Religious Freedom and State Models: A Legal Perspective

Posted on Nov 29, 2024 in Law & Jurisprudence

Model Force

1. State Religion (Denominational)

1.1. Features

  • Recognition as an official state religion in laws or covenants
  • Protection of a particular religion by the state in law
  • Commitment to inspire law on religion

1.2. Distinction Between Models

  1. Theocratic State: The government is attributed directly to God, identifying policy and theology. There is no duality of powers.
  2. State that Maintains Relations with the Holy See
  3. Dictatorial Rule: There are democratic countries (e.g., England) that are denominational.
  4. Clerical State: Clerics hold political office or are placed in the service of politics and religious interests.
  5. Non-Governing Religious Freedom: England, being religious, you’re free (religiously).

1.3. Types of Denominational

  1. Depending on the Attitude of the State Before the Official Religion:
    • Denominational Substantial or Sociological: State law is inspired by a religion, not by mandatory law, but because society endorses concrete religious values.
    • Formal Denominational: Solemn declaration by the state of a particular religion as the official state religion, King or Nation.
    • Denominational Theological: The State issues value judgments about the veracity or authenticity of the religion.
  2. Given the Separation of Powers:
    • Denominational Monist: It identifies the political and religious (Islamic and Protestant countries).
    • Denominational Dualistic: Independence of political power and religious (Catholic countries).
  3. The Degree of Tolerance:
    • Denominational Tolerant: Towards other religions.
    • Denominational Bigoted or Intolerant: Of other faiths.

2. Secular State (Secularism)

  • No recognition of an official state religion in laws or covenants
  • No protection of a particular religion by the state in law
  • No commitment to inspiring the legislation in that religion

Classes of Secularism

  1. Positive Secularism: Term first used by the STC 15/2/2001 (FJ 4th). The state is neutral, with no separation of church and state and possibly state cooperation with religious confessions. Hence the term State cooperation (Spanish Constitution of 1978).
  2. Secularism: Hostile attitude towards religion in general or to the Churches in particular (Second Spanish Republic).

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Art 1

The State guarantees the fundamental right to religious freedom and worship recognized in the Constitution, provided in accordance with this Organic Law. Religious beliefs do not constitute grounds for discrimination. Religious motives may not impede anyone from exercising any work or activity or from performing public duties or functions. The State will not have a confessional nature.

Art 2

The right to religious freedom guaranteed by the Constitution includes the right of everyone to:

  1. Profess religious beliefs of their choice or none, change or abandon their confession, freely manifest their own religious beliefs or lack thereof, or refrain from testifying about them.
  2. Perform acts of worship and receive religious assistance of their own confession; celebrate their festivities and marriage rites; receive proper burial, without discrimination on religious grounds, and not be obligated to perform acts of worship or religious assistance contrary to their personal convictions.
  3. Receive and impart religious education and information of all kinds, either orally, in writing, or by any other procedure, and to choose for themselves, and for unemancipated minors and disabled individuals under their authority, both within and outside schools, religious education and moral guidance in accordance with their own convictions.
  4. Meet or assemble for religious purposes and public partnership to develop religious activities in community in accordance with general law and this Act.

Art 2.2 LOLR designates “Churches, denominations, and religious communities” as its immediate titular. This summary of the Act is not exhaustive, so jurisprudence and doctrine provide more specific details regarding the fundamental right to religious freedom.

Art 3

Limits the rights of others and public order. Public order is difficult to define precisely. The core of public order protects the individual and the free and lawful exercise of personal rights. The legitimate exercise of one’s rights involves respecting the rights of others. Thus, the public sphere appears as the legitimate exercise of freedoms, requiring a balance between individual freedom and the freedom and security of all, encompassing both individual and community well-being.

Art 4

Rights will be safeguarded through judicial protection before ordinary courts and constitutional protection against the Constitutional Court as established by its Organic Law.

Art 5

Religious entities must be registered in the public registry referred to in Art. 5.2 LOLR 5.1, which establishes certain requirements for registration. Registration involves the possibility of special treatment as religious bodies under Spanish law for security and legal certainty.

Art 6

Registered churches, denominations, and religious communities will have full autonomy, including the ability to establish their own internal organization, rules, and regulations.

Art 7

Registration allows for cooperation agreements with the State and special legal status, provided they have achieved “remarkable rootedness” in Spain, approved by the Cortes Generales.

Art 8

The Ministry of Justice will have an Advisory Commission on Religious Freedom composed of representatives of the State Administration, Churches, religious denominations or communities, and persons of recognized standing, whose advice is considered relevant in matters related to this Law.

Ecclesiastical law is the sector of state management that regulates the legal aspects of the religious phenomenon as manifested in civil law. It studies the relations between citizens and the state with religious groups.

Is it public or private law? It’s interdisciplinary, encompassing constitutional, international, financial, administrative, and civil law. It has scientific autonomy due to its principles, subject matter, and primarily bilateral sources, giving it a specific purpose.