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Religious freedom

Although stipulating, according to the constitutional articles dating from 1821 (the year Inquisition was abolished), that no one could be criminally charged by harbouring some faith that was not Roman Catholic, no individual could state it publicly, nor could proselyte or practice rites and/or public ceremonies (see article 130th of the Criminal Code, "Of the crimes committed against the kingdom’s religion, and of the ones committed by abuse of religious functions", Decree of September 16th, 1886). During the nineteenth-century, individuals were not supposed to change their religion. To be born in Portugal, given the idea of national identity, automatically meant to be Roman Catholic, something that had to be kept throughout the life of the individual. It is in this mentality context that one should understand what was consigned in the 1822 Constitution, where the State made a promise to persecute and punish all the ennemies of the Roman Catholic faith (article 10). Nowadays, this is the most important dimension of the religious search of many citizens, who, along several phases in their lives, decide to change their religious confessions, most admitting the natural syncretism of their posture.

The Roman Catholic Church has enjoyed the status of a recognized and accepted juridical personality in the Constitution, as if it were part of the very essence of the nation. In 1940, a concordat between the Portuguese State and the Holy See was signed, and later, in 1971, the Constitution was deeply reformulated. The 4/71 bylaw significantly clarified the religious question, securing in full some of the freedoms, but always referring to Roman Catholicism as the religion.

The post-revolutionary Constitution of 1976 presents in a simple form the nature of the relations between the State and the possible religious confessions. In its part I: "Fundamental Rights and Duties", Title I: "General Principles", article 13 (Equality Principle), point 2, the question is stated cristal clear: No one can be privileged, benefited, armed, deprived of any right, or dispensed of any duty due to reasons of lineage, sex, race, language, territory of birth, religion, political or ideological convictions, level of education, economical situation or social condition.

It its article 41 (Freedom of religion, consciousness, and cult), the law covers, inclusively in its objectives and applications, all religions, without leaving any trace of the aforementioned traditional religion. Significantly, because of images of the times, and of the complexity of the past management of religious confessions - be they Roman Catholic or else - the result nowadays is the near disappearance of the religious institutions. The top priorities of the Constitution are the individuality of each believer, and the corresponding question of consciousness. Let us examine the constitutional text:

1. Freedom of consciousness, religion and cult are inviolable.
2. No one can be persecuted, deprived of his/her rights or dispensed from obligations and civic duties due to his/her convictions or religious practices.
3. Churches and religious communities are separated from the State, and are free in their internal form of organization, and in the exercise of its functions and related cults.
4. Freedom is given to teach any religion, if practiced in the bounds of each confession, as well as the utilization of means of social communication adequate towards the pursuance of its activities.
5. It is recognized the right to be a conscious objector, requiring such objectors to be bound to serve in the non-armed sections of the military service, for a duration identical to the compulsory military service.

Freedom of religion is relatively well expressed, right since the First Republic — even before it was possible, without being considered a crime, to profess another religion, although with some limitation concerning its public display, as can be confirmed even today given the fact that the Lisbon synagogue, built in 1904, could not have a façade facing the street in order not to offend the eyes of Roman Catholics.

In fact, at the time of the 1974 Revolution, no effective need for a Law on Religious Freedom was found. Furthermore, the Republican Constitution, after 48 years of a regime that assumed one religion as the natural (in practice as the official) religion of State, still consigned clearly the religious freedom and inviolability of the individual as far as faith was concerned. This may justify the reason why a written and approved Law for Religious Freedom was issued only in 2001.

See also: CANAS Vitalino, "State and Church in Portugal", in ROBBERS Gerhard (ed.), State and Church in the European Union, Third ed., Baden-Baden, Nomos, 2019, p. 483-510.

D 28 September 2012    AJosé Carlos Calazans ALuís Seabra Melancia APaulo Jorge Soares Mendes Pinto

CNRS Unistra Dres Gsrl

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