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General overview

Legal relations between the Church and State

Today, the legal relations between Churches and State in Spain rely on three major principles that were set out in the Constitution of 27 December 1978.
The first is the religious neutrality (...)

Today, the legal relations between Churches and State in Spain rely on three major principles that were set out in the Constitution of 27 December 1978.

The first is the religious neutrality (aconfesionalidad) of the State: Spain has no official religion.

The second is religious freedom, set forth in article 16, paragraphs 1 and 2 of the constitution:
1. Freedom of ideology, religion and worship of individuals and communities is guaranteed, with no other restriction on their expression as may be necessary to maintain public order as protected by law.
2. Nobody may be compelled to make statements regarding his religion, beliefs or ideologies.
The third principle is the possibility of cooperation between the State, Churches, religions and religious communities, which is equivalent to an official recognition of religion and can therefore not be assimilated with a separatist logic. This principle is set out in article 16, paragraph 3 of the Constitution:
3. There shall be no State religion. The public authorities shall take the religious beliefs of Spanish society into account and shall in consequence maintain appropriate co-operation with the Catholic Church and the other confessions.

The third principle is equality among every Spanish citizen, regardless of his/her religious affiliation.

Voir IBÁN Iván C., "State and Church in Spain", in ROBBERS Gerhard (ed.), State and Church in the European Union, Third ed., Baden-Baden, Nomos, 2019, p. 195-212.

D 13 September 2012    AClaude Proeschel

Normative developments and agreements

Article 16 was subjected to a capital normative development, in the form of the Law on Religious Freedom of 5 July 1980 (Ley Orgánica 7/80 del 5 de julio de 1980 de Libertad Religiosa). The LOLR (...)

Article 16 was subjected to a capital normative development, in the form of the Law on Religious Freedom of 5 July 1980 (Ley Orgánica 7/80 del 5 de julio de 1980 de Libertad Religiosa). The LOLR sets out in articles 5 and 6 that Churches, religions and religious communities would have juridical personality once they were registered in the Register of the Ministry of Justice. For the beneficiaries registration would imply full independence and the possibility of establishing their own standards of organisation, internal regime and a personnel regime.
Furthermore, article 7 of the LOLR specifies the conventions and conditions provided for in article 16-3.
The State, by taking into account the religious beliefs that already exist in Spanish society, will establish, if the need arises, agreements or agreements of cooperation with the Churches, religions and religious communities registered in the Register which, thanks to their context and number of followers can claim notorious presence (notorio arraigo) in Spain. In any case, these agreements were approved by a law of the Cortes Generales.
These conditions only apply to the three main minority religions, Judaism, Protestantism and Islam. Only these religions were able to benefit from the agreements signed in 1992, after both necessary conditions outlined by law had been met: the constitution of a unified representative against the State and the acknowledgement of notorio arraigo.
The main provisions of these agreements reinforce the effective freedom of religion by legalising the observance of a religious day of rest, and by providing the possibility of alternative dates in State and private education centres and for competitive entrance examinations for employment in public administration. They also grant a freedom to exercise religion in the army and permit the creation of chaplaincies in hospitals and prisons. It is these agreements that govern the religious teaching establishments and religion courses in State schools. Furthermore, they grant civil recognition to religious marriages.
To date, the following religious minorities benefit from the recognition of their notorious presence (notorio arraigo) by the Advisory Committee on Religious Freedom of the Spanish Ministry of Justice, a necessary step, but not sufficient to consider a cooperation agreement with the State:
• Protestants (1984)
• Muslims (1989)
• Jews (1984)
• Mormons (2003)
• Jehova’s Witnesses (2006)
• Budists (2007)
• Orthodox Church (2010)

D 13 September 2012    AClaude Proeschel AJulia Martínez-Ariño

The case of the Catholic Church

For the Catholic Church, Church-State relations are governed, aside from the Constitution and the LOLR, by the agreements concluded with the Vatican between 1976 and 1979. Their main goals are to (...)

For the Catholic Church, Church-State relations are governed, aside from the Constitution and the LOLR, by the agreements concluded with the Vatican between 1976 and 1979. Their main goals are to ensure that relations between the Holy See and Spain are in line with the tendencies of Vatican II and that they meet the desire for more independence and mutual freedom and initiate a new model of relations in Spain.
The Catholic Church enjoys extensive organisational freedom. Nominating bishops falls within the exclusive competence of the Holy See. The competence of Church courts is exclusive for crimes that only violate ecclesiastical law in accordance with canon law and such sentences cannot be appealed before the civil authorities. The agreement permits, even more explicitly, the Church to organise itself freely. This means it can modify the dioceses, put an end to or set up religious orders. It also authorises, among other things, the complete promulgation of the Holy See’s opinions and any communication with it. This is quite far from the Concordat system of 1953 and more generally from any form of Gallicansim, just like Regalism which left its mark on Spain’s history.

D 13 September 2012    AClaude Proeschel

A three-party situation

To summarize, Church-State relations in Spain resulted in a veritable three-party situation involving: the Catholic Church, with whom relations are governed by an international treaty and whose (...)

To summarize, Church-State relations in Spain resulted in a veritable three-party situation involving:

- the Catholic Church, with whom relations are governed by an international treaty and whose presence is much more obvious in daily life;
- the three religions with which the State signed agreements of cooperation;
- the other religions, that are governed by the common law of associations.

Two major problems stand out.
On one hand, are the restrictions set out in article 7 of the LOLR on signing agreements legitimate? The increasing number of groups brought about by the granting of religious freedom certainly made it necessary to set up conditions on what groups would have access to this regime. But are they impartial? Of course they are of a sociological nature and are not referred, in the form of the agreements being considered, to the content of the religions. The analysis of the parliamentary debates shows that the phrase "cooperation while taking into account the specific characteristics of each denomination" has been eliminated from the text. On the other hand, however, it seems arbitrary to let the State decide which religions are well established. Certain groups, which have only been established for a short time due to the recent nature of religious freedom, are unable to meet the criteria of numbers or notorious presence. The main minority religions could also be faced with the first problem, their roots in Spanish history, however, are unquestionable.
This situation is very far from that of the Catholic Church, whose cooperation is institutionalised and enjoys other pre or para-constitutional advantages. The agreements made with the Vatican in 1976 and 1979 are international treaties that were made prior to the LOLR. In their development, a joint commission between the Catholic Church and the State was created while the other religions were subject to a different regime. Article 8 of the LOLR outlines the creation of a commission that would decide for them.
Lastly, only the Catholic Church completely benefits from the financial advantages set forth by the agreements of cooperation. However, this situation is not a result of discrimination on the part of the State. Indeed, it was those who signed the conventions uniting it with the three main religious minorities that refused to benefit from the religion tax, a portion of income tax that can be paid back to Churches at the request of the taxpayer in order to help maintain their independence. It currently represents 0.5% of the total income tax collection. The taxpayer decides whether their contribution goes to the Catholic Church or to general interest social welfare works.

D 13 September 2012    AClaude Proeschel

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