooperative relationships between the state and the various religious groups.
II. HISTORICAL ANTECEDENTS: CHURCH-STATE RELATIONS AND THE RELIGION QUESTION PRIOR TO 1978
A. Freedom of Religion Through the Second Republic: 1812-1939
The aforementioned religion question emerged during the Second Republic as a result of pre-constitutional actions taken by the provisional government as a means of secularizing the state.3 The reactions of ecclesiastical leaders and those political officials and members of the media who supported them created an atmosphere of tension and hostility that increased following the burning of churches and convents by anticlerical groups.4
In this milieu, Republican religious policy manifested itself in the Constitution of 1931 in three fundamental aspects: 1) the separation of church and state;5 2) the recognition of religious freedom;6 and 3) the subjection of religious faiths to special laws.7 These measures presupposed a fundamental change in the status of the Catholic Church and, at the same time, an opening for non-Catholic denominations. Though novel for Spain, such measures had already been adopted in the First Amendment to the U.S. Constitution in 1789,8 the French Declaration of Rights of Man and of the Citizen in 1789,9 and the French Law of 1905 concerning the separation of church and state.10
To understand this situation, the primary question to be answered is, "What were the causes of the disagreement between Republicans and Catholics? …