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

By Martinez-Torron, Javier | Brigham Young University Law Review, January 1, 2001 | Go to article overview

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


Martinez-Torron, Javier, Brigham Young University Law Review


I. INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.