DEVELOPING JURISPRUDENCE OF THE RIGHT TO THE FREEDOM RELIGIOUS IN SPAIN
After what might be called, for some developments for other limitations by the LOLR, the collected right to religious freedom in our constitutional text is again modulated in its content through the jurisprudential application of the same, i.e., through the process of realization of law carried out by judges and courts to adapt it to a specific case. Through jurisprudential analysis will try to establish what is the set of obligations or must (if any) imposed on the public authorities to ensure the exercise of the right to religious freedom to citizens.
Pair some authors, it first protection from them powers public to this right to the freedom religious would be encompassed within the obligation general of such powers of contribute to the well comun1, i.e., is would be of a protection general theoretically applicable to any right, although in it practice, to the treat is of a concept legal indeterminate, nothing would bring at the time of ensure it freedom religious since theoretically , not be a performance of them powers public that not pursue the well common-nothing more far from the reality as is can check in our times-.
To part of this principle fundamental of contribution to the well common, the right to the freedom religious revolves around the principle of neutrality of them powers public with regard to the phenomenon religious. Said principle, that it is collected in the art. 16.3 CE when establishes that "no confession will have character State" has been declared by the TC as a prohibition to them powers public of erect values or interests religious as parameters for half the legitimacy or justice of rules and acts public, with all this is is of prohibiting any type of interference between functions religious and functions estatales2, i.e. , the right to the freedom religious covers the right of the citizens to act with full immunity of coercion of the State and of any group social, so the State is has of ban to if same any concurrency, next to them citizens, in quality of subject of acts or attitudes of sign religioso3.
This principle of neutrality also means that courts have found practicable criteria allowing to reconcile the requirements of the freedom of religion with the protection of fundamentales4 rights in the case.
Another manifestation very important of the neutrality it found at the time of apply the regulations relative to the registration of entities religious. The registration of an entity religious in this record not only recognizes his personality legal as such group religious, but also you gives a "status" that is manifest in its full autonomy at the time of create their institutions religious. However the articulation of this record not enables to the State to exercise an activity of control of the legitimacy of them beliefs religious of them entities religious, but so only the of check that the entity applicant not is an of them excluded in the art. 3.2 LOLR and that the activities or behaviors that is practice not attempt to the right of them others to the exercise of their freedoms and rights, or are contrary to the order public; in other words, it Administration not should arrogate is the function of judge the component religious of them entities applicants of access to the record, but must limit is to note that, attending to their statutes, objectives and purposes not are entities excluded by the art. 3.2 LOLR5.
We find the second great guarantee of the right to freedom of religion on the principle of cooperation regulated in the final paragraph of art. 16.3 LOLR. In this article it is introducing an idea of sectarianism or secularism positive that-in theory-vedaría any confusion between functions religious or estatales6. This precept is interpreted by the TC as an order to them powers public of keep "them consequent relations of cooperation with the Church Catholic and the other confessions"; put another way, the constitutional text obliges the public authorities to take into account the religious beliefs of the society espanola7.
Despite being formally a guarantee religious freedom, in practice this principle of cooperation creates real discrimination between the various religious confessions, breaking this fully conclusive definition of the principle of equality contained in article 14 CE, from the moment at which certain confessions religious enjoy of a frame statutory privileged to which have accessed through agreements with the State Spanish, agreements to which not have could access the rest of confessions religiosas8. All this leads to is can differentiate 4 kinds of confessions religious that enjoy of different privileges:
Religion Catholic: it only that appears collected expressly in the CE and that not need be registered in the register of entities religious and that regulates their relations with the State Spanish through them agreements with the Holy headquarters. To the treat is the Vatican as a State independent, these agreements are of the character of treated international and with this of the protection special of the art. 10.2 CE.
Religions Evangelical, Jewish and Muslim: that regulate their relations through the agreements of 19929.
Religions registered in the registration national of entities religious.
Religions not registered in the register national of entities religious.
In principle, the only limit that is established both constitutional as legally to the exercise of the freedom religious is the limit of the order public. He TC has established that this concept of "order public" not can be interpreted in the sense of clause open or preventive facing eventual or possible risks based in mere signs, since in such case, the Administration is would make in the greater hazard certain for the exercise of this right.
Constitutional jurisprudence has set a rule that can only you can limit the right to religious freedom when it has credited in judicial, i.e., by final judgment, the existence of a certain danger to the "safety, health or public morals"; in this same sense is has pronounced the ECHR when establishes that the right to the exercise of it freedom religious without be subject to discrimination is transgresses when, without justification objective and reasonable, them powers public not apply a try different to people whose situations are significantly different, as in the case of the manifestation external of symbols religious. However, despite these sentences of the TC and of the ECHR, our ordering legal in different alleged on manifestations religious external of symbols religious, as is the case of the veil Islamic in centers of teaching public has attributed to them tips school the competition to decide on the presence of such symbols in centers public, that will be therefore them responsible of ensure by an activity school warrantor of the principle of neutrality ideological and of respect to them options religious of the students and of their parents. Such competition could consider is unconstitutional since is is giving a power to to limit the exercise to a right fundamental, violating is with this it established in the CE that establishes that them rights fundamental only may be developed-in some cases limited-through law organic.
For to deny is the registration of an entity religious in the record, both from the Administration as in headquarters judicial, is necessary that is available of data concrete and contrasting in which support the use of this clause of the order public.
This concept legal indeterminate of order public, as already have had occasion of check in our history, can get to empty of content the right to the freedom religious, and can get to legitimize is through this concept any arbitrariness from them powers public. However, this undeniable risk can be dimmed, or even cancelled, if equip to this limit of the order public of the content of be a mere translation of the values consecrated in the constitucion10.
Trend towards the recognition of a religion dominant that seeks to obtain the approval official and the support of the Government as religion official of the State, in this case can talk of the Church Catholic as the religion of the State.
Trend to see the rest of religions as an activity tolerated and not as a right human fundamental, the trend current is the of consider them activities religious, except them from the confession majority, as something tolerable by the State.
1MARIA EUGENCIA PÉREZ MONTERO.
2If well not always is manages to avoid such interference as puts of manifesto the sentence of 23 of April of 2002 of the TSJ of Andalusia confirming entirely the pronouncement of instance, in which is arrives to consider as "logical" it not renewal in your since of work of a Professor of religion Catholic by the lack of proposed of the bishopric of Almeria of such to the have collapsed this marriage by it form civil , since with this, maintains the Court, this teacher is was away of the doctrine Catholic, with what would lose all confidence from the bishopric to impart classes of religion. Finally, the TC in the STC 51 / 2011, of 14 of April, sets that it decision of it Professor of marry is of form civil is an option that is within its sphere of it privacy personal and family, and therefore the motivation religious of the decision of the bishopric of not propose it as Professor of religion by have collapsed marriage civil not justifies if single it fitness sudden of it Professor for impart teaching Catholic.
3STC 24, 1982
4STC 38 / 2007
6STC 177 / 96
10Alejandro Torres Gutierrez